Ojibwe Land Tenure and Acquisition at Grand Portage and Leech Lake

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Tracking the Land: Ojibwe Land Tenure and Acquisition at Grand Portage and Leech Lake

Item Type text; Electronic Dissertation

Authors Carpenter, Leah J.

Publisher The University of Arizona.

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Link to Item http://hdl.handle.net/10150/195391

TRACKING THE LAND: OJIBWE LAND TENURE AND ACQUISITION AT GRAND PORTAGE AND LEECH LAKE

Leah J. Carpenter

A Dissertation Submitted to the Faculty of the

GRADUATE INTERDISCIPLIN ARY PROGRAM IN AMERICAN INDIAN STUDIES

In Partial Fulfillment of the Requirements For the Degree of

DOCTOR OF PHILOSOPHY

In the Graduate College

THE UNIVERSITY OF ARIZONA

2008

THE UNIVERSITY OF ARIZONA GRADUATE COLLEGE

As members of the Dissertation Committee, we certify that we have read the dissertation prepared by Leah J. Carpenter entitled “Tracking the Land: Ojibwe Land Tenure and Acquisition at Grand Portage and Leech Lake,” and recommend that it be accepted as fulfilling the dissertation requirement for the Degree of Doctor of Philosophy.

______Date: March 23, 2007 Eileen Luna-Firebaugh

______Date: March 23, 2007 K. Tsianina Lomawaima

______Date: March 23, 2007 Joseph Stauss

______Date: March 23, 2007 Robert Williams, Jr.

Final approval and acceptance of this dissertation is contingent upon the candidate’s submission of the final copies of the dissertation to the Graduate College. I hereby certify that I have read this dissertation prepared under my direction and recommend that it be accepted as fulfilling the dissertation requirement.

______Date: March 23, 2007 Dissertation Director: Nancy Parezo

STATEMENT BY AUTHOR

This dissertation has been submitted in partial fulfillment of requirements for an advanced degree at the University of Arizona and is deposited in the University Library to be made available to borrowers under rules of the Library.

Brief quotations from this dissertation are allowable without special permission, provided that accurate acknowledgment of source is made. Requests for permission for extended quotation from or reproduction of this manuscript in whole or in part may be granted by the copyright holder.

SIGNED: ______Leah J. Carpenter

ACKNOWLEDGEMENTS

This has been a long journey, and I am deeply grateful to many for their help, guidance, and support along the way in my efforts to complete this research project and dissertation.

Dr. Nancy Parezo has been on this journey with me from the beginning, with her valuable advice and encouragement, and enormous amount of patience. Dr. K. Tsianina Lomawaima provided me with keen insight, research tips, and instructive comments that were extremely helpful in completing this project. I express appreciation to Eileen Luna- Firebaugh, J.D., M.P.A., who has provided her practical legal perspective to this work, and to Dr. Joseph Stauss, who has been steadfast through this entire process and confident that the research project would reach completion. I would also like to acknowledge Robert Williams, Jr., whose scholarship and work have impacted Indian country in such a significant manner. The work of other American Indian scholars has greatly influenced and strengthened my work, also, and I express my deepest respect and appreciation to them for laying the scholarly foundation for this work.

I am also indebted to the Wenner Gren Foundation for Anthropological Research, for their generous support in funding my dissertation fieldwork. I am grateful for the additional financial support provided by the Ft. McDowell Wassaja Memorial Fund, and the University of Arizona’s Graduate and Professional Student Scholar Development Program and the Minority Graduate Student Final Project Fund, Graduate College.

In addition, I want to expressly acknowledge the leadership of the Leech Lake Band of Ojibwe and the Grand Portage Band of Lake Superior, and all their staff who helped with this project. In particular, I would like to thank Pauline Johnston, Annabelle Kingbird, Rich Robinson, John Ringle, Jeff Harper, Norman Deschampe, John Morrin, Kenneth Scherer, Lorraine Wipson, Gilbert Caribou, Dean Deschampe, David Grinstead, Bill Vogel, Curtis Gagnon, and Rick Novitsky for their contributions to this work. I also express appreciation to all of the staff of the National Archives in Kansas City, Chicago, and Washington, D.C., who assisted in my research endeavors.

Throughout my life and the course of my graduate work and this project, I have been blessed with enormous support from many friends and my family. I want to especially thank Dr. Virginia Carney for the inspiration to keep writing and for her tireless editing and attention to detail. Michiko Arima, Susan Butler, and Linda Goggleye have also contributed to this project, with their technical skills and patience with those who have little, and I am very grateful to them. I am also grateful to the members of the Leech Lake Tribal College Board of Trustees, who gave me clear and solid support to complete this project. In addition, I owe much to my dear friend, Dr. Holly Youngbear-Tibbetts, who encouraged me to take the leap and attend graduate school, and who is a firm believer in the native struggle to reclaim land.

I express my special thanks and gratitude to my children and granddaughter— Ken, Terra, and Kortni—for their love, support, and encouragement throughout this long journey. I am eternally grateful, also, to all my siblings— Penny, Suzanne, Laura, Connie, and Mike—who have picked me up and kept me going along the way. Finally, to all my ancestors, I hope that I make you proud. Mii gwetch.

TABLE OF CONTENTS

LIST OF MAPS ...... 8 LIST OF TABLES ...... 9 ABSTRACT ...... 10 PREFACE ...... 11 INTRODUCTION ...... 17 A PRECARIOUS TENURE CHAPTER ONE ...... 85 LITERATURE REVIEW: EXPLORING THE LANDSCAPE CHAPTER TWO ...... 130 THE FORMATIVE YEARS: A TIME OF TREMENDOUS TRAUMA CHAPTER THREE ...... 156 ALLOTMENT AND ASSIMILATION: POSSESSING LANDS THAT THE WHITE MAN WANTS CHAPTER FOUR ...... 200 THE ERA OF INDIAN REORGANIZATION: AN URGENT NEED FOR LANDS CHAPTER FIVE ...... 238 THE TERMINATION ERA: SOLD WITHOUT THEIR CONSENT CHAPTER SIX ...... 257 SELF-DETERMINATION: CONTROL THE LAND, CONTROL THE FUTURE CONCLUSION ...... 314 WE CANNOT AFFORD TO LOSE ANY GROUND APPENDICES ...... 336 APPENDIX A ...... 337 1855-1874: The Establishment of the Leech Lake Reservation APPENDIX B ...... 338 Map of the Leech Lake Reservation, showing the establishment of the Leech Lake Reservation APPENDIX C ...... 339 Executive Orders of October 29, 1873, November 4, 1873, and May 26, 1874 APPENDIX D ...... 340 Trust Patent issued to Wah zhow ush cogah bow, an Indian belonging on the Chippewa Reservation in Minnesota APPENDIX E ...... 341 Executive Order of March 21, 1917 APPENDIX F ...... 342 Map Showing Grand Portage islands transferred per 1917 Executive Order

APPENDIX G ...... 343 Minnesota Chippewa Tribe §2415 Land Claims Project Report on “The Minnesota Chippewa Reservations, Total Acreage for Active Claims, “February 4, 1982 APPENDIX H ...... 344 Elmer Nitzschke, Field Solicitor, letter of August 24, 1979, and Leo Krulitz, Solicitor, Memorandum of August 20, 1979 APPENDIX I ...... 348 Secretarial Proclamation regarding Grand Portage Indian Reservation; Proclaiming Certain Lands as part of the Grand Portage Indian Reservation, May 14, 1982 REFERENCES ...... 349

LIST OF MAPS

1. Minnesota Reservations …………………………………………………………58

2. Grand Portage Reservation …………. …………………………..……………..61

3. Consolidated Leech Lake Reservation Boundary …….……………………...…65

4. Leech Lake Reservoir Flowage ..………………………………………………162

5. Grand Portage Allotments…………………………………………………….. 173

6. Minnesota National Forest Boundary ………………………………………....186

7. Grand Portage Reservation Land Tenure Status, 1936 ………………………...222

8. Grand Portage Allotment Status, current ……………………………………....286

9. Current trust lands within the Leech Lake Reservation……..………….……...288

LIST OF TABLES

1. Table I-1 Aggregate National Indian Land Tenure Data………………………………………….51

2. Table 1-2 Dussias Framework of Analysis for Tribal Jurisdiction………………..…..100

3. Table 3-1 Allotments and Land Cessions within the Leech Lake Reservation …………….……176

4. Table 3-2 United States railroad rights-of-way granted through Minnesota Ojibwe Reservations, 1889-1896 ………………………………………………………………………..……180

5. Table 4-1 Allotments issued for Minnesota Chippewa Tribe and allotments remaining in trust, 1937 ……………………………………………………………….……………..……207

6. Table 4-2 Grand Portage Allotments remaining in trust status and allotments remaining in fractionated heirship status, 1936-1937 ……………………………………………….209

7. Table 4-3 Leech Lake Allotments remaining in trust status and allotments remaining in fractionated heirship status, 1936-1937 …………………………………………….….210

8. Table 4-4 Unentered Surplus Lands at Grand Portage Reservation, 1934 ………………..………212

9. Table 4-5 Unentered Surplus Lands at consolidated Leech Lake Reservation, 1934…………..…215

10. Table 4-6 1938 Tribal Land Restoration within the Minnesota Chippewa Tribe……………..…..217

11. Table 4-7 Acreage Recapitulation of Ojibwe Land Tenure History of Grand Portage and Leech Lake Reservations ………..…………………………………………..…………….….232

12. Table 5-1 Indian lands fee patented and Indian lands acquired during the Termination Era………………………………………………………………………………………245

13. Table 6-1 Leech Lake Band of Ojibwe Land Acquisition within Leech Lake Reservation, 1970- 2002……………………………………………………………………………………..292

ABSTRACT

This case study examines the land tenure histories of the Grand Portage and Leech Lake Bands of Ojibwe to determine how historical events inform their contemporary land acquisition strategies. The standardized federal Indian policy time periods frames this effort to track the amount of reservation land held in Ojibwe trust ownership over time while analyzing the local impact of those policies upon land tenure and acquisition. The Grand Portage and Leech Lake Bands are members of the confederated Minnesota Chippewa Tribe, and this Band-level unit of analysis illuminates variations in land tenure patterns and acquisition strategies experienced within a common tribal identity. The Grand Portage Band has been remarkably successful and over 80% of that territory is under Ojibwe trust ownership, while only 5% of the Leech Lake Reservation is in Ojibwe trust ownership.

The Grand Portage Band has utilized conventional and creative strategies for land acquisition. For example, the Band secured an expansion of their reservation boundary in 1982, and later acquired the Grand Portage State Park. The Leech Lake Band has experienced a harsher land tenure history as their reservation lands have been, and remain, a much more contested territory. The Chippewa National Forest was superimposed upon that reservation territory, which has effectively created a federal monopoly on land ownership and which serves as a major obstacle to effective land acquisition by the Leech Lake Band today. Other obstacles include bureaucratic inertia and state and local opposition.

The emergent tribal land acquisition strategies are land purchases, as well as the purchase of fractionated trust ownership interests, negotiations with local and state governments for land exchanges, the transfer of federal “surplus lands,” and pursuit of special legislation or executive orders. Furthermore, Indian land tenure and acquisition remains an important aspect of the contemporary federal trust responsibility, although weakened in practice. The federal trust responsibility must be revitalized in order to become an effective method for tribal land acquisition. The Indian land tenure reality today is that most tribes endure insufficient and inadequate tribal territories as a result of federal Indian policies, which has prompted many to prioritize land acquisition.

PREFACE

My interest in Indian land tenure began many years ago when I worked as a researcher for the Minnesota Chippewa Tribe’s §2415 Land Claims Project. After seeing first hand how the law could be used to expropriate land from Indian people, I was prompted to attend law school. Finding little justice in the legal system, I later chose to pursue graduate studies at the University of Arizona, turning to education in a hopeful gesture to participate in some meaningful form of social justice. The Land Claims Project touched me in a very personal way, precipitating my personal and scholarly passion on the subject of Indian land, which ultimately led me to this research project. As a young researcher, I was privileged to research the allotments of my grandparents, enrolled tribal members, in an effort to determine how their lands were taken from them.

My grandmother’s and my grandfather’s families were originally from the Mille

Lacs area. After the “great Hinckley fire” of 1894 burned through the area, my grandmother’s parents and my grandfather’s parents decided to move to the White Earth

Reservation. The government had created the White Earth Reservation to be the “last homeland” for the Ojibwe. It was the government’s plan to remove all of the Ojibwe people, who lived in small Bands throughout northern Minnesota, to the White Earth

Reservation. There, the Ojibwe people would take up allotments and become farmers and Christians. The families that moved to White Earth from Mille Lacs generally settled in the same area of the White Earth Reservation. My maternal grandmother and grandfather, and their parents, were all issued allotments, specified tracts of land, at

White Earth. As a young adult, I was fortunate to land a job with my Tribe, researching

the legal history of the allotments to determine if there were any land claims involving the allotted lands.

As researchers, we were permitted to research the allotments of our own families, and their land histories. In those files, I discovered my grandmother’s Ojibwe name and her date of birth. Grandma was never sure of her date of birth, and I discovered the reason why in those old records. I found that my grandmother’s date of birth had been changed in an attempt to create a legal illusion that she was of an adult age when she sold her allotment. During the course of the land claims investigation, it was legally determined that even the manufactured date of birth for my grandmother was not sufficient to establish her adulthood for purposes of selling her allotment. Therefore, the sale of my grandmother’s allotment constituted an illegal transaction, and ultimately, a land claim involving the title to my grandmother’s allotment. Congress became the final arbiter of the White Earth land claims, and passed the White Earth Reservation Land

Settlement Act of 1985 to legislatively resolve the White Earth land claims, extinguishing all claims to title by the Indian allottees or their heirs, and providing monetary compensation to them for their lost allotted lands.1

From the beginning, this research project has been an attempt to engage in “action

scholarship” within the discipline of American Indian Studies. Action scholarship is

responsive to the needs of a tribal community and assists in tribal efforts to protect their

indigenousness (culture, place, philosophy) and their sovereignty (history and law), the

1 White Earth Land Settlement Act of 1985. For additional reading on the White Earth Land Claims, see Holly Youngbear-Tibbetts’ “Without Due Process: The Alienation of Individual Trust Allotments of the White Earth Anishinaabeg,” American Indian Culture and Research Journal (1991): 93-138; see also, Melissa Meyer’s The White Earth Tragedy: Ethnicity and Dispossession at a Minnesota Anishinaabeg Reservation, 1889-1920, Lincoln: University of Nebraska Press (1994).

two fundamental concepts of American Indian Studies, according to Elizabeth Cook-

Lynn.2 Furthermore, action scholarship should prompt action and additional research

within the discipline. This research project was designed to fill in the blanks in the land

tenure history of the Grand Portage and Leech Lake Bands of Ojibwe, to determine how

it came to be that Leech Lake owns such a small portion of their beautiful reservation

territory, and Grand Portage owns significantly more. The project was also designed to

provide information to assist those two Bands in their land acquisition efforts and to meet

the opposition armed with information that provides a historical context for their current efforts to acquire lands within their reservation boundaries. I believe that the land tenure histories presented herein will be beneficial to the Grand Portage and Leech Lake Bands.

This study was also designed to demonstrate the cultural persistence of the Grand

Portage and Leech Lake Bands, who assert their persistence and tribal sovereignty with every parcel of land that is reclaimed back into Ojibwe ownership. Peter Sahlins discusses the concept of “national territory,” which he says owes much to modern political nationalism. Sahlins affirms the “idea of territorial sovereignty and the inviolability of political boundaries,” arguing that “[m]odern definitions of territorial sovereignty focus on political boundaries as the point at which a state’s territorial competence finds its ultimate expression.” Sahlins presents an interesting metaphor to describe the importance of land to nation-building and political sovereignty when he states that “territory is often described as the body of the national organism, and the

2 Elizabeth Cook-Lynn, “Who Stole Native American Studies?”, Wicazo Sa Review, Vol. 12:9-22:11 (1997).

language as its soul.”3 Tribal leaders across this country, and certainly at Grand Portage

and Leech Lake, understand that concept better than most and take affirmative action to

assert their territorial nationalism through their land acquisition efforts.

In considering the opposition to tribal land acquisition during this research

journey, I often remembered the words of a non-Indian woman who inquired about my

research project in 2000. A fellow Girl Scout mother, who was also pursuing her

graduate degree, asked one day about the topic of my dissertation. I responded that I was

looking at the question of what tribes were doing to get their land back. The other mother

hesitated for a moment, and looked rather incredulous when she said, “Well, the tribes

can have some of their land back, but you can’t have it all!” That statement seems to

embody the sentiment of the general American public, and it has also leaked into the

minds of Congressmen, judges, bureaucrats, and other decision-makers on issues of

Indian land tenure. That sentiment epitomizes the depth and breadth of

misunderstandings and misperceptions regarding tribal nations, cultures, societies, and

economies, about tribal land acquisition efforts, and about tribal sovereignty.

As President of Leech Lake Tribal College, I am a firm believer in education,

both for our tribal membership and also for our non-Indian neighbors and leaders. Let us

strive for an educated and informed public who will be prepared for an enlightened

discourse on Indian land tenure. As President of Leech Lake’s Tribal College, I am also

grateful for the Band’s purchase of land and donation to the College for a new campus,

for which a transfer into trust status is currently pending for that thirty-acre parcel. To use

3 Peter Sahlins. Boundaries: The Making of France and Spain in the Pyrenes, Berkeley: University of California Press (1989): 2-3.

a metaphor from Ojibwe scholar Basil Johnston, we have laid a blanket down upon

Mother Earth to provide a place for learning, for now and into the future.

With this case study, I have attempted to construct a more well-rounded land tenure history of two reservations, in order to illuminate contemporary tribal actions regarding land acquisition. To my knowledge, no previous study has been made of these land tenure histories. This body of work references the indigenous past of Grand Portage and Leech Lake and their efforts to reclaim land and to sustain sovereignty. This body of work also references the establishment of the Grand Portage and Leech Lake

Reservations, the federal policies designed to end tribal lifeways and to end the trust relationship, and the wholesale diminishment of the tribal land base at Grand Portage and

Leech Lake. This study also references the contemporary federal trust responsibility, and federal administration and management of Indian land, and their impact upon economic development, social and cultural systems and needs, and the ongoing legal issues surrounding Indian land tenure. In doing so, I have tapped the fields of anthropology, history, political science, law, geography, and literature.

In this interdisciplinary work, I have aspired to reach a community of American

Indian researchers and scholars and students who are also interested in Indian land tenure issues. For the scholar of American Indian Studies who is interested in Indian land tenure, much work remains. It is a challenge to produce a scholarly work that presents a solid intellectual foundation and theoretical framework, while also satisfying tribal standards of acceptance and accessibility. This research project was designed for easy accessibility to the people of the Grand Portage and Leech Lake Bands.

Research for this project has involved months of travel to the National Archives and trips to both Grand Portage and Leech Lake. I believe that this research project only touches the surface of the information available on this topic and the potential research that should be conducted. The research has proven difficult and challenging, due to the poor state of the records which provided, more often than not, inconsistent and ambiguous data throughout this project. When confronted with inconsistent or ambiguous data, I made my best judgment regarding the use of the data. I am sure that certain segments of my work will raise more questions than are answered. However, it is my hope that Tracking the Land: Ojibwe Land Tenure and Acquisition at Grand Portage and

Leech Lake makes a positive contribution to the scholarship and discourse on Indian land tenure.

INTRODUCTION

A PRECARIOUS TENURE

“The Indian has no certainty as to the permanent possession of the land he occupies and which he is urged to improve, for he knows not how long he may be permitted to enjoy it. Should it be a region of remarkable fertility, or in a country abounding in rich mineral ores, it may be wanted for the White man’s occupancy or use. The plea of “manifest destiny” is paramount and the Indian must give way.” United States Commissioner of Indian Affairs (1867)

The ownership, use and control over land are of critical importance to contemporary tribal nations in their efforts to build the capacity of their nation and to maximize their sovereignty and governmental authority. Historically, tribes have struggled with external forces for ownership and control of land in their efforts to protect

and defend their specific geographic territories. Those struggles remain as a present-day

Indigenous reality. The legacy of the alienation and expropriation of the tribal land base,

and the impact of the loss of ownership of the lands within reservation territories,

continues to impact tribal nations today. Within their aboriginal homelands, many tribes have an insufficient land base upon which to build their nations, develop their economies and generally provide for the needs of the tribal citizenry.

Historically, Indigenous struggles for their ancestral homelands were born out of the “acute world conditions of exile, displacement, diasporas, and inflamed borders,” according to Steven Feld and Keith Basso, and “Indigenous contestation over place is linked to local and global power relations.”1 Within the United States, American Indian

history is a compelling narrative of colonial expansion into this continent; it is a history

of war and slavery, disease and epidemics, economic, political, and social

marginalization, and the extreme expropriation of Indigenous land and property that is

similar to other Indigenous nations across the world. Colonization and territorial expansion are historical global realities as well as contemporary legacies. The contemporary Indigenous legacy of colonization is the destructive force effectuated upon

Indigenous people and their societies, cultures, languages, political institutions, and upon

Indigenous lands and territories.

In the United States, political and economic forces drove the expansionist needs of colonization, and American Indian land tenure history is marked by voracious property acquisition schemes. As was caustically observed by the Secretary of the Interior in

1868, American Indian land tenure is a “precarious tenure” in this country.2 American

hegemony, articulated in terms of “manifest destiny,” rested upon the common

assumption that the lands within Indian territory needed to be “redeem[ed] from the

incubus of the Indian title and vagrant occupancy.”3 Indian land was acquired when it

was essential to American development and commercial interests.4 As the Commissioner

of Indian Affairs remarked in 1861, “[w]hatever may be the theory, the government has

always demanded the removal of the Indians when their lands were required…by advancing settlements.”5 The precarious nature of Indian land tenure is reflected in the

stark reality that American Indian tribal nations owned, occupied, and controlled the

entire North American continent prior to the European invasion, yet today, tribal nations

own a mere 56 million acres of land in trust across the United States. American Indian

land tenure remains a precarious tenure, indeed.

Today, Indigenous communities across the world are engaged in active efforts to

retrieve ownership of their homelands, as they strive to reclaim a sufficient land base

upon which to survive as distinct peoples. Tribal sovereignty encompasses all aspects of a tribe’s political, social, economic, and cultural health, and a sufficient land base is required for economic, cultural, and political reasons. The lack of a territorial land base works to inhibit the exercise of tribal sovereignty. Fundamental to tribal land acquisition efforts today is the need to maintain a homeland for the cultural future of the tribe and the belief that strong tribal control of land is vital to tribal economic success.6 Jeanette

Wolfley, an American Indian lawyer, summed it up best:

A tribal land base or homeland is the sine qua non of sovereignty. Tribal

territories form the geographical limits of each tribe’s jurisdiction, support a

residing population, are the basis of the tribal economy, and provide an

irreplaceable forum for cultural vitality based on religious practices and cultural

traditions premised on the sacredness of the land.7

Tribal land tenure and acquisition are inextricably tied to a people’s well being

and to tribal sovereignty. According to the late Vine Deloria, Jr., tribal sovereignty has

grown into something more than merely a political concept, evolving into a more

encompassing concept that relates directly to “cultural and communal integrity” and

identity of a “distinct people, separate from others.”8 As articulated by the Chairman of

the Grand Portage Band of Ojibwe in 2004, Norman Deschampe, contemporary tribal

land acquisition efforts are designed to protect their designated reservation territories for

two primary reasons: 1) to protect the land and the cultural resources, and 2) to protect

the land for the children and ensure the survival of future generations.9

Deloria also explained that American Indian political sovereignty and land ownership became historically linked, and the sovereignty of Indian nations declined as their lands were sold or taken.10 Today, the judiciary has crafted a legal nexus between

the extent of tribal land ownership and the extent of tribal jurisdictional and sovereign

authority, which is the contemporary version of that historic link between sovereignty

and land tenure.

The Indian land tenure status of reservation territories continues to exist at the

crux of tribal relationships with federal and state governments, and with the general

public. Indian land tenure is “intricately connected to Indian people’s past and their

continued interactions with the dominant society.”11 As one historian recently summarized:

The strengthening of tribal authority, however, has produced

a strong white backlash in many areas….[W]hites who live

and hold property on reservations are equally upset by tribal

governments exercising authority over such matters as land use,

zoning, sanitation, recreation, hunting and fishing.12

The nature of those external relationships is evidenced by the ongoing jurisdictional disputes and litigation over tribal jurisdiction, often precipitated by the land

tenure phenomenon of a “checkerboard” reservation. A ”checkerboard” reservation is one

in which there is Indian and non-Indian ownership throughout a reservation, such that

tribal lands held in trust are geographically intermixed and scattered throughout the

reservation territory. Today, many tribes strive to ensure that their tribal land bases, their

reservation territories, are preserved in tribal ownership, while exercising jurisdiction over their territories and seeking to avoid regulatory interference from outside sovereigns, according to Stacey L. Leeds.13

The current status of Indian land tenure within reservation territories is a direct

consequence of prior federal Indian policy, which has created a land tenure environment

where tribal ability to provide sufficient community resources for the growth and well-

being of the tribal membership is severely hampered by insufficient land. Today, there are wide-ranging tribal needs for land, from the need to harvest the natural resources, to the need for cultural centers and schools, to the very practical need for housing. It is

necessary to increase Indigenous ownership of the lands within their reservation

territories in order to ensure tribal economic self-sufficiency, cultural continuity, and the

exercise of their maximum sovereign strength as tribal nations.

From the start, this study was intended to serve as “action research” within the

discipline of American Indian Studies. Action research is responsive to the needs of a

tribal community and contributes to tribal efforts “to defend indigenous nationhood in

America,” one of the objectives of the discipline, according to Elizabeth Cook-Lynn.14

Cook-Lynn has asserted that Native organizing ideologies and belief systems are the

basis for the discipline, and that there are two fundamental theoretical concepts to guide

research and scholarship within American Indian Studies:

1) indigenousness (culture, place, philosophy); and,

2) sovereignty (history and law).15

This study is based upon the recognition that American Indian societies and cultures are centered upon their specific geographic places, and that their cultures, their societies, their languages, and their cosmologies are all intricately affiliated with their relationship to their sacred geographies. This study of Indian land tenure and acquisition, which explores the Indian land tenure history in two tribal case studies and their contemporary efforts to reclaim land, addresses both theoretical concepts of

Indigenousness and sovereignty and will contribute to the growing scholarship within

American Indian Studies.

According to prevailing international standards and domestic policy, Indigenous communities have an international right to self-determination and self-government, and to have sufficient land and resources to provide for their sustenance and subsistence as a people. The 1994 Draft Declaration on the Rights of Indigenous Peoples linked the

Indigenous need for sufficient land to Indigenous self-determination, as it declared the international Indigenous rights to own, develop, and control their lands and territories, to conserve, restore, and protect their lands and environment, and to provide for their own cultural, spiritual, and economic subsistence.16 In a recent and historic victory, the United

Nations adopted the Declaration on the Rights of Indigenous Peoples on September 13,

2007; the vote was 143 in favor of the Declaration, while Australia, Canada, New

Zealand, and the United States voted against the Declaration.17

One of the most widespread contemporary problems facing Indigenous societies

internationally is the “failure of States to recognize the existence of [Indian] land use, occupancy and ownership, and the failure to accord appropriate legal status and legal

rights to protect that use, occupancy or ownership.”18 The United States in 1994

acknowledged to the international community that historic federal Indian policies resulted

in the effective diminishment of the Indigenous land base prior to 1934, reporting that the

Indian land base had been decimated “from 138 million acres in 1887 to 48 million acres

in 1934.”19 The United States also acknowledged that the prevailing federal Indian

policy of “Self-Determination” is based upon a federal obligation to promote the

stabilization of the Indian land base and to assist in tribal land acquisition efforts.20

Furthermore, the United States, acknowledged that “preservation of a substantial land base” on behalf of tribal nations is “essential to the existence of tribal society and culture.”21

The doctrine of federal trusteeship forms the basis for holding the federal

government accountable for the proper management of Indian lands and resources, a trust

obligation to pursue federal preservation and protection goals on behalf of tribal nations.

Current federal trust responsibility mandates affirmative federal attention and action to

tribal land acquisition. Although the policy goal of the federal trust responsibility was,

and is, to protect Indian tribes, it has “been employed often to the enormous disadvantage

of Indians,” and has now grown into a “stifling, paternalistic, and ultimately ineffective

system of managing Indian property,” according to Kevin Gover, former Assistant

Secretary of Interior.22

Under the federal trust responsibility, Indian lands are “held in trust” by the

United States government on behalf of tribes and individual tribal members, and the

federal government is responsible for the management and protection of those entrusted

lands. The reservation and allotment system led to the creation of tribal and individual tenures in land; another Indian trust land category consists of those lands held on behalf of a band, a sub-unit of a confederated tribal government.23 Therefore, Indian trust lands today may be held on behalf of a tribe, a band, or an individual tribal member.

Indian trust lands, lands held in trust by the United States on behalf of tribal nations and tribal citizens, represent the bulk of Indian-owned land within reservation territories. Under the federal trust model, Indian trust lands are subject to federal administration and management, such that the federal government is required to approve any sales or other encumbrances against the land, including mortgages or leases. For lands within reservation territories, trust status is actively sought by many tribes and is often considered the best tribal land tenure option. One primary benefit tied to lands held- in-trust status is the legal immunity of exemption from state taxation over those lands.

More often than not, tribes generally prefer to retain trust lands and not sell them or alienate them in any manner. Given the chilly judicial climate regarding tribal jurisdictional issues, tribal jurisdiction and authority appears more secure when tribal lands are held in trust, while there is less security when tribal lands are held in fee status with no federal administrative or management authority.

Tribal land acquisition today occurs within the parameters of federal Indian law and policy and the outdated legal institutions governing Indian land tenure status.

Creation and establishment of the federal trust responsibility over Indian land, which derived from the reservation system and the allotment process, had a major impact upon the structure of Indian land tenure as we know it today. The allotment system

redistributed some of the tribally-owned reservation lands to individual tribal members, and effectively redistributed the remainder of the reservation territories to the general public domain. Although the allotted lands were to be held within a protective federal trust for twenty-five years, the swift alienation of the entrusted allotments from Indian ownership also marks the national American Indian land tenure history.

By 1934, the small percentage of the allotted lands remaining in trust status had multiple co-owners with undivided fractional property interests in those lands. Few allotments remained in trust on behalf of the original owner; as the original owners

(allottees) died, the ownership of their allotments descended to their heirs. As the ownership interests of each new generation of Indian heirs grew smaller, the number of heirs grew exponentially larger. Today, the complex issue of fractionated ownership of the allotted lands marks the Indian land tenure landscape, as there were “over 1.65 million fractional interests of two percent or less involving more than 32,000 tracts of allotted land,” as of 2006.24 As Imre Sutton remarked, “what has contributed most to

change in native culture has been the introduction of a differing legal apparatus, including

land tenure institutions, governing Indian Affairs.”25 The legal institutions created at that time remain an essential part of the Indian land tenure landscape today.

Recent scholarship on the topic of the federal system of Indian land tenure and federal trust responsibility questions whether the federal trust model remains viable for

Indian land tenure in contemporary times.26 Arising from the government’s assertion of plenary power over Indians and their property, the federal trust responsibility over Indian lands is a legal institution that was based upon faulty and racist policy assumptions and

premises. Several scholars assert that the federal trust responsibility over Indian lands must be updated, changed and modernized, in order to be truly effective to meet tribal needs. For example, both Gover and Leeds have argued that the ineffective system of trust must be changed, and that tribes must be afforded the opportunity to manage their own lands without federal supervision, while retaining the immunities associated with trust lands, such as tribal jurisdiction and exemption from taxation.27

During the contemporary federal Indian policy Era of Self-Determination, the

Bureau of Indian Affairs began to disengage with tribal land acquisition efforts, and has reduced the financial or human resources for tribal land acquisition to the extent that the

Bureau does not adequately assist the tribes in their contemporary land acquisition efforts. However, the federal trust responsibility towards tribal land acquisition and the ongoing administration of the Indian land base remains intact. In fact, in 2005 the Bureau of Indian Affairs was responsible for and administered 45.6 million acres of tribally- owned land, and 10 million acres of individually-owned trust land.28 The government

continues to promulgate the laws, rules, and regulations that govern Indian land tenure

today, and continues to attempt resolution of the fractionated ownership issues that

plague Indian land tenure.

Within the context of Indian land tenure and the federal trust responsibility, it is

incumbent upon the United States government to allocate additional resources to tribal

land acquisition efforts, to review and evaluate existing Indian land tenure mechanisms,

processes, and systems, and to improve federal Indian law and policy action towards the

stabilization of the Indigenous land base. It is also incumbent upon the federal

government to work with all tribes to identify viable strategies for future tribal land acquisition. Although the present era of Self-Determination is premised upon federal promotion of tribal sovereignty and self-sufficiency, transforming federal Indian policy into real tribal land acquisition has proven to be easier said than done, and remains a thorny federal challenge.

Four developments

This research was prompted by four developments within the national Indian land tenure environment. First, the legacy of ravished tribal land ownership has produced a tremendous need for adequate and sufficient lands to meet basic tribal land needs in contemporary times. Second, the advent of Indian gaming under the current federal

Indian policy era of Self-Determination has prompted some tribes to prioritize land acquisition within their reservation territories and provoked the question of what tribes are doing to reacquire title to their lands within their original reservation territories.

The third development which prompted this study was the judicial evolution of the contemporary legal nexus between tribal sovereignty and tribal land ownership, such that tribal jurisdiction is now linked to tribal land tenure status within reservation territories.29 Fourth, generalized American Indian histories typically present a simplified

or monolithic view of the reality of land history within a culture’s diverse tribal

communities. Generalized or essentializing historical accounts gloss over the hidden

stories of each tribal nation. This effectively hides Indigenous history as it was

experienced “on the ground,” by assuming land loss was the same across the nation

during certain periods of time and that tribes with multiple communities all experienced land loss in the same way.

Research Assumptions

The fundamental assumptions of this research are discussed herein. At the time of the establishment of their reservations, it is assumed that all of the lands within those designated reservation territories were under tribal communal ownership and control. As evidenced from the national Indian land tenure narrative, the typical tribal land tenure history involves a significant diminishment of tribal land ownership within reservation territories. It is, therefore, assumed that the majority of tribes are challenged with a severe lack of sufficient land and that tribal nations and tribal citizens generally lack ownership of the lands within their reservation territories today. However, it is also acknowledged that some tribes have already established a very strong and viable land tenure status within their reservation territories, which will be demonstrated by one of the cases under study. Based upon recent judicial decisions regarding tribal jurisdiction and sovereignty, it is also assumed that many tribal nations have experienced some level of jurisdictional challenge due to the land tenure patterns of ownership within the territorial boundaries of their reservations.

Although I assume that most tribes are interested in tribal land acquisition on some level and may have developed its own criteria and plans, this research does not assume that all tribes share the same tribal land acquisition strategies. I assume that most tribal nations are committed to improving the economic welfare of their people and are committed to controlling their own affairs with regard to the quality and nature of tribal

life, however, this may or may not include the re-acquisition of reservation lands.

Another fundamental assumption of this research is that outdated federal Indian law and policy controls the Indian land tenure system today, and federal trust responsibility relating to the administration and management of the entrusted Indian land tenure has been ineffective and either needs to be improved or thrown out and a new Indian land tenure paradigm created. Finally, this study assumes that federal Indian policy has consistently preferred one single, comprehensive policy that applies to all Tribes. Such an essentializing approach has been federally convenient, but it has resulted in enormous disadvantages to Tribal nations, because a one-size-fits-all approach fails to account for the wide range of tribal diversity, circumstances, history and needs.

Research Objectives

This study examines the impact upon Indigenous land ownership within a specific tribe resulting from the dominant federal Indian policies used over time to expropriate

Indian land, and demonstrates how policies affected tribal sub-units (Bands) differently.

The precarious nature of Indigenous land tenure is an American historical reality, which continues to persist today, yet has roots in the past. The historical time periods covered are from the mid-nineteenth century during the treaty era and establishment of the reservations, to the present. Before I could undertake this analysis, however, I needed to understand the national context.

Thus, one of my research objectives was to summarily document the aggregate national Indian land tenure pattern over time, in order to determine the amount of land under Indigenous ownership during different eras of dominant federal Indian policies: the

Federal-Tribal Treaty Relationship: The Formative Years; Allotments and Assimilation;

Indian Reorganization; Termination; and Self-Determination.30 This study primarily

examines the reservation lands that are held “in trust” by the federal government on

behalf of tribal nations, bands, or individual tribal members, although there is also some

data presented on lands that have been purchased by a tribe but are not held in trust

status. Generally, the term “trust land” refers to a specific type of land tenure, in which

the federal government holds lands-in-trust on behalf of a tribal nation, a band, or an

individual tribal member.31

For purposes of this study, Imre Sutton’s definition of Indian land tenure is adopted, and he defines Indian land tenure as how Indian land is held, owned, and

occupied, and the level of property rights attached to that land.32 Also for purposes of

this study, the terms “American Indian,” “Indigenous,” and “tribal” are used

interchangeably throughout this study, as well as are the terms “Indian,” “tribal member,”

or “tribal citizen.”

Another research objective was to document two localized and tribal-specific land

tenure histories to determine the amount of land under Indian ownership within their

specific reservation territories over time, and to compare the localized pattern to the national Indian land tenure narrative to determine variations and differences, while

controlling for cultural differences. One of the research questions was whether the

localized Indian land tenure stories reflect and support the national Indian land tenure

narrative and aggregate Indian land data, or if they tell different stories. If the localized

patterns are different than the national Indian land tenure pattern, then why are the stories

different? If there are differences between the two Indian land tenure histories, why are they different?

Within the historical context of their tribal land tenure histories, another research objective was to determine contemporary tribal strategies for land acquisition within their reservation territories, that is, what tribes are doing to reclaim lands within their reservation territories. This research study was also designed to analyze the success and extent of tribal land acquisition within the two tribal-specific case studies and the processes, obstacles, challenges, and opportunities involved in those processes in order to identify emerging “best practices” for tribal land acquisition.

The final research objective was to analyze federal efforts at tribal land acquisition over time, as well as land alienation, and discuss the implications of this research for future federal Indian policy regarding tribal land acquisition, with a special focus on the federal trust model and trust responsibility.

Analytical Framework

In the United States, tribal lands and resources have been repeatedly taken for the needs of the general non-Indian society. Within the existing literature, general accounts tell the story of the historical diminishment of the tribal land base in the United States.33

However, there is little scholarship that examines the diminishment of a particular tribe’s

land base, or that explores the impact of land loss for a given tribal community.34

Furthermore, there is scant material on tribal efforts to reclaim land within their

reservation territories today, or the importance of tribal land acquisition efforts for tribal

sovereignty, cultural preservation, and economic development.

This study provides an in-depth look at the diminishment of an Indigenous land base, from the perspective of two tribal sub-units, or Bands, as well as their efforts to reacquire their lands within their reservation territories. However, there are challenges to such a scholarly endeavor, as the land records and data systems are incomplete, difficult to access, and often provide inconsistent data. Also, there are no existing scholarly models to provide a guide to this type of research. Therefore, I have chosen to utilize a standardized policy model that is both relevant to this inquiry and that also provides the reader with a framework of analysis that is commonly known and understood.

Federal Indian Policy Time Period Model and Political Economy Theory

This research utilizes the standardized federal Indian policy time period model as an analytical framework, in an effort to determine localized tribal land tenure patterns within the context of national patterns and federal Indian policies. The federal Indian policy time “periodization” model was utilized in order to present these tribal land tenure stories and understand the current Indian land tenure environment in the best possible way. This analytical approach is loosely based upon a model utilized by Klara B. Kelley in her article, “Federal Indian Land Policy and Economic Development in the United

States,” which is one of the most informative articles on Indian land tenure that utilizes a

“periodization” approach.35

The standardized federal Indian policy time periods are well known, defined and understood by many scholars of American Indian Studies, lawyers, and tribal leaders and citizens alike.36 Many scholars and tribal people also generally share some basic

knowledge of some of the national data on Indian land tenure in the United States. For

example, many scholars are generally aware that approximately 100 million acres of

Indian land were expropriated from Indigenous ownership as a direct result of the federal

Indian policies of allotment and assimilation, leaving an urgent need for tribal lands in

1934. The standard textbook of federal Indian law presents six identifiable time periods of federal Indian policy, which provide an operational framework that illustrates the historical development of the contemporary status of Indian land tenure status and current federal Indian policy as it relates to Indian land.37

Klara B. Kelley examined the historical changes in federal Indian land policy,

reviewed the dominant government policies used to expropriate Indian lands, and

documented the amount of acreage exploited. Following the periodization model, Kelley

grouped federal Indian land policy into seven periods, as follows:

1. Trade and treaty reservation agreements with Indian peoples east of the Mississippi (1776-1810);

2. Removal to uncolonized territory west of the Mississippi (1810-50);

3. Treaty reservations in colonized territory (1850-75);

4. Allotment of reservations (1875-1920);

5. Consolidation of reservation lands (1920-45);

6. Termination of federal trusteeship over Indian lands (1945-1960);

7. “Self-determination without termination” (1960-present).38

In her work, Kelley drew the analytical correlation between those dominant

federal policies, as implemented, and the concomitant expropriation of American Indian

land under those policies. Kelley’s work set the paradigmatic foundation for exploring

Indian land tenure status in terms of the amount of acreage expropriated or reclaimed during specified federal Indian policy time periods.

This comparative case study is similar to the Kelley model, as the federal Indian policy time periods are utilized to frame this analysis and draw the causal connection between federal Indian policies and Indigenous land expropriation.39 The federal Indian

policy time periodization model was chosen for this study because federal Indian policy

has been the primary driving force behind Indian land tenure, expropriation, and

acquisition in the United States.

Historical changes in indigenous land ownership patterns in the United States as a

result of federal Indian policies are best explained by focusing on political and economic

factors. Political economy theories locate the root causes for historical changes within

dynamic economic arrangements, in matters of “production, trade, and consequent

political conflict.”40 A key theoretical assumption of political economy is that

government primarily represents the interests of various sectors of the dominant capital

class, including financial, agricultural, manufacturing, and trading.41

As John Moore asserts, American Indian history is best understood as an

economic conflict between American Indians and invading capitalists.42 In the United

States prior to 1900, federal Indian policy was based upon “naked exploitation” and

“rapacious looting.”43 The two basic objectives of federal Indian policy were to free up more land from Indian occupation for settlement, and to facilitate access to the numerous natural resources located in Indian country. Those two basic objectives emerge throughout the six federal Indian policy time periods, which are presented below.

Federal-Tribal Treaty Relationship: The Formative Years, 1789-1871

Prior to the American Revolution, Spain, Holland, France, and Great Britain, and their colonial settler communities, were principally interested in the nature of Indigenous territorial rights and how to extend their nation’s imported sovereignty over Indigenous nations and their territories. The colonial governments developed limitations on

Indigenous rights of sovereignty and property ownership, which were premised on the assumption that Indigenous people were inferior, morally, spiritually, and politically, and that they were merely “heathens and infidels.”44 Colonial hegemony, as it was practiced

here, led to the reduction of Indian land holdings within the continental United States,

from 1,280,000,000 acres of land to 877 million acres of land, prior to 1776.45

As a new nation-state, the United States quickly embraced the European legal

tradition of establishing limits upon Indigenous property rights and sovereignty, which

were later articulated within the legal concept of the “Doctrine of Discovery.” Premised

on the notion of Indian inferiority and the superior sovereignty authority of the United

State as a nation-state, the United States Supreme Court concluded in 1823 that the

doctrine of discovery gave the United States exclusive right to extinguish original tribal

land ownership rights and possession, through purchase or conquest, in the landmark case

of Johnson v. McIntosh.46 According to Getches and his colleagues, the Supreme Court

embraced the “medievally-originated doctrine of discovery as a root of all land titles

under U.S. law, eschewing the need or propriety of questioning its contemporary moral

legitimacy,”47 The “doctrine of discovery” remains an essential tenet of federal Indian

law today.

In another enduring United States Supreme Court decision in 1832, the extent of federal powers in Indian Affairs and tribal sovereignty were addressed, and the Supreme

Court clarified that previously imposed limits on tribal sovereignty by the Supreme Court related to land conveyance rights, and not to tribal self-government. In Worcester v.

Georgia, Chief Justice Marshal stated that tribes are “distinct political communities, having territorial boundaries, which is not acknowledged, but guaranteed by the United

States.”48

According to critical race scholar Robert Williams, Jr., the “Doctrine of

Discovery” manifests the “irredeemably racist” foundation of the United States legal

system, and ultimately denies “territorial and self-determination rights for indigenous

peoples equal to the rights of Western peoples.”49 In his methodical indictment of the

United States legal tradition, Williams argues that three core federal Indian law principles

derive from the doctrine of discovery, and that the judicial use of those principles

legitimate the exercise of federal power and authority over Indian people, immunize the

legal system from Indigenous demands, and fundamentally deny human rights and self-

determination to the Indigenous people in the United States.50

During the Formative Years of the United States government, federal strategies were initially adopted to pursue and acquire Indigenous land cessions, while later federal

strategies were designed to pursue the physical removal of Indigenous people in the east and Midwest farther west, away from their traditional homelands, so that an expanding non-native population could settle on Indigenous lands. Treaties served as the federal

mechanism to establish formal relationships with Indian tribes regarding trade, alliance, and land cessions; force was often used as the mechanism of Indigenous removal.

Primarily effectuated through the treaty process, federal acquisition of expansive tribal territories during the Formative Years left an indelible and significant mark upon

American Indian land tenure history. During the period from 1853-1856 alone, title to

174 million acres of Indian land was extinguished through a series of 52 treaties, as the

Commissioner of Indian Affairs remarked that “[i]n no formal equal period of our history have so many treaties been made, or such vast accessions of land obtained.”51 According

to political economist, George Castille, federal Indian treaty policy was not federal

Indian policy, but was really federal land policy.52 By the end of the Formative Years,

Indian land holdings had been reduced from 877 million acres to 122 million acres,

during the period from 1776 to 1871.53

The implementation of the reservation system is another defining feature of

federal Indian policy during the Formative Years. Under prevailing federal policies, the

federal government pursued the confinement of Indigenous land ownership, use and

occupancy to a specific bounded territory, as a strategic initiative to free-up more

Indigenous land for non-Indian settlement and to increase public access to the natural

resources. American Indian reservations were established as permanently reserved

homelands, and those territorial land bases were designated and established for the ownership, use, and control of the respective tribal nations. However, the integrity of

tribal ownership of their reserved territories was quickly assaulted, and tribal ownership

of their territorial land bases rapidly disintegrated as the federal government pursued the federal Indian policies of Allotment and Assimilation.

Era of Allotment and Assimilation, 1871-1928

In 1871, Congress unilaterally ended the use of treaties as the mechanism for dealing with tribes, and that action signified the beginning of a new era in federal Indian policy. The federal Indian policy era of “Allotments and Assimilation” embraced new methods and mechanisms designed to facilitate additional federal acquisition of

Indigenous land. The enormous political pressure from the non-Indian population was steeped in the rhetoric of the advocates for westward expansion, who pushed for the dismantling of the reservation territories and the assimilation of all Indigenous people into the expanding general society. Additional policy justification at the federal level was also well established by 1878, as the Commissioner of Indian Affairs himself advocated for a new Indigenous land tenure system that year. Expressed in terms of a federal obligation to provide protection for Indian people and their lands from non-Indian interference, the Commissioner observed in 1878, “[e]very means that human ingenuity can devise, legal or illegal, has been resorted to for the purpose of obtaining possession of

Indian lands.”54

Federal policy makers and other expansionist proponents successfully argued that

the individual system of property ownership was far superior to the tribal communal

property system, and actively pursued the imposition of allotment upon Indigenous

people. The hegemonic discourse of the time projected that the dramatic transformation of the tribal communal property system would ultimately lead to the transformation of the

Indigenous people into assimilated, individual landowners and farmers. Congress responded favorably to those concerted political efforts, and passed the General

Allotment Act of 1887, formally adopting the federal policy of allotment.

The General Allotment Act authorized the subdivision of tribal-held reservation lands and the assignment, or allotment, of individual tracts of land to tribal members.55

For each allotment of land that was issued, a protective trust status was also established,

such that the federal government was entrusted to watch over and supervise the allotted

lands on behalf of the individual tribal land owners. In theory, the protective trust status attached to the allotted lands and their owners was the best method to provide a period of transition for the new individual tribal land owners into the foreign system of individual

property ownership. For purposes of this study, the term “allotments” refers to specific

tracts of land that were assigned to individual tribal members in trust; the term “allottee”

refers to the individual tribal member who was assigned, or allotted, a tract of land.

During the period from 1871-1928, approximately 41 million acres of land were allotted

from the Indigenous land base within tribal reservation territories.56 The redistribution of

the tribal landed estate to individual tribal members under the allotment process was

assumed to be “a permissible change in the corpus of the trust property held by the

United States.”57

The Indian land tenure mechanism of trust lands, or lands held-in-trust by the

federal government on behalf of Indian people and tribes, was fully developed during the

allotment process and remains an essential element of the federal trust responsibility today. The protective trust status of the allotments was articulated and expressed within

the federal patents of land issued for the allotted lands. A federal “trust patent” was issued to each allottee, which transferred the title of the allotted lands to the allottee, and which designated the terms and conditions of the trust, including the name of the allottee, the reservation upon which the allotment was issued, and the legal description and acreage of the allotted land (A copy of a “trust patent” is included in Appendix D). The

“trust patents” also specified other terms and conditions of the protective trust status associated with the allotted lands, as follows:

8. Exemption from state taxation while held-in-trust status;

9. Government supervision and approval required for all sales of allotted

lands, and for all other encumbrances against the land (mortgages, leases,

etc);

10. Individual tribal owner had the right to use and occupy the allotted lands;

11. The period of the trust was generally designated as twenty-five years from

the date of the “trust patent.”

In the end, the protective trust status established for the allotted lands provided little protection to the Indian allottees, because the allotted lands were soon coveted by the expansionist general public and their ownership rapidly became vulnerable. The protective trust status of the allotted lands rapidly dissipated, as Congress enacted laws to lift the trust restrictions on the allotted lands, facilitating easier acquisition of the allotted lands by the general public. Indian people were dispossessed of their allotments, often through “legal chicanery and even murder.”58 On the human side, there are the stories of

Indian people being coerced, defrauded, and tricked into selling or mortgaging their allotted lands, ultimately being displaced, without land, resources, or political power.

Clearly, the trust responsibility of the federal government to ensure the protective trust status of the allotted lands did not change the fundamental, precarious nature of

Indian land tenure. As the Commissioner of Indian Affairs stated in 1891, “the ultimate destruction of the entire system of reservations is inevitable….[t]he millions of acres of

Indian lands now lying absolutely unused are needed as homes for our rapidly increasing population and must be so utilized. Whatever right and title the Indians have in them…must yield to the demands of civilization.”59 Allotment was foremost a method of

expropriating tribal reservation territories, and implementation of the allotment process

was an effective strategy to achieve the federal policy goal of taking apart and

dismantling the reservation system and expropriating the reservation territories.

The allotment process was not the only federal Indian policy which contributed to

the diminishment of Indigenous ownership of lands within the allotted reservation

territories. There was also the ugly cousin of allotment, the “surplus land” policy, a

simultaneous federal policy that led directly to additional Indigenous land expropriation.

Under the terms of the General Allotment Act, the remainder of the lands within the allotted reservations were deemed “surplus lands,” and those lands were to be placed within the public domain and opened to homesteaders.60 The amount of lands taken under

the “surplus lands” policy was at a much grander scale than the allotted lands, and the

“surplus lands” taken far exceeds the amount of lands that were allotted.

Getches and his colleagues summarized the goals of the federal Indian policy era of Allotment and Assimilation, addressing the affects of both allotment and surplus lands and the real consequences for Indian land tenure:

Shrinking the Indian reservation land base was designed to serve dual

goals: to open more land for settlement and to end tribalism. The allotment

policy of the late nineteenth century expansion era was supposed to turn

reservations into campuses for training Indians in the “arts of civilization.”

The Bureau of Indian Affairs took unprecedented control of everyday Indian

life, seeking to squeeze out Indian government, religion, and culture. Tribal

lands were carved up and parceled out to individual Indians who were to be

converted from hunters to farmers. “Surplus lands” were sold for non-Indian

settlement; the result was a loss of about two-thirds of all the Indians’ lands.

The framework created by the early treaty relationship between the tribes and

the federal government secured tribal self-government and impeded but ultimately

could not prevent an enormous expansion of Congress’s power to legislate on

behalf of its Indian ‘wards.’61

During the time period from 1871-1928, and under the federal Indian policies of

Allotment and Assimilation, Indian land holdings were reduced from 122 million acres to

approximately 71 million acres.62 Together, the allotment process and the taking of

“surplus lands” represent another aggressive diminishment of the Indigenous land base,

and the affects of those federal Indian policies mark the national Indian land tenure

narrative during the Era of Allotment and Assimilation.

The Era of Indian Reorganization, 1928-1945

Tribal lifeways had not been completely destroyed by the allotment era policies, and Indian people continued to hold their identities as tribal people, maintained their cosmologies and worldviews, their tribal cultural practices and traditions, and many also maintained their tribal languages at some level. Furthermore, although many reservations had undergone extensive allotment, American Indian reservations had not been completely dismantled and remained intact as ““Indian Country” – places where a

“measured separatism” had been maintained between Indians and the dominant society.”63 Furthermore, the federal government continued to rely upon and use American

Indian reservations as the “principal unit of Indian administration,” reflecting that the

reservation territories continued on as an essential element of the federal trust responsibility relating to Indian affairs.64

A movement toward change in federal Indian policy began in 1928, triggered by

the publication of the Meriam Report.65 The Meriam Report documented the living

condition of American Indian people, describing the grinding poverty and the horrendous

state of Indian health and education. The Meriam Report also focused on the problems of

federal administration of Indian affairs, and urged a different government approach that

would provide for the allocation of adequate resources to enable Indian people to reach a

level of self-reliance. Publication of the Meriam Report served as a political incentive for

subsequent and significant legislation that articulated broader federal Indian policy

goals.66 Federal policy action would take time, however, and during the time period from

1928 until 1934, the pulverization of the Indigenous land base was carried forward. In

fact, the national Indian land tenure data documents that there were 71 million acres of

Indigenous land in 1928, which were reduced to 52 million acres by 1934. Although a new policy movement was underway, the existing policies continued to favor expropriation of tribal land.

Although the new federal Indian policy era had humble beginnings in 1928, according to the standardized federal Indian policy narrative, the new Era of Indian

Reorganization was not officially inaugurated until 1934, with the passage of the Indian

Reorganization Act.67 The Indian Reorganization Act embodied a formal federal policy

shift towards stabilization of the Indian land base and greater protection of Indian lands,

and embraced a policy of greater recognition for American Indian permanency, the

strengthening of tribal sovereignty, and enhanced tribal decision-making.68 The essential

provisions of the Indian Reorganization Act authorized tribal political organization through the adoption of tribal constitutions, and the chartering of corporations for the purposes of economic development69 One of the primary objectives of the legislation was

to establish effective tribal self-government and to eliminate the vast discretionary power

that had been asserted by the Interior Department.70

Regarding the status of Indian land tenure, there was already a growing

recognition in 1934 that there was an acute need for lands, as Indian land holdings in the

United States had been reduced to 52 million acres.71 Indeed, the National Resources

Board estimated immediate tribal needs for land at 9,706,000 acres at the start of Indian

Reorganization. The Indian Reorganization Act of 1934 addressed the pulverized state of

Indian land tenure, and several provisions strengthened tribal ownership, use, and control

over their territorial land bases. The Indian Reorganization Act officially ended the policy of allotment and extended all existing trust periods on allotted lands. The Indian

Reorganization Act also prohibited the transfer of Indian lands other than to the tribe, authorized the restoration of “surplus lands” that had not been settled, established a tribal land acquisition program, and authorized the Secretary of Interior to take additional lands-into-trust for tribes and tribal members. The end result of the Indian Reorganization

Act Indian land tenure provisions was the establishment of a process by which tribal nations can reclaim ownership of lands and territories that had been expropriated through allotment or other mechanisms.

The time period from 1934 until 1945 was an active period for tribal land acquisition, as tribes pursued the newly-authorized tribal land restorations and other land acquisitions. However, the level of tribal land acquisition during the Era of Indian

Reorganization simply does not compare with the scale of Indigenous land expropriation that occurred during the two former federal Indian policy periods. In fact, tribes have recovered only about 8% of the land expropriated since allotment, according to the

Bureau of Indian Affairs in 1999.72

Ultimately, this research revealed that the Era of Indian Reorganization overall

actually produced a decrease in Indigenous land ownership from 71 million acres of

Indigenous land in 1928 to 55 million acres in 1945. Supplemental Indian land tenure

data, however, revealed an interesting nuance in the national Indian land tenure history,

indicating that the 71 million acres of Indian land in 1928 had already been reduced to 52

million acres by 1934, the time of the passage of the Indian Reorganization Act. Once the

Indian Reorganization Act was implemented, the amount of Indian land holdings increased from 52 million acres in 1934 to 55 million acres in 1945.73 In the final

analysis, the national Indian land tenure data illustrates the important and pivotal nature

of the Indian Reorganization Act, which served as a positive turning point for Indian land tenure and acquisition. Furthermore, once enacted, the Indian Reorganization Act produced a positive contribution to the status of Indian land tenure at the national level.

The Termination Era, 1945-1960

Termination as federal policy essentially represented “an about-face in federal policy” that was oriented towards the goal of “complete integration” of Indian people into the dominant society.74 The federal policy of termination resulted in another significant

reduction in Indigenous land ownership. Federal intentions were to end the federal-tribal

relationship with certain tribal nations, impose state jurisdiction, and dispose of tribal

landholdings. Manifested in tribally-specific legislation and under the prevailing federal

Indian policy of Termination, the federal-tribal relationships of 109 tribes were

“terminated,” and Indian land holdings were diminished by “a minimum of 1,362,155 acres.”75

In addition to the Congressional acts authorizing the termination of the federal

relationship with specific tribes, other federal mechanisms were also developed, which

would lead to the additional expropriation of Indian lands during the Termination Era.

For example, Congress authorized the Secretary of the Interior to administratively

transfer ownership of Indian lands to other federal agencies. That administrative land

transfer process became known as the “Secretarial Transfer” process, and many of the

allotted lands so transferred were sold without the full consent of the Indian owners. The

Minnesota Chippewa Tribe, as well as other tribes, conducted research and identified the allotted lands that were sold pursuant to the Secretarial Transfer process, and developed land claims cases on each for potential litigation. As a result of the federal Indian policies of the Termination Era, Indian land holdings were reduced from 55 million acres of land in 1945 to approximately 53.4 million acres in 1960.76

The Self-Determination Era, 1961 to the present

According to the standardized federal Indian policy narrative, “Self-

Determination” as federal Indian policy generally embraces greater tribal authority and

recognizes the permanency of Indian tribes. Self-Determination as federal policy was first

articulated by President Nixon in his 1970 message, stating that the “time has come to

break decisively with the past and to create the conditions for a new era in which the

Indian future is determined by Indian acts and Indian decisions.”77 The Indian Self-

Determination and Education Assistance Act, enacted in 1975, became the official policy

of the United States; that Act was designed to assure “maximum Indian participation in

the direction of educational as well as other federal services to Indian communities so as

to render such services more responsive to the needs and desires of those communities.”78

Other laws were also passed to effectuate the new federal Indian policy, including the

Indian Civil Rights Act of 1968,79 the Indian Child Welfare Act of 1978,80 and the

American Indian Religious Freedom Act of 1978.81 The new federal Indian policy

triggered a greater social investment into the tribal reservation communities through the

“Great Society” programs.82

As the federal management of Indian land tenure has evolved during this contemporary Era of Self-Determination, the government strives to determine how to manage the broken Indian land tenure system and effectively implement the federal trust responsibility. The federal government has significantly reduced the resources available for tribal land acquisition, while simultaneously increasing the regulatory limitations on land-into-trust transfers and establishing procedural barriers to trust land acquisition by tribes. Too often, the local Bureau of Indian Affairs fails to process land-into-trust transfers to completion, and the transfers appear to be finalized on an arbitrary basis, as the Bureau specifically agrees to process specific applications for land-into-trust transfers. As legal scholar Doug Nash argues, the land-into-trust process has become a fiction, and the stringent and complex regulations have created a chilling effect on tribal land acquisition.83

Over time, tribal nations have begun to assume primary responsibility for tribal

land acquisition, and many have prioritized land acquisition during the Era of Self-

Determination. However, there are many challenges to effective tribal land acquisition,

including bureaucratic, legal, political, and economic obstacles. Tribes pay the price for

the lack of adequate federal resources for tribal land acquisition, for the restrictive

regulatory limitations, and for the government’s general failure to process land-into-trust

transfers in a timely and effective manner. Tribes pay the price in terms of property taxes

that are paid on those lands purchased by tribes that are held in fee status pending a land-

into-trust transfer. Some tribes expend significant financial resources to pay annual

property taxes on purchased lands that await Bureau action. Tribes must dedicate human

resources to support their tribal land acquisition efforts. Tribes expend significant resources on legal matters relating to land-into-trust transfers, state taxation, and tribal jurisdictional issues. Meaningful and significant tribal land acquisition has been achieved by some tribes, while most lack a sufficient land base.

During the Era of Self-Determination, the complex issues surrounding the fractionated ownership of allotted Indian land cut across Indian country, as dozens or even hundreds of heirs to the original allottee had come to own partial interests in an allotment; in some instances, the inherited fractional interests are measured in the thousandths. The Indian Land Consolidation Act of 1982 was passed in a Congressional effort to remedy the ever-expanding issues of fractionated ownership, by allowing tribes to adopt plans for the sale and exchange of tribal lands, in order to eliminate fractional interests and consolidate tribal land holdings.84 That Act provided that fractional interests of less than 2% that failed to produce an income over $100, were to escheat to the tribe.

The escheat provision was later ruled as an unconstitutional taking without just compensation.85 While Hodel was pending on appeal, Congress amended the escheat

provision to narrow the class of land subject to escheat. In 1997, however, it was ruled

that the amended escheat provision did not cure the constitutional defect, and that the

underlying Act remained unconstitutional.86

Additional amendments to the Indian Land Consolidation Act were made in 2000,

which codified the Indian Land Consolidation Pilot Program, a pilot project to provide

federal resources to facilitate tribal purchases of fractionated ownership interests in

allotted lands. The 2000 amendments also limited the inheritance rights of non-tribal

members, which resulted in a “rush on fee patents,” as tribal members sought to take their inherited interests out of trust status in order to ensure that their children would inherit their property interests, even if their children were not enrolled tribal members.87

Additional amendments were made to the Indian Land Consolidation Act, and its 2000 amendments, in the American Indian Probate Reform Act of 200488. The American

Indian Probate Reform Act was intended to address some of the outstanding issues

surrounding Indian inheritance rights and was designed to reform the American Indian

probate rules and to facilitate tribal consolidation of fractionated ownership interests.

Today, the federal Indian policy of Self-Determination continues to govern, at least in theory and on the official record. Tribes are actively pursuing land acquisition, when time and resources are available to do so. The federal government has reduced its role to such an extent that it is minimal indeed. Overall, the Era of Self-Determination did produce an small increase in Indian land holdings, as the 53.4 million acres of Indian land holdings in 1960 increased to approximately 55.7 million acres in 1997.89

Aggregate national Indian land tenure data are summarily presented in the Table

I-1 below, organized by the standardized federal Indian policy time periods. The aggregate data demonstrate that each era of federal Indian policy had direct and significant affects upon the Indian land tenure landscape. Furthermore, the aggregate

Indian land tenure data clearly demonstrate the consistent diminishment of Indigenous ownership of the Indigenous land base under federal Indian policies.

Table I-1 AGGREGATE NATIONAL INDIAN LAND TENURE DATA

Time Federal Indian Policy Era Indigenous Land Indigenous Land period Ownership Status Ownership Status (@beginning of (@end of Policy Era) Policy Era) Pre- The European Doctrine of Discovery 1280 million acres of 877 million acres of 1789 and American Indian Rights Indigenous Indigenous land in Colonial governments principally land pre-1776 1776 concerned with nature of indigenous territorial rights while extending sovereignty over Indigenous- occupied territories 1789- The Federal-Tribal Treaty 877 million acres of 122 million acres of 1871 Relationship: Indigenous land in Indigenous land in The Formative Years 1776 1871 Treaties were primary method for procuring relationships with Indian Tribes, to establish trade alliances and secure Indigenous land cessions and removal; this Era also marked by implementation of “reservation System” 1871- Allotments and Assimilation 122 million acres of 71 million acres of 1928 Treaty policy terminated; Indigenous land in Indigenous land in allotment process implemented, 1871 1928 remaining reservation lands deemed “surplus” and placed into public domain; Indian Allottees quickly dispossessed of ownership of allotments 1928- The Period of Indian Reorganization 71 million acres of 55 million acres of 1945 Began with Meriam Report; Indigenous land in Indigenous land in officially embodied in 1934 IRA; 1928 1945 ended allotment policy, authorized tribal organization; 52 million acres in created tribal land acquisition 1934 & restoration programs 1945- The Termination Period 55 million acres of 53.4 million acres of 1960 Oriented towards “complete Indigenous land in Indigenous land in integration” of Indian people; 1945 1960 designed to end the federal- Tribal relationship with certain Tribal nations, impose state jurisdiction, dispose of tribal land holdings; other mechanisms of land expropriation employed 1960- The Era of Self-Determination 53.4 million acres of 55.7 million acres of present Embraces greater tribal authority; Indigenous land in Indigenous land in recognizes permanency of Tribes; 1960 1997 oriented towards enhanced Tribal decision-making authority

SOURCES: Federal Indian policy time periods taken from Cases and Materials on Federal Indian Law, 4th ed., David Getches, Charles F. Wilkinson, Robert A. Williams, Jr. Data on Indigenous land ownership status taken primarily from Klara B. Kelley, “Federal Indian Policy and Economic Development in the United States”; Theodore W. Taylor, “Report on Purchase of Indian Land and Acres of Indian Land in Trust, 1934-1975”; Getches, et al, supra (for some of the Termination era data); and the Bureau of Indian Affairs Annual Report on Indian Lands, 1976-1985 and 1996-1997.

This study demonstrates an Indian land tenure pattern in which the aggregate

amount of Indigenous land owned on this continent was systematically decreased within

every federal Indian policy time period, with the exception of the current era of Self-

Determination. Since 1960, there has been an aggregate increase of 2.3 million acres in

Indian land ownership. This study has also demonstrated that the aggregate national

Indian land tenure status reached its nadir, its lowest point, during the Era of Indian

Reorganization, at 52 million acres. However, this study also demonstrates that the Era

of Indian Reorganization also encompassed the turning point for Indian land tenure and

acquisition in 1934. The turning point for improved Indian land tenure and acquisition is

directly attributable to the implementation of the terms of the Indian Reorganization Act,

as the national Indian land tenure data shows an aggregate increase in the amount of

Indigenous land after 1934, from its nadir at 52 million acres to an increased amount of

55 million acres by the end of that Era in 1945.

The Indian land tenure data does not always align with the standardized federal

Indian policy narrative, because the impact of federal policy upon Indian land tenure

often is not reflected in the data until after the formal inauguration of the policy,

indicating that real Indian land tenure changes did not begin at the start of the policy eras

as they are marked by the periodization model. For example, the standardized federal

Indian policy narrative marks the beginning of the Indian Reorganization era in 1928;

however, real Indian land tenure change did not begin until 1934. In some respects, the periodization model serves to conceal that reality, as its glosses over the continued decline in Indian land ownership during that Era that occurred prior to the formal inauguration of the Era with the Indian Reorganization Act in 1934. Perhaps the standardized federal Indian policy narrative should assign the beginning of the Era of

Indian Reorganization to 1934, which would more accurately reflect the American Indian land tenure history.

The standardized federal Indian policy periodization model recounts a national

Indian land historical narrative, and there is a legitimate question about whether that historical narrative is reflected in the histories experienced at the localized tribal level. Do the localized tribal stories match up with the national patterns as narrated by the standardized federal Indian policy narrative? Scholars of local histories would likely answer in the negative. Perhaps the standardized federal Indian policy eras are not as cut and dried as has been portrayed and understood. In this study, I illustrate how the federal

Indian policy model perpetuates an oversimplified and homogenous view of American

Indian history that glosses over the stories of individual tribal nations, effectively hiding

Indigenous history at the localized tribal level.

The telling of the tribal-specific land tenure histories herein tests the standardized federal Indian policy paradigm to determine how well the national federal Indian historical narrative regarding Indian land tenure reflects localized tribal experiences. The localized counter-narratives demonstrate the intricate and rich detail of Indian land tenure and acquisition with sufficient tribal detail necessary to illustrate that tribes experienced

many of the same negative effects of federal Indian policy, evident in the accepted periodization scheme, while the level and impact of those policies upon each tribal nation varies. The variations in level of impact have resulted in significant differences in the

Indian land tenure status within their reservation territories, and to different tribal land acquisition strategies.

Scale of analysis

A specific tribe was selected for this research, with the understanding that a tribe’s contemporary land tenure status is constructed and defined by that tribe’s own unique and intricate land tenure history. Although Indigenous communities across the world share many similar experiences, there exists a myriad of detail and untold stories that illustrate a wide range of experiential differences. Each tribal nation has endured its own separate historical reality, has experienced a land tenure history unique to the tribal nation, has developed its own localized responses to its unique history, and is left with a particular legacy of Indian land tenure statuses. In addition, each tribal nation today has a distinct political relationship with the federal government, and each exercises its own self-determined level of tribal sovereignty.

Even within a specific tribe, there may be internal variations, especially within those tribes with multiple sub-units, or Bands, or those with multiple reservations. This research probes those internal tribal variations by utilizing an intra-tribal Band unit of analysis. Two member Bands of the Minnesota Chippewa Tribe were selected for this case study: the Grand Portage and the Leech Lake Bands. This scale of analysis allows me to illustrate diversity in local history and conditions at the Band and community level

which affected land loss, land maintenance, and land acquisition through time. Differing historical patterns reflect internal tribal variations at the Band level; as Keith Basso has commented, some interlocked tribal communities have been “shaped by shared yet separate histories, unequal access to economic and political power, and different degrees of involvement in local, community, and national events.”90 Sutton echoes that conclusion in his assertion that “even within the same state, no two reservations necessarily enjoy exactly the same legal-political status, or protections.”91 Their histories

of interaction with the federal government, settlers, and the State are similar, yet are not

identical.

The Minnesota Chippewa Tribe, and the Grand Portage and Leech Lake Bands

The Ojibwe people are indigenous to the woodlands surrounding the Great Lakes and the headwaters of the Mississippi River, and they have occupied, and continue to

occupy, a wide geographic range along the northern and southern shores of Lake Huron

and Lake Superior. Today, the Ojibwe occupy reservations in Minnesota, North Dakota,

Wisconsin, and Canada. The Ojibwe people refer to themselves as the “Anishinaabeg,”

or the “original people.” However, the federal government has utilized the name

“Chippewa,” in relation to the Ojibwe, and “Chippewa” is the name often referenced by the general public. As the Ojibwe scholar, Gerald Vizenor, points out, the name

“Chippewa” was a colonial invention and a perversion of the name “Ojibwe.”92

Band distinction was prevalent within Ojibwe society, and the Ojibwe had distinct

identities, territories, and political relations with the federal government, from the time of

the first encounters. This research will show that treaties were negotiated with those

distinct Ojibwe Bands, and that the different treaty provisions created different Band expectations and political understandings regarding their rights and their territories, which led to intra-tribal and Band political contentions that continue to resonate within the Minnesota Chippewa Tribe today.

Those intra-Band issues were exacerbated by the Nelson Act of 1889, which authorized the allotment of Ojibwe reservation lands, as well as the taking of surplus lands and timber. Significant questions and concerns developed following implementation of the Nelson Act and the establishment of the “Chippewa in Minnesota

Fund.” In fact, the “General Council of the Chippewa of Minnesota” appears to have been established partly in response to the Nelson Act, and to have a collective voice to deal with those attendant issues. The General Council of the Chippewa in Minnesota appears to be the first organic development of a broad Ojibwe tribal government. The repercussions of the Nelson Act continue to resonate throughout the Minnesota Chippewa

Tribe today.

Loosely organized as the General Council of the Chippewa prior to 1934, the federal government began to plan for a more formal tribal organization for the Ojibwe

Bands in Minnesota, following passage of the Indian Reorganization Act of 1934. The plans for Ojibwe tribal organization originally included the Red Lake Band of Chippewa, who also had a vested interest in the Chippewa in Minnesota Fund. At that time, the Red

Lake Band already had a distinct Indian land tenure status, as that Reservation had not been subject to allotment, and therefore remained in tribal trust status. Because of that distinction, and due to the associated issues surrounding the distribution of the Chippewa

in Minnesota Fund under the Nelson Act, the Red Lake Band chose not to participate in the formal organization of the Bands.

In the end, the “Minnesota Chippewa Tribe” was formally organized when six

Ojibwe Bands collectively adopted the Minnesota Chippewa Tribal Constitution and By- laws in 1936. The Minnesota Chippewa Tribe constitutes a confederated tribal government of six Ojibwe Bands, with six distinct reservation territories, located throughout northern and central Minnesota. The six member-Bands of the Minnesota

Chippewa Tribe, as designated in their Tribal Constitution, are listed below, and the location of the six reservations in Minnesota is shown in Map 1 below:

1. Bois Forte Band of Lake Superior Ojibwe;

2. Fond du Lac Band of Lake Superior Ojibwe;

3. Grand Portage Band of Lake Superior Ojibwe;

4. Leech Lake Band of Ojibwe;

5. Non-Removal Mille Lacs Band of Ojibwe; and

6. White Earth Band of Ojibwe.

The organization of the Minnesota Chippewa Tribe as a consolidated tribal government effectuated the political consolidation of the Ojibwe Bands (with the exception of Red Lake), and each of the Bands continues to participate in the overarching tribal government structure of the Minnesota Chippewa Tribe. However, each of the six

Bands is governed by a five-member Tribal Council, and each Band enjoys separate federal recognition for grants and other purposes. Each of the Bands generally exercises tribal sovereignty within their respective reservations at the Band level, and generally

acts very independently from the umbrella tribal government structure. Overall, there appears to be a general lack of tribal cohesion and collective political will within the

Minnesota Chippewa Tribe. It also appears that that tribal dynamic exists at the Band level, as well; it seems clear that a lack of cohesion and collective political will marks the

Leech Lake Band of Ojibwe, and, ultimately, is a contributing factor in their land acquisition strategies.

Map 1: Minnesota Reservations

SOURCE: Map of Federal Lands and Indian Reservations was produced by the National Atlas of America (2008).93

In this study, I examine the Indian land tenure histories of the Grand Portage and the Leech Lake Bands within their reservation territories, from the time of reservation establishment to the present. In so doing, I provide the historical context for an examination of the contemporary status of Indian land tenure within those two reservation territories, and the current land acquisition strategies of the Grand Portage and Leech Lake Bands. Through these band-specific land tenure histories, I analyze localized tribal patterns of alienation of the Ojibwe land base within the context of the national Indian land tenure in the United States. These band-specific land tenure histories document the loss of ownership of tribal reservation territories, and their efforts to reclaim their territorial homelands. An overview of the Grand Portage and Leech Lake

Bands is presented below to serve as a brief introduction to the two selected Bands.

The Grand Portage Reservation is located at the northeastern tip of the State of

Minnesota, along the north shore of Lake Superior. The Grand Portage Reservation shares 52 miles of the Lake Superior shoreline, as well as 23 miles of international boundary with Canada (see Map 2 below). The Grand Portage Reservation was established by treaty in 1854 and was reserved for the Grand Portage Band of Chippewa.

The Grand Portage Reservation was originally designated as the “Pigeon River

Reservation.”94 By 1913, however, the name of “Pigeon River” had been dropped, and

the Reservation has since been known as the Grand Portage Reservation.95 Historically,

the Grand Portage Reservation served as an important fur trade center, and the north

shore of Lake Superior continues to be a hub for travelers and tourists. Situated in Cook

County, Minnesota, the Grand Portage Reservation today is an area known for its pristine

beauty, rocky shorelines, deep river crevasses and a preference for preservation-minded recreation.

There is conflicting data on the original acreage size of the Grand Portage

Reservation, and it has been difficult to establish that acreage baseline. For the period from 1874-1893, the Commissioner of Indian Affairs consistently reported that the Grand

Portage Reservation contained 51,840 acres of territory, or 81 square miles.96 The

Commissioner subsequently reported in 1894, however, that the acreage of the Grand

Portage Reservation was 40,812 acres, or 64 square miles.97 The only evidentiary clue to

explain the reported difference in acreage size is that the initial land surveys of the Grand

Portage Reservation were apparently finalized in 1893.98 A different acreage baseline for the original Grand Portage Reservation was reported in 1936, when the Bureau of Indian

Affairs began to report the original area of that Reservation as 40,422 acres.99 The

40,422 acreage amount has been generally used since 1936, and has been relied upon for

purposes of this study as the acreage baseline for the original territory of the Grand

Portage Reservation.

In a government effort to correct an historical error, the original territorial

boundaries of the Grand Portage Reservation were modified and expanded in 1982. As a

result of Band efforts, the boundary of the Grand Portage Reservation was expanded in

1982 by Secretarial Proclamation, which increased the acreage baseline for the

reservation while also increasing the acreage amount of Ojibwe trust land, as well.100

The Grand Portage Band had consistently asserted that the original boundaries of the reservation, as described in the Treaty of 1854, were intended to include the area of land

encompassing Pigeon Point; however, the federal government had not considered that land as part of the Grand Portage Reservation. The 1982 boundary expansion, which extended east from the original boundary, included the Pigeon Point area and proclaimed those lands to be part of the Grand Portage Reservation.

In the Grand Portage Reservation Map presented below, the line down the right- center (highlighted by the arrow) represents the pre-1982 boundary line (the original or

“old” boundary line) of the Grand Portage Reservation The area to the west of the old boundary line was the original reservation area that was allotted, while the area east of the old boundary line encompasses the land to Pigeon Point and was the territory included in the 1982 boundary expansion.

Map 2: Grand Portage Reservation

SOURCE: Cartographic Records of the Forestry and Grazing Division, Bureau of Indian Affairs (1936). The Map is a blueline print map of the Grand Portage Reservation and Pigeon Point.101

Since the 1982 boundary expansion, the Grand Portage Reservation now encompasses 56,512 acres, according to the Bureau of Indian Affairs and other contemporary sources.102 However, that acreage baseline is inconsistent with other data

sources, including the Grand Portage Band. The Grand Portage Band reports that the

acreage size of the reservation is approximately 48,000 acres. For purposes of this study,

the 56,512 acreage amount was utilized, as that is the most generally reported amount.

The ambiguity with the Grand Portage acreage data illustrates the fundamental

information and data inconsistencies on Indian land tenure, and the need for tribes to

gather and claim their own land tenure records, in tribal efforts to seek clarity in their

land tenure status.

Ultimately, active and successful in land acquisition since the era of Indian

Reorganization, the Grand Portage Band has retrieved ownership of approximately 81%

of their reservation territories. The Grand Portage Band of Lake Superior Ojibwe has

always been one cohesive Band which has resided upon and occupied the Grand Portage

Reservation, without consolidation with other Bands. As a result, the Grand Portage Band

has developed a more cohesive society that has benefited a communal clarity in band

identity, their collective intelligence and knowledge regarding their reservation territories

that has been taught over generations, and their shared expectations and political

understandings. What appears to be a collective political will within the Grand Portage

Band is credited as a contributing factor to the success of their land acquisition efforts

within their reservation territories.

In contrast to the cohesive Band unit of the Grand Portage Band and the establishment of their reservation in one specific treaty, different political and economic forces led to the incremental and sporadic establishment of the consolidated Leech Lake

Reservation, as well as the consolidation of several distinct Bands upon that reservation.

The Leech Lake Reservation is located within the heart of the lakes and woods of the

Mississippi River system (see Map 3 below). The establishment of the Leech Lake

Reservation occurred in a series of treaties and Executive Orders in which separate, smaller tracts of land and previously-reserved reservation territories were consolidated to create the greater Leech Lake Reservation. Prior to the geographic consolidation of the

Leech Lake territorial boundary and the political consolidation of the various Bands within that territory, three major Bands of Ojibwe originally occupied smaller reservations that were situated upon three large lakes, Cass Lake, Lake Winnibigoshish, and Leech Lake; those three lakes served as the geographic centerpiece for the consolidated Leech Lake Reservation.

Ultimately, the former Leech Lake, Chippewa, Winnibigoshish, Cass Lake, and

White Oak Point Reservations were consolidated to form the greater Leech Lake

Reservation (see Appendices A-C for additional reference). During that process, there was also a conglomeration of distinct and different Bands of Ojibwe that came to reside upon the greater Leech Lake Reservation, who eventually became known as the Leech

Lake Band of Ojibwe. In some respects, the consolidation of distinct Ojibwe Bands upon the consolidated Leech Lake Reservation created geographic, social, and political

confusion and uncertainty at the band and local levels at Leech Lake, creating issues and dynamics which the Grand Portage Band simply did not have to deal with.

The Leech Lake Reservation today encompasses 677,099 acres of land and water, which lies within four northern Minnesota counties.103 Known for its high-end

recreational sports for fisherman and hunters, and its beautiful lakeshore properties,

Leech Lake Reservation is a more contested land territory than is the Grand Portage

Reservation, which is a contemporary factor in tribal land acquisition efforts. Although

the Leech Lake Band has prioritized land acquisition since 1970, the Band faces

enormous challenges and obstacles in their land acquisition efforts, and has had limited

success in acquiring land within their reservation territories. Today, the Leech Lake Band

of Ojibwe currently owns only 5% of the lands within their reservation territories.

Map 3: Consolidated Leech Lake Reservation

SOURCE: Cartographic Records of the Forestry and Grazing Division, Bureau of Indian Affairs (1916). The Map shows the consolidated Leech Lake Reservation, which was comprised of the former Leech Lake, Chippewa, Winnibigoshish, Cass Lake, and White Oak Point Reservations. The Map also shows lands patented to the State as swamp lands, and those lands claimed by the State as swamp lands, but not yet patented.104

The historical changes in indigenous land ownership patterns on the Grand

Portage and Leech Lake Reservations are best explained by focusing on political and

economic factors. Looking at indigenous land tenure patterns in this manner provides

concrete examples of the corollary impact of national federal Indian policies upon

specific indigenous land tenure patterns in a particular tribe. Although the indigenous

land ownership histories of Leech Lake and Grand Portage initially share some common events, their stories later become very divergent.

Use of a band-level scale of analysis allows us to see the unique and intricate land tenure histories of the Grand Portage and Leech Lake Bands. These historic localized processes have shaped the contemporary Indian land tenure status of each Band. Their shared, yet separate, histories portray a distinct contrast in how successful the two Bands have been in their land acquisition efforts. As their land tenure histories unfold, a contrast develops between the two Bands today, such that their contemporary land tenure status is starkly different. Today, the Grand Portage Band and its members enjoy ownership of 81% of their reservation territories. At Leech Lake, however, only 5% of their reservation territories are currently under Ojibwe ownership. Although Grand

Portage and Leech Lake are both members of the Minnesota Chippewa Tribe and have been subject to many of the same detrimental federal policies and laws, significant differences exist in their land ownership patterns. This means that each Band will have different priorities in the future.

Research Methodology

Prior to the start of this research project, meetings were held with the governing bodies of the Grand Portage and Leech Lake Bands of Ojibwe, in order to present the research concept to them, to solicit their comments and feedback, and to request their approval of the project. The members of both Tribal Councils were enthusiastic about the project and endorsed it. The Band governments and their staff contributed greatly to

this project, and I am very grateful for all of their time, energy, and contributions to this project.

During the research phase, various methods were utilized to extrapolate evidence and develop the Grand Portage and Leech Lake Ojibwe land tenure histories, as well as to provide the historic context within which the Bands engage in land acquisition, in the past and today. In order to find and identify the necessary data to document the national and tribal-specific Indian land tenure histories, primary data sources were analyzed at the

National Archives. Legal research was also utilized to supplement the archival research, in the best effort to access and analyze the data. For example, treaties, laws, regulations, and case law were studied, along with written analyses on those topics. Information and data was gathered from American Indian histories and federal Indian law sources, general

American Indian reference materials, and some primary source documents. Most importantly, semi-structured interviews were conducted with knowledgeable tribal officials and land department staff, in an effort to gain a tribal perspective, as well as to review data from archival sources.

Two government reports served as primary data sources for this study, including the Annual Reports of the Commissioner of Indian Affairs and the Bureau of Indian

Affairs Annual Report of Indian Lands. The Commissioner’s reports contributed to a broader, national perspective on Indian affairs, while also shedding some light upon the concerns of local Bureau agents. The Commissioner’s attitudes and philosophies permeate the administrative documents and provide evidence of the political and popular opinion by which they approached their responsibilities. The Bureau’s reports on Indian

lands provided data on the amount of acreage held in trust for specific tribes and bands, during the current era of Self-Determination.105 In addition, another government report provided excellent, relevant data on Indian trust lands, post-allotment. Theodore Taylor

compiled a report under contract with the Bureau of Indian Affairs in 1976, and that

report provided summary data on the amount of acreage restored to tribal ownership under the tribal land acquisition program of the Indian Reorganization Act. In his

“Report on Purchase of Indian Land and Acres of Indian Land in Trust, 1934-1975,”

Taylor also reports on the amount of acreage of Indian land held-in-trust, for the period from 1934-1975.106

Extensive research of government documents was conducted at the National

Archives in Washington, D.C., Kansas City, and Chicago in order to extrapolate the

necessary data for this study and explore the historical context for Indian land tenure at

the national level and at the Band level. As noted by Imre Sutton, “most of the published

and processed materials are government documents, some of which provide primary data,

but most of which deal with interpretations useful for better understanding how Indian

land tenure has been administered since the close of the treaty period.”107 Primary use of

government documents is problematic, however, as those documents generally provide

data from the perspective of the government, with little documentation of an Indigenous

perspective. In my archival research, however, I was fortunate to find glimpses of an

Ojibwe perspective in the documents, and that Ojibwe voice has been incorporated where

possible, such as the 1889 Grand Portage Chief John Morrison’s speech on the impact of

the Nelson Act.

Research in the National Archives focused on the documents and records of the

Bureau of Indian Affairs, the administrative agency responsible for federal relations with

American Indian tribes, as well as for the management and oversight of Indian trust lands. As such, the bulk of the national, regional, and local Indian land tenure data and associated information has been produced, and is held, by the Bureau of Indian Affairs.

The archival documents of the Bureau of Indian Affairs are found in National Archives

Record Group 75, of the National Archives Records Administration. At different points in time, various local agencies of the Bureau had administrative authority over the Grand

Portage and Leech Lake Bands and their reservation territories, including: the

Consolidated Chippewa Agency; the Leech Lake Agency; the LaPointe Agency; and the

Grand Portage Agency. Those local agency records were scattered between the Kansas

City Regional Archives Records Center and the Chicago Regional National Archives

Center. In addition, the central National Archives and Records Administration, in

Washington, D.C., provided additional relevant data, including information on the national Indian land tenure status over time, and a broader, national, perspective on the development and implementation of federal Indian policy.

Those archival records supplied the bulk of the data for this study, and those records contain a wide range of information on treaties, reservations, land surveys, allotments, surplus lands, land restorations, land needs and land use studies, and various

Indian land tenure statistics and reports, and maps. The Agency and Division Records of the Bureau of Indian Affairs contain data specific to the Grand Portage and Leech Lake

Bands and Reservations, including evidence on the treaties negotiated with the Minnesota

Ojibwe, on the process of establishing the reservations, on the size of the reservations and the amount of Ojibwe trust lands over time, on their historical land acquisition efforts, on land restoration to the Bands. Those records also provided information on historical events that factored into the Ojibwe land tenure history. As indicated previously, small archival treasures were found that provided witness to the voice of the Ojibwe .

Additional efforts were made to collect contemporary data, and those efforts were focused at the Band level. Initially, informal interviews were conducted with the officials and land department staff at the Grand Portage and Leech Lake Band offices to establish a basic understanding of their contemporary Indian land tenure status and to seek guidance on other potential data sources. Data was also collected in a review of the

Bands’ records relating to their land tenure history, the establishment of their reservations, the size of the reservations, the amounts of land held-in-trust over time, the

Bands’ needs for land, the amount of purchased lands and the issues surrounding the land-into-trust process, and the Bands’ land acquisition strategies. The bulk of the data on contemporary land acquisition efforts at the Band level was generally gathered from

Band sources.

Semi-structured interviews were conducted with key informants, including Band officials and land department staff, and tribal elders, in order to supplement the archival, legal, and localized research and to bring forward a contemporary Ojibwe voice and perspective regarding Indian land tenure and acquisition. Informal discussions were also held with local Bureau Agency staff, and one interview was conducted of a county official.

This effort to document the Indian land tenure history of the Grand Portage and

Leech Lake Bands, and their contemporary land tenure status, proved to be quite a research challenge. Ambiguous and inconsistent data are abundant, and I had to choose between two conflicting sets of data in some instances, weighing the evidence to select the data that appeared the most reliable. In addition, both the Grand Portage and Leech

Lake Bands have limited records relating to land, which presented other research challenges especially relating to contemporary data. Improved land records at the Band level are necessary to facilitate their current land acquisition and management efforts, which will require the assistance of the Bureau of Indian Affairs.

Chapter Overview

Chapter One presents a review of the literature and research relevant to the study of Indian land tenure and acquisition. It also discusses the research methodology constructed to effectively and adequately gather the data necessary to conduct this research project.

Chapter Two presents the Indian land tenure history of the Grand Portage and

Leech Lake Bands of Ojibwe during the Formative Years of federal Indian policy, from

1789-1871. Within Ojibwe territory, numerous and widespread Ojibwe Bands occupied the forest and lake regions of present-day Minnesota, Wisconsin, Michigan, North

Dakota, and Canada. The Bands were separate, yet loosely affiliated, political units that were joined by intermarriage, clan systems, friendship, trade relations, similar cultural traditions, and a shared language. Ojibwe territory contained valuable minerals, pine timber, fish, wild rice, deer, waterfowl, berries and water.

During the Formative Years, the federal government actively sought those natural resources in a series of initiatives to provide for the expansion of settlements, trade, and commerce. Soon, the United States government sought to establish a formal relationship with all the Ojibwe or those “wild tribes,”108 and exert increasing control over the Ojibwe

Bands. Treaties were eagerly pursued in federal efforts to extinguish title to vast Ojibwe

territories, to provide public access to the abundant resources, and to permanently

concentrate the Ojibwe people in a bounded territory.109 In a series of treaties with the

Ojibwe Bands, the federal government ultimately acquired approximately 50 million acres of land throughout much of present-day Wisconsin and Minnesota.

I will demonstrate that the Formative Years was a time of “tremendous trauma”

for the Ojibwe, as a result of the massive land cessions executed through the treaties and

the subsequent establishment of the reservation system. 22,167,000 acres of Ojibwe

territory were ceded in two treaties alone in 1842 and 1854, while only 287,520 acres were reserved for the establishment of five Ojibwe reservations. The ratio of acres ceded,

compared to acres reserved, represent a 98% reduction in Ojibwe territory.

Chapter Three presents the Grand Portage and Leech Lake land tenure histories

during the federal Indian policy era of “Allotment and Assimilation,” from 1871-1928.

Although the Ojibwe reservations were intended to serve as permanent territorial homelands, the integrity of Ojibwe ownership of the reservations was quickly assaulted,

and the Ojibwe Bands suffered additional land loss after the establishment of their

reservations. Within Ojibwe territory, the Nelson Act of 1889 authorized the allotment of

the Chippewa Reservations in Minnesota and the taking of the “surplus” reservation lands.

Under the Nelson Act of 1889, four million acres of Ojibwe territory were ceded.

Within the Grand Portage Reservation, 56% of the reservation acreage was taken for the public domain. The level of surplus land expropriated at Leech Lake far surpassed Grand

Portage, and my evidence will illustrate that 86% of the consolidated Leech Lake

Reservation was similarly expropriated. Regarding the entrusted allotted lands issued on those two reservations, those entrusted lands were also alienated and removed from

Ojibwe trust ownership. By 1934, 50% of the allotted lands at both Grand Portage and

Leech Lake had been taken out of trust status, and the bulk of the allotted lands remaining in trust status in 1934 were fraught with fractionated ownership issues.

During the Era of Allotment and Assimilation, other federal policies impacted

Indian land tenure within Ojibwe territory. For example, federal land grants were issued for State swamp lands, for railroad and missionary use, for Indian agency needs, and for the construction of dams or water reservoirs. The establishment of the Minnesota

National Forest (later renamed the Chippewa National Forest) within the boundaries of the Leech Lake Reservation was particularly significant. The establishment of the

Chippewa National Forest left an indelible imprint upon the land tenure status of that

Reservation, one that continues to severely limit the Band’s land acquisition efforts. As will be demonstrated herein, the Ojibwe “possessed lands that the white man wanted” throughout the treaty era and at the time of allotment, and that general principle continues to influence the Indian land tenure landscape in the present era.

Chapter Four presents the land tenure histories of the Grand Portage and Leech

Lake Bands during the period of Indian Reorganization, from 1928-1945.110 At the start

of that Era within Ojibwe reservation territories, the status of Indian land tenure was in

shambles and Ojibwe land holdings were clearly insufficient to meet tribal needs.

According to the local Bureau Superintendent in 1937, the Minnesota Ojibwe Bands had

lost between 50-95% of their land base, depending upon the reservation. Indeed, trust

ownership of the allotted lands had been diminished by 84% within the six member

reservations of the Minnesota Chippewa Tribe.

The Indian Reorganization Act created a new legislative impetus that was

intended to stabilize the Indigenous land base and respond to their urgent need for

adequate land. In response, the Bureau of Indian Affairs began to create tribal land

acquisition programs, and the local Bureau Agency developed a land acquisition program

for the Minnesota Ojibwe, including the Grand Portage and Leech Lake Bands. First, the

tribal land restorations were accomplished; at Grand Portage, a 1935 federal action

restored over 9,000 acres within that Reservation, and 5,680 acres were restored to

Ojibwe ownership at Leech Lake in 1938. Evidence indicates that there was limited land

available for tribal land restoration and acquisition within Leech Lake primarily as a

consequence of the existence of the Chippewa National Forest and the attendant federal

monopoly on land ownership.

The tribal land acquisition program within the Minnesota Chippewa Tribe

generally consisted of land purchases made specifically to acquire Ojibwe ownership of

the reservation territories. The land purchase program was particularly successful for the

Grand Portage Band, as 22,213 acres of land were ultimately purchased under the IRA- authorized land acquisition program. Active and engaged participation by the Grand

Portage Band in the land acquisition program was a contributing factor to their land acquisition success during the Era of Indian Reorganization. Although not successful at the same level as Grand Portage, the Leech Lake Band also benefited from the IRA-tribal land acquisition program, as 1,609 acres of land were purchased within the Leech Lake

Reservation. The land tenure histories of Grand Portage and Leech Lake began to significantly diverge during the Indian Reorganization era, as a huge and significant portion of the Grand Portage Reservation was either restored or acquired for that Band, while a considerably smaller percent of the Leech Lake Reservation was restored and acquired back into Ojibwe ownership.

Chapter Five presents the Grand Portage and Leech Lake Indian land tenure histories during the federal Indian policy era of “Termination,” which covered the time period from 1945-1960. Although neither the Grand Portage Band or the Leech Lake

Band were subject to a termination process, both suffered from the other federal mechanisms developed to expropriate Indian lands, such as the “Secretarial Transfer” process discussed previously.

The Secretarial Transfer process resulted in the sales of 34,881 acres of allotted reservation land within the Minnesota Chippewa Tribe, and many of those sales were improper and illegal, as the Secretarial Transfer sales were often consummated without the full consent of the Indian owners. Within Grand Portage, 570 acres of land were administratively transferred out of Ojibwe ownership, without the full consent of the

Indian owners. The impact of the Secretarial Transfer process was considerably more severe within the Leech Lake Reservation, as 26,825 acres of allotted Leech Lake land were sold by the Secretary of the Interior, without the full consent of the Indian owners.

Within the Leech Lake Reservation, the bulk of that acreage was transferred to the United

States Forest Service, for inclusion in the Chippewa National Forest. Legal claims have been identified on the illegal sale of those allotted lands under the Secretarial Transfer process; however, those land claims remain unresolved to date.

Chapter Six presents the Indian land tenure histories of Grand Portage and Leech

Lake Bands during the federal Indian policy era of Self-Determination, which began in

1960 and continues to govern federal Indian policy today.111 Within Ojibwe territory

during this period, the Grand Portage and Leech Lake Bands entered the era with

remarkable differences in their land tenure status. Within the Grand Portage Reservation,

Ojibwe trust ownership of 41,557 acres had been established by 1962. By 2001, that

amount had increased to 45,882 acres, and 81% of the Grand Portage Reservation was under Ojibwe trust ownership. Of course, the 1982 boundary expansion made a

significant contribution to that amount. Leech Lake, on the other hand, had recovered

only 23,720 acres of land back under Ojibwe trust ownership by 1962. By 2001, that amount had been minimally increased to 28,013 acres of land, or 5% of the Leech Lake

Reservation, was under Ojibwe trust ownership at that time, and there were few

opportunities to increase that acreage amount.

Chapter Six also presents a discussion of tribal and band land acquisition

strategies today, and illuminates some of the major challenges and obstacles facing the

Ojibwe people in contemporary land acquisition efforts. The different dynamics involved in the land acquisition efforts of the two Bands today are discussed.

The final chapter of this dissertation presents the conclusions and findings of this research, and summarizes the successful land acquisition strategies utilized by the Grand

Portage and Leech Lake Bands. The implications of this research for tribes engaged in contemporary land acquisition are also summarized, and some suggestions are made for tribal action and consideration. In addition, the implications of this research for federal

Indian policy, and for the federal trust responsibility as it relates to Indian land tenure, are also presented in the final chapter and some affirmative federal measures are identified for federal action.

This research was designed to place the Indian land tenure histories of two

Ojibwe Bands within the context of the national Indian land tenure experience. Bands and tribes vary tremendously in their historical experiences, leaving some more able to participate today in Indian land tenure and acquisition, while others have met continuing opposition and obstacles. In this research, I demonstrate that the Grand Portage Band has been remarkably successful in reclaiming their reservation territories, while the land tenure history of the Leech Lake Band has led to a dismal state of Indian land tenure within that reservation.

The Grand Portage land tenure history indicates that the Grand Portage Band, with their collective will, energy, and resources, has quietly and systematically focused upon reclaiming all of their reservation lands since the era of Indian Reorganization. The result of the Band’s land tenure and acquisition efforts created a fundamental land tenure

advantage, which has positively positioned that Band in their contemporary land tenure and acquisition strategies. The successful land tenure history, and contemporary land tenure status, of the Grand Portage Band has set them apart from the standardized narrative.

The Leech Lake land tenure history more accurately reflects the standardized national Indian land tenure history. The Leech Lake Band dealt with the political and geographic consolidation of Bands and reservation lands, which gave rise to intra-Band contentions. Furthermore, this research indicates that the Leech Lake Reservation has been a much more contested territory than Grand Portage, and that contestation over territory remains as an Indian land tenure reality for the Leech Lake Band. At Leech

Lake, the unfortunate reality is that the current Indian land tenure environment will probably not yield the amount of land needed to establish a sufficient land base, given the continued federal restrictions on land acquisition, the federal monopoly on land ownership within that reservation, the increasing local opposition and litigation to land acquisition, and the limited resources of the Band to pursue land acquisition.

This research evidences that the vacillation in federal Indian policy has permanently affected the Indigenous land base. The catastrophic losses of Indigenous land ownership resulting from the treaty era land cessions were exacerbated by the additional losses caused by the allotment and surplus lands policies. The issue of fractionated ownership of the allotted lands (multiple owners who share undivided property interests), is prevalent on the national Indian land tenure level, as well as within the reservation territories of the Grand Portage and Leech Lake Bands. Fundamentally,

this study reveals the precarious nature of Indigenous land ownership historically, and illuminates that the precarious nature of Indian land tenure remains as a present-day

Indigenous reality for some tribes and Bands today, such as Leech Lake.

The United States remains obligated to administer entrusted Indian lands and ensure that the protective restraints against alienation and encumbrance, state taxation and state jurisdictional authority are honored. Trust lands tend to be the only remaining land base for many tribes, and tribes generally want to retain those trust lands, along with the attendant jurisdiction and tax immunities over those lands. The efficacy and effectiveness of the federal trust doctrine is currently under scrutiny and contemporary scholars argue that a paradigm shift is necessary, and that the federal government should get out the trust lands business entirely. At this time, however, many tribes continue to seek trust status for their lands, which provides the mechanism to ensure that their tribal land bases will be secure from state interference.

As tribal nations continue to persevere and grow, many face extreme needs for additional tribal lands and, thus, strive to achieve a sufficient and adequate tribal land base. The contemporary Indian land tenure reality, however, is that tribal nations are now placed in the ironic position of having to buy back lands within their own reservation territories. Often with inadequate resources, many tribal nations and leaders address the difficult challenges of extremely high rates of poverty and unemployment rates, serious health and social issues, cultural diminishment and loss of language, enormous infrastructure needs, ongoing political and legal challenges, as well as low tribal land ownership rates within their reservation territories.

Some tribal nations have made significant progress in their land acquisition efforts, demonstrating that meaningful tribal land acquisition can happen within reservation territories. In general, however, contemporary tribal land acquisition continues to involve numerous obstacles, challenges, and opposition.

Ultimately, my findings indicate that while Grand Portage and Leech Lake share a common tribal identity and similar political history, they have distinctive land tenure histories and differing Indian land tenure status within their reservation territories today.

Therefore, this comparative study illustrates that those differences require different land strategies, and that one single strategy for a consolidated tribe is inadequate to meet the local needs at the Band level.

1 Steven Feld and Keith Basso, eds. Senses of Place (Santa Fe: School of American Research Press, 1996), 4. 2 Secretary of Interior, Commissioner of Indian Affairs Annual Report, Extract of Report of Secretary of Interior: III (1968). 3 Commissioner of Indian Affairs Annual Report (1859), 11. 4 Commissioner of Indian Affairs Annual Report, (1863), 432 and (1828), 77. 5 Commissioner of Indian Affairs Annual Report, (1861), 7. 6 Imre Sutton, Indian Land Tenure: Bibliographic Essays and a Guide to the Literature ( New York: Clearwater Publishing Co., Inc., 1975), 82. 7 Jeanette Wolfley, “Ecological Risk Assessment and Management: Their Failure to Value Indigenous Traditional Ecological Knowledge and Protect Tribal Homelands,” American Indian Culture and Research Journal 22:2:293. 8 Vine Deloria, Jr., “Self-Determination and the Concept of Sovereignty,” in American Indian Economic Development, ed. Roxanne Dunbar Ortiz (Albuquerque: University of New Mexico Press, 1983), 25-26. 9 Norman Deschampe, Speech at 2004 Indian Land Consolidation Symposium, sponsored by the Indian Land Working Group, held at Northern Lights Casino, Walker, MN.

10 Deloria, Jr., “Self-Determination,” 23. 11 Sutton, Indian Land Tenure, 7. 12 Donald Parman, “Twentieth-Century Indian History: Achievements, Needs, and Problems,” Organization of American Historians Magazine of History 9 (Fall 1994). 13 Stacey L. Leeds, “Moving Toward Exclusive Tribal Autonomy over Lands and Natural Resources,” Natural Resources Journal 46:2:446 (Spring 2006). 14 Elizabeth Cook-Lynn, “Who Stole Native American Studies?,” Wicazo Sa Review 12 (1997):11. 15 Cook-Lynn, “Native American Studies?”, 11. 16 Draft United Nations Declaration on the Rights of Indigenous Peoples, adopted by the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Res. 199445, art. 2, U.N. Doc. E/CN.4/1995/2, E/CN.4/Sub.2/1994/56 (1994); Arts. 10, 25, 26, and 28. 17 Indian Report ( Fall/Winter 2007): 1. The Indian Report is published by the Friends Committee on National Legislation (FCNL), which “emphasizes upholding treaty rights, insuring the fulfillment of the federal trust responsibility, and assuring the right of Native American communities to self-determination,” according to the editor’s note. 18 G. William Rice, “The Pedagogy of American Indian Law: Article: Teaching Decolonization: Reacquisition of Indian Lands Within and Without the Box-An Essay,” North Dakota Law Review 82:829. 19 “United States Report to the United Nations High Commissioner of Human Rights,” Human Rights Committee, International Covenant on Civil and Political Rights, “Initial Reports of States Parties due in 1993: United States of America: CCPR/C/81/Add 4, dated August 24, 1994: Paras. 57 and 37. 20 U.S. Report to the UNHCHR, Paras.41, 42, and 48; see also, Paras. 56 and 57. 21 U.S. Report to the UNHCHR, Paras.56 and 57; see also, Paras. 41,42, and 48.. 22 Kevin Gover, “An Indian Trust for the Twenty-First Century,” Natural Resources Journal (Spring 2006) 46:2:317. 23 Sutton, Indian Land Tenure, 5. 24 Gover, “An Indian Trust,” 323. 25 Sutton, Indian Land Tenure, 20. 26 See generally, K. Gover “An Indian Trust,”, and S. Leeds, “Exclusive Tribal Autonomy,” and Stacey L. Leeds, “The Burning of Blackacre: A Step Toward Reclaiming Tribal Property Law,” Kansas Journal of Law and Public Policy 10 (2001):491. 27 See generally, ibid. 28 Leeds, “Borrowing from Blackacre,” Footnote 33. 29 See generally, K. Gover, “An Indian Trust,” and S. Leeds, “Moving Toward” and “Borrowing from Blackacre.” See also, Allison M. Dussias, “Geographically-Based and Membership-Based Views of Indian Tribal Sovereignty,” in University of Pittsburgh Law Review 55 (Fall 1993):1-97. 30 Note that the standardized federal Indian policy narrative utilized for this study is set forth in the Cases and Materials on Federal Indian Law, David H. Getches, Charles F. Wilkinson, and Robert Williams, Jr., 4th ed. (St. Paul: West Publishing Co., 1998), the predominant textbook utilized by faculty in law and American Indian Studies. That textbook references another policy time period entitled the “European Doctrine of Discovery and American Indian Rights” (re-1789), which was not specifically referenced in this study, although the concepts developed during that time period resonate throughout all of the federal Indian policy time periods. 31 Sutton, Indian Land Tenure, 5. 32 Ibid, 5. . 33 For references on the historical diminishment of the Indigenous land base, see generally, Alfred Chandler, Land Title Origins: A Tale of Force and Fraud (1945), J.P. Kinney, A Continent Lost-A Civilization Won: Indian Land Tenure in America (1937). Although those references are dated, they provide interesting data on Indian land tenure. Other notable contributions include Stuart Banner, How The Indians Lost Their Land: Law and Power on the Frontier (2005), William T. Hagen, “Justifying Dispossession of the Indian: The Land Utilization Argument,” American Indian Environments: Ecological Issues in Native American History (1980):179-202, and Klara B. Kelley, “Federal Indian Land Policy and Economic Development in the United States,” American Indian Economic Development (1971), Janet A.

McDonnell, The Dispossession of the American Indian, 1887-1934 (1989), and Judith V. Royster, “The Legacy of Allotment,” Arizona State Law Journal (1995):27:1. See also, Charles Royce’s Indian Land Cessions in the United States (1971), for comprehensive data on treaties and Indian land cessions. 34 One example of a history that examines the land tenure history of specific parcels of tribal land is Joe Sando’s Nee Hemish: A History of Jemez Pueblo (1982). 35 Klara B. Kelley, “Federal Indian Land Policy and Economic Development in the United States,” in American Indian Economic Development, ed. Roxanne Dunbar Ortiz (Albuquerque: University of New Mexico Press, 1983), 30-42. 36 See generally, Getches et al, Federal Indian Law, and S. Lyman Tyler, A History of Federal Indian Policy (Washington, GPO, 1973), and Robert L. Bee, The Politics of American Indian Policy (1982), American Indian Policy and Cultural Values: Conflict and Evolution, ed. Jennie Joe ((1986), and Robert L. Bee and George P. Castille, State and Reservation: New Perspectives on Federal Indian Policy (1992). 37 Getches, et al, Federal Indian Law. 38 Kelley, “Federal Indian Land Policy,” 30. 39 Kelley, “Federal Indian Land Policy,” 30-42. 40 John H. Moore, ed. The Political Economy of North American Indians ( Norman: University of Oklahoma Press, 1993), 14. 41 Ibid., 14. 42 Ibid., 15. 43 George P. Castille, “Native North Americans and the National Question,” in The Political Economy of North American Indians, ed. John H. Moore (Norman: University of Oklahoma Press, 1993), 273. 44 Getches, et al, Federal Indian Law, 42. 45Kelley, “Federal Indian Land Policy,” 39. See also, Felix S. Cohen, “Original Indian Title,” 32 Minnesota Law Review 32 (1947): 28. Kelley indicates that the baseline acreage was 2 million square miles, which equals 1,280 billion acres when converted. 46 Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681 (1823). 47 Getches, et al, Federal Indian Law, 69:Note 1. 48 Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832): 557. 49 Robert Williams, Jr. The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990), 327. 50 Ibid, 35. The three core principles of Indian law that Williams refers to are the “Congressional Plenary Power doctrine” (under which Congress enjoys absolute authority over Indian affairs); the “Diminished Tribal Sovereignty Doctrine” (under which Indian tribes only retain those bits and pieces of sovereignty not divested); and the “Trust doctrine” (under which a guardian-ward relationship between tribes and the United States was fashioned). 51 Commissioner of Indian Affairs Annual Report (1856), 20. 52 Castille, “Native North Americans,” 271. 53 Kelley, “Federal Indian Land Policy,” 39. 54 Commissioner of Indian Affairs Annual Report (1878), VII. 55 Act of February 8, 1887, 24 Stat. 388, also known as the General Allotment Act or the Dawes Act. 56 Leeds, “Exclusive Tribal Autonomy,” 440. 57 Ibid., 440. 58 Kelley, “Federal Indian Land Policy,” 32. 59 Commissioner of Indian Affairs Annual Report (1891), 46. 60 Act of February 8, 1887. 61 Getches, et al, Federal Indian Law, 141. 62 Kelley, “Federal Indian Land Policy,” 39. 63 Charles F. Wilkinson, American Indians, Time, and the Law ( Yale University Press, 1987), 14-19. 64 Getches, et al, Federal Indian Law, 192. 65 Lewis Meriam, et al. The Problem of Indian Administration, also referred to as the Meriam Report (Baltimore: Institute for Government Research Studies in Administration, John Hopkins Press, 1928). 66 Getches, et al, Federal Indian Law, 191-193.

67 Indian Reorganization Act of 1934, June 18, 1934, Ch. 57: 48 Stat. 985, 25 U.S.C. § Secs. 461 et. seq., as amended. (hereinafter referred to as the IRA of 1934) 68 Castille, “Native North Americans,” 273. 69IRA of 1934. 70 Getches, et al, Federal Indian Law, 194-195. 71 Kelley, “Federal Indian Land Policy,” 39. 72 “Information Packet on Proposed Amendments to Regulations Governing Taking Land Into Trust For Indians, 25 C.F.R. Part 151,” Bureau of Indian Affairs, Department of Interior (April 1999). 73 Theodore W. Taylor, “Report on Purchase of Indian Land and Acres of Indian Land in Trust, 1934- 1975,” prepared under contract for the Bureau of Indian Affairs, United States Department of Interior (May 1976). 74 Getches, et al, Federal Indian Law, 204. 75 Ibid., 2d. ed., 130-151. 76 See generally, Taylor, “Report on Indian Land.” 77 President Richard M. Nixon. H.Doc. 91-363, 91st Cong., 2d Sess. 1-3 (1970). 78 Indian Self-Determination and Education Assistance Act. 25 U.S.C. §§450 et. seq: 450a(a), as amended. 79 Indian Civil Rights Act of 1968, 25 USC §§1301-1303. 80 Indian Child Welfare Act of 1978, 25 USCA §§1901-1963. 81 American Indian Religious Freedom Act of 1978, codified at 42 USCA §1996 et. Seq. 82 Getches, et al, Federal Indian Law, 226. 83 Doug Nash, “Fee to Trust: Fact or Fiction?” Indigenous Lands Reporter (Summer 2003):4-5. 84 Indian Land Consolidation Act of 1982, 25 USCA §§2201-2211, as amended. 85 Hodel v. Irving, 481 U.S. 704 (1987). 86 Babbitt v.Youpee, 117 S.Ct. 727 (1997). 87 Robert Desjarlait and Marcie Rendon, “No Quick Fixes: A Look at the Bureau of Indian Affair’s Indian Land Consolidation Pilot Program,” (Little Canada, MN: Indian Land Tenure Foundation, 2007), www.indianlandtenure.org/resources . 88 American Indian Probate Reform Act of 2004, P.L. 108-374, 118 Stat. 1773, enacted on October 27, 2004. 89Bureau of Indian Affairs Annual Report of Indian Lands, United States Department of Interior (1997). Note that the Bureau’s Annual Report of Indian Lands was published for the years 1976-1985 and 1996-97, but was not published from 1986-1995. 90 Feld and Basso, eds. Senses of Place, Introduction: 10, referencing Karen I Blu, “Where Do You Stay At?”: Homeplace and Community Among the Lumbee,” in Senses of Place, 197-228. 91 Sutton, Indian Land Tenure, 74. 92 Gerald Vizenor, The People Named the Chippewa: Narrative Stories (Minneapolis: University of Minnesota Press, 1984), 27-31. 93 Map of Federal Lands and Indian Reservations found at National Atlas of America website, http://www.nationalatlas.gov/asp/popups.asp?imgFile=../printable/images/preview/fedlands/mn.gif&imgw =5888&imgh=450. The Map is in the public domain, according to the National Atlas website, which indicates that the “data and information authored or produced by the USGS are in the public domain. National Atlas of the United States and the National Atlas of the United States of America are registered trademarks of the DOI,” see Policies of the National Atlas of the United States at http://www.nationalatlas.gov/policies/html. 94 Treaty between the United States and the Chippewa Indians of Lake Superior and the Mississippi, September 30, 1854, 10 Stat. 1109. 95 Commissioner of Indian Affairs Annual Report (1913). 96 See generally, Commissioner of Indian Affairs Annual Reports (1874-1893). See also, 1881 LaPointe Agency Reports, included in the Commissioner of Indian Affairs Annual Report (1881): 180 and (1879): 161, listing the Lake Superior Bands. 97 Commissioner of Indian Affairs Annual Report (1894).

98 Township Survey Field Notes, National Archives and Records Administration (herein after referred to as NARA), Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Grand Portage Agency, Grand Portage, MN, Township Survey Field Notes: Box 7: HM: 1990. There were several folders in the box which contain files of the handwritten Field Notes completed by the surveyors when they conducted surveys of the Grand Portage Reservation, circa 1892-93. 99 1936 Consolidated Chippewa Agency Annual Statistical Report for Grand Portage Reservation, Sec. III, Land. Compiled by Dorothy Chosa and verified by Jacob J. Munnell. NARA, Washington, D.C. RG75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and Other Records, 1933-1948: Box 15: PI-163; Entry 963. No explanation has been uncovered for the major discrepancy in amount of acreage contained in the original Grand Portage Reservation. 100 Secretarial Proclamation, “Grand Portage Indian Reservation, Minnesota: Proclaiming Certain Lands as Part of the Grand Portage Reservation,” published in Federal Register 47:105: 23813 (May 14, 1982). As to the contemporary acreage size of the Grand Portage Reservation, there is again inconsistent data. The Grand Portage Band, on their website, indicates that the acreage size of the reservation is approximately 48,000 acres. However, the Bureau of Indian Affairs and most other sources indicate the Grand Portage Reservation is 56,512 acres. 101 1936 Map of the Grand Portage Reservation., NARA, College Park, Maryland (cartographic records). RG75, Cartographic Records of the Forestry and Grazing Division, Records of the Bureau of Indian Affairs. Description of Map is “a blueline print of map of reservation and Pigeon Point showing types of allotments, lands restored to Tribe, lands purchased for Tribe (1936).” SL-13, Entry 793 re: Grand Portage Reservation. 102 Elizabeth Ebbott, Indians in Minnesota, 4th ed. (Minneapolis: University of Minnesota Press, 1985): 25. Ebbott collected her information directly from the Bureau of Indian Affairs and that is the figure reported by the Bureau of Indian Affairs, as well. See also, Veronica E. Velarde Tiller, ed., Tiller Research, Inc., “American Indian Reservations and Indian Trust Areas ( October 1995); Indian Land Working Group, Indian Land Tenure Project Inventory (December, 1999), found within “The Indian Land Tenure Partnership Plan” (February 2001): 51. 103 As with the Grand Portage Reservation, there is conflicting data on the acreage size of the Leech Lake Reservation. The Leech Lake Band of Ojibwe reports that the reservation acreage totals 864,158 acres, with approximately 300,000 acres covered by water, according to the Leech Lake Band of Ojibwe website, link to Division of Resource Management. However, the Bureau of Indian Affairs and many other sources utilize the 677,099 acreage amount. 104 1916 Map of the Leech Lake, Chippewa, Winnibigoshish, Cass Lake, and White Oak Point Reservations. NARA, College Park, Maryland (cartographic records). RG75, Cartographic Records of the Forestry and Grazing Division, Records of the Bureau of Indian Affairs. Description of Map is a map showing claimed but not yet patented State swamp lands. SL-13, Entry 790 re: Leech Lake, Chippewa, Winnibigoshish, Cass Lake, and White Oak Point Reservations. 105 The Bureau of Indian Affairs Annual Report of Indian Lands, Department of the Interior, was published for the years 1975-1985. The publication resumed in 1986, but in a new format that does not contain the acreage recapitulation by reservation, but only provides acreage recapitulation by area and state. 106 Taylor, “Report on Indian Land.” 107 Sutton, Indian Land Tenure, 17. 108 Commissioner of Indian Affairs Annual Report (1842), 374. 109 Commissioner of Indian Affairs Annual Report (1846), 8. 110 Getches, et al, Federal Indian Law, 191. 111 Ibid., 224-225.

CHAPTER ONE

LITERATURE REVIEW: EXPLORING THE LANDSCAPE

“Indian land tenure is not just a thing of the past or of the present, but a phenomenon along a continuum, varied and embellished by new discoveries or the reassessment of long-standing facts, or extinguished or expanded by the circumstances of law, economics, polity, and social change.”1 Imre Sutton (1975)

The subject of American Indian history and Indian land tenure engages politics, law, economics, and social issues, while spanning centuries of time and academic disciplines, and it involves all tribal nations. The foundational elements of American history, and relationships with Indian nations and communities, evolved during the settlement and colonization of this continent. The associated military events, treaties with tribal nations, removal of American Indian nations to geographically-bounded territories, and further expropriation of the American Indian territorial land base through the allotment process and other federal Indian policies served to form the contemporary federal-tribal relationship. The subject of Indian land tenure is embedded within

American Indian history and federal Indian law and policy, and Indian land tenure is an essential element of contemporary tribal sovereignty.

This project is designed to explore a strand of Indian land tenure, and is an investigation to determine what land acquisition strategies tribes are actively pursuing today within the context of their land tenure histories. This project also investigates how federal Indian policy impacted land tenure “on the ground,” in a specific tribal context.

Often, the subject of Indian land tenure is simplistically rolled into the broader study of

American Indian history and western expansion, and there is inadequate research available that explores Indian land tenure as a discrete and specific area of inquiry. In

particular, there is a dearth of literature that illuminates specific Indian land tenure patterns and histories at the tribal levels. Each tribe has its own unique history of land tenure: each experienced their own land tenure reality, as treaties were negotiated, land cessions obtained, reservations established, allotments issued, and surplus lands taken.

Although there is a growing body of literature on American Indian history and federal

Indian policy in general, there is little contemporary literature on specific Indian land tenure systems and their associated topics.

As a discrete subset of the broader American Indian history and history of federal

Indian policy, the scope of Indian land tenure covers a wide range of topics, including

Indigenous concepts of territoriality and the tribal importance attached to land, the dispossession of the Indigenous land base, the imposition of European concepts of property title, tribal sovereignty and its territorial aspects, tribal jurisdictional issues, general tribal struggles to reclaim their territories. Other literature also examines the federal Indian policy impacts upon Indian land tenure in general, and scrutinizes the federal trust doctrine and its impact upon Indian land tenure and acquisition today while also proposing alternatives to that model.

This Chapter presents a review of the most relevant literature to frame my study theoretically and empirically. I have drawn upon a range of scholarly perspectives in order to best illustrate the Indian land tenure histories of the Grand Portage and Leech

Lake Bands and their ongoing efforts to reclaim ownership of their reservation territories.

This review will provide the reader with a sense of how research on land issues encompasses a broad range of scholarly work, although some of those strands of inquiry

remain virtually unexplored today. First, the Ojibwe literature will be reviewed, which will be followed by the presentation of the Indian land tenure literature review, which is categorized into three topical areas, as follows: Tribal Sovereignty and Jurisdiction;

American Indian history and Federal Indian Policy; and, Post-allotment Development of

Indian land Trust, Tenure, and Acquisition.

The Ojibwe Literature

The Anishinaabeg people are the indigenous people of the woodlands surrounding

the Great Lakes. The Anishinaabeg came to be referred to as Ojibway or Ojibwe people.2

For purposes of this paper, Ojibwe and Anishinaabeg (singular term is Anishinaabe) will

be used interchangeably, along with the term “Chippewa.” Ojibwe people have occupied,

and continue to occupy, a wide geographic range along the northern and southern shores

of both Lake Huron and Lake Superior.3 Ojibwe territory extends over part of Michigan,

the northern half of Wisconsin and Minnesota, east into North Dakota, and north into

Canada.4 Today, the Anishinaabeg occupy reservations in Minnesota, Wisconsin,

Michigan, North Dakota, and in parts of Canada.5 Their Indigenous language has been

classified as part of the Algonquian language family.6

According to Gerald Vizenor, general American histories have “invented” the

Ojibwe people, and represent a “material and linguistic colonization of [Ojibwe

people].”7 Ojibwe ethnohistories have been produced primarily by anthropologists for

the Indian Claims Commission. The primary body of ethnohistorical work on the Ojibwe

was produced by Harold Hickerson and Ermine Wheeler-Voeglin.8 One of the most

informative and relevant ethnohistories drawn upon for the period of the Formative Years

in Ojibwe history was produced by James M. McClurken and other scholars. In preparation for the litigation involving the assertion of Ojibwe hunting and fishing rights by the Mille Lacs Band under the 1837 Treaty, the authors compiled an Ojibwe ethnohistory to provide the historical context for that litigation, Fish in the Lakes, Wild

Rice, and Game in Abundance: Testimony on Behalf of Mille Lacs Ojibwe Hunting and

Fishing Rights is a rich source of detail and historical material of that time period in

Ojibwe territory.9 The “Preliminary Report of the Ethnohistorical Basis of the Hunting,

Fishing, and Gathering Rights of the Mille Lacs Chippewa” by Charles Cleland was

particularly useful for providing a solid Ojibwe perspective on that time period, as well as

Ojibwe land tenure data on the amount of acreage ceded in the Ojibwe treaties.10

Some mid-nineteenth century Ojibwe histories were written from an Ojibwe historical perspective. The landmark contribution is William Warren’s History of the

Ojibway People, which served as a resource for this study and provided information on the Ojibwe political and social structures, their geographic territories, and their environment during the Formative Years.11 Warren’s Ojibwe history is considered a

foundational piece for any historical study on the Ojibwe.12 Lesser known Ojibwe

histories from the same time period include George Copway’s (Kahgegagahbowh), The

Traditional History and Characteristic Sketches of the Ojibway Nation, and Peter Jones’

(Kahkewaquonaby) History of the Ojibway Indians: With Especial Reference to Their

Conversion to Christianity.13

Contemporary scholarship on the Ojibwe includes the Ojibwe history written by

Gerald Vizenor, who draws upon oral traditions, tribal newspapers, and other alternative

source materials to construct his history, produced in 1984.14 Helen Hornbeck Tanner

produced an excellent political history of the tribes in the Great Lakes theatre and

presents an exquisite set of maps for reference.15 Elizabeth Ebbott provides general reports on contemporary conditions and tribal-federal relationships of Minnesota tribes in

her reference book, Indians in Minnesota.16 That reference book provided information on

the Indian land tenure status within the Minnesota Chippewa Tribe, primarily during the

Self-Determination era. In addition, there is also a tribal government handbook on the

Minnesota Chippewa Tribe, which was produced by the Tribe in 1979 in an effort to

address curriculum and instruction needs.17 That Handbook was also useful for this study,

as it provided some data on Ojibwe treaty negotiations and an Ojibwe perspective on

historical events, as well as on the contemporary Indian land tenure status within the six

Minnesota Ojibwe reservations. Together, these works provided valuable information on

the Ojibwe, and were utilized to construct the Ojibwe land tenure histories presented

herein.

The Indian land tenure literature review herein begins with a comprehensive

bibliography on Indian land tenure that shows the breadth and depth of that literature. In

Indian Land Tenure: Bibliographic Essays and a Guide to the Literature (1975), Imre

Sutton categorized the Indian land tenure literature into seven topical categories,

illuminating the various facets of Indian land tenure as a strand of scholarly inquiry.18

Sutton recognized the limitations of the Indian land tenure literature existing at that time, however, and acknowledged that much of the literature was concentrated on the Indian

Claims Commission. While the Indian Claims Commission addressed outstanding tribal

land claims, those claims were restricted to monetary settlements and did not involve the reacquisition of tribal lands; therefore, that body of literature includes little on tribal land tenure, acquisition, or restoration.19

Sutton’s comprehensive bibliography helped to orient me to the Indian land

tenure literature, provided a useful approach to this review, and offered some operational

definitions. This literature review represents only the primary areas of literature that

touch on or relate to Indian land tenure in some fashion, and this review does not serve as

a comprehensive review of all literature. However, this review is similar to Sutton’s

approach in that I have attempted to organize the literature according to topical categories, which represent the intertwined strands of Indian land tenure inquiry emerging today:

1. Topical Category One: Tribal Sovereignty and Jurisdiction

This body of work examines tribal sovereignty and tribal assertions of greater authority, tribal jurisdiction and associated litigation, and the judicially-crafted nexus between tribal sovereignty and Indian land tenure status;

2. Topical Category Two: American Indian history and federal Indian policy

This body of work examines American colonialism, Westward expansion and settlement, tribal land dispossession through treaty land cessions, removals, establishment of reservations, tribal land dispossession through allotment and surplus land processes, imposition of European property system, and the foundations and development of federal Indian policy and its overall impact upon Indian land tenure

3. Topical Category Three: Post-allotment development of Indian land trust, tenure, and acquisition

This body of work examines the quagmire of post-allotment issues, including fractionated ownership issues and federal efforts to resolve, the ongoing federal trust responsibility, management, and administration over Indian trust

lands and tribal land acquisition, alternative proposals to the federal trust model, and tribal land acquisition since allotment

Category One: Tribal Sovereignty and Jurisdiction

One of the premises of this study is that tribal sovereignty is fundamentally a

territorial concept, and that limited tribal ownership of their territorial land bases

ultimately restricts and dampens tribal exercise of sovereignty. Certainly, contemporary jurisprudence favors restrictions upon tribal sovereignty and jurisdiction in those cases where there is a limited degree of tribal ownership of lands within their reservation territories.

There is a body of scholarly work that examines tribal sovereignty as a territorial

concept, as literature in the law and other sources shed light upon tribal sovereignty, as

well as the importance of Indian land tenure. Other legal analyses demonstrate that the

Supreme Court, and other government institutions, are ultimately used as “instruments of

empire” to restrict the power of tribal nations to govern themselves. Roxanne Dunbar-

Ortiz discusses the territoriality aspect of American Indian sovereignty and suggests that,

although it is fundamentally economic, sovereignty also involves “a social question, an

ethical question, a question of human rights, and a nationalities question.”20 Connecting

Indian land tenure status to tribal economic and political development, Dunbar-Ortiz also

argues that the protections of international law must be applied to American Indian

territories “if Indian peoples are to survive as people on the continent.”21

Based upon their existence as separate, sovereign nations prior to the

establishment of the United States government, and under the derivative doctrine of tribal

sovereignty, tribes have inherent sovereign authority to govern their citizens and their territories. The United States government has recognized the doctrine of tribal sovereignty and its territorial aspect, such as in the landmark case of Worcester v.

Georgia, when Chief Justice Marshall opined that tribes are “distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not acknowledged, but guaranteed by the United States.”22 However, subsequent court decisions and legislative acts have since eroded the concept of inherent tribal sovereignty, which is now viewed as a “reservoir of political powers,” or a “residual sovereignty inherent in Indian governments,” according to the late Vine Deloria, Jr.23 Some of the literature examines

the institutional limits placed upon the contemporary exercise of tribal sovereignty, much

of which is found in the laws or court decisions.

According to Robert Williams, Jr., one of the most insidious limits placed upon contemporary tribal sovereignty today is the existence of an irredeemably “racist” legal system that is deeply embedded in our modern legal discourse, and that denies

Indigenous ability to assert certain legal or justifiable grievances.24 In Williams’ moving

and persuasive argument, he documented the Old World nations’ perception that they were predestined to “conquer the earth” and engage in colonial expansion. Furthermore,

Williams argues that American law, legal institutions, and legal discourse became the Old

World’s “most vital and effective instrument of empire” and became the philosophical tool that legitimated their conquest and colonization of the New World.25

Imre Sutton reiterates that thought, as he asserted that federal Indian law is a

“species of colonial law,” and that “the laws and institutions of western culture determine the range and parameters of indigenous expression.”26 From Sutton’s perspective, Indian

land tenure is the basis of the physical and cultural existence of tribes, and is the most

critical issue in Indian-white relations that serves as a centrifugal force within federal

Indian law and policy. The legacy of federal Indian policy continues to impact tribal

sovereignty on the economic, social, legal, and political levels, as well as on tribal land

tenure and acquisition.

Through judicial interpretation and laws, restrictions and limitations on tribal

sovereignty have been crafted and imposed, and are often articulated within the context

of tribal jurisdiction and governmental authority. For example, the Indian land tenure

status of reservation territories has emerged as a critical factor for judicial determinations

regarding tribal sovereignty and jurisdictional issues, and some of those cases are

analyzed in the literature. The literature selected for this review analyzes the shifting

doctrine of tribal sovereignty and the creation of judicial restrictions and limitations upon that sovereignty; the literature contributes to a better understanding of the tie between

Indian land tenure status and tribal sovereignty.

One of the strong themes running throughout this category of literature is that the

law and legal institutions continue to be used to the detriment of tribal sovereignty.

Another theme is that the current abysmal state of Indian land tenure, which is a direct

result of pulverizing federal Indian policies, is now held against tribes as they assert their

sovereign authority. The literature is generally presented within the context of key

Supreme Court decisions regarding tribal sovereignty and jurisdiction, in an effort to

provide the reader with a sense of contemporary judicial opinion on the issue of tribal sovereignty, jurisdiction, and governmental authority.

In Montana v. United States (1981), the Crow Tribe asserted its inherent tribal sovereignty and prior treaties to regulate hunting and fishing by non-Indians on Indian property within the reservation boundaries.27 The Supreme Court denied the Tribe’s

claim, partially due to the low ratio of Indian trust land (land held-in-trust for individual

tribal members and for the tribe) to the amount of reservation land held in private, non-

Indian ownership. The Montana case again demonstrates how the law and legal

institutions serve as instruments of destruction against tribal sovereignty.

The Indian land tenure status of reservation territories was again a decisive factor

in a 1993 Supreme Court decision, South Dakota v. Bourland. The Cheyenne River

Sioux Tribe asserted regulatory jurisdiction over hunting and fishing by non-Indians on

lands and overlying waters located within their reservation, which land had been acquired

by the federal government for a water project.28 The Supreme Court concluded that

Congress had abrogated the tribe’s original treaty right to regulate non-Indian hunting and fishing on those lands, and found that the federal purchase and public use of those lands effectively transferred regulatory jurisdiction over hunting and fishing to the federal government. The Court held that “when Congress has broadly opened up such land to non-Indians, the effect of the transfer is the destruction of pre-existing Indian rights to regulatory control.”29 Once again, the Indian land tenure status within reservation territories served as a decisive factor which precipitated a Supreme Court that restricts tribal sovereignty, jurisdiction, and true governmental authority.

The Supreme Court later held that the county had jurisdiction to regulate land use on property owned in fee by non-members within a reservation, in those areas with a significant non-Indian presence. In Brendale v. Confederated Tribes and Bands of

Yakima (1989), the Indian land tenure status within reservation territories was a determining factor in the court’s reasoning and the ratio of Indian to non-Indian land ownership influenced a decision that served to restrict the scope of tribal sovereignty.30

Joseph Singer condemned the Brendale decision, which authorized

implementation of a “system of racial caste” in this country, in his opinion.31 According

to Singer’s argument, the Supreme Court treated the property and political rights of

American Indians in a discriminatory manner, which cannot be legally justified.

According to Singer’s theory, the Court treats tribes as simple property holders when the loss of tribal jurisdiction and governmental authority is at stake, especially over non- members within the tribal territory. In its discriminating approach, however, the

Supreme Court has also treated tribes as sovereigns, in those instances when protection from confiscation of their property is at stake. Singer concludes that the Supreme Court

“has come more and more to assume that tribal sovereignty concerns personal power over tribal members rather than geographic power over land bases on the reservation, and that the “Supreme Court is now accomplishing through the rule of law” what the “federal government could not accomplish by force.”32

In County of Yakima v. Confederated Tribes and Bands of the Yakima Indian

Nation, the Supreme Court in 1992 held that Yakima County could impose a property tax

on lands within the Yakima Reservation that had been fee-patented under the General

Allotment Act, but were now owned by tribal members or the tribe itself.33 The Supreme

Court found that Congress had manifested its intent to authorize state taxation of those

lands through the Act, dismissing the argument that the Indian Reorganization Act had

implicitly repealed that taxing authority.

Christopher Karns analyzed that case and argued that the state taxing authority

recognized by the Supreme Court essentially represents the power of a state to further

erode “what remains of tribal sovereignty and integrity, including the tribal land base.”34

Equating the “power to tax” with the “power to destroy,” Karns argued that the taxing

authority granted to the state in Yakima conflicts with contemporary federal trust

responsibility, as the current federal Indian policy of Self-Determination mandates

federal efforts to preserve the tribal land base, and promote tribal sovereignty.

In Cass County v. Leech Lake Band of Chippewa Indians (1998), the Supreme

Court addressed the taxability of tribally-owned lands held in fee status within the Leech

Lake Reservation.35 The Eighth Circuit Court of Appeals initially favored tribal immunity

from state taxation, drawing a protective shield around the category of lands at issue: surplus lands opened for sale and settlement under the Nelson Act of 1889, fee-patented, and later purchased by the Band. However, the Supreme Court overruled the Eighth

Circuit, finding that Congress made those lands freely alienable, thus manifesting its

“intent to render such land subject to state and local taxation,” thereby converting the surplus lands into alienable and taxable land.”36

Attorney Doug Nash analyzed the Cass County case in terms of the burden put upon tribes that results from the judicial recognition of state taxing authority in that

case.37 Nash explores the question of whether the current land-into-trust regulations

violate the intent of the land acquisition regulations of the Indian Reorganization Act, and

asserts that the transfer of lands-into-trust has largely become a “fiction” because of

stringent regulations that create a chilling effect upon tribal land acquisition and trust

transfers. According to Nash, “many tribes are paying a combined millions of dollars in

property taxes waiting for the Department of Interior to approve/complete fee to trust

applications.”38 Larry Echohawk reiterated that thought, stating that the imposition of

state taxation “cripples reservation economies.”39

There is an excellent piece of scholarship that provides a framework for analysis

of the judicially crafted legal nexus between Indian land tenure status and tribal

sovereignty and jurisdiction. In her study of modern tribal sovereignty and jurisdiction,

Allison Dussias argues that, as the concept of tribal sovereignty evolved, two prevailing judicial visions of tribal sovereignty have emerged that now influence judicial decisions on tribal jurisdictional issues. Under the first vision, the Supreme Court was originally the “protector of tribal sovereignty.” However, that vision was transformed into a new judicial vision, wherein the Supreme Court is now the “chief threat to tribal sovereignty.”40 The Dussias analytical framework brings clarity to contemporary judicial

interpretations of tribal sovereignty, and her two divergent visions are described below.

The first vision of tribal sovereignty is a “geographic” vision, under which tribal

power to govern spans a tribe’s territory without restrictions, and regardless of the

characteristics of the people or land within. Dussias argues that a geographically-based

vision of tribal sovereignty is truly founded upon a “basic attribute of full territorial

sovereignty,” which is “the power to enforce laws against all who come within the sovereign’s territory, whether citizens or aliens.”41

Under the “membership” vision of tribal sovereignty, recognized tribal power to govern extends only over certain categories of people, such as enrolled tribal members, or

certain categories of land within a tribe’s territory.42 Dussias argues that a membership-

based vision erodes the doctrine of tribal sovereignty and its territorial foundations, because it restricts a “tribe’s authority [to] people and activities on the tribe’s reservation, in the membership of individual Indians in a political entity, the tribe, rather than on tribal authority over the territory within the boundaries of the reservation.”43 Dussias

analyzed Supreme Court decisions regarding tribal criminal, civil, and regulatory

jurisdiction, as is illustrated in Table 1-2 below, and she successfully demonstrates the

influence of the two divergent visions upon contemporary interpretations of tribal

sovereignty, as well as the legal nexus between Indian land tenure and tribal sovereignty.

Table 1-1

Dussias Framework of Analysis for Tribal Jurisdiction

Type of Jurisdiction Supreme Court Vision applied

Tribal Criminal Jurisdiction Rejection of geographically-based vision: -embraced membership-based vision (does not recognize tribal jurisdiction over non- member Indians and over non-Indians) Preserved geographically-based vision: Tribal Civil Jurisdiction recognizes tribal jurisdiction as appropriate forum for resolving disputes between tribal members and others Relies on both geographically-based and Tribal Regulatory Jurisdiction membership-based vision:

recognizes some authority over non- members on non-members' land in some situations but not in others. 44 NOTE: Information taken from Allison M. Dussias, “Geographically-Based and Membership-Based Views of Indian Tribal Sovereignty” (Fall 1993). 45

The theoretical framework developed by Dussias is a significant contribution to

the literature, and her analysis confirms that American law and legal institutions continue

to serve as a tool to further define, refine, and ultimately restrict the power of tribes to

govern themselves.

Category Two: American Indian history and federal Indian policy

The primary dispossession of the American continent from Indigenous ownership,

use, and control occurred prior to the twentieth century. Within American Indian history,

the dispossession of the continent involved issues of conquest and invasion, colonial imposition of authority and European notions of law and society, displacement, implementation of the reservation system, and intensive social, cultural, and political

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upheaval and change. Renewed scholarly inquiry into American Indian history followed the academic emergence of “ethnohistory,” an interdisciplinary effort to “present a more balanced assessment of Indian life and to end the earlier depictions of Indians as silent pawns in their relations with whites.”46 In order to do so, the new discipline developed a

methodology that relies upon the broadest array of available evidence, according to

James Axtell, and that combined the historian’s analysis with the anthropologist’s interest

in American Indians.47 The methodology developed by the new discipline of ethnohistory

has since been embraced by scholars of American Indian history, and that growing body

of work has “managed to break beyond the “barrier” imposed by [the] view that the

frontier ended in 1890.”48

For this literature review, and to suggest additional contextual sources for the

reader, I have selected two excellent twentieth century American Indian histories which

employed the ethnohistorical approach, thereby providing an Indigenous historical

perspective based upon an acknowledgement that Indian people were active agents in

historical events. For example, one of the first comprehensive American Indian histories

was the A History of the Indians of the United States, written by Angie Debo in 1970.49

A recently published American Indian history by Robert W. Venables, entitled American

Indian History: Five Centuries of Conflict and Coexistence, is a two volume history that is rich in detail and narrative.50 The Venables history is an excellent historical account

that clearly illustrates the dynamic and shifting relationships between the various tribal

nations and the European invaders and settlers, documenting that Indian people were, in fact, active agents in the events of their time.

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Other American Indian scholars explore more defined areas of American Indian historical inquiry, such as the colonial invasion and the imposition of European norms.

For example, Francis Jennings wrote about the colonial invasion of America, and discredited a standard historical “conquest” myth. Jennings argued that the European invaders did not settle a “virgin land” or wilderness, asserting instead that the land “was more like a widow than a virgin” as the immigrants “invaded and displaced a resident population.”51 Robert Berkhofer also examined the colonial relationship between

Europeans and American Indians, finding that American Indians became colonial

subjects in their own lands, as Whites advanced toward their goals as imperial powers in

the New World.”52 Edward H. Spicer, in his Short History of Indians of the United States,

examined European concepts of property title and explored how those property concepts were imposed upon the Indigenous people of North America.53

There is also a growing body of literature that focuses on American Indian history in the American West during westward expansion. For example, Ray Billington and

Martin Ridge published their frontier history in the 1982 Westward Expansion: A History of the American Frontier, which was followed by the 1989 The American West: A

Twentieth Century History, by Michael Malone and Richard Etulain.54 There is also

Richard White’s 1991 It’s Your Misfortune and None of My Own: A New History of the

American West; White is a well known and respected environmental, Western, and

American Indian historian.55 Donald Parman also contributed Indians and the American

West in the Twentieth Century in 1994.56 A recent contribution to this line of inquiry is

Stuart Banner’s How the Indians Lost Their Land: Law and Power on the Frontier, in

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which he explores colonial expansion within the context of American Indian land tenure.57 Banner examined the nature of the transactions that facilitated the expropriation

of the Indigenous land base during the period of westward expansion, and observed that

“[b]y 1880s, the pattern of land tenure in the West had been completely transformed and

the Indians retained virtually no land that was not part of a reservation.”58

Frederick Hoxie edited a collection of articles in Indians in American History in

1988 that provide thoughtful and considered perspectives on the evolutionary

development of the relationship between American Indians and the United States

government.59 Of particular note, William T. Hagan addressed American Indian tribal land dispossession in the western United States over a 38-year period.60 Hagen had

previously argued that the justification for the dispossession of the tribal land base was

that non-Indian people had a greater ability to utilize the land, which basically established

the privilege to acquire Indian land. As Hagen argues, that justification became part of

the “conventional wisdom and it was assumed that non-Indians had higher priority over

land acquisition because they would make better use of the land.61

In addition to the works cited above, there are earlier works that pre-date

ethnohistory, and which serve as general resources in the literature on the more discrete

topics of American Indian land tenure and that provide some national aggregate Indian

land tenure data. There is the 1945 Land Title Origins: A Tale of Force and Fraud,

written by Alfred Chandler.62 There is also J.P. Kinney’s A Continent Lost--A

Civilization Won: Indian Land Tenure in America, which was published in 1937.63

Charles Royce produced a seminal work in his 1971 Indian Land Cessions in the United

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States, a historic compilation of all Indian land cessions and their respective treaties.64

Royce’s work is a timeless and invaluable resource for American Indian scholars, especially those studying the Formative Years of federal Indian policy.65

Ethnohistorians and other scholars have also studied the history of federal Indian

policies and their impact upon Indigenous nations, and the federal Indian policy

periodization scheme provides the framework for various federal policy impact analyses.

As previously noted, the standardized textbook of federal Indian law is foundationally

framed by the federal Indian periodization scheme, and a grand historical narrative of

American Indian history is now reified in the federal Indian law textbooks. Other

scholars have also employed the federal Indian policy periodization scheme, such as

when Klara Kelley used federal Indian land policies to frame her analysis of the causal

connection between those policies and Indigenous land expropriation.66 In another

example, S. Lyman Tyler published his comprehensive historical analysis of federal

Indian policy, A History of Indian Policy; however, Tyler takes more of a federal, than

tribal, perspective.67 Robert L. Bee also contributed his 1982 The Politics of American

Indian Policy.68

Christopher Karns provided a general overview of federal Indian policies

designed to separate Indian people from their tribal land, shifting authority to the states,

and the contemporary policies of self-government and self-determination.69 Karns argues

that early federal policies originally excluded states from Indian affairs, and provided

some protection to tribal sovereignty, citing the Supreme Court decision in McCulloch v.

Maryland.70 However, shifting attitudes and ideas led to an expansion of state powers, as

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initial federal Indian policies focused on land issues (treaties, removal, allotment).

Historic federal policies led to the devastation of tribal ownership of their lands, and the federal government attempted to repudiate the allotment policy through the Indian

Reorganization Act. Furthermore, Karns argues that the Indian Reorganization Act was designed to expand the diminished tribal land bases, as tribal land acquisition program were implemented and specific exemptions from state taxation of those lands was also provided.71 Karns concludes that Indian people are among the Nation’s poorest, that land is “one of the few resources that offer (sic) hope,” and that the livelihoods of many

Indian people are at risk unless Congress legislates a tax exemption for fee-patented

Indian lands.72 Karns argues that there is a federal trust obligation under current federal

Indian policy to pursue such land tenure options on behalf of tribes, to preserve the tribal

land base, and to promote tribal self-determination.73

Some of the early ethnohistorical studies focused on specific federal Indian

policies or policy eras, such as Indian Reorganization and termination.74 However, not all

federal Indian policy time periods have been equally or consistently studied, and there are gaps in the literature.75 One of the existing gaps in the literature is the specific impact of

federal Indian policies upon Indian land tenure and acquisition, at either the national or tribal level, as a discrete strand of inquiry.

Relatively recent scholarship examines contemporary American Indian

perspectives on federal Indian policies, and demonstrates that American Indian people

continue to be active participants in the unfolding history of federal Indian policy and

general American Indian history.76 Some of that recent literature includes a 1986

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collection of articles provides an introduction to some of the enduring issues arising from the implementation of federal Indian policy; American Indian Policy and Cultural

Values: Conflict and Evolution includes insightful articles on Public Law 280 (law transferring federal jurisdiction over Indian country to states), on the imposition of Indian

Reorganization Act governments upon tribes, and on the development of federal Indian policy in the era self-determination.77 Donald Parman indicates that “historians have not

reached an interpretive consensus on the Indian New Deal.”78Emma Gross also examined

the “liberal shift” in federal Indian policy under the contemporary era of Self-

Determination as she effectively analyzed the “pro-Indian” legislation in terms of the role

of major policy makers during that time.79

In another interesting collection of articles, new perspectives on federal Indian

policy are also provided. The works collected in State and Reservation: New Perspectives

of Federal Indian Policy, edited by Robert Bee and George Castille, specifically explore

the reservation system and the diversity of meanings embedded within the concept of a

“system of permanent political reserves and administered communities.”80 Those articles

also engage the everlasting issues arising from the reservation system and explore the

question of whether the issues are “inherent in the system itself or the result of deliberate

policies.”81

One recent contribution to the literature explores the history of federal-tribal

relations and the complexities of American Indian tribal sovereignty, but with a

somewhat different approach. In Uneven Ground: American Indian Sovereignty and

Federal Law, David Wilkins and Tsianina Lomawaima examine the historical

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development of federal Indian law and policy, but do so without the heavy emphasis on the standardized federal Indian policy time periods, as is typical with most textbooks on federal Indian law.82 Wilkins and Lomawaima assert that the relationship between Tribes

and the federal and state governments is an ongoing struggle over sovereignty, that

involves issues of power, control, jurisdiction and identity, and they argue for more

respect and recognition of the sovereign rights of American Indian nations.

Other scholars have utilized the federal Indian policy periodization scheme to study a bridge period of time, or a transition period from one federal Indian policy era to another. For example, Loring Benson Priest explored the historical development of

United States Indian policy during the bridge period from the Formative Years of federal

Indian policy through the beginning of the allotment era, or the transformative period of

1865-1887; of particular interest is the article entitled “The Development of Indian Land

Policies.”83 According to historian Parman, one of the least studied eras in American

Indian history is the transformative period between 1871 and 1920, although he note two

exceptions to that gap.84

Of particular interest for this study is the body of literature that explores the

impact of the federal Indian policy era of Allotment and Assimilation upon Indian

communities and their land tenure. The continued assault on Indigenous land ownership

through the allotment era, and the legal institutions created contemporaneously with the

reservation and allotment system, had a permanent impact upon the status and structure

of Indian land tenure today.85

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For example, Janet A. McDonnnell examined the dispossession of the tribal land base that occurred during the federal Indian policy era of Allotment and Assimilation, in

The Dispossession of the American Indian, 1887-1934.86 Wilcomb Washburn also studied

the impact of the allotment process, but more from the perspective of assimilation and its

affect on tribal sovereignty, in The Assault on Indian Tribalism: The General Allotment

Law (Dawes Act) of 1887.87 Kenneth H. Bobroff explored the consequences of the

allotment process upon Indian property rights, observing that allotment was “an unquestionable disaster.”88

Much of the most recent literature on the allotment era and its policy impact has

been written by legal scholars. Law Professor Judith Royster wrote a seminal piece on the

allotment process and its negative consequences in 1995, and she is attributed with the

phrase, the “legacy of allotment.”89 Royster characterized the federal Indian policy of

allotment as ‘the greatest and most concerted attack on territorial sovereignty of

[Tribes].”90 Federal implementation of allotment represented the government’s “exit

strategy,” and was to be the “final series of transactions” before getting out of Indian

affairs entirely, according to Stacy L. Leeds.91 The doctrine of federal trusteeship over

Indian affairs and property, according to Kevin Gover, was based upon two related policy

assumptions: 1) that Indians were incompetent to manage their own affairs, and 2) that

Indian tribes as political institutions were soon to be dismantled.92 The essence of the argument presented by Gover and Leeds is that the federal trust responsibility established over the allotted lands was never intended to be permanent, and there was no intention for the federal government to remain as a trustee in perpetuity.

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Under the new land tenure system created during the allotment era, the federal government became the trustee over the allotted lands and those lands were to be held in a protective and restricted status. While held in trust, the federal government held the property title of the allotted lands, and the allottee (the individual Indian who was assigned an allotment) held a beneficial ownership interest only in the allotted lands. All restrictions were to terminate at the end of the trust period, federal oversight was to end, and the unrestricted fee title to the allotment was to be subsequently transferred to the allottee through the issuance of a fee patent, whereby the allottee would then hold the full and complete ownership title to the lands.

Imre Sutton authored the seminal work on Indian land tenure, and provides the best scholarly explanation of the property rights associated with the Indian land tenure system of entrusted allotted lands, utilizing the property law concept of a “bundle of sticks.” According to Sutton, there is a threefold “bundle of rights” that categorizes distinct levels of property rights generally enjoyed by landowners. Those “bundle of rights” express property rights and articulate property restrictions that serve as regulatory restraints imposed by the general society; societies create legal institutions to regulate

“both the use and allocation of land resources” through governmental actions such as taxing authority, police powers, zoning, eminent domain, and escheatment processes.93

According to Sutton, the three levels of property rights are as follows:

1. Rights to the use of land (and to nonuse in certain instances); 2. Rights to lease or permit others to utilize the land held by one person or group; 3. Rights to alienate, sell, or encumber the land.94

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Leeds speaks of the three levels of rights in terms of a “bundle of sticks.” For example, she provides the following explanation:

In Anglo-American property law, or so the metaphor goes,

property rights are akin to a bundle of sticks. A person who

owns land in fee retains the full bundle of rights. The right to

exclude is one stick. The right to possess is another. There are

many other sticks. When a person possesses even one of these

sticks, a property interest is born.95

Along that same line, Harold E. Driver discussed the three level of property rights in terms of a scale of increasing control over the property, as follows: 1) privilege of use

(most frequent); 2) privilege of disposal (next); and 3) privilege of destruction (least common).96

The works of Sutton, Leeds, and Driver are also important to the literature, as

they collectively provide a general overview of the federal trust doctrine over Indian

lands-held-in-trust and provide an explanation of the split in property rights that occurred.

As that doctrine was applied to the allotted trust lands, the full panoply of property rights,

or the “bundle of sticks,” was split, or bifurcated. As such, the allottees were granted the

first level of property rights, which is the right to use and occupy the allotted lands. As

the trustee, the federal government retained the second and third levels of property rights

to approve all land leases, mortgages, and all encumbrances against the land, as well as

the sole authority to approve land sales.

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While Indian lands are held-in-trust, certain protections are also granted, including immunity from state taxation. Furthermore, there is an associated jurisdictional aspect to that protection, which is now generally understood within contemporary jurisprudence to mean that “tribal jurisdiction is secure so long as lands are held in trust.”97

While Indian lands are held-in-trust, it is the government’s responsibility to make

decisions regarding those lands based upon the best interests of the beneficiary (tribe,

band, or individual tribal member), which includes prior consent and knowledge of the

beneficiary. Originally, once the initial trust period expired on the allotments, the

allottee’s property rights were to be converted into fee status through the issuance of a fee

patent by the federal government. The fee patents effectuate the transfer of the remaining

“bundle of sticks” (the second and third levels of property rights) to the Indian owners,

who then have full and complete property rights without the supervision or authority of

the federal government.98

During the allotment process, significant issues arose about the property rights of

Indian allottees, and questions arose about the “bundle of rights” that had been granted to the entrusted allotted lands. Fundamental issues, they included the meaning and interpretation of the concept of Indian land “held in trust and the technical aspects of the new land tenure system: trust patents, fee patents, competency, and encumbrance;” as

Sutton remarked, “what has contributed most to change in native culture has been the introduction of a differing legal apparatus, including land tenure institutions, governing

Indian Affairs.”99

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Using identifiable time periods to mark history is a tool of the historian’s craft, and use of the federal Indian policy periodization scheme is a typical approach for contemporary American Indian Studies scholars. Use of the federal Indian policy periodization scheme for this study also reflects a common sense approach, as many scholars familiar with American Indian Studies have a general operational knowledge of the federal Indian policy periodization scheme. As previously discussed, however, use of that “periodization” scheme is also problematic. As the standardized federal Indian policy narrative mask important differences in how those policies were implemented, and the real consequences of those policies at the tribal level. The national narrative tends to mask important differences and consequences, and lacks the tribal-specific detail necessary for a thorough understanding of each tribe’s history, specifically their Indian land tenure history.

Category Three: Post-allotment development of Indian land trust, tenure, and acquisition

A watershed year for Indian land tenure was 1934, when the United States

Congress finally ended the allotment policy, and authorized tribal land restoration and acquisition programs. Since the era of Indian Reorganization, Indian land tenure has become increasingly complex to administer, land issues have become increasingly difficult to solve, and the status of Indian land tenure within reservation territories has become increasingly significant in relation to questions of tribal sovereignty.

Contemporary scholarship examines some of those enduring Indian land tenure issues that are rooted in the reservation and allotment system, which continue to set the parameters of Indian land tenure today, while continuing to plague Indian country today.

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Some scholars have explored the issues of fractionated ownership, while others have examined tribal land acquisitions and restoration under Indian Reorganization policies, and others analyze the federal trust model and its implications for contemporary

Indian trust management. Kirke Kickingbird and Karen Ducheaneaux, in One Hundred

Million Acres, examine the national Indian land tenure implications of allotment and discussed how the Indian land base was “diminished from 140 million acres to a little more than 50 million acres of the least desirable land within 45 years of the General

Allotment Act.”100 Those authors also examine the tribal land acquisition and restoration

programs authorized under the Indian Reorganization Act, as well as the sub-marginal

lands program. The sub-marginal lands program was part of the Depression-era legislation, in which the federal government purchased exhausted farmlands from bankrupt farmers and set aside some of those lands for tribal land-use projects.101

Kickingbird and Ducheneaux indicated that, since 1934, Indian land tenure had developed into a “sophisticated doctrine.”102

Linda S. Parker also examines tribal land restoration under the sub-marginal lands

program of Indian Reorganization, and found that over 350,000 acres of sub-marginal

lands were conveyed to tribal trust status in the 1970s under that federal policy. In Native

American Estate, she also discusses how tribal land restoration can be administratively effectuated through the Federal Property and Administrative Services Act, which authorizes the General Services Administration to transfer federal surplus lands to be held in trust for tribes.103

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One of the most powerful and enduring legacies of the allotment process is the fractionated ownership status of the entrusted allotted lands, where a multitude of owners each have a fractional property interest in the land. The fractionated ownership of Indian trust lands is one of the urgent Indian land tenure issues of our time, and a contemporary strand of inquiry within the literature explores that subject. For example, Joseph Singer addressed fractionated ownership in his 2001 article, “Introduction to Property.”104 Also,

Jessica A. Shoemaker in 2003 provided an analysis of the allotment process and the subsequent fractionated ownership issues.105

Margo S. Miller explored the fractionated ownership issue and the failed

legislative attempt of the Indian Land Consolidation Act to solve the complicated

fractionation issue. Miller concludes that the Bureau of Indian Affairs is administratively weak in its management of Indian land tenure today, stating that “[a]llotment

…weakened the political sovereignty of tribes,” and that the current federal weakness in

Indian trust lands management also weakens contemporary tribal sovereignty.106

Kathleen R. Guzman also scrutinized federal reform efforts to address the Indian land

tenure problem of fractionated ownership, in “Give or Take an Acre: Property Norms and

the Indian Land Consolidation Act.”107

Additional scholarship provides broader perspectives on the national legacy of

Indian land tenure, which has left a seriously insufficient tribal land base, created a chilly environment for tribal land acquisition, and left an inadequate, ill-equipped, and disinterested bureaucracy to mange Indian land tenure with outdated and ineffective mechanisms. One of the emerging bodies of work examines the federal trust model and

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questions its continued viability, exploring alternatives for future Indian trusts lands management and tribal acquisition. Some scholars suggest a complete paradigm shift away from the federal trust model, proposing that the federal Indian trust lands model be abolished in favor of a tribal property system. Other scholars take a more pragmatic approach and suggest more immediate and tangible changes, such as modifications to current land-into-trust regulations in order to facilitate easier tribal land acquisition now.

Stacey L. Leeds examined the legacy of fractionated ownership and insufficient lands as a result of forced land allotment, and encourages tribes to revive tribal property laws in order to address the contemporary land tenure problems.108 Leeds has also

proposed a tribal land acquisition plan that would enable tribal governments to re-acquire non-Indian owned fee lands within their territories, such as offering tribal debt-relief

programs to non-Indian consumers who own lands in fee status within their reservation territories. Under her proposal, the tribes would receive a “future interest” in the land, in exchange for a cash loan to the non-Indian landowner; that “future interest’ would revert to tribal ownership upon the death of the consumer/land owner.109 Leeds encourages

tribes to use Anglo-American property law and legal tools to tribal advantage in their

efforts to restore tribal land bases, projecting a potential resurgence in tribal economies

from comprehensive tribal land acquisition.110

Leeds discredits contemporary federal trust model reforms which have been ongoing for years, arguing that they merely “seek to limit the amount of trust lands as an

effort to ease the federal government’s administrative burden,” rather than considering a

return of tribal land bases and control over Indian land tenure back to the tribes.111 Leeds

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proposes her own reforms to the federal trust model, which rests upon the gradual return of tribal autonomy and the transfer of full and complete title to trust lands to tribes.

Leeds argues that tribal governments and individual Indian people lack autonomy over their lands and natural resources, because they do not own their lands outright and do not enjoy the autonomy associated with full and complete property ownership. Leeds asserts that “tribes are relegated to a beneficiary status beholden to the federal government as the trustee over tribal lands,” which is ultimately “inconsistent with and detrimental to tribal self-determination.”112 Furthermore, Leeds argues that the federal

trust model over Indian land tenure lends itself to “increased tribal dependency and

inefficiency in land use.”113 Under her proposed model, Leeds suggests a combination of

title transfers (legal conveyances of property) from the federal government to tribes or

individual tribal members, and amendments to federal law.

Similarly, a thoughtful and considered presentation from Kevin Gover urges

Congress to change the federal trust model, arguing that the model has become

ineffective and is fundamentally flawed.114 Although other areas of federal Indian policy

have been changed, the federal trust model has grown into “a stifling, paternalistic, and

ultimately ineffective system of managing Indian property” that has become immune

from fundamental change.115 Gover states that “the problems of trust administration that

emerged in the twentieth century festered into the collapse of the trust administration

system at the century’s end,” and he argues that the federal trust model must be changed

in order to effectuate the current federal Indian policy of tribal self-determination.116

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Under Gover’s proposed model of trust reform, tribes would be afforded the opportunity to manage their lands without federal supervision, while maintaining the advantages regarding trust lands, primarily tribal jurisdiction over lands (criminal and civil) and immunity from taxation. Such a model would “effectively [clear] the way for tribes to utilize their “primary capital asset-land-to create the financial resources needed to build viable reservation economies.”117 Implementation of Gover’s proposed model would begin with Congressional authorization to the Department of Interior to negotiate

“trust agreements,” which would assign and articulate responsibilities for Indian trust

lands management between the Department and the Tribe. Tribes would be provided with

financial and policy incentives to assume the administration and management of tribal

lands. Gover articulated two caveats to the suggested alternative: tribal consent is

absolutely required; and, the “trust agreements” must be unique to each Tribe, in order to

provide flexibility to reflect the diversity of tribal circumstances and meet their unique

tribal needs.118

One of the beauties of Gover’s approach is that it includes opt-in provisions, so that tribes that are not interested in assuming any management authority over Indian trust lands would not be required to enter into such agreements. With some sarcasm, Gover states:

Perhaps most Tribes will tenaciously cling to the hope that a system

of trust administration can be created and carried out by federal

employees that will fairly balance the paradoxical policy goals of

Tribal self-sufficiency and self-determination on the one hand and

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federal responsibility for Indian well-being on the other. Those Tribes

that wish to live with the failures of the trust as currently conceived

should be free to do so even as they are offered the options I advocate.119

Terry L. Anderson reiterates some of the same thoughts presented above, arguing that Indian people will use their land in a more economically successful way if the land tenure is free of “restrictive bureaucratic regulations” and free of “tribal officials subsidized by a paternalistic government, lured into nonproductive political activities.”120

Anderson also argues that the legal construct of lands held-in-trust ultimately undermines tribal sovereignty.121 Along a similar line, John McGee Ingram discusses the barriers to

Indian home ownership as a result of Indian trust land status, asserting that the lack of

available financing within Indian country is commonly due to the lands being held in

trust after allotment.122

Richard Monette also rejects the federal trust model, and he proposes an

alternative to the Indian land tenure model that he believes would stop further tribal land

diminishment. Monette asserts that under the current federal trust model, the United

States treats tribes like individual landowners, rather than as sovereigns with dominion

over their territory. He contends that tribes have the sovereign authority “to create and

control their own property systems,” which would include tribal register of deeds, tribal

issuance of title, and all attendant powers and responsibilities that attach to such a

sovereign exercise of authority. Monette argues that Indian tribes are sovereign entities

and, that as sovereign entities, should “hold dominion over territory” and issue land

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patents to pass title to lands, rather than own title to property as individuals landowners do.123

Lance Morgan, a tribal attorney, also advocates that the federal government get

out of the trust lands business altogether, expressing concern over federal

mismanagement of Indian trust lands and the increasing costs of administration of the

trust lands.124 Under Morgan’s proposed scenario, the federal government would transfer

the trust lands to tribes, and tribal governments would hold title for the benefit tribe or

individual tribal members. Mary Christine Wood has also argued for a new federal Indian

trust paradigm.125

One of the emerging issues of federal mismanagement of the federal trust over

Indian lands is the failure to timely process tribal applications for land-into-trust

transfers. One of the associated costs of that failure is that tribes are forced to pay local

property taxes on lands purchased, but not yet placed into trust status. As stated earlier,

Doug Nash raises the issue of whether that administrative failure constitutes a violation

of the Congressional intent expressed in the land acquisition provisions of the Indian

Reorganization Act. Nash asserts that the fee-to-trust process has largely become a

“fiction,” as the governing land-into-trust regulations are complicated, appear to favor

state and local interests over tribal interests, and have established a “regulatory bias”

against taking lands into trust that are located off-reservation.126

Tribal land acquisition is an assertion of tribal sovereignty and is often designed

to meet current tribal needs for an adequate land and ensure adequate resources for the

future. The depressed economic situation in Indian country is summarized below:

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In fact, many of the Indian lands look more like impoverished

third world nations when viewed in terms of the unemployment,

economic depression, and inadequate housing facilities.

“Unemployment and poverty levels on reservations are

imcomprehensible to most Americans.”127

There is limited literature on the topics of contemporary tribal efforts to reclaim their

reservation territories, and scant resources that provides a historical context for a

scholarly understanding of contemporary tribal land acquisition efforts and the federal responsibility to stabilize the tribal land base and engage in tribal land acquisition.

There is one noteworthy contribution to the Indian land tenure literature on the topic of tribal land acquisition, written by Chris DeZarn O’Hare.128 DeZarn O’Hare

categorized Congressional acts that authorized federal land restoration to tribes during the

era of Self-Determination, from 1970-1990. DeZarn O’Hare found that over 600,000

acres of land were restored to tribes from 1970-1990 through Congressional action, and

she categorized those restorations based upon the criteria articulated in the authorizing

legislation. Those five categories of tribal land restoration provide some strategic

guidance for contemporary tribal land acquisition today, and they are listed below:

1. Correction of historical error;

2. Protection of religious sites;

3. Excess federal lands;

4. Restoration of federal recognition; and,

5. Change of land status to trust status in order to receive federal assistance.

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The “correction of historical error” category includes resolution of treaty, agreement or executive order discrepancy, or legislative neglect or legislative abuse, and the bulk of the acreage restored was in that category.129 In her final analysis, DeZarn

O’Hare suggests that other factors were more influential in the tribal land restoration

processes, than was the federal Indian policy of Self-Determination, such as tribal

activism, public opinion, and symbolic utility. Although DeZarn O’Hare’s approach is sound and is useful, the scope of her research was limited and did not include tribal land

restorations to tribes that were effectuated through other methods, such as the 1982 Grand

Portage boundary expansion that resulted from executive action, in the form of a

Secretarial proclamation.

One of the fundamental research objectives of this case study was to examine the impact of federal Indian policies upon Indigenous land tenure “on the ground” within a

specific tribal nation. However, there is little written on the impact of federal Indian

policies within a given tribal context. One specific tribal land tenure history was found

that documents the Jemez Pueblo’s struggle to maintain their land base. Written from a

tribal perspective and within the context of the land tenure history of specific parcels of

land, Joe Sando’s Nee Hemish: A History of Jemez Pueblo symbolizes his respect for his

tribe’s “perseverance.”130 Little has been written on the amount of allotted land within

the Grand Portage and Leech Lake reservations, or on the process of how those allotted

lands left trust status prior to 1934, or on the surplus lands process that so heavily impacted Ojibwe land tenure within those reservations.

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However, there is a contemporary analysis of the recent land-into-trust transfers within the State of Minnesota. Laura J. Smith studied the geographic distributional patterns of Indian trust lands within the State, and analyzed the economic impacts of those trust land transfers.131 Smith outlines the current process for placing lands into trust status, and she provides a nice summary of the allotment policy and an overview of the development of the federal trust model. Smith acknowledged that there is no central or comprehensive data source for trust land transfers, and that the available information varies by data source. In her review of land-into-trust transfers in Minnesota for the period from 1992-1998, she found that 9,000 acres of land, located in 15 different counties and valued at $7.5 million, were transferred into trust during that time period.132

Smith observed that trust land transfers are not only an issue of economics for tribes, but that those land transfers are also matters of tribal self-determination and control. Smith states that the “lack of an internal tax base makes it difficult for

Minnesota tribes to invest in badly needed economic development ventures on their lands;” furthermore, Smith asserts that “reestablishment of a tribal land base is necessary before economic development is even possible.”133

Smith also discusses the conflicts between tribes and state and local governments

over trust land transfers, and suggests that tribal land acquisition is “one of the most

challenging and arduous tasks” for tribes today because of the local objections to

proposed trust transfers. Smith acknowledges that many trust land transfers generally

spur vocal opposition and statements of protest, legislative proposals, and litigation by

local and state governments. In her final analysis, Smith predicted two new trends that

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she anticipates will shape the trust lands transfer process in the future: 1) heightened scrutiny by the Bureau of Indian Affairs of trust transfer applications from economically successful tribes; and, 2) increasing solicitation by local government for infusion of tribal economic development in their communities.134

In summary, this literature review provides an overview of the state of scholarship

on the Ojibwe, and on the broad topic of Indian land tenure in general. This review also

summarizes the literature on the legal and political context within which tribal

governments are attempting to reclaim their tribal territories. This review also presents

literature on the implications of the federal trust model for Indian land tenure, and

alternative proposals for a new federal trust paradigm.

It is my opinion that the federal government is severely inept at implementation of

the federal trust model and the management and administration of Indian trust lands. I

agree that new models and alternatives need to be explored and seriously considered by

Congress. However, I also understand that many tribes, including the Grand Portage and

Leech Lake Bands, fight vigorously to transfer their lands into trust status. On the

ground, at the tribal level, tribal leaders know and understand that trust status is

absolutely necessary in order to assert tribal jurisdiction over lands and maximize their sovereign authority. I also assert that tribal leaders pursue trust status for their lands to ensure immunity from state property taxation. Tribes do not have any reason to trust their federal “trustee” by engaging in a movement to shift federal responsibility over trust lands to the tribes. Although the alternative proposals appear sound and thoughtful, I assert that the reality of the situation is that tribes do wish to “tenaciously cling” to the

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current federal trust model in their efforts to ensure that the immunities tied to trust status are provided.

In addition, some of the proposals suggest that tribes adopt their own property system. In my opinion, I question the feasibility of those proposals for most tribes, many of whom are in a constant struggle to build their infrastructure, take care of the needs of the people for adequate health care, housing, and education. Although some tribes, including the Leech Lake Band, have started to develop their own land management systems and realty functions (such as probate), those initiatives are still in the development phase. I am not sure that most Tribes are equipped with adequate resources to develop their own tribal property system at this time, nor is there an apparent consensus among the tribal nations to let the government off the hook” from its trust obligations. At this juncture, there is a gap between tribal Indian land tenure reality and the federal Indian trust scholarship, although Gover’s proposal provides the flexibility to allow tribes that may be ready to assume that responsibility to do so.

Historically, the federal government has utilized the law and legal system as a tool of destruction against tribal sovereignty and Indian land tenure. Today, the government has the ability and the responsibility to utilize those same tools to end the precarious tenure of Indian land, and to truly work toward stabilization of tribal land bases by facilitating tribal land restoration and acquisition. Under international standards, as well as domestic federal Indian policy, the federal government has the responsibility, the authority, and the discretion to acquire Indian lands within reservation territories, in order to assist tribal self-determined efforts to adequately address the needs and aspirations of

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their communities.

Endnotes

1 Imre Sutton, Indian Land Tenure: Bibliographic Essays and a Guide to the Literature (New York and Paris: Clearwater Publishing Co., Inc., 1975), 8. 2 Gerald Vizenor, The People Named the Chippewa: Narrative Histories (Minneapolis: University of Minnesota Press, 1984), 13 (the title of Vizenor’s book reflects this colonial imposition of the name “Chippewa”). 3 Ermine Wheeler-Voeglin and Harold Hickerson, Chippewa Indians I: The Red Lake and Pembina Chippewa, part of the Garland Series on American Indian Ethnohistory: North Central and Northeastern Indians, ed. and compiled by David A. Horr (New York: Garland Publishing, Inc., 1974), 21. 4 William Warren, History of the Ojibway People (St. Paul: Minnesota Historical Society Press, 1994), 37. 5 Vizenor, The Chippewa, pg.32. For excellent maps indicating Ojibwe territories, please refer to Atlas of Great Lakes Indian History, ed. Helen Hornbeck Tanner (Norman: University of Oklahoma Press, 1987). 6 See generally, Wheeler-Voeglin and Hickerson, 21 and Vizenor, The Chippewa, 14, and Warren, History of the Ojibway, 30. 7 Vizenor, The Chippewa, 27. 8 See generally, Harold Hickerson, The Chippewa and Their Neighbors: A Study in Ethnohistory (New York: Holt, Rinehart, and Winston, 1970), The Southwestern Chippewa: An Ethnohistorical Study (Menasha, WI: American Anthropological Association Memoir 92, American Anthropological Association, 1962), Chippewa Indians II: Ethnohistory of Mississippi Bands and Pillager and Winnibigoshish Bands of Chippewa (New York: Garland Publishing Co., (1974a), Chippewa Indians III: Ethnohistory of Chippewa of Lake Superior (New York: Garland Publishing Co., 1974a), and Chippewa Indians IV: Ethnohistory of Chippewa in Central Minnesota (New York: Garland Publishing Co., 1974a). See also, Hickerson’s Indian Claims Commission work along with Ermine Wheeler-Voeglin, Chippewa Indians: The Red Lake and Pembina Chippewa, Vol. I (New York:Garland Publishing Co., 1974), Ermine Wheeler-Voeglin, Chippewa Indians: Anthropological Report on Indian Use and Occupancy of Northern Michigan, Vol. 5 (New York: Garland Publishing Co., 1974a). See also, Sister M. Clarissa Levi, Chippewa Indians of Yesterday and Today (New York: Pageant Press, 1956). 9 James M McClurken, Charles E. Cleland, Thomas Lund, John D. Nichols, Helen Tanner, and Bruce White, “Fish in the Lakes, Wild Rice, and Game in Abundance: Testimony on Behalf of Mille Lacs Ojibwe Hunting and Fishing Rights (Lansing: Michigan State University Press, 2000). 10 Charles E. Cleland, “Preliminary Report of the Ethnohistorical Basis of the Hunting, Fishing, and Gathering Rights of the Mille Lacs Chippewa,” in Fish in the Lakes, ibid., 1-140. 11 Warren, History of the Ojibway. 12 Ibid. 13 George Copway/Kahgegagahbow, The Traditional History and Characteristic Sketches of the Ojibway Nation (London: Charles Gilpin, 1850), reproduced as Indian Life and History, By an Indian Author (Boston: Albert Colby and Co., 1860); see also, Peter Jones/Kahkewaquonaby, History of the Ojibway Indians; With Especial Reference to Their Conversion to Christianity (London: A.W. Bennet, 1861). 14 Vizenor, The Chippewa, See also, Melissa L. Meyer, The White Earth Tragedy: Ethnicity and Dispossession at a Minnesota Anishinaabe Reservation, 1889-1920 (Lincoln: University of Nebraska Press, 1994); Erwin F. Mittleholtz, ed., Historical Review of the Red Lake Indian Reservation (Bemidji, MN: General Council of the Red Lake Band of Chippewa Indians and the Beltrami County Historical

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Society, 1957); and Edmund J. Danziger, The Chippewas of Lake Superior (Norman: University of Oklahoma Press, 1979). 15 Helen Hornbeck Tanner, Atlas of Great Lakes Indian History (Norman: University of Oklahoma Press, 1987). 16 Elizabeth Ebbott, Indians in Minnesota, ed. Judith Rosenblatt (Minneapolis: University of Minnesota Press, 4th ed., 1985). 17 Minnesota Chippewa Tribal Government Handbook (Cass Lake MN: Minnesota Chippewa Tribe, circa 1979). 18 Sutton’s seven topical categories of Indian land tenure literature are: Aboriginal Use and Occupancy and Territoriality: This body of work examines tribal or band concepts of territoriality;

Aboriginal Title and Land Claims: This body of work examines litigation over tribal land claims regarding extinguishments of land title due to allotment and surplus land issues;

Tenure and Jurisdiction: This body of work examines case law and litigation over tribal jurisdiction, tribal land tenure, and tribal assertions of greater autonomy;

Land Tenure and Culture Change: This body of work examines how changes in Indian land tenure have resulted in changes to Indian culture;

Land Cessions and Establishment of Reservations: This body of work examines Westward expansion and tribal dispossession through treaties, land cessions, removals, and reservations;

Title Clarification and Change: This body of work examines the quagmire of allotment issues, the legal status of trust lands, adjustment of reservation boundaries, claims of fraud, and disputes over land descriptions;

Land Administration and Utilization: This body of work examines the post-allotment development of administrative Indian land tenure and management policies. Sutton, Indian Land Tenure, 13-15. 19 Sutton, Indian Land Tenure, 13-15. 20 Roxanne Dunbar-Ortiz, “Sources of Underdevelopment,” in American Indian Economic Development, ed. Dunbar-Ortiz (Albuquerque: University of New Mexico Press, 1983), 61. 21 Roxanne Dunbar-Ortiz, “Protection of American Indian Territories in the United States: Applicability of International Law,” in Irredeemable America, ed. Imre Sutton (Albuquerque: University of New Mexico Press, 1985), 247. 22 Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832): 557. 23 Vine Deloria, Jr., “Self-Determination and the Concept of Sovereignty,” in American Indian Economic Development, ibid., 25. 24 Robert Williams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (Oxford: Oxford University Press, 1990), 328. 25 Williams, Western Legal Thought, 6. 26 Sutton, Indian Land Tenure, 4. 27 Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). 28 South Dakota v. Bourland, 508 U.S. 679 (1993). 29 Ibid., 692. 30 Brendale v. Confederated Tribes and Bands of Yakima, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989). 31 Joseph Singer, “Sovereignty and Property,” Northwestern Law Review 86:1 (Fall 1991): 4-5. 32 Ibid., 51 and 55.

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33 County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251: 262 (1992). 34 Christopher A. Karns, “County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation: State Taxation as a means of Diminishing the Tribal Land Base,”American University Law Review 42:pt. 2 (1993): 1213-1244. 35 Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998). 36 Ibid. 37 Doug Nash, “Fee to Trust: Fact or Fiction?”, Indigenous Lands Reporter (Summer 2003): 4. 38 Ibid. 39 Larry Echohawk, “Balancing State and Tribal Power to Tax in Indian Country,” Idaho Law Review 40 (2004): 623 et.seq. 40 Allison M. Dussias, “Geographically-Based and Membership-Based Views of Indian Tribal Sovereignty,” University of Pittsburgh Law Review 55 (Fall 1993): 4. 41 Ibid. 42 Ibid. 43 Ibid. 44Ibid. citing to Duro v Reina, 495 U.S. 676 (1990): 685. 45 Ibid. Dussias provides examples of the Supreme Court decisions that embrace the “membership-based” vision of tribal sovereignty, such as Oliphant v. Suquamish Indian Tribe (1978), 435 U.S. 191, in which the Supreme Court held that the Tribe did not have criminal jurisdiction over non-Indians, and Duro v. Reina, ibid., 693, which held that “in the criminal sphere, membership marks the bounds of tribal authority, 46 Donald L. Parman, “Twentieth-Century Indian History: Achievements, Needs, and Problems,” Organization of American Historians 9 (Fall 1994): 1. See also, Donald L. Parman and Catherine Price, “A ‘Work in Progress’: The Emergence of Indian History as a Professional Field,” Western Historical Quarterly 20 (May 1989): 185-86. 47 James Axtell, “The Ethnohistory in Native America”, in Rethinking American Indian History, ed. Donald L. Fixaco (Albuquerque: University of New Mexico Press, 1997), 11-27. See also, Donald Parman, “Twentieth-Century Indian History,” ibid., 1. 48 Parman, “Twentieth Century Indian History,” 9. 49 Angie Debo, A History of the Indians of the United States (Norman: University of Oklahoma Press, 1970). 50 Robert W. Venables, American Indian History: Five Centuries of Conflict and Coexistence, Vols. 1 and 2 (Santa Fe: Clear Light Publishers, 2004). 51 Francis Jennings, The Invasion of America: Indians, Colonialism, and the Cant of Conquest, (Chapel Hill: University of North Carolina Press, 1975), 15 52 Robert Berkhofer, “The Colonial Foundations of White Indian Policy: Theory,” in The White Man’s Indian (New York: Random House, 1978), 115. 53 Edward H. Spicer, “European Doctrines of Indigenous Title,” in A Short History of Indians of the United States (New York: D. Von Nostrand Co., 1969). 54 Ray A. Billington and Martin Ridge, Westward Expansion: A History of the American Frontier (New York: Macmillan, 1982); Michael O. Malone and Richard Etulain, The American West: A Twentieth Century History, (Lincoln: University of Nebraska Press, 1989). 55 Richard White, It’s Your Misfortune and None of My Own: A New History of the American West (Norman: University of Oklahoma Press, 1991). 56 Donald L. Parman, Indians and the American West in the Twentieth Century (Bloomington: Indiana University Press, 1994). 57 Stuart Banner, How The Indians Lost Their Land: Law and Power on the Frontier (Cambridge: Harvard University Press, 2005). 58 Ibid., 228. 59 Frederick Hoxie, ed. American Indian History (Arlington Heights, IL: Harlan Davidson, Inc., 1988). 60 William T. Hagen, “How the West Was Lost,” in American Indian History, ed. Frederick E. Hoxie, ibid., 179-202.

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61 William T. Hagan, “Justifying Dispossession of the Indian: The Land Utilization Argument,” in American Indian Environments: Ecological Issues in Native American History, eds. C. Vecsey and R.W. Venables (Syracuse: Syracuse University Press, 1980), 65 and 67. 62 Alfred N. Chandler, Land Title Origins: A Tale of Force and Fraud (New York: Robert Schalkenback Foundation, 1945). 63 J. P. McKinney, A Continent Lost-A Civilization Won: Indian Land Tenure in America (Baltimore: Johns Hopkins Press, 1937). 64 Charles Royce, Indian Land Cessions in the United States, Extract from the 18th Annual Report of the Bureau of American Ethnology (Washington: GPO, 1900); 1971 ed. (Arno Press). 65 Ibid. 66 Klara B. Kelley, “Federal Indian Land Policy and Economic Development in the United States,” in American Indian Economic Development, ed. Roxanne Dunbar Ortiz (Albuquerque: University of New Mexico Press, 1983), 30-42. 67 S. Lyman Tyler, A History of Indian Policy (Washington: GPO, 1973). 68 Robert L. Bee, The Politics of American Indian Policy (Cambridge, MA: Schenkman Publishing Company, 1982). 69 Christopher A. Karns, “County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation: State Taxation as a means of Diminishing the Tribal Land Base,” American University Law Review 42, pt. 2 (1993): 1213-1244. 70 McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819). 71 Karns “County of Yakima,” 1223-1224. 72 Ibid., 1243-1244. 73 Ibid., 1240. 74 Parman, “Twentieth-Century Indian History,” 1. Parman’s examples include Larry W. Burt, Tribalism in Crisis: Federal Indian Policy, 1953-1961 (Albuquerque: University of New Mexico Press, 1982); Donald L. Fixico, Termination and Relocation; Federal Indian Policies, 1945-1960 (Albuquerque: University of New Mexico Press, 1986); and Alison R. Bernstein, American Indians and World War II: Toward a New Era in Indian Affairs (Norman: University of Oklahoma Press, 1991). 75 Parman, “Twentieth-Century Indian History,” 1-15. 76 Ibid., 1. 77 Jennie Joe, ed., American Indian Policy and Cultural Values: Conflict and Evolution (Los Angeles: University of California Los Angeles Public Services, 1986). 78 Parman, “Twentieth-Century Indian History,” 1. 79 Emma Gross, Contemporary Federal Policy Toward American Indians (New York: Greenwood Press, 1989). 80 George P. Castille and Robert L. Bee, eds. State and Reservation (Tucson: University of Arizona Press, 1992), Introduction: 1-10. 81 Ibid., Introduction: 2. 82 David E. Wilkins and K. Tsianina Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law, (Norman: University of Oklahoma Press, 2001). 83 Loring Benson Priest, “The Development of Indian Land Policies,” in Uncle Sam’s Stepchildren: The Reformation of United States Indian Policy: 1865-1888 (Lincoln: University of Nebraska Press, 1969), 217-232. 84 Parman, “Twentieth-Century Indian History.” Parman cites Frederick E. Hoxie, A Final Promise: The Campaign to Assimilate the Indians, 1880-1920 (Lincoln: University of Nebraska Press, 1984); and, Janet A. McDonnell, The Dispossession of the American Indian, 1887-1934 (Bloomington: Indiana University Press, 1989). 85 Sutton, Indian Land Tenure, 5. 86 Frederick E. Hoxie, A Final Promise: The Campaign to Assimilate the Indians, 1880-1920 (Lincoln: University of Nebraska Press, 1984); Janet A. McDonnell, The Dispossession of the American Indian, 1887-1934 (Bloomington: Indiana University Press, 1989).

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87 Wilcomb E. Washburn, The Assault on Indian Tribalism: The General Allotment Law (Dawes Act) of 1887 (Philadelphia: Lippincott, 1975). 88 Kenneth H. Bobroff, “Retelling Allotment: Indian Property Rights and the Myth of Common Ownership,” Vadnais Law Review 54 (2001): 1559. 89 Judith V. Royster, “The Legacy of Allotment,”Arizona State Law Journal 27 (1995): 1. 90 Ibid., 6; see also 78-79 where Royster cites to Felix S. Cohen’s Handbook of Federal Indian Law, ed. R. Strickland (1982). 91 Stacy L. Leeds, “Moving Toward Exclusive Tribal Autonomy over Lands and Natural Resources,” Natural Resources Journal 46:2 (Spring 2006): 439-61. Leeds is an Associate Professor of Law and Director of the Tribal Law and Government Center, University of Kansas School of Law, and she is also Justice of the Cherokee Nation Supreme Court. 92 Kevin Gover, “An Indian Trust for the Twenty-First Century,” Natural Resources Journal 46:2 (Spring 2006): 317-74. Gover was the Assistant Secretary of Indian Affairs, from 1997-2001, and is currently a professor of law. 93 Sutton, Indian Land Tenure, 6. 94 Sutton, Indian Land Tenure, 5. 95 Stacy L. Leeds, “Borrowing From Blackacre: Expanding Tribal Land Bases Through the Creation of Future Interests and Joint Tenancies,” North Dakota Law Review 80: 848. 96 Harold E. Driver, Indians of North America, 2d ed. Revised (Chicago: University of Chicago Press, 1969), 270. 97 Leeds, “Exclusive Tribal Autonomy,” Footnote 53. 98 See generally, Leeds, “Borrowing From Blackacre,” and “Exclusive Tribal Autonomy,” ibid.; Royster, “The Legacy of Allotment,” ibid.; Sutton, Indian Land Tenure, ibid.; and Harold Driver, Indians of North America, ibid. 99 Sutton, Indian Land Tenure, 20. 100 Kirke Kickingbird and Karen Ducheneaux, One Hundred Million Acres (New York: Macmillan Publishing Co., Inc., 1973), 66. 101 Christine deZarn O”Hare, “Federal Land Restorations to American Indian Tribes, 1970-1990,” Masters Thesis (Tucson: University of Arizona, American Indian Studies Department, 1996), 21. 102 Kickingbird and Ducheneaux. One Hundred Million Acres, 66. 103 Linda S. Parker. Native American Estate: The Struggle over Indian and Hawaiian Lands, (Honolulu: University of Hawaii Press, 1989). See also, Federal Property and Administrative Services Act of 1949, 63 Stat. 377, as amended by P.L. 93-599, 88 Stat. 1954 (1975). The Act provided for the disposal of certain excess and surplus federal property to the Secretary of Interior for tribal benefit; prior to the Act, tribes did not have preferential rights to obtain property lying within their reservation territories. 104 Singer, “Introduction to Property,” 712-14. 105 Jessica A. Shoemaker, “Like Snow in the Spring Time: Allotment, Fractionation, and the Indian Land Tenure Problem,” Wisconsin Law Review 2003 (2003): 729. 106 Margo S. Miller, “Report to First Nations Financial Project: Tribal Responses to Federal Land Consolidation Policy,” (Cambridge: Harvard University and the Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, April 1988), Ex. Sum. 107 Kathleen R. Guzman, “Give or Take an Acre: Property Norms and the Indian Land Consolidation Act,” Iowa Law Review 85 (2000): 595. 108 Leeds, “Borrowing From Blackacre,” 828 and 841. See also, Leeds, “Burning of Blackacre: A Step Toward Reclaiming Tribal Property Law,” Kansas Journal of Law and Public Policy 10 (2001): 491. 109 Leeds, “Borrowing From Blackacre,” 841. 110 Ibid., 841. 111 Leeds, “Exclusive Tribal Autonomy,” Introduction. 112 Ibid., Introduction. 113 Ibid. 114 Gover, “An Indian Trust,” 317-374. 115 Ibid., Introduction.

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116 Ibid. 117 Ibid. 118 Ibid. 119 Ibid. 120 Terry L. Anderson, Sovereign Nations or Reservations?: An Economic History of American Indians (San Francisco: Pacific Research Institute for Public Policy, 1995), x and 176. 121 Ibid. 122 John McGee Ingram, “Home Ownership Opportunities in Indian Country,” Affordable Housing and Community Development Law (1998): 164-165. 123 Richard A. Monette, “Governing Private Property in Indian Country: The Double-Edged Sword of the Trust Relationship and Trust Responsibility Arising out of Early Supreme Court Opinions and the General Allotment Act,” New Mexico Law Review 25 (Winter 1995):63-64. 124 David Melmer, “Morgan Tells BIA: ‘Get Out of the Trust Land Business,’ ” in Indian Country Today, March 18, 2005, available at http://www.indiancountry.com/content.cfm?id=1096410563. 125 Mary Christine Wood, “Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited,” Utah Law Review 1994 (1994): 1471 et seq.; “Protecting the Attributes of Native Sovereignty: A New Trust Paradigm for Federal Actions Affecting Tribal Lands and Resources,” Utah Law Review 109 (1995): 138-149. 126 Nash, “Fee to Trust,” 5. 127 Christian C. Bedortha, “The House Always Wins: A Look at the Federal Government’s Role in Indian Gaming and the Long Search for Autonomy,” St. Mary’s Law Review on Minority Issues 6 Scholar (Spring 2004): 261. 128 deZarn O’Hare, “Federal Land Restorations,” 27. 129 Ibid. 130 Joe Sando, Nee Hemish: A History of Jemez Pueblo, foreword by Alfonso Ortiz (Albuquerque: University of New Mexico Press, 1982), v. 131 Laura J. Smith, “Native American Trust Land Transfers in Minnesota,” CURA Reporter ( Spring 2004): 19-25. 132 Ibid., 23-24. 133 Ibid., 19. 134 Ibid., 24-25.

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CHAPTER TWO

THE FORMATIVE YEARS: A TIME OF TREMENDOUS TRAUMA

The O-jib-ways are scattered over, and occupy a large extent of country comprising all that portion of the State of Michigan lying north of Green Bay and west of the Straits of Michilimackinac, bordering on Lake Superior, the northern half of Wisconsin and the northeastern half of Minnesota Territory. Besides this they occupy the country lying from the Lake of the Woods, over the entire north coast of Lake Superior, to the falls of St. Mary’s and extending even east of this point into Upper Canada. They literally girdle the great “Father of Lakes,” and the largest body of fresh water in the world may emphatically be called their own, Ke-che-gum-me, or “Great Water.”1 William W. Warren (1885)

Indigenous land has been expropriated and Indigenous peoples displaced through

voracious property acquisition schemes that were implemented and enforced as federal

Indian policies. Tribes have historically struggled for ownership and control of land, and

Indigenous land ownership remains at the crux of tribal relations with the federal, state, and local governments. As tribal nations today strive to reclaim a sufficient land base upon which to survive as a nation, many have prioritized land acquisition within their reservation territories, as part of a larger effort to build the institutional capacity of their nations and exercise their sovereign authority. The Grand Portage and Leech Lake Bands certainly share in that Indigenous land tenure reality.

The Grand Portage and Leech Lake Bands of Ojibwe have both been engaged in long-term efforts to acquire ownership of land within their reservation territories. But, why is land acquisition such a high priority for tribal communities? The Indian land tenure histories of the Grand Portage and Leech Lake Bands provide one answer to this

question. Their land tenure histories reveal a legacy of precarious tenure, with extreme

expropriation of aboriginal lands under original treaty land cessions, layered with

significant land expropriation within the reserved boundaries of their reservations through

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the surplus land cessions. Further, the allotment process privatized the tribal land base, and the entrusted allotted lands also became vulnerable to expropriation.

The expropriation of the lands of the Minnesota Ojibwe occurred over a long period of time, and involved social engineering, capitalistic endeavors, outright greed, collusion, and, often, governmental actions taken under the guise of benevolence. The

Ojibwe Indian land tenure legacy has left little reservation land in Ojibwe ownership throughout the Minnesota Chippewa Tribe, in general. This chapter will present the tribal land tenure history of the Grand Portage and Leech Lake Bands of Ojibwe during the federal Indian policy period referred to as the “Federal-Tribal Treaty Relationship:

The Formative Years,” or the period from 1789-1871.

The formative years in Ojibwe territory were reflective of the national Indian land tenure narrative. The pre-formative years are marked by the transition from French and British rule to the assertion of governmental authority by the United States government. Less than 200 years ago, all of the land that lies within the State of

Minnesota was owned, possessed, used, controlled, and occupied by Indigenous people; today, little of their original territories remain under Indigenous ownership. Minnesota was transformed from a “territory” to a “state” in 1858, reflecting the increased population and settlement activity. In addition, the Minnesota Ojibwe had an ongoing territorial conflict with the Dakota, which persisted for many of the formative years.

Treaties were the primary method used by the United States to procure relationships with the Ojibwe, and those treaty agreements involved major land cessions, the establishment of reserved territories in Minnesota, the confinement of the Ojibwe

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bands to specific bounded territories under the reservation system, and subsequent federal efforts to remove and further consolidate the Ojibwe bands. The reservations were specified tracts of land, bounded territories, which were explicitly set aside and reserved as permanent homelands for the Ojibwe bands. However, the reservation lands were quickly targeted for alienation, and all or portions were subsequently sold or ceded.

In 1800, the indigenous Ojibwe people enjoyed a wide geographic distribution, from the eastern Great Lakes region in Canada and the United States to the edge of the

Great Plains. The Ojibwe Band structure served as their basic political institution and regional identifications continued as they had been in the 18th century.2 William Warren

identified several principle divisions of the Ojibwe “tribe” within the Minnesota

Territory, and although each division was distinctive, they shared the same language and

general cultural practices. Those groups resided at Fond du Lac, Mille Lac, Gull Lake,

Sandy Lake, Rabbit Lake, Leech Lake, Ottertail Lake, Red Lake, Cass Lake, Winnepeg

(Winnebigoshish), Rainy Lake, and Grand Portage. Warren indicates that the names of

the divisions were also based upon their “particular vocation, or peculiar mode of

procuring food, or other characteristic,”, but they also appear to be based upon their

geographic location.3 Warren labeled the Ojibwe divisions as:

1. “Ke-che-gum-me-win-in-e-wug” or “Men of the Great Water” known as those “who live on the immediate shores of Lake Superior”;

2. “Be-ton-uk-eeng-ain-ub-e-jig” or “Those Who Sit on the Borders” known as those “who live in the midland country, between Lake Superior and the Mississippi”;

3. “Mun-o-min-ik-a-sheenh-ug” or the “Rice Makers” known as those “who live on the Rice lakes of the St. Croix River”;

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4. “Wah-suah-gun-e-win-in-e-wug” or the “Men of the Torches” known as those “who live on the Head lakes of the Wisconsin, and the Ottawa lake men, who occupy the headwaters of Chippeway River”;

5. “Ke-ch-se-be-win-in-e-wug” or “Great River Men” known as those who live “immediately on the banks of the Mississippi”;

6. “Muk-me-dua-win-in-e-wug” or “Pillagers” known as those who live around “Leech and Ottertail lakes”;

7. “Sug-waun-dug-ah-win-in-e-wug” or “Men of the Thick Fur Woods” known as those who live “on the north coast of Lake Superior”, who the French later referred to as “Bois forts (hardwoods).”4

Warren described the basic environment of the territorial homeland of all Ojibwe peoples in the following manner:

The O-jib-ways reside almost exclusively in a wooded country; their lands

are covered with deep and interminable forests, abounding in beautiful

lakes and murmuring streams, whose banks are edged with trees of the

sweet maple, the useful birch, the tall pine, fir balsam, cedar, spruce,

tamarac, poplar, oak, ash, elm, basswood, and all the plants indigenous to

the climate in which they reside.5

Warren also recounted how the Ojibwe relied upon water travel, making canoes from birch bark, and using rushes to cover their homes. There were regional differences, however, such as the western Ojibwe, who relied upon buffalo and other game hunting, while the Ojibwe in the more heavily forested eastern areas relied upon the fur trade. All

“procure[d] food principally by fishing, also by gathering wild rice, hunting deer, and, in some bands, partially by agriculture.”6

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In his ethnohistorical report on the 1837 Ojibwe hunting and fishing case, Charles

Cleland described the Ojibwe use of natural resources and concepts of territoriality in the early 1800s.7 Cleland demonstrated that the Ojibwe were dependent upon the use of

natural resources for their subsistence and survival, but gradually acquired and used new

technology (tools and weapons) in order to more efficiently utilize these natural

resources. According to Cleland, the Ojibwe “used essentially all of the plant and animal

species of their environment” which provided food, “clothing, shelter, medicines,

building materials, all of their tools and implements, canoes, decorative items, and paints

and dyes.” The Ojibwe “depended upon the complete inventory of species for their

welfare and security,” which required a “vast knowledge of the natural history of plants

and animals, efficient means of capture, and the social and political means to partition

and distribute resources.”8 Today, such knowledge is referred to as traditional

environmental knowledge (TEK), which is acquired over a period of generations through

the use of the microenvironment of the land.

Cleland provides the following narrative description of the Ojibwe concepts of

territoriality:

Band territories, like bands themselves, were fluid in nature often shifting

in size and configuration with growth or fission within the band. Thus, the

boundaries of band territories were in a sense sociological rather than

political. This was consistent with the Chippewa concept of property

which did not exclude other Chippewa from the use of the resources of a

band’s territory. Permission was, however, required to use the resources

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upon which resident band members depended. Thus, in Chippewa

concept, neither the Band territory nor the resources they contained were

“owned” by the band, they were merely under the temporary stewardship

of that group and its constituent families.

The Chippewa followed a pattern of seasonal movement within their band

territories. Indeed this scheduled use of resources was the heart of the

hunting and gathering economy. Families had to move from one resource

to the next as these became available in season. Such factors as the

ripening of blueberries, spawning of certain fish species and the

movement of migratory birds occasioned the movement of the Chippewa

and their own patterns of aggregation or dispersion over the landscape.

Thus, the Chippewa subsistence regime must be understood not in terms

of a few important resources in and of themselves but the vital

interlocking use of all resources.9

During the period from 1787-1834, the fur trade was very important to the

Ojibwe, even though the period was marked by shifting relations between the Ojibwe and

the transitional French, British and United States governments. For example, the

Northwest Company was supplanted by the American Fur Company in 1804. After the

War of 1812, the United States began to assert its sovereign authority over the old

Northwest Territory, which included the Minnesota Territory. As the United States sought peace and friendship, there was also the fundamental government desire to define tribal boundaries and treat with the Ojibwe for their land.10 Cleland marks the end of the

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fur trade economy around 1840. New demands for new resources were emerging at that time, and Lewis Cass was sent to Lake Superior to treat for the copper and mineral district in northeastern Minnesota in 1826. According to the prevailing Ojibwe worldview, however, the Ojibwe were prohibited from sharing their knowledge of copper and other minerals with the “whites.”11

Acquisition of Ojibwe territory was a government priority, as valuable minerals

and the abundant timber was needed to build new settlements in the territory. In Ojibwe

territory, the presence of the United States quickly expanded, and the government

assumed a more strategic approach to achieve the political goal of acquiring the land and

resources of the Ojibwe and to gain control over them.12

The government sought a firmer political relationship with the “wild tribes” of the

north, as the Commissioner of Indian Affairs referred to the Ojibwe who occupied the headwaters of the Mississippi and the large freshwater lakes region of Minnesota.13 It was government preference to consider all the Ojibwe people as “one united people,” both to ease the government’s treaty negotiations and to facilitate its political objectives.14 The territorial claims of the Ojibwe Bands, intricately structured, were little understood by federal decision-makers, who strategically dismissed the territorial claims made by the

Ojibwe in exchange for a more simplistic method of identification.

The federal government began to devise its own Ojibwe classifications, as it began to establish formal relationships with the geographically widespread Ojibwe. The government classifications, or groupings, held no meaning for the Ojibwe, except for treaty and other external political business, and this categorization did not honor the

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“civil polity” of the Ojibwe. 15 Furthermore, the externally imposed classifications did not reflect reality, and eventually led to animosity between the Ojibwe bands.16

The Ojibwe “groupings” devised by the federal government were based upon three large regional locations of the Ojibwe, including the “Chippewa of Lake Superior,” the “Chippewa of the Mississippi,” and the “Pillager Chippewas,” according to Cleland.17

The Grand Portage band, a single and homogeneous band that occupied the territory along the north shore of Lake Superior, was classified as a Chippewa Band of Lake

Superior, and that remains as the band’s identity today.

The bands who occupied the territory at the headwaters of the Mississippi around three large lakes (Cass Lake, Lake Winnibigoshish, and Leech Lake) were classified into several bands, including the Chippewa of the Mississippi and the Pillager Chippewas.18

However, those bands were also referred to as the Lake Winnibigoshish Band, the Cass

Lake Band, the Leech Lake Band, the White Oak Point Band, and the Mississippi Band,

according to the annual reports of the Commissioner of Indian Affairs.19 The separate

identity of those heterogeneous bands was eventually merged into one band identity, and

they are now collectively known as the “Leech Lake Band of Ojibwe.”

The first treaty with the Ojibwe in Minnesota Territory was the 1825 Treaty of

Prairie du Chien, in which the government sought a solution to the ongoing conflicts

between the Ojibwe and Dakota.20 That treaty established a mutually-agreed upon and

fixed boundary line between the Ojibwe and the Dakota. Under the terms of the 1825

Treaty, the boundary line was established along the natural forest-prairie line, while the tribal sovereignty of each tribal nation was reserved over the resources within each “tribal

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estate.”21 According to Cleland, both the Dakota and Ojibwe people immediately tore

down the survey markers, because “they found straight lines across the landscape

offensive.”22 Despite the 1825 Treaty and boundary line, the Ojibwe and Dakota hostilities continued on until the “final spasm of fighting” occurred between 1838 and

1841.23

Federal treaty-making with the Ojibwe began in earnest in the mid-nineteenth

century, and the first series of treaties signified the establishment of a formal relationship

between the Ojibwe and the United States. The strategic goal of the government was to

obtain access to the valuable pine land, but potential settlement of the area was also

envisioned. Congress was also busy encouraging additional settlement and commercial

development during that time period, issuing land grants to the State for railroad

purposes, some of which involved Minnesota Ojibwe reservation lands.24

Below is a brief review of the treaties executed between Ojibwe bands and the

United States during the period from 1837-1867. My focus is on treaties involving the territories now lying within the present boundaries of the six reservations of the member

Bands of the present Minnesota Chippewa Tribe. Within that thirty-year period, a series

of seven treaties were negotiated with the Lake Superior, the Mississippi, and the Pillager

and Lake Winnibigoshish Bands, and approximately 50 million acres of land within

Minnesota and Wisconsin were ceded under those treaties.

The Treaty of July 29, 1837 with the “Chippewa Nation of Indians” was the first

treaty to acquire Ojibwe lands in Minnesota through cession.25 Although the

government’s treaty commissioners understood the separate interests of the various

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Ojibwe bands, the treaty did not distinguish among the distinct band identities and was negotiated with the “Chippewa Nation,” effectively creating “a political amalgam” that was not based in Ojibwe reality.26 According to Cleland, seven million acres of Ojibwe

territory were ceded in that treaty, encompassing a vast portion of east central Minnesota

and west central Wisconsin.27 The Ojibwe people reserved the right to hunt, fish, and gather in that ceded territory under the 1837 Treaty, which rights were at issue in the recent Mille Lacs case decided by the Supreme Court. However, lumbermen and miners soon began to trespass into Ojibwe territory, in both the ceded and the unceded territories.28 The government’s goals had been achieved, and the Commissioner of Indian

Affairs proudly described the successful 1837 acquisition, stating that “a vast region has

been acquired…abounding in timber adequate to the wants of the settlers…in water power, sufficient to supply the demand; and in mines of lead and other ores.” 29

The 1842 Treaty of LaPointe was negotiated with the Chippewa Indians of

Mississippi and Lake Superior, and led to the land cession of a part of northern

Wisconsin and the Upper Peninsula of Michigan.30 At the time of the 1837 and 1842 land

cessions, the population of the territory, Indigenous and otherwise, was very small, but

settlement was anticipated and encouraged by the federal government.31

The Treaty of August 2, 1847 was negotiated with the Chippewa of the

Mississippi and Lake Superior. This treaty involved a large land cession that included

part of central Minnesota, covering a tract west of the Mississippi River and south of the

Long Prairie and Crow Wing Rivers.32 The ceded lands were originally acquired by the

United States with the intent to remove the Winnebagos (Ho-Chunks) there from

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Wisconsin and Nebraska, and they were intended to serve as a buffer between the Ojibwe and Dakota.

Quickly following the August 2nd treaty in 1847, another land cession treaty was

negotiated on August 21, 1847 with the Pillager Band. The 1847 Treaty with the Pillager

Band involved the cession of land immediately west of the earlier 1847 cession, bounded

by the Leaf River on the north.33 The combined acreage of the land cession represented in

the two 1847 Treaties was 1,557,000 acres, according to the Commissioner of Indian

Affairs.34 Cleland argues that the 1847 treaties “perpetuate the myth of a common

Chippewa territory,” which ultimately created “antagonism” amongst the Ojibwe Bands,

and between them and the United State government.35

During this initial treaty time period, conflicts and clashes began to increase

between the Ojibwe people and the new immigrants, arising out of questions over the

possession, use and control of the ceded territories. The Ojibwe understood that the

treaties reserved their rights to continued access to the ceded territories, until the

President said otherwise, however, many settlers, lumbermen, and miners disregarded the

boundaries of the Ojibwe territories. Those conflicts would continue to increase as the

settlement of the territory increased.

Settlement and population growth expanded quite rapidly within Ojibwe territory.

The Commissioner of the General Land Office reported that “no white settlements

existed within the limits of the State prior to 1845, with one exception at Pembina.”36

According to Cleland, the whole northern half of present-day Minnesota remained in

Ojibwe ownership in 1853.37 However, the official recognition of the “Minnesota

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Territory” on March 3, 1849 brought the western and eastern halves of the present-day state together, and triggered the expansion of settlement.38 In fact, the population of

Minnesota was 6,077 in 1850, and that population increased to 172,023 by 1860,

according to the Commissioner of the General Land Office.39

Concurrently, the government began to fully develop its reservation policy,

intending to “collect” Indian people “on reservations in their home territories where they

would be taught the skills of civilization.”40 With regards to the Ojibwe people the

Commissioner of Indian Affairs stated in 1850 that:

[E]fforts should therefore be made, at as early a period as practicable, to

concentrate them [the Ojibwe]within proper limits, where, with some additional

means beyond those already provided, effective arrangements could be made to

introduce among them a system of education, and the practice of agriculture and

the simpler mechanic arts.41

Even at that point in time, it was the underlying intention of the government to

establish reservations, consolidate Indian people upon the reservations, and then do away

with the tribal system of communal property ownership. That underlying political

intention is evidenced in the 1851 statement by the Commissioner of Indian Affairs that

the “community of property was the most inveterate obstacle to their elevation…and is

the most obstinate barrier to their civilization…and must be met as the radical,

fundamental element to be obliterated.”42 That strategic political plan was put into action

within Ojibwe territory, and reservations were subsequently established for the

Minnesota Ojibwe bands by treaties, between the years of 1854 and 1867.

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The Ojibwe treaty era was a time of “tremendous trauma” for the Minnesota

Ojibwe as they ceded large portions of their territorial homeland in exchange for permanent reservations.43 The Ojibwe people had few viable options, and it likely

appeared that land cessions were a far better choice than starvation, as was cruelly

evidenced in the following statement by Alexander Ramsey, Bureau Superintendent for

the Minnesota region in 1851:

In the mere light of a bargain the treaties are eminently advantageous to

both parties. They fall within that class of arrangements, not so infrequent

as may be supposed, in which each side is a decided gainer. To the

Indians themselves, the broad regions which have been ceded are of

inconsiderable value, and their nomadic occupancy of them a positive evil.

The only alternative which seemed left to them, at the time of the

pendency of the negotiations, was starvation or sale. A treaty was

indispensable to their very existence.44

The government’s next strategic move was to extinguish Ojibwe title to the

“Arrowhead” or “mining” region, which was known to be a rich and valuable area of

land.45 The Arrowhead region was considered by the Ojibwe as their wild rice

“storehouse,” as the wild rice in that area was so plentiful.46 The 1854 Treaty with the

Chippewa Indians of Lake Superior and the Mississippi was negotiated at LaPointe,

Wisconsin on September 30, 1854, and all of northeastern Minnesota was ceded under that treaty.47 The driving force behind this land cession was the very real potential that

precious metals and minerals would be found in that region.48

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Under the 1854 Treaty, a reservation was established for the Grand Portage Band, and reservations were also established for several other Lake Superior bands.49 The

reservation territories consisted of designated tracts of land located within the larger,

ceded territories that were to be permanently reserved for the sole possession, use, and

occupancy of the Ojibwe bands. The territory reserved for the Grand Portage

Reservaiton under the 1854 Treaty is located at the northeastern-most tip of Minnesota on

the Pigeon River, and the reservation boundaries were described in that treaty as follows:

Beginning at a rock a little east of the eastern extremity of Grand Portage Bay,

running thence along the lake shore to the mouth of a small stream called by the

Indians Maw-ske-gwaw-caw-maw-se-be, or Cranberry Marsh River, thence up

said stream, across the point to Pigeon River, thence down Pigeon river to a point

opposite the starting point, thence across to the place of beginning.50

Charles Cleland reported that a total of 22,167,000 acres of Ojibwe territory were ceded under the 1842 and 1854 treaties, while the reservations established under the 1854

Treaty contained only 287,520 acres. The ceded lands/reserved lands ratio represents a stark “98.7 percent” reduction in Ojibwe territory, clearly leaving an insufficient

“resource base to support the population.”51 At the time of the establishment of the

Ojibwe reservations, both the Ojibwe and the government recognized that the

reservations contained insufficient lands to support the Ojibwe people, and “neither the

Chippewa nor the government officials expected that they would confine themselves to these small reservation areas.”52

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The Treaty of February 22, 1855 was negotiated in Washington D.C. with the

Pillager, Lake Winnibigoshish and Mississippi Bands. Under that treaty, the Ojibwe ceded an area of land in north-central Minnesota that encompassed nearly as much land as all previous cessions combined.53 Under the 1855 treaty, reservations were established

at Mille Lacs, Rabbit Lake, Gull Lake, Sandy Lake, and Rice Lake, for the Mississippi

Bands. In addition, reservations were also established at Cass Lake, Leech Lake, and

Lake Winnibigoshish, for the Pillager and Lake Winnibigoshish Bands, and those

reservations are described as follows:

1. A tract of land at the southern end of Leech Lake was designated as the “Leech

Lake Reservation;”

2) A tract of land at Cass Lake was later designated the “Cass Lake Reservation;”

and,

3) A tract of land at Lake Winnibigoshish was later designated the

“Winnibigoshish Lake Reserve” or the “Lake Winnibigoshish Reservation.”

Ultimately, the three reservations established for the Pillager and Lake Winnibigoshish

Bands in the 1855 treaty would become part of the greater Leech Lake Reservation as it

is now constituted. Between the 1854 and the 1855 treaties, approximately 396 square

miles of land were set aside for the Ojibwe reservations.54

The establishment of the Leech Lake Reservation was a complex process that was

complicated both by federal efforts to consolidate the Ojibwe, as well as by later treaties

that changed its boundaries. Although the original Leech Lake Reservation was

established in 1855, subsequent treaties geared towards consolidation had the effect of

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shifting the Leech Lake Reservation boundaries. The current boundaries of the Leech

Lake Reservation were finally established in a series of three Executive Orders in 1873-

1874, which authorized corrections to the reservation boundaries. The steps involved in the establishment of the Leech Lake Reservation are outlined in the “Table 1855-1874:

The Establishment of the Leech Lake Reservation” (see Appendix A); also, the eight tracts of land that were ultimately consolidated into the greater Leech Lake Reservation are illustrated in the “Map of the Leech Lake Reservation” (see Appendix B).

During the 1850s and 1860s, the “keystone” of federal policy was to consolidate all Minnesota Ojibwe on a few remote northern reservations, and the next two Ojibwe treaties were deliberate attempts to consolidate the Ojibwe bands on fewer reservations.

Minnesota became a State in 1858, and the settlement of the interior of Minnesota “began in earnest.”55 In order to achieve its political objectives, the government’s strategy was to negotiate the cession of six existing reservations occupied by the Mississippi Bands, and to remove them to a large reservation that would encompass the Leech Lake and Lake

Winnibigoshish territories. That consolidation effort did not take, as the Ojibwe people were not interested in that removal and consolidation plan.56 Although that plan was

ultimately rejected, government officials did attempt to actualize it.57

The 1863 and 1864 Treaties were negotiated out of the growing popular belief

that consolidation would better serve the Ojibwe. No one, of course, asked the Ojibwe.

Those treaties were also negotiated partly because of the government’s ongoing difficulty

in administering their numerous and geographically scattered reservations. The

government wanted to induce the bands residing east and south of present-day Leech

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Lake Reservation to relinquish their lands and move north. The Treaty of March 11,

1863 was negotiated in Washington, D.C. with the Chippewa of the Mississippi, Pillager, and Lake Winnibigoshish bands.58 That treaty is considered to be “one of the worst

treaties ever written” according to Cleland.59 A northern reservation was established

under the 1863 treaty, and the Mississippi bands surrendered their southern reservations

and agreed to move to the northern reservation at Leech Lake. However, the northern

reservation was subsequently deemed inadequate to the needs of the Minnesota Ojibwe

bands, and a remedial treaty was sought. According to Charles Royce, the 1863 Treaty

was “canceled and superseded by the treaty of May 7, 1864.”60

The 1864 Treaty with the Chippewa, Mississippi, and Pillager and Lake

Winnibigoshish Bands of Chippewa is “identical” to the 1863 Treaty, except that the 1864

treaty greatly expanded the northern reservation at Leech Lake.61 It added lands

encompassing a large area, from the south point of Leech Lake to the Red Lake

Reservation, Thief River, and Deer River (excepting those lands already reserved under the 1855 Treaty).62 The expanded northern reservation quickly proved inadequate again,

however, and another Treaty was negotiated in 1867, in which a portion of the 1864

reservation was ceded.63 During that time, the 1866 Treaty with the Bois Fort Band was also negotiated, which established a reservation of approximately 100,000 acres, plus one township, for the Bois Fort Band, while approximately three thousand sections of land were ceded in exchange.64

By 1867, it became clear to the government that the concept of consolidation and

removal had not been embraced nor actively pursued by the Ojibwe bands. In fact, by

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1867, few people had actually removed and left their original reservations, and most intended to remain there. Therefore, another treaty was negotiated in a final government attempt at Ojibwe consolidation.

The Treaty of March 19, 1867 was negotiated with the Chippewa of the

Mississippi, and it provided for the cession of most of the land reserved under the 1864

Treaty, but it also reserved lands around the original reservations at Leech, Cass, and

Winnibigoshish Lakes.65 The reserved territory under the 1867 treaty encompassed the

pre-established Cass Lake, and Leech Lake Reservations, and most of the pre-established

Lake Winnibigoshish Reservation.66 In addition, the 1867 treaty also reserved a tract of

land for the Mississippi Chippewas, or the “Chippewa of the Mississippi Reservation,”

and that tract of land remains a part of the Leech Lake Reservation today. The 1867

treaty also established and reserved the White Earth Reservation, which was intended as

the targeted reservation for the permanent consolidation of all the Minnesota Ojibwe.

The federal government promoted removal and consolidation to the White Earth

Reservation by offering allotments of land to individual band members.

Despite government intent for removal and consolidation, many Ojibwe bands

“had no intention of removing to White Earth” and many “repudiated” the treaty shortly

after it was negotiated, according to Cleland.67 Although some people removed to White

Earth and took up allotments there, most of the Ojibwe band members, who later became

members of the Minnesota Chippewa Tribe, remained and took up allotments on their

own reservations.

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The 1867 treaty made a significant contribution to the establishment of the Leech

Lake Reservation. Under that treaty, two separate tracts of land were ceded, that had been previously reserved in 1864. In addition, a large parcel of land that was reserved in the

1867 treaty now represents the central portion of the greater Leech Lake Reservation.

Portions of the two 1867 ceded tracts of land, around the Leech-Cass-Winnibigoshish

Lakes area, were later added back in and reserved as part of the Leech Lake Reservation in a series of three Executive Orders in 1873 and 1874. The Executive Orders authorized the addition of lands to both the Leech Lake and Lake Winnibigoshish Reservations, and the final Executive Order in 1874 now represents the finalization of the greater Leech

Lake Reservation boundaries. The three Executive Orders are discussed below.

According to Charles Royce, all of the additional lands reserved by the Executive

Orders were “taken from the tract ceded by the [Treaty of 1867].”68 The first Executive

Order was issued on October 29, 1873, and it reserved a tract of land for the Lake

Winnibigoshish Reservation, located at the southeasterly edge of the Leech Lake

Reservation.69 That reserved tract of land was set aside for the Chippewa of the

Mississippi Band members who resided at White Oak Point, and later came to be referred

to as “White Oak Point Reservation.” The Mississippi Band members who resided at

White Oak Point had not participated in the 1867 Treaty, but were entitled to a reservation of land specifically designated for their band, which the government acknowledged in the October 1873 Executive Order.

The second Executive Order was issued on November 4, 1873, and it added lands which encompass the southern-most tip of Leech Lake. Including the islands, this tract is

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a large triangular addition to the Leech Lake Reservation.70 The third Executive Order

was issued on May 26, 1874, and it added two tracts of land to the Leech Lake and Lake

Winnibigoshish Reservations.71 The first tract contained lands around the area where the

Mississippi River exits Lake Winnibigoshish, and that tract represents the most northerly

addition to that Reservation. The second tract added a parcel of land contiguous to the

original northeastern Leech Lake Reservation boundary, and represents the baseball-

diamond shaped parcel (See Appendix C for a copy of the three Executive Orders).72

Powerful, yet chaotic, government efforts at consolidation lent themselves to the

piecemeal creation of the Leech Lake Reservation over a twenty-two year period that

involved four treaties and three Executive Orders. Eight contiguous tracts of land that

were originally part of five distinct reservations (Cass Lake, Leech Lake, Lake

Winnibigoshish, White Oak Point, and the Chippewas of the Mississippi Reservations)

were ultimately combined to create the consolidated Leech Lake Reservation, whose

reservation boundary was finalized in 1874. However, the separate geographic and social

identities of the bands from the smaller reservations were carried forward for some time,

and the government continued to refer to the distinct, smaller reservations for many

years.73 In the end, however, the complicated, twenty-year process of treaties and

Executive Orders culminated in the final establishment of the exterior boundaries of the

Leech Lake Reservation in 1874.

Summary

Throughout the Formative Years of federal Indian policy, the precarious tenure of

Indigenous territory was the predominant theme of the national Indian land tenure

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landscape. As previously discussed, the Formative Years reflect the loss of 755 million acres of Indigenous land, and the land tenure histories of Grand Portage and Leech Lake mirror that national reality. As presented in this chapter, the Formative Years were a time of tremendous trauma for the Minnesota Ojibwe, as the United States government pursued a relationship with the “wild” Ojibwe bands, and subsequently acquired millions of acres of prime territory in a series of treaties negotiated between 1837 and 1867. As reservations were established for the Ojibwe bands, the concept of bounded territories quickly became a reality, as the Ojibwe people grappled with the concept that ceding a large land base was necessary in order to salvage a smaller, yet permanent, territory that would remain under Ojibwe ownership, use, and control.

During that time, both the federal government and the Ojibwe leaders understood that the “future depended upon who controlled the land,” and that ownership, use, and control of reservation territories was an “economic fact of life,” critical to the future survival of the Ojibwe.74 The Ojibwe leader Wah ba nakwed, or Chief White Cloud, had

a clear understanding of the impact of land cessions upon the Ojibwe and the importance

of permanent ownership of the reservation territories. According to Wa ba nakewed, land

cessions led to poverty, and poverty led to further removal and geographic restraint. Wa

ba nakwed recognized the essential correlation between land cessions and the loss of

political power, and recognized that cash payments for land cessions meant nothing

without attendant political power.75 Protection of the permanent status of the reservation

territories was of great importance to the Ojibwe, who insisted upon the rights to control

the territories and utilize the resources within.

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The impact of treaty-era federal Indian policies upon the Grand Portage and

Leech Lake Bands set the stage upon which the rest of their land tenure histories unfold.

The Grand Portage and Leech Lake Bands were both subject to the strategic government plan to wrestle lands from the Ojibwe through treaties, and eventually, to remove and consolidate the Ojibwe. While similar, the Grand Portage and Leech Lake Bands histories are unique, in that they were parties to different treaties with the United States government. In addition, the processes that led to the establishment of the two reservations are very different, and the make up of their band membership is also dissimilar. In one treaty, the Grand Portage Reservation was established and set aside for one distinct, homogeneous band with a singular identity. In addition, the Grand Portage

Reservation is a relatively small and geographically isolated territory, which makes for an easier land acquisition challenge today.

The Leech Lake Reservation, on the other hand, has a different creation story and other distinctions that set it apart from Grand Portage. The Leech Lake Reservation was incrementally established over a twenty-year period and was a geographic consolidation of formerly distinct reservations. In terms of sheer size, the reservation is considerably larger than Grand Portage. Furthermore, the Ojibwe people, who are now members of the

Leech Lake Band of Ojibwe, were formerly members of distinct, smaller bands that were later merged as one. The conglomeration of bands, and the varied interests of the different bands arising from separate treaties, creates additional issues for the Leech Lake

Band that Grand Portage simply will not need to contend with. As their land tenure

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histories unfold throughout the following chapters, different patterns will continue to emerge for the Grand Portage and Leech Lake Bands.

As will be presented in the following Chapter, the national Indian land tenure theme of a precarious tenure was carried forward into the next federal Indian policy era of allotments and assimilation. When treaties were no longer an option, government land acquisition methods changed, but the outcome remained the same: further expropriation of Indigenous land. In Minnesota, the capstone of government efforts to acquire Ojibwe lands was actualized in the Act of January 14, 1889.76 That Act provided for the

allotment of lands within the Ojibwe reservations, and for the disposal of the “surplus

lands” within those reservations. That one Act basically destroyed Ojibwe land tenure within their reservation territories, and has left an enduring legacy of insufficient lands to

support the people.

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Endnotes

1 William W. Warren, History of the Ojibway People (St. Paul: Minnesota Historical Society Press, 1994, originally printed in 1885), 37. 2 Charles E. Cleland, “Preliminary Report of the Ethnohistorical Basis of the Hunting, Fishing, and Gathering Rights of the Mille Lacs Chippewa,” in Fish in the Lakes, Wild Rice, and Game in Abundance: Testimony on Behalf of Mille Lacs Ojibwe Hunting and Fishing Rights. James McClurken, Compiler, with Charles E. Cleland, Thomas Lund, John D. Nichols, Helen Tanner, and Bruce White (East Lansing: Michigan State University Press, 2000), 19. 3 Warren, History of the Ojibway, 38. 4 Ibid. 5 Ibid., 39-40. 6 Ibid. 7 Cleland, “Preliminary Report,” 8-9. 8 Ibid. 9 Ibid. 10 Ibid., 18. 11 Warren, History of the Ojibway, 393. 12 Commissioner of Indian Affairs Annual Report (1937), 3. 13 Commissioner of Indian Affairs Annual Report (1842), 374. 14 Cleland, “Preliminary Report,” 51-52. 15 Warren, History of the Ojibway, 393. 16 Cleland, “Preliminary Report,” 20-21. 17 Ibid., 20. 18 Ibid. 19 See generally,Commissioner of Indian Affairs Annual Reports (1874-1897). 20 Treaty of Prairie Du Chien Between the Chippewa, Sac, and Fox, Menominie, Ioway, Sioux, Winnebago, and Part of the Ottawa, Chippewa and Pottawatomie Tribes Living on the Illinois, August 19, 1825. Kappler’s, Vol. 2: 250-154. 21 Cleland, “Preliminary Report,” 22-23. 22 Ibid., 26. 23 Ibid., 23. 24Commissioner of General Land Office Report to the Secretary of Interior (1867), 276-278. 25 Treaty between the United States and the Chippewa Nation of Indians, July 29, 1837, 7 Stat. 536. 26 Cleland, “Preliminary Report,” 28. 27 Ibid., 86. See also, “Statement Showing Indian Lands Ceded,” Commissioner of Indian Affairs Annual Report (1937), 66. 28 Cleland, “Preliminary Report,” 15 and 26. 29 Commissioner of Indian Affairs Annual Report (1837), 5. 30 Treaty between the United States and the Chippewa of the Mississippi and Lake Superior.of LaPointe. October 4, 1842. 7 Stat. 591. 31 Cleland, “Preliminary Report,” 47. 32 Treaty between the United States and the Chippewa of the Mississippi and Lake Superior, August 2, 1847, 9 Stat. 904. 33 Treaty between the United States and the Pillager Bands of Chippewa Indians, August 21, 1847, 9 Stat. 908. 34 Commissioner of Indian Affairs Annual Report (1847), 8. 35 Cleland, “Preliminary Report,” 51. 36 Commissioner of the General Land Office Report (1867), 39. 37Cleland, “Preliminary Report,” 82. 38 Harold L. Fisher, The Land Called Morrison (St. Cloud, MN: Volkmuth Printing Company, 1972). 39 Commissioner of the General Land Office Report (1867), 39.

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40 Cleland, “Preliminary Report,” 80. 41 Commissioner of Indian Affairs Annual Report (1850), 5. 42 Commissioner of Indian Affairs Annual Report (1851), 152. 43 Cleland, “Preliminary Report,” 76. 44 Alexander Ramsey, Superintendent of the Minnesota Superintendency, Report to the Commissioner of Indian Affairs, in Commissioner of Indian Affairs Annual Report (1851), 156. 45 Commissioner of Indian Affairs Annual Report (1853), 55 and 63; see also Annual Report (1855), 2. 46 Mary Ringhand, President of Red Lake Nation College, personal conversation (2007). 47 Treaty between the United States and the Chippewa Indians of Lake Superior and the Mississippi. September 30, 1854. 10 Stat. 1109. 48 See generally, Commissioner of Indian Affairs Annual Reports (1851-1853). 49 The 1854 Treaty provided for the establishment of reservations for the Fond du Lac Band, the L’Anse and Vieux De Sert Bands, the LaPointe Band, the Lac du Flambeau Band, the Lac Court Orielles Band, and the Ontonagon Band. The Bois Forte Band was also a party to the treaty and was granted the right to select their reservation territory at a later date. 50 Treaty between the United States and the Chippewa of Lake Superior and the Mississippi, September 30, 1854, 10 Stat. 1109: Article 2, §5. 51 Cleland, “Preliminary Report,” 85. 52 Ibid., 86. 53 Treaty between the United States and the Mississippi Bands of Chippewa, February 22, 1855, 10 Stat. 1165; See also, Charles Royce, Indian Land Cessions in the United States, Extract from the 18th Annual Report of the Bureau of American Ethnology (Washington: GPO, 1900) and Arno Press, 1971, 826. 54 Cleland, “Preliminary Report,” 86. 55 Ibid., 105. 56 Helen Hornbeck Tanner, Atlas of Great Lakes Indian History (Norman: University of Oklahoma Press, 1987), 166. 57 Cleland, “Preliminary Report,” 94-99. See also, Commissioner of Indian Affairs Annual Reports (1850- 1867). 58 Treaty between the United States and the Chippewa, Mississippi, and Pillager and Lake Winnibigoshish Bands. March 11, 1863. 59 Cleland, “Preliminary Report,” 99-100. 60 Charles Royce, Indian Land Cessions in the United States, Extract from the 18th Annual Report of the Bureau of American Ethnology (Washington: GPO, 1900) and Arno Press, 1971, 826. 61 Cleland, “Preliminary Report,” 101. See also, Treaty between the United States and the Mississippi, and Pillager and Lake Winnibigoshish Bands of Chippewa,” May 7, 1864. 13 Stat. 693. 62 Ibid. 63 Royce, Indian Land Cessions, 831. 64 Treaty between the United States and the Bois Fort Band, April 7, 1866. 14 Stat. 765 (1866). See also, Unknown author, “Legal History of the Minnesota Chippewa Tribe,” (circa 1980). 65 Treaty between the United States and the Chippewa of the Mississippi, March 19, 1867, 16 Stat. 719. 66 Royce, Indian Land Cessions, 844. 67 Cleland, “Preliminary Report,” 102-104. 68 Royce, Indian Land Cessions, 867. 69 Executive Order (October 29, 1873). 70 Executive Order (November 4, 1973). 71 Executive Order (May 26, 1874). 72 Ibid. 73 In 1874, the boundary of the greater Leech Lake Reservation had been set, although the government continued to differentiate between the Leech Lake and the Lake Winnibigoshish Reservations in 1879 (by this point in time, the government had subsumed the Cass Lake, White Oak Point and the Chippewas of the Mississippi Reservations under the Lake Winnibigoshish Reservation).

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74 William Schaaf and Charles Robertson, “Minnesota Chippewa Tribal Government Handbook” (Cass Lake: Minnesota Chippewa Tribe, 1975), 34. 75 Ibid., and generally 32-49. 76 Act of January 14, 1889 for the Relief and Civilization of the Chippewas of Minnesota, also known as the Nelson Act, 25 Stat. 642, as amended.

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CHAPTER THREE

ALLOTMENT AND ASSIMILATION: POSSESSING LANDS THAT THE WHITE MAN WANTS

If I was told at the time that things would turn out in this way, I would never have signed the treaty. There were also lots of my brethren that were glad to hear the promises that were made to us—today they lie under the sod. I can see that that is what the government is waiting for, for me to lie under the sod also. How long must we wait for those promises to be fulfilled? I have been poor long enough. I can see that the white man is getting rich in the lands that I was cheated out of. Chief John Morrison, Grand Portage Band (1897)

Political and economic interests of the advocates for westward expansion

continued to pressure federal policy makers for increased access to additional Indigenous

lands and resources. There was a “progressive and adventurous white population” that

actively encroached upon, and trespassed against, Indigenous people and their territory,

and those thuggish political forces pursued the break up and dissolution of the

reservations, and the assimilation of Indian people.1 The predominant theory was that

gradual assimilation would eliminate the need for reservations, which were already

visible pockets of poverty, and the privatization of the reservation territories became vogue federal Indian policy. Within that prevailing national and state environment in

1871, the new federal Indian policy era of “Allotments and Assimilation” was instituted

and governed federal relationships with tribes until 1928. At the end of the Formative

Years within Ojibwe territory, the reservation system had been imposed, and the process

of allotment was looming large. Clearly, the federal expropriation of land was not yet

over for the Minnesota Ojibwe, even within their “permanent” reservation territories.

The federal Indian policy era of allotment and assimilation was formally inaugurated with the passage of the General Allotment Act of 1887, which granted general Congressional authority to allot Indian reservation lands. Typically, subsequent

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tribal-specific legislation authorized allotment for specific tribes on specific reservations.

Such legislation was based upon agreements between the federal government and each tribe, which specified the size of allotments, the protections granted those lands, including the trust period.2 Tribal-specific legislation was enacted for the Minnesota

Ojibwe in 1889, and that legislation and the associated allotment process will be discussed later.

According to reform activist and later Commissioner of Indian Affairs, John

Collier, the underlying federal intention with allotment was to benefit and help Indian

people. However, Collier acknowledged the “magnitude of the disaster” that resulted from allotment as he proclaimed that “the allotment law turned out to be principally an instrument to deprive the Indians of their lands.”3 Although the allotted lands were to

enjoy a protected, trust status for a period of time, Indigenous ownership of those

entrusted lands was quickly dissipated and little allotted land remained under Indigenous trust ownership by 1934. Collier, who became the new Commissioner of Indian Affairs in 1933, identified three “successive steps of loss” under the process of allotment:

The successive steps of loss are easy to trace: Each Indian on the allotted reservations was given an allotment of about 160 acres, which was held in trust by the Government for a time and then turned over in fee simple to the allottee. In most cases, the allottees sold their land to white settlers in order to have “easy money” for quick spending. If the allottee died before the end of the trust period, the land passed to his heirs. Often there were numerous heirs, and the practicable method of settling the estate was to sell it and divide the money among the claimants. A third step in the loss of Indian land came from the disposal of so- called “surplus” lands which were left after allotments had been made to all Indians of the reservations. These surplus lands were then opened to entry and were homesteaded by white settlers.4

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As Collier indicated, the “surplus lands’ provisions of the General Allotment Act marked the national Indian land tenure history by significantly contributing to the expropriation of the Indian land base. The General Allotment Act authorized that the

“surplus lands,” or the remaining reservation lands not needed for allotment, be taken out of tribal ownership and placed into the public domain. Once designated as public domain lands, the federal government assumed ownership and control over those lands and they became available for federal disposition and sale to homesteaders, railroad companies, states, and for other purposes. For the reservations that were subject to allotment, the

“surplus lands” policy had a major impact upon the Indian land tenure landscape within those reservation territories, as those lands constituted the bulk of those reservation lands.

Ultimately, during the federal Indian policy era of Allotment and Assimilation, 52 million acres of land were expropriated from Indigenous ownership, as the surplus lands were taken and the allotted lands alienated, as Indian “allottees” were systematically dispossessed of their allotments through “legal chicanery and murder.”5 At the end of the

era, Indian land holdings had been reduced from 122 million acres in 1871 to

approximately 71 million acres in 1928.6

Within Ojibwe territory, the permanent reservation territories became targets of further land expropriation even prior to allotment. Other federal actions were taken that impacted Ojibwe land ownership of the reservation territories, including legislation that was intended to address “public” land needs, such as swamp lands, dams, and forests.

Under the River and Harbor Acts of June 14, 1880 and March 3, 1881, for example, the

Secretary of War was authorized to erect dams and construct reservoirs at the Mississippi headwaters and provisions were made to compensate for the injuries incurred and

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damages to private property in conjunction with the construction of the dams.7 Some of

the lands taken for the dam construction belonged to Ojibwe bands at Leech Lake. In addition, the flooding caused by the constructed dams resulted in the loss of additional

Ojibwe lands, severe damage to the wild rice crops, fish, hay meadows, and cranberry

marshes, along with the desecration of Ojibwe graves.8 A series of federal attempts were

made to resolve the monetary damage issues relating to the dam construction and the

affected Ojibwe bands.

The Leech Lake Pillager and Mississippi Ojibwe Bands were primarily affected

by two dams that were constructed upon the Mississippi River. An initial Commission in

1881 was established to determine injuries and estimate the monetary damages resulting

from the dam construction. That Commission did not consult with the Ojibwe and

recommended damages that were deemed inadequate by the Ojibwe, who refused to

accept the settlement proposal.9 Another Commissioner was established in 1882 to

personally examine the affected lands and re-evaulate the first Commission’s

recommendations. Ojibwe dissatisfaction over the dam construction continued to grow, as the settlement of the damages remained unresolved.10 In 1884, the second

Commission found that “these Indians have a just claim” for full compensation and that

annual damages would be incurred to both Ojibwe personal and tribal property as a result

of the dams. The second Commission recommended an amount for a legislative appropriation as the first installment for annual damages, while acknowledging that some funds had already been appropriated for individual and tribal property damage.11 Proper

resolution of the Ojibwe property damage claims remained unresolved, however, and was again addressed in the Nelson Act negotiations, while Ojibwe dissatisfaction and “ill-

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feeling” regarding the lack of proper compensation continued. Map 4 below provides a visual example of the impact upon Ojibwe territory as a result of one of the proposed

Leech Lake dams.

Map 4: Leech Lake Reservoir: Indian Lands Projected to be Overflowed

SOURCE: “Diagram Showing Indian Lands (colored blue) liable to be touched by the flowage of the proposed Reservoir at Leech Lake, Minnesota,” Central Map File, Bureau of Indian Affairs (1883).12

The Nelson Act of January 14, 1889

In Minnesota, tribal-specific legislation to authorize allotment was enacted in

1889. The capstone of the government’s quest for access to the Ojibwe reservation lands was the Act for the Relief and Civilization of the Chippewa Indians of Minnesota, or the

Act of January 14, 1889, which is commonly known as the Nelson Act.13 The Nelson Act

provided for the allotment of Indian lands within the Minnesota Ojibwe reservations and

the designation of the remainder of the lands as “surplus lands”, thereby allocating those

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lands to the public domain and placing them under federal ownership. In addition, the

Nelson Act also provided for the sale of the “surplus” lands and the timber on said surplus lands. That Act applied the theory of allotment and assimilation to Ojibwe territory, as they were to be assigned individual allotments and the government would “relieve” them of their surplus land burden.

Under the Nelson Act, a three-man Commission was authorized to negotiate agreements with each of the different bands of Minnesota Ojibwe for a “complete cession and relinquishment in writing of all their title and interest in and to all the reservations of said Indians in the State of Minnesota, except the White Earth and Red Lake

Reservations,” and exempting enough land to make and fill allotments.14 The original

intent of the Nelson Act was to provide for the consolidation of all Ojibwe people to

White Earth, with the exception of the Red Lake Band, where they were to be issued

allotments. However, the final legislation authorized the band members to remain on their own reservations and take allotments thereon. The Nelson Act also required assent from two-thirds of the adult males in each band in order to effectuate that band’s specific agreement, and Presidential approval was also required for all Band-specific agreements.

According to the terms of the Nelson Act, the remaining lands not needed for allotment were to be ceded to the public domain, to be surveyed and appraised for sale to the general public. The lands were to be classified as either agricultural or pine lands; pine lands were to be sold for not less than $3 per acre, while the agricultural lands were to be sold under the homestead laws for a $1 per acre. The funds from the sale of the surplus lands were to be deposited into the “Chippewa in Minnesota Fund,” a permanent tribal fund.15

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A three-man government commission was appointed on February 26, 1889 to negotiate the land cession agreements and to determine a monetary value for the Ojibwe pine lands. The three-member “Chippewa Commission” was led by Henry Rice, and their report came to be referred to as the “Rice Commission Report.” The

Commissioners traveled to Ojibwe territory to hold council with twelve Ojibwe bands throughout 1889. During the period from July 8th through November 21, 1889, councils

were held with the following bands: Leech Lake, Cass Lake, Lake Winnibigoshish,

White Oak Point, Grand Portage, Red Lake, White Earth, Gull Lake, Mille Lacs, Bois

Forte and Vermillion Lake, and Fond du Lac. The Commissioners remained with each

band and convened councils until an agreement was exacted from each.16

The proposed agreements signaled major changes of great significance to the

Ojibwe, which included a serious diminishment in their reservation land ownership,

along with the taking and sale of the natural resources within. Besides peddling proposed

agreements of such great magnitude, the Commissioners faced another challenge. They

were promptly confronted with “embarrassment” at the band-level negotiations because

the government’s “former agreements [with the Ojibwe were] unkept.”17 The

Commissioners found the Ojibwe people to be living in extreme poverty and destitution, barely subsisting upon the resources of the land. The Commissioners lamented in their

Report that “[t]heir principal fault seems to lie in possessing lands that the white man wants.”18

The Ojibwe leaders were adamant that the Commissioners answer their questions

about their outstanding claims first, before they would discuss the proposed terms of

agreement. Each band was understandably reluctant to discuss further cessions of any

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kind until assured of adequate redress for unresolved claims. Ojibwe leaders spoke of those prior claims, and their grievances included issues such as errors in reservation boundaries, “borrowed land” under treaties, treaty annuities and other outstanding payments, and damages for overflow from dam reservoirs. Distinct pressure was put upon the Commissioners to deal with the unfinished business first. For example, the

Commissioners were put under guard at Leech Lake, while the Band’s leaders discussed how best to proceed with negotiations and how to exact a “solemn promise” from the

Commissioners that they would do everything possible to settle the Band’s outstanding claims.19

The position of the Ojibwe leaders was clearly made and asserted throughout each

negotiation. For example, one of the Ojibwe leaders appeared insulted when a

Commissioner assured him that the Ojibwe would become rich under the proposed agreement if they were “good Christians.” Ne Gaun ah quod, one of the Red Lake Ojibwe leaders, responded by stating: “I am a scholar; I get my knowledge from the Master of

Life.”20 At the first council held at Leech Lake, No Tin-Nah-Quah-Um articulated the

causal connection between their previous land cessions and their current state of poverty:

“[t]he men you see here are in poverty, extreme poverty. That poverty began at the time

of the first cession you obtained from them.”21 Another Ojibwe leader expressed fear

that the allotment process and “breaking up the tribal relations” would lead to the loss of

tribal political power and influence.22 Although the negotiations were tense at times, an

Ojibwe sense of humor remained. For example, when an impasse seemed likely at the

sixth council held at Leech Lake, Kay Ke Now Aus e Kung quipped that there was one

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thing he regretted, and that was that the “government did not have you bring to us a big bank check.”23

According to the Minnesota Chippewa Tribe, the Rice Commission ultimately

“convinced the Indians to give up timber lands, by leading them to believe that the land

would be a source of endless trouble because of thievery and fires.” In the end, nearly 3

million acres of timber was ceded, 60,000 acres of timber sold, and 500,000 acres of

Ojibwe reservation lands homesteaded.24

Following the Commissioner’s negotiations, they submitted their Report and

indicated that the requisite number of band members had approved their respective

agreements. The Commissioners also submitted proposed legislation and

recommendations on how to proceed with implementation of the Nelson Act and how the

federal government should address the outstanding claims of the Ojibwe. Based on the

Rice Commission Report, the agreements were approved by President Harrison and

submitted to Congress on March 4, 1890.25

For example, one of the Rice Commission’s proposed legislative settlements addressed monetary compensation for the dam constructions. The dam settlement had languished after the recommendations of the two earlier Commissions, and the

Commissioner’s draft bill recommended an improved compensation package as settlement for the damages caused by the two dams at Leech Lake and Lake

Winnibigoshish. However, the Commissioners also indicated that the Ojibwe had

“absolutely ceded to the United States 46,920 acres …reserved for the overflow caused by the reservoir dams.”26 The local Bureau Agency later estimated that there was an

estimated 74,080 acres that were subject to the overflow caused by the dams in 1885,

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which resulted in damage to the wild rice crop, fish, hay meadows, and to the cranberry marshes.27 In addition, the Commissioners reported that the Lake Winnibigoshish

Ojibwe were hardest hit and most seriously injured by the dam construction, as their graves were desecrated by the overflow, which “added poignancy to their sorrow.”28

Following the acceptance of the Report, the Chippewa Commission was charged with further implementation of the Nelson Act provisions, and was authorized to administer and supervise:

1. all removal and consolidation efforts; 2. all survey work on the Ojibwe reservations;29 3. the allotment process for the Minnesota Ojibwe; 4. the classification of reservation lands and establishment of cash value; 5. the preparation and sale of ceded lands to the public.30

Implementation of the Nelson Act was problematic, however, according to the

Leech Lake Indian Agent in 1899. While the Act is a “good one in theory….it has been

demonstrated as impracticable and unbusinesslike in every instance where attempt has

been made to execute it.”31 Land surveys were necessary in order to proceed with

allotment selections and with the identification and sale of the ceded lands, which proved

to be a lengthy and time consuming process itself. Also, controversy arose over the valuation and taking of the timber and pine lands.

The federal government maintained its strong push for removal of the Ojibwe to

White Earth. In fact, the Chippewa Commission used the dam construction damages as

leverage to force the removal of the Ojibwe bands from the consolidated Leech Lake

Reservation. The Commissioners planned to “retain the amount due the Pillagers who desire to take their allotments upon Leech Lake and Winnibigoshish until such time as they take their allotments, or move to White Earth.”32 Despite the Commission’s plans, it

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was obvious that many Ojibwe clearly intended to remain on their own reservations and take allotments there. As a female Ojibwe leader from Leech Lake, Ruth Flatmouth, eloquently stated: “[I]t is my wish also that I should be buried where my ancestors are buried;” her sentiments were echoed by Shay-quon-a-quot, who stated “I want my bones to remain on this reservation.”33

The allotment process was particularly challenging, and it took several years to complete. Theoretically, it involved the individual selection of land parcels by each member, or by their parents if the allottee was a minor. Family members would sometimes select their allotments within geographic proximity to each other. The selection process was done under the supervision, and often pressure, from the local

Agent. Eighty-acre allotments were authorized for all band members, regardless of age,

but only for those born on or before July 21, 1900.34 Once the land selection had been

made and approved at the local level, an administrative process ensued to request a “trust patent” for the allottee over the allotted lands from the General Land Office, which issued the trust patent and conveyed (transferred) trust title to the allottee. As the manager of the federal land title and records system, the General Land Office was also the purveyor of the land titles to the ceded lands of the Ojibwe, and that agency actively facilitated the

sale of timber within the reservations, as well as the outright disposition of the ceded

lands.35

The Chippewa Commission proceeded with implementation of the Nelson Act,

despite numerous issues and problems that arose. The Commission addressed such issues

as the definition of “Chippewa Indian” for determinations of entitlement, the selection of

allotments upon the “Mississippi ceded lands,” and the need for some allottees to

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relinquish their selected allotments and receive lieu, or alternative, allotments. By 1895, the Chippewa Commission was being pressured to complete the allotment process on the

Ojibwe reservations. The Commissioners, in turn, pressured the Ojibwe to select their allotments or have one selected for them, directing the allotment field agent to “give the

Indians fully and fairly to understand that selections will be made for those who refuse or neglect to make selections for themselves.”36 Chippewa Commissioner Williams

lamented the difficulties of implementing allotment, stating in 1896 that it was like

“pulling eye teeth” to get the Ojibwe people to select their allotments or reside upon their

allotted lands.37

The allotment process was nearly complete by 1914, and it was reported in 1911

that two-thirds of the Ojibwe allotments had been issued and the ceded lands had been

opened.38 The process of allotment and the land cessions of the Nelson Act had a

deleterious impact upon the Minnesota Ojibwe, as they struggled to survive in their

reservation territories, increasingly restricted from hunting and fishing places and forced

to rely upon the government provisions that were often delayed or never sent. At a

Council held at Grand Marais in 1897, Grand Portage Chief John Morrison delivered an

address to the local Indian Agent, requesting assistance in putting forward tribal

grievances. Chief Morrison expressed his deep concern regarding the 1889 Nelson Act

agreement and the failure of the government to fulfill its outstanding obligations to the

Ojibwe, and he made a persuasive argument on the necessity for the Ojibwe to hunt, fish,

and cut their timber within their reservation territories. The address by Chief Morrison,

presented in its entirety below, provides a keen Ojibwe perspective on the Nelson Act and

the government’s neglect in upholding its obligations:

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I am a Chippewa Indian, belonging to the Grand Portage Band of Chippewa Indians, residing at Grand Marais, State of Minnesota. God put me on earth to live and he gave me the moose, caribou, deer and fish to use in making my living. He gave me the moose, caribou and deer to eat and the hides for me to make moccasins and to sell to make a living for my children. He did not give me the moose, caribou and deer that in the near future the white man should come and tell me that I should not kill them and forbid me from using them. God also gave me the forest, all the timber that I could use and sell to make a living for my children. I know that I have sold the pine in 1847, but now, as I understand by the papers that are sent to me, I am forbidden from killing or selling moose, caribou and deer also the timber that stands on my lands. I have never heard of my forefathers making a sale of the timber, nor any of the chiefs.

The government sent as Commissioner to see me at Grand Portage, October 24th, 1889, Bishop Martin Marty and Joseph B. Whiting—They brought us great promises. In the first Council, 23rd-October, I did not understand what they had to say to us, but, at the third council I commenced to understand what they wanted. I was glad after I began to understand the good that I would realize out of these promises. The 24th-day I made up my mind to take what they came and offered me. Then I got up and signed the treaty, but I did not understand at that time that I would be forbidden from killing the moose, caribou and deer -But I understood that there would be a time that I would be forbidden. I was promised a certain limited time to have all my business straightened out. I was told that I would be furnished material to make a living for my children also all merchantable timber that stands on my lands. I was not forbidden from cutting; but, as I understand the papers that are sent to me, if I was told at the time that things would turn out in this way, I would never have signed the treaty. There were also lots of my brethren that were glad to hear the promises that were made to us—today they lie under the sod. I can see that that is what the government is waiting for, for me to lie under the sod also. How long must we wait for these promises to be fulfilled? The reason that I say so is we were told that in three years time everything would be straightened up, and now eight years have passed and nothing done. All the promises that were made me are getting smaller every year, also my cash payments are getting smaller every year. Now, I want these promises fulfilled— the promises that were made me October 23rd, 1889. I can see that the government is trying to starve me out, that it does not want me to live. I would like to live a little longer, also see my children live. I don’t want to get too rich nor I don’t look for a big lot of money to be laid aside, but I do want to see lots of provisions ahead for me to eat; also to see lots of materials for me to use. I don’t ask the government these things for nothing: the government is holding back lots of money that I should have got long ago. Now I am going to commence to look into these matters to see if I can’t get out of these riches what were promised me. I have been poor long enough. I can see that the white man is getting rich on the lands that I was cheated out of. I am the one that should be rich but I see that I am the poor man from the promises that were made and never fulfilled.

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Now what I say to you (Capt. Scott) I want to see go ahead—to send this to the government. We also ask you to use all your influence to help us all you can. We look upon you to help us in our need.39

As is evident from the above address, the Nelson Act had the same basic effect as

a treaty from an Ojibwe perspective, as it involved the same foundational elements as a

treaty: sweeping land cessions, government promises, and implementation of the

government’s grand federal Indian policy theory. According to the Commissioner of

Indian Affairs in 1889, four million acres of land within Ojibwe reservation territories were ceded under the Nelson Act.40 A small fraction of the Ojibwe reservation territories

were actually allotted, the thin veil of “trust protection” quickly dissipated, and those

entrusted lands were swiftly alienated from the allottees. The Nelson Act prompted a

severe diminishment in Ojibwe ownership of the reserved land base at both the Grand

Portage and Leech Lake Reservations.

Grand Portage

As discussed in Chapter Two, the Grand Portage Reservation was established in

the Treaty with the Lake Superior Chippewa in 1854, and those reservation lands were

under tribal ownership, use, and control at that time. According to LaPointe Agent Durfee

in 1883, the Grand Portage Reservation territory was “barren and rocky” and of little

value as farming land, and Ojibwe subsistence derived from fishing, hunting, and “labor

for whites.”41 Under the federal agreement with the Grand Portage Band, negotiated on

October 24, 1889, the Grand Portage Band agreed to cede “all their title and interest in

and to the Grand Portage Reservation…which is not required and reserved for

allotments.”42 In 1890, the federal government reported that lands within the Grand

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Portage Reservation were “ceded by the Indians to the government, but are not yet open to sale or settlement.”43 By 1892, the Chippewa Commission was attempting to

implement allotment at Grand Portage, and urged completion of the geographical and geological surveys in order to proceed with the disposal of the pine land and the issuance of allotments.44

Overall, the process of allotment did not take long at Grand Portage, as 304

allotments were issued in 1896 encompassing for 24,191 acres. In addition, six other

allotments were subsequently issued for 784 acres between the years 1896 and 1934.45 In total, 310 allotments of land were issued within the Grand Portage Reservation, encompassing 24,975 acres (See Map 5 below which provides a visual image of the allotted lands).46

Basically, the land that had not been assigned as an allotment was restored to the

public domain and opened for settlement within the Grand Portage Reservation. The most

reliable data indicates that 15,239 acres within the Grand Portage Reservation were

restored to the public domain and opened to settlement.47 During that time period, a few

small tracts of land were reserved for other purposes within Grand Portage. For example,

in 1896, 208 acres were set aside and reserved for the establishment of an Agency reserve.48 In addition, a 1917 Executive Order set aside four islands in Lake Superior in

trust for the Grand Portage Band (See Appendix E and F for copy of Executive Order and a map showing islands transferred).49 In total, 675 acres of land were reserved for agency

and other needs, between 1896 and 1934.50

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Map 5: Grand Portage Allotments

SOURCE: Cartographic Records of the Forestry and Grazing Division, Bureau of Indian Affairs (1921). The Map shows acreage opened for settlement, allotted, and reserved for other purposes.51

As with the establishment of the reservation, the implementation of allotment

within the Grand Portage Reservation was a much more straightforward process than it

was at Leech Lake. In terms of sheer numbers, the Grand Portage Band had a much

smaller population, and the band membership continued to enjoy one homogenous identity that did not shift much during the federal Indian policy era of allotment and assimilation. Furthermore, implementation of allotment within the Grand Portage

Reservation territory was a simpler task due, in part, to geographic size; it was an easier

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task to survey the Grand Portage Reservation because it was a smaller territory, but also because it had not been geographically consolidated with other reservations. As will be discussed below, the consolidated Leech Lake Reservation was subjected to a series of allotment processes that were geared towards the assignment of allotments to the diverse bands within their smaller, distinct reservations. In addition, other federal actions were taken that also impacted the land tenure within that reservation, including the taking of lands as “swamp land,” for railroad grants, and for missionaries and schools. The greatest impact upon land tenure within the Leech Lake Reservation was the controversial establishment of the Chippewa National Forest. It is during this period of federal Indian policy that the contested nature of the Leech Lake territory became entrenched.

Leech Lake

Prior to the Nelson Act, all of the lands within the Leech Lake Reservation were held in common, just as the reservation lands at Grand Portage were held in common.

While the Grand Portage lands were held in common by one band, however, the consolidated Leech Lake Reservation lands were held in common by the smaller, distinct bands who resided within, including the Leech Lake, Cass Lake, Lake Winnibigoshish,

Pillager, Chippewa of the Mississippi, and White Oak Point Bands. As discussed previously, eight tracts of reserved land were consolidated to form the greater Leech Lake

Reservation, with the final Executive Order that finalized the boundary in 1874.

Following passage of the Nelson Act and during the allotment process, the Ojibwe bands at Leech Lake had to contend with other federal actions that impacted the land tenure within their reservations, such as land grants to railroad companies, “swamp” land grants to the State, and the superimposition of the Minnesota National Forest within their

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reservation boundaries. On a smaller scale, parcels of land were reserved between the years 1889-1928 for agency reserves, church lands, school lands, and village sites. A discussion on the Leech Lake allotments and ceded lands will be presented first, followed by a discussion of the above-mentioned federal actions that also impacted the land tenure within that reservation, including the establishment of the Chippewa National Forest.

At the time of allotment prior to 1900, the smaller bands and their reserved territories remained distinct and continued to be identified separately, and the allotment process was initiated simultaneously upon the Cass Lake and Lake Winnibigoshish

Reservations, the Leech Lake Reservation (also including the Chippewa of the

Mississippi Reservation), and the White Oak Point Reservation. The allotment process was complicated, as allotment selections were restricted to agricultural or cut-over pine lands, which often left only scattered tracts of land available for allotment, or two isolated and separate tracts of land to serve as one allotment. Other allotment issues resulted from poor surveys, as some allotments were located in lakes, while some were on lakeshore that was being washed away because of the dam reservoirs. In addition, many of the allotments were issued on lands that were deemed worthless, and lieu allotment selections were required because of the State’s swamp land selections, the establishment of the Minnesota National Forest, and the lands overflowed by the dams. Finding suitable replacement land for the lieu allotments was difficult.52

In the end, the allotment process within the consolidated Leech Lake Reservation

occurred over a period of twenty-one years, from 1896 through 1917. A sequence of

allotments produced 1,866 allotments issued on the White Oak Point, the Cass Lake and

Lake Winnibigoshish, and the Leech Lake Reservations, encompassing 91,651 acres. In

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contrast, 588,230 acres of land within the consolidated Leech Lake Reservation was deemed “surplus land” and opened for settlement, representing a staggering 86% of that reservation’s territory. Table 3-1 below presents the data on the allotments and land cessions within the smaller reservations, including the original size of the reservations, the number of allotments issued and the acreage area allotted, and the area ceded within each reservation under the Nelson Act. The Table also presents comprehensive total figures for the consolidated Leech Lake Reservation as a whole.

Table 3-1 Allotments and land cessions within the Leech Lake Reservation*

Reservation Original Area Number of Years Area of Area of reservation Ceded under Allotments Issued Allotments in acres Nelson Act issued White Oak Point 5,134 acs. 3,331 acs. 20 allots. 1896- 1,803 acres 1917 Cass Lake and 127,963 acs. 113,450 acs. 248 allots. 1896- 14,273 acres Lake 1917 Winnibigoshish Leech Lake 549,163 acs. 471,449 acs. 1598 allots. 1896- 75,575 acres 1917 TOTAL 682,260 acs. 588,230 acs. 1866 allots. 1896- 91,651 acres Consolidated 1917 Leech Lake Reservation NOTE 1: The Consolidated Total represents the Leech Lake Reservation, which contains the old Leech Lake, Chippewa, Cass Lake, Winnibigoshish, and White Oak Point Reservations, reflecting the consolidation of all the above reservations into one (formerly referred to as the “Greater Leech Lake Reservation” or the “Consolidated Leech Lake Reservation”). NOTE 2: By 1931, the allotment schedules regarding the four “groups” had also been consolidated, and the allotment land records had been merged and renumbered for all four groups.53 *Data is from the 1936 Consolidated Chippewa Agency Annual Statistical Reports on Leech Lake Reservation, Cass and Winnibigoshish Reservation, and White Oak Point Reservation. That Report cites the 1934 National Resources Board Report and the 1935 Consolidated Chippewa Agency Annual Statistical Report.54

By 1905, much of the allotment work across the country had been accomplished, and the Commissioner of Indian Affairs was happy to report that the government had

“been individualizing the Indian as an owner of real estate by breaking up, one at a time,

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the reservations set aside for whole tribes and establishing each Indian as a separate landholder on his own account.”55 As political pressure grew for increased access to the allotted reservation lands, legislation was devised to authorize the sale of those lands, remove them from trust status, and alienate the land title from the Indian owners. For example, the Act of May 27, 1902 authorized the sale of inherited allotments by the heirs, under rules prescribed by the Secretary of the Interior.56 ”Inherited allotments” were

those allotments where the Indian allottee was deceased, and a probate had been

conducted which determined the heirs, or those who inherited the allotted land. While

held in trust, the allotted lands were subject to state laws of descent and inheritance.57

The first sale of an inherited allotment was made in 1903 and those sales continued until

1934; during that period, 1,426,061 acres of inherited allotted land were alienated from

Indian ownership and taken out of trust status.58

The trust protections guarding the entrusted allotted lands continued to be given

away to serve the prevailing political and economic interests of the day. In 1906, the

Burke Act modified the General Allotment Act and authorized the Secretary of the

Interior to terminate trust periods on allotments by issuing fee patents to those lands.59

Prior to issuing a fee patent, the Secretary was first required to deem the allottee

“competent” to handle his own affairs and acquire “citizenship.”60 Another Congressional

act in 1907 authorized the sale of allotments on behalf of an allottee who was deemed

“incompetent.”61 Congress subsequently authorized a process to determine the

“competency” of individual allottees, as a means to establish whether the government

should issue a “fee patent” to the allottee and release the land from trust status.62

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Generally, once a fee patent was issued and the allotment taken out of trust status, the allotted lands were “invariably sold.”63

Ojibwe ownership of their allotments was nearly destroyed as a result of that aggressive series of legislation that was intended to create greater public access to those lands, and that effectively opened that door, as fee patents were routinely issued on the allotted lands. During the period from May 8, 1906 to June 30, 1920, there were 106 fee patents issued on Grand Portage allotments, covering 8,121 acres of entrusted allotted land (99 original allotments of 7561 acres and 7 inherited allotments of 560 acres).64 By

1934, 160 Grand Portage allotments had been issued fee patents, covering 13,514 acres of allotted land.65 By that time, only 150 allotments remained in trust status of 11,461 acres

(15 original allotments of 1158 acres and 135 allotments in fractionated heirship status of

10,303 acres).66 A similar pattern of alienation occurred within the Leech Lake

Reservation. By 1919 a total of 303 fee patents had been issued (or approved for issue) at

Leech Lake, encompassing 33,651 acres.67 By 1937, only 45,684 acres of allotted Leech

Lake land remained in Ojibwe trust status.68

While the separate identities of the smaller bands, and their distinct reservation

territories, continued to remain a reality during the allotment process, and was acted upon

as such by the Bureau of Indian Affairs, that Agency began to merge the separate

identities of the bands and their territories for ease in administration. As early as 1899,

when the new Leech Lake Agency was established, the Bureau began to blend the

separate identities of the four “groups” of Leech Lake, Cass Lake, Lake Winnibigoshish,

and White Oak Point, into an identity “commonly referred to as Leech Lake

Chippewas.”69 The blended identity of the smaller bands, and their reserved territories,

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was further solidified when the Consolidated Chippewa Agency was established in

1922.70

In 1938, the Consolidated Chippewa Agency requested the administrative

consolidation of the diverse band members and their distinct territories, under one

identity and within one consolidated reservation. The Agency argued that the Nelson Act

had “merged all these peoples and lands into one reservation,” and that:

The result of this consolidation will be the Greater Leech Lake

Reservation lying within the boundaries of Cass County, Beltrami

County, Itasca County, Minnesota, and comprising what used to be

the Cass Lake Reservation, the Leech Lake Reservation, the Chippewa

Reservation, the Winnibigoshish Reservation and the White Oak Point

Reservation.71

The Agency’s request for consolidation was granted by the Assistant Commissioner of

Indian Affairs, for “reporting and statistical purposes.”72 That administrative

consolidation of the “peoples and lands” within the greater Leech Lake Reservation

ultimately led to a merged identity of the separate and distinct Bands into one distinct

band, now known as the Leech Lake Band of Ojibwe. The identity of the smaller

reservations was also merged into the larger territory, now known as the Leech Lake

Reservation.

During the federal Indian policy era of allotments and assimilation, the federal

government encouraged the thriving occupation and settlement of the continent by the

new immigrants. For example, the entrepreneurial expansion into the continent was

promoted through federal land grants and rights-of-way to railroad companies. The

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railroad grants and rights-of-way through Minnesota Ojibwe reservations are summarized in Table 3-2 below, for the period from 1889-1896.

Table 3-2 United States railroad rights-of-way granted through the Minnesota Ojibwe Reservations, 1889-1896

Date of Act Reservation affected Railroad Company

Mar.2, 188973 Leech Lake, White Earth Duluth and Winnipeg Railway Company

June 2, 189074 Winnipigoshish, Cass Duluth and Winnipeg Railway Company Lake, White Oak Point, And Red Lake July 6, 189475 Leech Lake Brainerd and Northern Minnesota Railway Company July 18, 189476 White Earth, Leech Lake, St. Paul, Minneapolis, and Manitoba Chippewa, and Fond du lac Railway Company Aug. 23, 189477 Leech Lake, Chippewa, Northern Mississippi Railway and Winnibigoshish Company Aug. 27, 189478 Chippewa and Duluth and Winnipeg Railroad White Earth Company Feb. 24, 189679 Leech Lake and Chippewa Brainerd and Northern Minnesota Railway Company (extension of 1894 right-of-way) Apr. 14, 189680 Winnibigoshish, Duluth and North Dakota Railroad Chippewa, White Oak Company Point, and Red Lake (extension of line)

In addition to the railroad land grants and rights-of-way, the federal government

also patented Ojibwe reservation lands to the State of Minnesota as “swamp lands,” under

authority of the Swamp Land Act of March 12, 1860. That Act authorized States to claim

lands that were considered “swamp” lands, and if the State’s “swamp” land claim was

validated, the federal government issued land grants to the State.81 Within the Leech

Lake Reservation, Minnesota made a “swamp” land claim, which turned controversial as

Minnesota sought to validate the State’s claim. Ultimately, the State of Minnesota was

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patented 178,530 acres of land within the Leech Lake Reservation, deemed “swamp” land, and a 1935 Act of Congress provided compensation to the Ojibwe for those lands which had been taken from reserved territories set aside by treaties and later taken as swamp lands.82

Federal policy also authorized land grants to churches and missionaries

throughout Indian country and across reservation territories, including the Leech Lake

Reservation. For example, a 1905 Act authorized the Secretary of Interior to sell and patent 160 acres of land on the Chippewa Reservation (within the consolidated Leech

Lake Reservation and Cass County) to the Diocese of Duluth.83 In a 1908 Act, the

Secretary of Interior was authorized to issue fee patents to the Diocese of Duluth of the

Protestant Episcopal Church for three separate parcels of land located on the Cass Lake

Reservation (near Cass Lake government school), on the Leech Lake Reservation (near

Onigum), and on the Leech Lake Reservation (near old Agency).84

Within the Leech Lake Reservation, a few land grants were also issued for school

and village sites. For example, a schoolhouse was reserved for the village of Bena in

1914, and Ojibwe children were to be given preference in attending the school. A small

tract of land containing the school site, less than three acres, was concurrently reserved.85

Lands were also reserved for village sites in 1910 and 1928. In 1910, a “permanent

village site” was reserved for the Winnibigoshish Band, and the Secretary of Interior was

authorized to withdraw those lands from entry, sale or settlement certain lands for that

purpose..86 That village site was known as Bowstring Village and is now known as the

village of Inger, located in the northeast corner of the Leech Lake Reservation. Another

village site was permanently reserved in 1928 for the “Mississippi Chippewas” and was

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located three miles north of Ball Club village upon the “Chippewa Reservation,” described as follows: SW1/4 and the S1/2of SE1/4 in §21-T145-R26W.87 In addition to

the village sites at Leech Lake, the Commissioner of Indian Affairs reported in 1918 that

240 acres of land had been reserved for a “ball park” within the White Oak Point and

Chippewa Reservations.88

Chippewa National Forest

As the fee patent frenzy created by the newly enacted legislation surrounded the

allotted lands, the Leech Lake Reservation territory had also become the ideal political target for consideration as a state or national park. The “forest-park movement” was a coalition of political interests that had formed around the idea of pushing for the establishment of a national park around Cass and Leech Lakes, according to Newell

Searle in his article on the establishment of the Minnesota National Forest.89 Searle

relates how conflicting political interests developed, however, as the “conservationists”

and other “special interest” groups vied for a resolution to the disposition of the

Chippewa lands at Leech Lake.

The local non-Indian community in Cass Lake opposed the forest-park

movement, as they viewed the idea as detrimental to speedy development of the area, and

they simply wanted the Indians and their pine removed as expeditiously as possible. The

“conservationists” wanted “long-term commercial exploitation of resources in the interests of their respective industries and the nation’s economy,” which included the forest, the water, and mineral rights.90 All of the interested parties did share the same

rhetoric of justification, as they spoke in terms of “protecting the Indian from further

robbery” to argue their positions.91

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Ultimately, the desires of the Ojibwe people were caught in the political tug-of- war “[b]etween the speculators and the conservationists.”92 The Ojibwe leaders,

including Chief Flatmouth and others, protested the establishment of the forest reserve.93

The Ojibwe position regarding the establishment of the forest was crystallized during a

series of meetings of the General Council of the Chippewa in the decades of 1920 and

1930s, which will be discussed below. However, Ojibwe opposition to the establishment

of the national forest within their reservation territories has persisted for decades.

The Ojibwe people were obvious stakeholders in the establishment of a national

forest within their reservation territories. In their ongoing efforts to achieve subsistence,

Ojibwe frustration ran high over sloppy government implementation of the Nelson Act

and federal failure to take action regarding Ojibwe protests to the continued fraud and

collusion over the sale of land and timber on the Ojibwe reservations. In fact, an “Indian

Uprising” in 1898 led to federal investigations in 1898 and 1901, and an Interior

Department report ultimately found that the Ojibwe people were not “secured the largest

benefit” from timber sales and agricultural lands, and that “great frauds were

committed.”94 In fact, Secretary of Interior Hitchcock suspended the land sale of 100,000

acres of ceded reservation lands on March 30, 1899, due in part to the political

maneuvering of the day.95

Political efforts to establish a national forest or park within the Leech Lake

Reservation were rewarded first with a 1902 set aside of ceded lands, followed by the

official establishment of the Minnesota National Forest in 1908, as lands were carved out

of the Leech Lake Reservation for that purpose and the boundaries of that forest were

superimposed upon the boundaries of the Leech Lake Reservation (see Map 6 below).

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The magnitude of the impact of the Chippewa National Forest upon Ojibwe land tenure within that reservation was profound, and continues to impact Indian land tenure and acquisition today.

The Morris Act of 1902 amended the Nelson Act by setting aside a significant portion of the surplus lands within the Leech Lake Reservation, approximately 200,000 forested acres, and reserved those lands for use as a national forest reserve.96 The Morris

Act established the Minnesota National Forest Reserve; the first time that a national forest

reserve was created by Congressional action, rather than by Presidential proclamation.

The Minnesota National Forest Reserve was to serve as the laboratory for the first

comprehensive forest management plans by a federal agency. In addition to the 200,000

acre set aside, the Morris Act also reserved from sale, settlement, or entry the following

specified land:

A. The land and timber on the islands in Cass Lake and Leech Lake; 160 acres at Sugar Point on Leech Lake (The islands were to remain under Indian control); B. The Pine Point peninsula (where the Leech Lake Agency was located) of approximately 7000 acres; C. Ten sections of land within the Chippewa, Leech Lake, Cass Lake, and Winnibigoshish Reservations.97

In 1906, the Morris Act was amended to exempt “Cooper Island” in Cass Lake (now

know as “Star Island”) from Indian control, and granted the island to the State of

Minnesota for use as a State Forest Reserve or public park.98

The Morris Act also authorized the sale of the pine lands and timber on the

Chippewa Reservations. The Secretary of Interior was authorized to sell the

merchantable pine timber within the expanded lands designated as a national forest, with

the exception of the“10 sections [of land] and said islands and points” (described

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above).99 The timber on those 10 sections of land were not be sold, but were to be classed

as either agricultural lands or as pine lands. If designated as pine lands, the timber was to

be taken, the land re-classed as agricultural lands, and then opened for entry and

settlement.

The forest-park movement culminated in the Minnesota National Forest Act of

May 23, 1908, in which the lands designated for the national forest reserve under the

Morris Act were basically re-designated and reserved for the establishment of the

Minnesota National Forest.100 Under the Minnesota National Forest Act, certain lands

were specifically reserved for that purpose, which included the following:

A. 10 sections of land in Townships 144-145-146, R30 and R31W of 5th P.M. (as referred to §2 of the Morris Act); B. All of the islands in Cass Lake, Minnesota; C. 160 acres at Sugar Point on Leech Lake; D. the peninsula at Pine Point (where new Leech Lake Agency is now located), as described by §2 of the Morris Act.101

Ultimately under the Minnesota National Forest Act, 181,420 acres were originally set aside for the Forest from within the territory of the consolidated Leech Lake

Reservation.102

The Act of May 23, 1908 also authorized the exchange of allotments located

within the Minnesota National Forest, and provided protection for Indian burial sites.

Allottees could relinquish their allotted lands and take a lieu allotment, if their original

selection was located within the designated forest boundary. The lieu allotments, or

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Map 6: MN National Forest Boundary

SOURCE: Cartographic Records of the Forestry and Grazing Division, Bureau of Indian Affairs (1911). This is an annotated Map showing areas of Minnesota National Forest.103 The boundary of the Minnesota National Forest is drawn with the black line, while the entirety of the Leech Lake Reservation is depicted by the light green outer area.

alternate lands, were to be “within the limits of any of the ceded Indian lands within the

State of Minnesota and outside of the Minnesota National Forest.”104 The Minnesota

National Forest Act also provided that no Indian graves were to be disturbed, and declared that Indian people retained the right to “bury their dead at such places as they

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have heretofore used for that purpose” under Forest Service rules.105 Map 6 above shows

the boundary of the Minnesota National Forest, as it was originally established.

The Morris Act authorization to sell the pine lands and timber was reiterated in the Minnesota National Forest Act, and all lands within the Winnibigoshish, Cass Lake,

Chippewas of Mississippi and Leech Lake Reservations, not included as part of the

Minnesota National Forest, were to be designated as “agricultural lands” and opened to

“homestead settlement.” However, if there was timber on the land, the timber was to be removed first, and then the lands were to be immediately opened to homestead and the timber sold. The funds from the timber sales made within the Forest were to be deposited into the “Chippewa in Minnesota Fund,” and the Ojibwe were to be compensated at a minimum of $1.25 per acre for the timber and the lands.106

A three-man Commission was to be established in order to determine the acreage involved and to appraise the value of the timber taken.107 One member each was to be

appointed by 1) the President; 2) the Secretary of the Interior; and 3) the General Council

of the Chippewa of the Winnibigoshish, Cass Lake, Chippewas of Mississippi, and Leech

Lake Bands. The Commission was charged with the appraisal and valuation of the timber to be sold, as well as to ascertain the acreage of the actual land reserved under the

Minnesota National Forest Act. Under the terms of the Act, the General Council of the

Chippewa was to hold council “under the direction of the agent at Leech Lake Agency,” in order to select their Commissioner and to appoint their representative for any possible appeals.108

From the time of establishment of the Chippewa National Forest to the present,

the Forest has been a contested territory for the Ojibwe, particularly for the Leech Lake

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Band of Ojibwe. As the severe consequences of the Nelson Act were experienced, the condition of the Ojibwe people had become very poor by 1920, and they asserted their objections to the Forest within that context of that indigenous reality. Ojibwe opposition was vocalized during a series of meetings that were convened by the Leech Lake Indian

Agent, in an effort to persuade the Ojibwe to appoint their representative to the three-man

Commission.

The Ojibwe had opposed the appointment of a commissioner to the Forest

Commission, and it was not until 1922 that the Leech Lake Agent actively pursued the

General Council of the Chippewa to make a formal appointment. The General Council of the Chippewa of Minnesota had been formed in 1913 by the several Minnesota Ojibwe bands, including the Red Lake Band. The organic purpose of the General Council of

Chippewa was to “have a central body which shall be the means of securing for ourselves and our posterity, the fullest measure of justice,” which included assurance of the full and proper implementation of the Nelson Act.109 The Red Lake Band of Ojibwe eventually

separated from the other Ojibwe Bands and subsequently formed their own tribal

government structure, as the others formed the “Minnesota Chippewa Tribe.”110

In 1922, Agent Wadsworth convened a series of meetings of the General Council

of the Chippewa of the Winnibigoshish, Cass Lake, Chippewa of Mississippi, and Leech

Lake Bands, to pursue the appointment of both a Commissioner, and a legal

representative. The band members in attendance at the General Council meetings

considering themselves the “owners of the National Forest,” and expressed concern over

its establishment. They were also angered over the prior unsettled business with the government arising from prior agreements, including the “Rice Treaty” (aka the Nelson

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Act), and insisted that those matters be handled first. David Boyd, of the Cass Lake

Reservation, succinctly stated that position when he declared that the “[Commissioner of

Indian Affairs] cannot do anymore business with us until he settles the others first. We cannot put this on top of the other unsettled matters.”111

The Ojibwe asserted that the government had violated the terms of the Nelson Act,

and those violations had resulted in a severe breach of trust between them and the

government. The Ojibwe had understood that the “government cannot change that treaty

[Nelson Act] without asking us and getting our consent.”112 However, the government

had disregarded the requirement to obtain Ojibwe consent prior to amending the Nelson

Act. For example, the Ojibwe asserted that the timber on the lands taken by the State of

Minnesota as swamp lands should have been cut first before the land was granted to the

State. The Ojibwe further considered the establishment of the national forest as another

significant violation of the terms of “that treaty” and a breach of trust, as well. From

their perspective, the establishment of the Minnesota National Forest was yet another

assault upon the Ojibwe and their territories, in which the government was again “taking”

without proper notice, information, consent or compensation.

Wah Be Shay Sheence, of Bear Island on Leech Lake, also spoke at the General

Council meeting. Wah Be Shay Sheence had recently traveled to Washington, D.C., and discussed the outstanding issues of the Ojibwe with the Commissioner of Indian Affairs.

At the General Council meeting, Wah Be Shay Sheence spoke to the significant losses resulting from the Nelson Act, as the removal and consolidation within bounded territories had led to severe poverty, starvation, and the inability to be self-sufficient upon

with the reservation territories. He stated that “[w]e have lived a long time under the

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ruling of the Commissioner of Indian Affairs and we have been “compressed” [upon the reservations] until we are hardly able to breathe.”113 Edward Rogers, a mixed blood band

member and attorney, reiterated that sentiment as he summarized that “[t]he children are

crying and the women are starving, and men have no work, and nothing to eat.”114

At the first General Council meeting, Rogers also summarized a fundamental issue surrounding the forest reserve, which was the use and control of the forest lands. Rogers addressed the Ojibwe people in attendance and cautioned them:

If you let this go, everything will be closed up. This is a Forest

Reserve, and it is not to be used for the other Indians to live in, it

shall be a Forest Reserve only. If you let this go, all you will be

able to do is to walk in the road, you can’t get wood and you can’t

build a fire. A man will be standing along the road to guard this Forest

Reserve.115

At the end of the first General Council meeting, the Ojibwe band members unanimously

voted not to appoint a Commissioner.116

The fundamental issue of control and use of the Forest Reserve lands continued as

a theme throughout the series of General Council meetings. During the second meeting,

Mrs. Manypenny, a Mississippi Band member from White Earth, discussed her fear that

Ojibwe people would be prohibited from the national forest lands, as she testified that the

Ojibwe women were already being stopped at that time for fishing within the forest

reserve, and that there were signs prohibiting berry-picking within the forest.117 O Nah

Nah E GeShig, of the Winnibigoshish Reservation, expressed similar concerns as he

stated that “we are not permitted to hunt or take game on the forest reserve.”118 In that

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second meeting, David Boyd repeated the dominant Ojibwe sentiment of that day when he said, “I am not going to allow the Commissioner to get any more of my property on credit.”119 At the end of the second meeting, the Ojibwe people again voted unanimously not to appoint a commissioner.120

Government representatives ultimately conceded, and opened the third General

Council meeting with the promise that the Forest Commission would also investigate all

Ojibwe claims against the government and report them to the Commissioner of Indian

Affairs. However, the Leech Lake Agent simultaneously discounted the Ojibwe’s position, asserting that they lost title to the forest reserve lands years ago under the

Nelson Act land cessions. During the course of the third meeting, many Ojibwe band members had left the proceeding, leaving a low number in attendance. Running out of patience at that point, Agent Wadsworth cajoled the handful of Ojibwe people remaining at the meeting for a nomination, and the Agent declared that Mark Burns was nominated as their Commissioner. In the first vote to affirm the nomination, four people voted for

Burns, while 33 voted not to appoint anyone. Agent Wadsworth quickly gave his opinion that the vote of four should rule. Another nomination was made for Edward Rogers to serve as the legal representative. Chief White Cloud opposed all of those actions, as the majority had already decided not to appoint anyone. Wadsworth called the vote again, and 15 votes were cast for Rogers and three votes cast against. An Addendum to the minutes of the July 19, 1922, General Council meeting listed 17 alleged wrongs by the federal government against the Ojibwe, which was only included at the insistence of the

Ojibwe people.121

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Following the General Council meetings, Agent Wadsworth summarized the proceedings in his report to the Commissioner of Indian Affairs, and recommended appointment of Mark Burns as Forest Commissioner, and Edward Rogers as the legal representative for the Ojibwe. In light of the controversy over the appointments, the

Commissioner of Indian Affairs personally traveled to Minnesota to meet with the

General Council of the Chippewa in October of 1922. The Commissioner brought with him a prepared “Resolution,” for which he sought approval from the General Council of the Chippewa, in his effort to validate the recommendation of Agent Wadsworth to appoint Burns and Rogers. At the end of that meeting with the Commissioner of Indian

Affairs, the General Council of the Chippewa cast 39 votes in favor of the Resolution, while 34 votes were cast against it.122

The work of the Forest Commissioners resulted in the Act of February 28, 1925, which authorized an appropriation to compensate the Ojibwe people for timber taken in connection with the settlement for the Minnesota National Forest.123 In 1923, the United

States Forest Service assumed full jurisdiction of the Forest, and in 1928, an Executive

Order changed the name of the Minnesota National Forest to the Chippewa National

Forest.124 Additional lands were later added to the Forest and, by 1936, 489,000 acres

had been federally authorized for purchase and inclusion within the Forest.125

Summary

During the federal Indian policy era of Allotments and Assimilation, the national

Indian land tenure history narrates the implementation of allotment, the taking of surplus

lands, the quick dispossession of the allotted lands from their Indian owners, and the

diminishment of Indian land by 51 million acres. That national Indian land tenure

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narrative certainly played out on the ground within the Grand Portage and Leech Lake

Reservations, which also suffered from the imposition of allotment, the taking of surplus lands, and the alienation of the entrusted allotted lands caused by an orchestrated series of federal legislation that was strategically designed to achieve that goal.

As their histories align with the national narrative, the Grand Portage and Leech

Lake Bands were left landless in their permanently reserved territories, as only a minimal amount of their reservation lands remained in Ojibwe trust ownership after allotment and assimilation. In 1929, the Superintendent of the Consolidated Chippewa Agency acknowledged the Ojibwe Bands’ severe land loss, remarking that “a great majority of our Indians are now landless” as a direct result of legislative acts that authorized the encumbrance and sale of Ojibwe allotted lands.126 In 1930, the Consolidated Chippewa

Agency reported that the reservations under its jurisdiction were “quite largely owned by

white people.”127 The trust protections provided by the General Allotment Act and the

Nelson Act proved to be a thin shield of protection against the avaricious political

interests of the day. “The cruel process of alienation [of Indian land] continued,”

commented the Commissioner of Indian Affairs in 1940, “through the sale of surplus

tribal lands, of patented allotments, and of land in heirship status.”128

Similar to the national Indian land tenure narrative, the Grand Portage and Leech

Lake Bands experienced a tremendous loss of land ownership within their permanent

reservation territories as a result of the Nelson Act. The Grand Portage Band lost

approximately 56% of their reservation territories to the public domain; at Leech Lake,

the amount lost as surplus lands constituted approximately 86% of their reservation

territories. In addition, approximately 50% of the allotted lands at Grand Portage and

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Leech Lake had been alienated from Ojibwe ownership by 1934, leaving only a small fraction of their original reservation territories under Indigenous ownership. Also, most of the allotted lands remaining in trust status after the allotment era were in fractionated ownership status, crippling the ability to utilize the land.

Although the land tenure histories of the Grand Portage and Leech Lake Bands are similar during the federal Indian policy era of allotments and assimilation, significant differences did emerge. As this chapter illustrates, there were differences in the allotment processes between the Grand Portage and Leech Lake Bands, given the size differential of their reservation, the composition of their band membership, and the geographic consolidation aspects relating to Leech Lake that did not apply to Grand Portage. In addition, the geographic location of the Leech Lake Reservation created a more prized territory that essentially established a higher value for those reservation lands, for settlement purposes, for resource extraction, and for reservation as public use lands. The land tenure history of the Leech Lake Reservation demonstrates that the reservation became a much more contested territory than the Grand Portage Reservation, during the era of allotment and assimilation.

For example, the Leech Lake Band was forced to contend with numerous railroads, the construction of dam reservoirs within their territory, and the taking of swamp lands by the State of Minnesota. In addition, the creation and establishment of the

Chippewa National Forest within the Leech Lake Reservation represented a significant land tenure event that was very controversial at the time, and which continues to impact that Band’s ability to acquire land within its reservation territories today. As a result of

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those historical events, different patterns of land tenure for the Grand Portage and Leech emerged during the federal Indian policy era of allotment and assimilation.

The legacy of the Nelson Act within the Minnesota Chippewa Tribe can still be seen and felt today. A historical tribal controversy developed over the dispensation of the

Chippewa in Minnesota Fund, which remains as a contemporary tribal issue. In fact, the

Minnesota Chippewa Tribe as a whole is involved in an inter-Band dispute over the distribution of the monies that were generated from the sale of the pine lands under the

Nelson Act. In addition, the checker-board status of land ownership within the six

Minnesota Chippewa reservations, and the limited Ojibwe ownership within those territories, remains as a present day legal, political, social, and economic reality for all of the Ojibwe Bands.

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1 Annual Commissioner of Indian Affairs Annual Report (1879), XLVII. 2 Leeds, “Borrowing From Blackacre,” Footnote 11. 3 Commissioner of Indian Affairs Annual Report (1933), 108. 4 Ibid. 5 Kelley, “Federal Indian Land Policy,” 32. 6 Ibid., 39. See also, Felix S. Cohen, “Original Indian Title,” 32 Minnesota Law Review 32 (1947):28. 7 Act of June 14, 1880 and March 3, 1881, also known as the River and Harbor Acts; see also, Act of June 7, 1897, 30 Stat. 62, which provided that all lands ceded under the Nelson Act are subject to the right of the United States to construct and maintain dams and that no compensation shall be paid. Also, see Act of July 1, 1898, 30 Stat. 571, for similar provisions. 8 White Earth Agency Report, included in the Commissioner of Indian Affairs Annual Report (1895), 116- 117. 9 White Earth Agency Report, included in the Commissioner of Indian Affairs Annual Reports (1882 and 1883), generally. The first Commission recommended damage awards of $8,400 for the Lake Winnibigoshish dam, and $7,000 for the Leech Lake dam. 10 Ibid. 11 White Earth Agency Report, included in the Commissioner of Indian Affairs Annual Reports (1882 and 1883), generally. 12 1873 Map, “Diagram Showing Indian Lands (colored blue) liable to be touched by the overflow of the Leech Lake Reservoir,” NARA, College Park, Maryland (cartographic records). RG75, Records of the Bureau of Indian Affairs, Central Map File, Map #CA513. 13 Act of January 14, 1889, also known as the Nelson Act, 25 Stat. 639, as amended, §§1-7. 14 Commissioner of Indian Affairs Annual Report (1890), XLI. 15 Act of January 14, 1889, 25 Stat. 639, §§1-7. 16 The agreements reached with each Band were not made on the same day, but are considered to fall under one Act (the Nelson Act) and part of one transaction, according to Charles Royce. See, Charles C. Royce, Compiler, Indian Land Cessions in the United States, Extract from the 18th Annual Report of the Bureau of American Ethnology (Washington: GPO, 1900), reprinted (Arno Press and New York Times, 1971), 935. 17 President Harrison’s Report to Congress, March 4, 1890, submitted along with the 1889 Rice Commission Report: 1. The Commissioner’s Report is referred to as the “Rice Commission Report,” H.R.Ex.Doc.247, 51st Cong., 1st Session. 18 Rice Commission Report (1889), 22. 19 Ibid., 17-18. 20 Ibid., 74. 21 Ibid., 120. 22 Ibid., 14. 23 Ibid., 140. 24 William Schaaf and Charles Robertson, Minnesota Chippewa Tribal Government Handbook (Cass Lake, MN: Minnesota Chippewa Tribe, circa 1979), 128-129. 25 Rice Commission Report, 4. 26 Ibid. 27 White Earth Agency Report, included in the Commissioner of Indian Affairs Annual Report (1895), 116- 117. 28 Rice Commission Report, 21. 29 See generally, Commissioner of Indian Affairs Annual Report (1883), which includes the Commissioner of the General Land Office Report for same year. In addition, prior to implementation of allotment, especially during the treaty era, the federal government did not have the capacity to generate accurate information about the amount of Indian land ownership or its exact location. At the end of treaties and the implementation of allotment triggered a major paradigm shift in the government’s administration of Indian affairs, especially regarding Indian lands. The government’s scale of operations dramatically downsized with regards to indigenous land tenure, both in practice and perception, as allotment was instituted. Prior to the wholesale land cessions, the government had been entrusted with widespread geographic territories and large tracts of land held in common by the tribes as a whole. The government reported the reservation

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territories in terms of their original reservation size in acreage. Allotments, on the other hand, were generally 80-160 acres parcels held individually by tribal members. Once allotment was implemented, the government reported indigenous ownership of the lands within the reservation territories in terms of allotted acreage only; the remaining “surplus” lands were not considered indigenous lands any longer by the federal government. The shift in government reports and operations reflects the government’s position that only the allotted lands within the reservations remained under government supervision and management. Implicit in that approach is that all the other lands within the reservation territories had been removed from indigenous ownership. 30 See generally, Act of January 14, 1889, and Minnesota Chippewa Tribal Government Handbook, 127. 31 Leech Lake Agency Report, prepared by W.A. Mercer, included in the Commissioner of Indian Affairs Annual Report (1899). 32 Letter from Chair of Chippewa Commission to Hon. T.J. Morgan, Commissioner of Indian Affairs (July 7, 1892). NARA, Chicago, IL., RG75, Records of the Bureau of Indian Affairs, Field Office Records, Records of the White Earth Agency and Records of the Chippewa Commission, Letters Sent by the Chairman to the Secretary of Interior, May-December 1892. 33 Rice Commission Report, 145. 34 See generally, Commissioner of Indian Affairs Annual Reports (1900-1914). 35 Commissioner of Indian Affairs Annual Report (1898), 51. See also, Indian Appropriation Act of June 7, 1897,30 Stat. 90. 36 Letter from Chippewa Commissioner B.D. Williams to C.H. Beaulieu (September 19, 1895). NARA, Chicago, IL., RG 75, Records of the Bureau of Indian Affairs, Field Office Records, Records of the White Earth Agency, Records of the Chippewa Commission, Letters Sent from Leech Lake 1894-1896. 37 Letter from Chippewa Commissioner Williams (January 17, 1896). NARA, Chicago, IL., RG75, Records of the Bureau of Indian Affairs, Field Office Records, Records of the White Earth Agency, Records of the Chippewa Commission, Letters sent from Leech Lake, 1894-1896. 38 See generally, Commissioner of Indian Affairs Annual Reports (1900-1914). 39 Chief John Morrison Address to Captain Scott (1897). NARA, Chicago, IL., RG 75, Records of the Bureau of Indian Affairs, Field Office Records, Great Lakes Consolidated Agency, LaPointe Agency, Ashland, WI. Letters Received by the Agent at Ashland, Wisc. From Grand Portage Reservation, August 5, 1881-October 4, 1902. 40 Commissioner of Indian Affairs Annual Report (1889), xxxviii. 41 LaPointe Agency Report, included in the Commissioner of Indian Affairs Annual Report (1883), 15. 42 Rice Commission Report, 8. 43 Commissioner of Indian Affairs Annual Report (189), 439, note “C.” 44 Letter from Chair of Chippewa Commission to Hon. T.J. Morgan, Commissioner of Indian Affairs (August 6, 1892); see also, Letter from Chair of Chippewa Commission to Hon. John W. Noble, Secretary of Interior (October 18, 1892). NARA, Chicago, IL., RG75, Bureau of Indian Affairs, Field Office Records, Records of the White Earth Agency and Records of the Chippewa Commission, Box 1 of 1:PI-136. 45 Consolidated Chippewa Agency Annual Statistical Report (1936), §III Land. NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and other records, 1933-1948. Box 15, PI-163. 46 Ibid. 47 Consolidated Chippewa Agency Annual Statistical Report on Grand Portage Reservation (1936), §. III Land. NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and other records, 1933-1948, Box 15, PI-163. 48 Commissioner of Indian Affairs Annual Report (1896). 49 Executive Order No. 2550 (1917); see also, Commissioner of Indian Affairs Annual Report (1917). 50 “Unentered Surplus Lands” Report, submitted by M.L. Burns, Superintendent and Special Disbursing Agent, Consolidated Chippewa Agency (October 18, 1934). NARA, Washington, D.C., RG 75, Records of the Bureau of Indian Affairs, Records of the Division of Extension and Industry/Records Relating to Land Use Survey 1934-1935, Alaska-Mississippi, Box 1: PI-163, Entry 793.

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51 Map of the Grand Portage Reservation (1921). NARA, College Park, Maryland (cartographic records), RG75, Records of the Bureau of Indian Affairs, Cartographic Records of the Forestry and Grazing Division. The description of the map is a “manuscript map showing acreage opened for settlement, allotted, reserved for other purposes, swamp lands,” et al . SL-13, Entry 793. 52 Leech Lake Agency Report, included in the Commissioner of Indian Affairs Annual Report (1916). See generally, various Leech Lake Agency Reports for years 1910-1920. 53 Letter from J.P. McKinney, Director of Forestry, Consolidated Chippewa Agency, to Commissioner of Indian Affairs (August 6, 1931). NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Correspondence Re: Land 1926-1944, Box 131, Folder: 1930. 54 Consolidated Chippewa Agency Annual Statistical Reports on Leech Lake Reservation, Cass and Winnibigoshish Reservation, and White Oak Point Reservation (1936), §III Land. NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and other records, 1933-1948, Box 15, PI-163. 55 Commissioner of Indian Affairs Annual Report (1905), 4. 56 Commissioner of Indian Affairs Annual Report (1903), 45. See also, Act of May 27, 1902, 32 Stat. L. 245-275; modified by Act of May 8, 1906, 34 Stat. L. 182, Act of May 29, 1908, 35 Stat. L. 444; Act of June 25, 1910, 36 Stat. L. 855-856, and Act of February 14, 1913, 37 Stat. L. 678-679. 57 Commissioner of Indian Affairs Annual Report (1906), 28. See also, the Act of March 1, 1907, 34 Stat. L. 1015-1018, modified by the Act of May 29, 1908, 35 Stat. L. 444, Act of June 25, 1910, 36 Stat. L. 855- 856, and Act of February 14, 1913, 37 Stat. L. 678-679. 58 Unknown author. “Legal History of the Loss of Minnesota Chippewa reservation land,”18 (circa 1980). Copy in author’s possession. 59 Act of May 8, 1906, also known as the Burke Act, 34 Stat. L. 182 (1906). 60 Commissioner of Indian Affairs Annual Report (1906), 27-28. 61 1907 Act, 34 Stat. 1018, Kappler’s Indian Affairs, Laws and Treaties 3:476. 62 Act of June 25, 1910, 36 Stat. 855 (1910), Kappler’s Indian Affairs, Laws and Treaties 3:476. 63 Leech Lake Agency Report, included in the Commissioner of Indian Affairs Annual Report (1910). 64 Commissioner of Indian Affairs Annual Report (1920). 65 Consolidated Chippewa Agency Report on the Grand Portage Reservation (1936), §III Land. NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and other Records, 1933-1948, Box 15, PI-163, Entry 963. 66 Consolidated Chippewa Agency Report on the Grand Portage Reservation (1936), §III Land. NARA, Washington, D.C., RG75, Bureau of Indian Affairs, Records of the Statistics Division, Reports and other Records, 1933-1948, Box 15, PI-163, Entry 963. 67 Commissioner of Indian Affairs Annual Report (1919), Table 28: 184. 68 Consolidated Chippewa Agency Annual Statistical Reports on Leech Lake Reservation, White Oak Point Reservation, Cass and Winnibigoshish Reservation (1936). NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and other Records, 1933-1948, Box 15, PI-163, Entry 963. 69 Leech Lake Indian Agent Report, included in the Commissioner of Indian Affairs Annual Report (1899). 70 Letter from J.P. McKinney to Commissioner of Indian Affairs (August 6, 1931). 71 Letter from Louis Balsam, Field Representative in Charge, Consolidated Chippewa Agency, to Commissioner of Indian Affairs (February 15, 1938). NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and Other Records 1933-1948, File on “Consolidated Chippewa Agency.” 72 Letter from John Herrick, Assistant Commissioner of Indian Affairs to Louis Balsam, Field Representative in Charge, Consolidated Chippewa Agency (undated). NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Report and Other Records 1933-1948, File on “Consolidated Chippewa Agency.” 73 Act of March 2, 1889, “An Act granting to the Duluth and Winnipeg Railway Company the right-of-way through the Leech Lake and White Earth Indian Reservations in the State of Minnesota,” 25 Stat. 1010. 74 Act of June 2, 1890, “An Act granting to the Duluth and Winnipeg Railroad Company a right-of-way through certain Indian Reservations in Minnesota,” 26 Stat. 126.

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75 Act of July 6, 1894, “An Act granting to the Brainerd and Northern Minnesota Railway Company a right- of-way through the Leech Lake Indian Reservation in the State of Minnesota,” 28 Stat. 99. 76 Act of July 18, 1894, “An Act granting to the St. Paul, Minneapolis, and Manitoba Railway Company the right-of-way through the White Earth, Leech Lake, Chippewa, and Fond du Lac Indian Reservations in the State of Minnesota,” 28 Stat. 112. 77 Act of August 23, 1894, “An Act granting to the Northern Mississippi Railway Company right-of-way through certain Indian Reservations in Minnesota,” 28 Stat. 489. 78 Act of August 27, 1894, “An Act granting to the Duluth and Winnipeg Railroad Company a right-of-way through the Chippewa and White Earth Reservations in the State of Minnesota,” 28 Stat. 504, as amended by Joint Resolution No. 17, February 23, 1897, 29 Stat. 702. 79 Act of February 24, 1896, “An Act granting to the Brainerd and Northern Minnesota Railway Company a right-of-way through the Leech Lake Indian Reservation and Chippewa Indian Reservation in Minnesota,” 29 Stat. 12. 80 Act of April 14, 1896, “An Act granting to the Duluth and North Dakota Railroad Company right-of-way through certain Indian Reservations in the State of Minnesota,” 29 Stat. 92. 81 Act of June 4, 1935, “An Act to compensate the Chippewa Indians of Minnesota for lands set aside by treaties for their future home and later patented to the State of Minnesota under the Swamp Land Act,” 49 Stat. 321, §1 (1935). 82 Ibid. 83 Act of March 3, 1905,“An Act making appropriations for the current and contingent expenses of the Indian Department and for fulfilling treaty stipulations with various Indian tribes for the fiscal year ending June 30, 1906,” 33 Stat. 1048 (1905). 84 Act of May 29, 1908, §20, “An Act to authorize the Secretary of Interior to issue patents in fee to purchasers of Indian lands under any law now existing or hereafter enacted, and for other purposes,” 35 Stat. 444 (1908). The three separate parcels of land were designated as follows: On Cass Lake Reservation (near Cass Lake government school); Lot 3 and part of Lot 2, §29-T146N-R31W, 32 acres (with proviso that a road 20 feet wide was allowed across the land from the school to the Mississippi River); On Leech Lake Reservation (near Onigum); Lot 1, Section 24, and Lot 3, §13, T142N-R31W, 1/16 acre; On Leech Lake Reservation (near old Agency); SW1/4SE1/4, part of Lot 4, and SE1/4NW1/4SE1/4 of §7-T142N- R30W, 10 acres. 85 Act of August 1, 1914, “An Act making appropriations for the current and contingent expenses of the Bureau of Indian Affairs, for fulfilling treaty stipulations with various Indian tribes, and for other purposes, for the fiscal year ending June 30, 1915,” 38 Stat. 582 (1914). 86 Act of June 25, 1910, “An Act to provide for determining heirs of deceased Indians, for the disposition and sale of allotments of deceased Indians, for the leasing of allotments, and for other purposes,” 36 Stat. 855 (1910). The Act set aside the lands described as follows: NE1/4, the NE1/4NW1/4, and Lots 1 and 2, §16-T147N, R26W. 87 Act of May 21, 1928, “An Act to set aside certain lands for the Chippewa Indians in the State of Minnesota,” 45 Stat. 684 (1928). 88 Commissioner of Indian Affairs Annual Report (1918), Table 6: General Data for Each Reservation, 108. 89 See generally, Newell Searle, “Minnesota National Forest: The Politics of Compromise 1898-1908,” in Minnesota History (Fall 1971): 243-257. 90 Ibid., 250-253. 91 Ibid. 92 Ibid., 253. 93 Ibid. 94 Ibid., 247. 95 Ibid., 249. 96 Act of June 27, 1902, “An Act To amend an Act entitled ‘An Act for the relief and civilization of the Chippewa Indians in the State of Minnesota,’ approved January 14, 1889” (also known as the Morris Act), 32 Stat. 400, 402 (1902). 97 Ibid.

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98 Act of June 21, 1906, “An Act making appropriations for the current and contingent expenses of the Indian Department, for fulfilling treaty stipulations with various Indian tribes, and for other purposes for the fiscal year ending June 30, 1907,” §219-220, 34 Stat. 325 (1906). 99 Act o f May 23, 1908, “An Act Amending the Act of January 14, 1889, and Acts amendatory thereof, and for other purposes,” (also known as the Minnesota National Forest Act), §2, 35 Stat. 268, P.L.No. 137 (1908), which amended the Nelson Act of January 14, 1889. 100 Ibid. 101 Ibid. 102 “Unentered Surplus Lands” Report for Leech Lake Reservation, submitted by M.L. Burns, Superintendent and Special Disbursing Agent for Consolidated Chippewa Agency (October 18, 1934). NARA, Washington, D.C., RG 75, Records of the Bureau of Indian Affairs, Records of the Division of Extension and Industry, Records relating to Land Use Surveys 1934-1935, Alaska-Mississippi, Box 1: PI- 163, Entry 793 (Washington, D.C.). 103 Map of the Grand Portage Reservation (1911). NARA, College Park, Maryland (cartographic records), RG75, Records of the Bureau of Indian Affairs, Cartographic Records of the Forestry and Grazing Division (1911), SL-13, Entry 794. Description of the map is an “annotated map showing areas of Minnesota National Forest and allotment numbers.” 104 Act of May 23, 1908, §3. 105 Ibid., §7. 106 Ibid. 107 Leech Lake Agency Report, included in the Commissioner of Indian Affairs Annual Report (1910). 108 Ibid. 109 Constitution of the General Council of all the Chippewas in Minnesota ( 1913). 110 Memorandum Relative to Chippewas in Minnesota, from F.H. Daiker, Assistant to the Commissioner of Indian Affairs (March 6, 1937). The Daiker Memorandum provides the following explanation for the separation of the Red Lake Band from the other Minnesota Ojibwe Bands, “When organization was first considered among the Chippewas..the first plans for organization provided for including Grand Portage, Leech Lake, Nett Lake, Fond du Lac, White Earth, the non-removal Mille Lacs, and Red Lake. It should be explained that Red Lake presents an entirely different picture than that of the other Chippewas. In the first place, it is admitted that Red Lake ceded a large portion of the land to the United States, and therefore, morally and probably legally they have a just claim that they made the largest contribution. The Red Lake people have been both parties, plaintiff, and defendant, in the Chippewa litigation in the Court of Claims. This reservation is not allotted. The land is held in tribal status and it have valuable resources such as timber and fisheries. The other groups have lost most of their resources and land and many are dependent on the purchase of additional lands for them by the Government under the Indian Reorganization Act. The Red Lake people, therefore, wanted to play what might be called a lone hand and agreed to come into the general organization on condition that the other six groups would agree that the balance of the Chippewa tribal fund would be distributed and that the Red Lake people could withdraw their share from the total fund and deal with it in their own way. At first the six agreed and then changed their minds and then Red Lake withdrew entirely from the organization. As a result, the six have formed the organization under an approved constitution and are now being considered for a charter.” NARA, Washington, D.C., RG 75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and Other Records, 1933-1948, File Unmarked. Box 14: PI-163, Entry 963. See also, Act of June 15, 1938, P.L. 632, which authorized the division of the funds of the Chippewa Indians of Minnesota between the Red Lake Band and the organized Minnesota Chippewa Tribe, and the Act of June 28, 1938, P.L. 755, which authorized the Red Lake Band of Chippewa Indians to file suit in the Court of Claims. 111 Transcript of Proceedings of the “General Council of the Chippewa Indians of the Winnibigoshish, Cass Lake, Leech Lake, and Chippewas of the Mississippi Reservations, Held at Cass Lake, MN, July 10, 1922,” Minutes of the 1922 General Council meeting, 11. NARA, Kansas City, KS., RG 75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN, Records Relating to the General Council of the Minnesota Chippewa, Ratifications of the Act of 1921, Minutes of the 1922 General Council, Testimony Taken at a Conference on the Wheeler Howard Bill; Box 5, HM 1989. See Folders: “October 5, 1922-Febr. 12, 1923”; “Proceedings of July 18th Council”; “Council minutes”; “Council

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Resolution May 15, 1922”; and “Related Records: Mar. 31-Sept. 28, 1922”, which all relate to the 1922 General Council meetings and actions. 112 Ibid, 13. 113 Ibid., 11-12. 114 Ibid., 25. 115 Ibid., 25. 116Ibid., 30. 117 Ibid., 14. 118 Ibid., 5. 119 Ibid., 12. 120 Ibid., 17. 121 Ibid., 23-33.See also, ” Addendum to Transcript of General Council of the Chippewa Indians,” same file. 122 Ibid., 5-20. 123 Commissioner of Indian Affairs Annual Report (1925), 13. 124 Searle, “Minnesota National Forest,” Minnesota History 42 (Fall 1971): 243-257. See also, Executive Order of May 24, 1928. 125 Searle, “Minnesota National Forest,” 256. See also, 1924 Clarks-McNary Act authorizing Secretary of Agriculture to add more lands to the Minnesota National Forest. 126 Letter from Superintendent, Consolidated Chippewa Agency, to Commissioner of Indian Affairs (January 4, 1929). NARA, Kansas City, KS., RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Circulars 1922-1931, File 1929. 127 Letter from Superintendent, Consolidated Chippewa Agency, to Commissioner of Indian Affairs (January 19, 1930). NARA, Kansas City, KS., RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Circulars 1922-June 1931, File 1930. 128 Commissioner of Indian Affairs Annual Report (1940), 367.

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CHAPTER FOUR

THE ERA OF INDIAN REORGANIZATION: AN URGENT NEED FOR LANDS

Even if the Indian had retained all of his original land, he would still not have enough to sustain him, but through Congressional action the so called ‘competent’ Indian was given his land without any agricultural background and with very little agricultural training, he was expected to make a living off the land. As a result of this program the Indians of this jurisdiction have lost from 50% to 95% of all their land. The purchase of additional land is imperative as homes for our Indians. 1 Consolidated Chippewa Agent (1937)

A major political shift occurred with the federal Indian policy Era of Indian

Reorganization, which generally represents the time period from 1928-1945. The era signaled a new government approach to federal administration of Indian Affairs, one that would allocate adequate resources to enable Indian people to achieve self-sufficiency, and one that would promote tribal decision-making, strengthen tribal sovereignty, and recognize the permanency of American Indian tribes. The origins of the Indian

Reorganization have been historically linked to the 1928 publication of The Problem of

Indian Administration, commonly known as the Meriam Report, yet concrete and meaningful policy action did not occur until the passage of the Indian Reorganization Act in 1934.

Indian land tenure was in an appalling state as the federal government ushered in the era of Indian Reorganization, which represented a policy reversal of the destructive

Indian land tenure pattern of prior federal Indian policies and a shift towards stabilization and protection of the Indian land base.2 Federal Indian policies of allotment and assimilation had irreparably damaged the Indian land tenure landscape, as the communal nature of Indigenous land ownership had been pulverized: allotments were issued; the so- called surplus lands were taken; and, mere fractions of reservation territories were left

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under Indian ownership, use, and control. The harsh land tenure reality of the allotment and assimilation policies set in when it became clear that 52 million acres had been expropriated from Indian ownership under those policies, and Indian land holdings had been reduced from 122 million acres in 1871 to approximately 71 million acres in 1928.3

The major provisions of the Indian Reorganization Act regarding Indian land tenure were intended to protect the remaining trust lands and facilitate the transfer of reservation lands back into trust status. For example, the allotment policy was officially terminated, and all existing trust periods were indefinitely extended. Furthermore, in the

Congressional effort to increase, consolidate, and stabilize tribal land ownership within their reservation territories, the Act authorized tribal land restorations, tribal land

purchases, and tribal land exchanges. The tribal land restorations authorized the transfer

of “undisposed” surplus lands within reservation territories (lands that had been opened

to some form of disposal, but had not been disposed) back into tribal trust status.

Federal programs were established for the new tribal land acquisition initiative,

and federal funds were appropriated for the “[p]urchase, relinquishment, gift, exchange,

or assignment, any interest in lands, water rights, or surface rights to lands, within or

without existing reservations, including trust or otherwise restricted allotments, whether

the allottee be living or deceased, for the purpose of providing land for Indians.”4 The

Bureau of Indian Affairs gathered baseline data on the status of Indian land tenure. This

included establishing the number of acres of allotted lands and tribal lands in trust,

clarifying the fractionated ownership, probate, and heirship issues, and documenting

tribal needs for land. Some of the first reports were prepared by the Bureau’s Statistics

Division between 1934 and 1940. In addition, a 1934 report by the Land Committee of

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the National Resources Board on tribal land needs identified an urgent need for 9,706,000 acres of land for Indian people; this represented one-tenth of the land acreage expropriated from Indian ownership in the previous 50 years, according to that report.5

Localized Indian land tenure data was generally reported in the local Bureau

Agency annual reports to the Commissioner of Indian Affairs. These various national and

local reports provide information on the national Indian land tenure status, as well as

similar information for the Grand Portage and Leech Lake Bands during the 1930s and

1940s; those reports provided data on the fractionated ownership status of the allotments,

the amount of lands held in trust post-allotment, the amount of reservation lands ceded

under the Nelson Act, the amount of land available for tribal restoration, and the amount

of land needed by tribes.

The new era of Indian Reorganization did ultimately witness an increase in Indian

land ownership, which is reflected in the national Indian land tenure data. However, the

data indicates that this increase did not occur until after policy implementation began in

1934, as the 71 million acres of Indian land in 1928 continued to be reduced until there

were only 52 million acres under Indian land ownership in 1934. This increase occurred

following passage of the Indian Reorganization Act, as Indian land ownership actually

increased from the 52 million acres to 55 million acres, during the period from 1934-

1945.6

The era of Indian Reorganization also witnessed the formal organization of the

Minnesota Chippewa Tribe, as six bands collectively adopted the Constitution and By-

Laws of the Minnesota Chippewa Tribe in 1936. As previously noted, the Red Lake Band separated from the other Minnesota Ojibwe bands at this time and subsequently formed

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their own government structure. The six bands that formed the Minnesota Chippewa

Tribe each occupied their own reservations and were all under the administrative jurisdiction of the Consolidated Chippewa Agency. The six Bands of the Minnesota

Chippewa Tribe are as follows:

1. Bois Forte (Nett Lake); 2. Fond du Lac; 3. Grand Portage; 4. Leech Lake*; 5. Non-removal Mille Lac; and, 6. White Earth. *The Leech Lake Band, as it is referred to in the Constitution of the Minnesota Chippewa Tribe, includes the Ojibwe from the former White Oak Point, the Cass Lake, the Lake Winnibigoshish, the original Leech Lake, and the Chippewa of Mississippi Bands of Ojibwe whose reservations were consolidated into the greater Leech Lake Reservation.7

The formation of the Minnesota Chippewa Tribe as a consolidated tribal

government precipitated the need for three categories of trust land tenure:

1) Land held in trust on behalf of the Minnesota Chippewa Tribe (all six Bands own the land in common);

2) Land held in trust on behalf of one of the six member Bands (the designated Band owns the land in common); and,

3) Land held in trust on behalf of an individual tribal member (the individual may own the entire interest in the land or may own only a fractionated interest in the land).

During the era of Indian Reorganization, as was true during the years of allotment

and assimilation, the Ojibwe bands continued to press their claims against the

government, especially the critical issues that continued to percolate from the Nelson Act

and its persistent and negative impact upon Ojibwe land tenure. Those claims involved

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the taking of timber and land from within the reservation territories, the questionable values assigned to the timber taken, the accounting and distribution of the general

Chippewa tribal funds, the taking of land to establish the Minnesota National Forest in

1908, and some of those claims were asserted by the Ojibwe bands in litigation.8

Much like the national Indian land tenure narrative, prior federal policies had

collectively devastated Indian land tenure within the Minnesota Chippewa Tribe, as the

data demonstrates in Table 4-1 below. Little land had been left within the Tribe’s

dominion, and the Consolidated Chippewa Agency summarized the devastated Indian

land tenure in 1937 as follows:

Even if the Indian had retained all of his original land, he would still not

have enough to sustain him, but through Congressional action the so called

‘competent’ Indian was given his land without any agricultural

background and with very little agricultural training, he was expected to

make a living off the land. As a result of this program the Indians of this

jurisdiction have lost from 50% to 95% of all their land. The purchase of

additional land is imperative as homes for our Indians.9

As the data demonstrates in Table 4-1 below, the entrusted ownership of the allotted

lands within the Minnesota Chippewa Tribe had been diminished by 84% by 1937, as

only 141,032 acres of allotted lands within the Tribe remained in trust status, out of the

original 889,218 acres of land allotted. As the Superintendent of the Consolidated

Chippewa Agency noted in 1930, the reservations under his jurisdiction were “quite

largely owned by white people.”10

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Table 4-1 Allotments and acreage issued for Minnesota Chippewa Tribe And Allotments and acreage remaining in trust, 1937*

Reservation #Allotments Original Allotted #Allotments Allotted acreage issued Acreage In trust In trust 1937 In trust 1937 Bois Forte (Nett Lake) 709 allotments 56,471 acres 623 allotments 49,888 acres Fond du Lac 956 allotments 40,904 acres 725 allotments 25,302 acres Grand Portage 310 allotments 24,975 acres 150 allotments 11,461 acres Leech Lake 1,866 allotments 91,651 acres 932 allotments 45,684 acres Mille Lacs 282 allotments 1,960 acres 282 allotments 1,960 acres White Earth 8,334 allotments 675,257 acres 60 allotments 6,738 acres TOTAL for Minnesota Chippewa Tribe 12,357 allotments 889,218 acres 2,772 allotments 141,032 acres

NOTE 1: Although this report indicates that 1766 allotments were issued at Leech Lake covering 91,651 acres, this appears to be a typographical error, as 1866 allotments were actually issued covering that acreage. See discussion below. Also, the data presented for the Leech Lake Reservation represents data for the consolidated reservation, which includes White Oak Point, Chippewas of Mississippi, Cass Lake and Lake Winnibigoshish, and Leech Lake Reservations. *Data is from a comprehensive report issued in 1937 by the Consolidated Chippewa Agency, which reported the 1937 Census data, and the land tenure status of all the Minnesota Chippewa Reservations, along with data on the ceded lands available for tribal restoration.11

Under the federal Indian policy of Indian Reorganization, the Bureau began to identify and articulate tribal land needs, and began to pursue land acquisition to meet those needs. The acute need for land within the Minnesota Chippewa Tribe was well documented by 1934, as the Agency Superintendent, Mark Burns, reported that there was an “urgent need” for land, and that the “present land holdings are insufficient to meet the needs.”12 Under Indian Reorganization Act policy and based upon the Tribe’s documented land needs, the Bureau of Indian Affairs began to develop a “comprehensive

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land acquisition program” for the Minnesota Chippewa Tribe, and tribal land acquisition efforts began soon after the passage of the Indian Reorganization Act.13 The tribal land

acquisition program consisted of tribal land restorations, tribal land purchases, and some

limited acquisition through public domain withdrawals.

During this time, the Indian land tenure question was over whether tribal land

restoration within a Minnesota Chippewa Reservation should be restored to “tribal” trust

status or to “Band” trust status. That issue would be addressed by the Secretary of the

Interior in 1937, within the context of a Grand Portage land restoration. In addition, the

Minnesota Chippewa Tribe also addressed that intra-tribal issue in the 1940s. At the start

of the Indian Reorganization era, the Indian land tenure status of the Minnesota

Chippewa Tribe certainly reflected the national status of Indian land tenure, and the

national narrative certainly resonated at the band level, as well.

The Era of Indian Reorganization at Grand Portage and Leech Lake

Similar to the national Indian land tenure pattern, only a fraction of the

reservation lands at Grand Portage and Leech Lake remained under Ojibwe trust

ownership, post-allotment. Although the allotted lands represented the bulk of trust lands

at that time, a large percentage of the original allotted lands had already been removed

from trust status, and fractionated ownership of the remaining allotted lands dominated

the Indian land tenure landscape. Indeed, by 1936, 54% of the entrusted allotted acreage

within the Grand Portage Reservation had been alienated from Ojibwe ownership and

removed from trust status, which left only 46% (11,461 acres) of the 24,975 acres in

Ojibwe trust status. Of the allotted acreage remaining in trust, 90% was already subject to

fractionated ownership (see Table 4-2 below).

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Table 4-2 Grand Portage Allotments remaining in trust status and Allotments remaining in fractionated heirship status, 1936-37* Original Area of Grand Portage Reservation 40,422 acres 310 allotments issued 24,975 acres 160 allotments issued fee patents and removed from trust status 13,514 acres

150 allotments remaining in trust status 11,461 acres 15 allotments owned by living allottees; not fractionated (allotments owned by original Indian owner) 1,158 acres 135 allotments with fractionated ownership (allotments owned by heirs of deceased allottees) 10,303 acres 11,461 acres

*Data is taken from the 1936 and 1937 Consolidated Chippewa Agency Annual Statistical Reports for the Grand Portage Reservation, compiled by Dorothy Chosa and verified by Jacob J. Munnell.14 NOTE 1: The original area of the Grand Portage Reservation was 40,422 acres, according to the Consolidated Chippewa Agency in 1937. From that original reservation area, 310 allotments had been issued in trust, covering 24,975.38 acres15 NOTE 2: In addition to the allotted acreage remaining in trust on the Grand Portage Reservation in 1937, 7495 acres were held in Ojibwe tribal trust status, and 208 acres were held for an Agency reserve.16

A similar, post-allotment land tenure pattern emerged within the consolidated Leech

Lake Reservation. Only a fraction of the lands within that reservation remained under

Ojibwe trust ownership in 1936, and fractionated ownership issues prevailed. In fact, only 50% (45,684 acres) of the 91,651 acres of land originally allotted within that reservation remained in trust status in 1936. Of the allotted acreage remaining in trust,

88% already suffered from fractionated ownership (see Table 4-3 below).

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Table 4-3 Leech Lake Allotments and acreage remaining in trust status and acreage remaining in fractionated ownership status, 1936-37*

Original Area of Leech Lake Reservation (consolidated) 682,260 Cass Lake & Lake Winnibigoshish Reservation 127,963 acres Leech Lake Reservation 549,163 White Oak Point Reservation 5,134 Consolidated total 682,260

1866 allotments issued (consolidated Leech Lake total) 91,651 248 allotments at Cass Lake & Lake Winnibigoshish 14,273 acres 1598 allotments at Leech Lake 75,575 20 allotments at White Oak Point 1,803 Consolidated total 91,651

936 allotments issued fee patents (taken out of trust status) 45,967 acres

930 allotments remaining in trust (consolidated Leech Lake total) 45,684 122 allotments at Cass Lake & Lake Winnibigoshish 6,995 acres 799 allotments at Leech Lake 37,788 9 allotments at White Oak Point 901 Consolidated total of 930 Allotments in trust 45,684

114 Allotments owned by original Indian owners; not fractionated 16 allotments at Cass Lake & Lake Winnibigoshish 909 96 allotments at Leech Lake 4,535 2 allotments at White Oak Point 106 Consolidated Total for 114 allotments 5,550 816 Allotments with fractionated ownership (owned by heirs of deceased allottees) 106 allotments at Cass Lake & Lake Winnibigoshish 6,086 703 allotments at Leech Lake 33,253 7 allotments at White Oak Point 795 Consolidated Total for 816 allotments 40,134

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NOTE 1: In addition to the allotted acreage remaining in trust on the consolidated Leech Lake Reservation in 1936-37, there were 2379 acres held in tribal trust status, as follows: 240 acres at Cass Lake & Lake Winnibigoshish Reservation 2,139 acres at Leech Lake Reservation Another 713 acres were also reserved for Agency purposes17 *Data is taken from the 1936 and 1937 Consolidated Chippewa Agency Annual Statistical Report for the Cass Lake and Winnibigoshish Reservations, Report for the Leech Lake Reservation, and Report for the White Oak Point Reservation.18

Tribal Land Restorations

Although the tribal land restoration proved effective as the first step in the broader

tribal land acquisition effort, the scope of the Bureau’s tribal land restoration project was

limited because only a small amount of land was available within the allotted

reservations. One category of land was made available for tribal restoration: the remaining “surplus lands” within the allotted reservations that had been previously expropriated to the public domain and later opened to homestead, but never entered and settled. Those lands were also referred to as the “undisposed” or “unentered” surplus lands, as they were lands that had been opened to some form of disposal, but had not been disposed from the public domain, or entered for settlement purposes. The process of tribal land restoration involved the official “withdrawal” of those lands from the public domain, and the transfer of ownership back into tribal trust status.

Under the tribal land restoration project, both the Grand Portage and the Leech

Lake Bands retrieved ownership of some of their reservation territories, and the process

of those restorations will be discussed herein. A discussion of other tribal land acquisition

processes at Grand Portage and Leech Lake between 1937 and 1945 will follow. The

tribal land restoration process required a detailed identification of lands potentially

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available for restoration. The Consolidated Chippewa Agency gathered that data on the six Minnesota Chippewa reservations, and issued a series of reports in 1934 that provide a post-allotment snapshot of the Indian land tenure status of the Grand Portage and Leech

Lake Reservations, providing important data at a significant juncture in the national

Indian land tenure history, when tribal land acquisition had become a top federal priority.

The Reports were entitled the “Unentered Surplus Lands Reports,” and they supplied the following information:

1. The amount of reservation acreage ceded under the Nelson Act and placed into the public domain; 2. The acreage amount of land opened to settlement, the amount actually entered for settlement or reserved for other purposes; 3. The amount of “surplus land” within those reservations available for transfer back to the Tribe.19 Table 4-4 Unentered Surplus Lands at Grand Portage Reservation, 1934* Approximate acreage of original surplus land opened to settlement 15,239 acres

Estimated acreage entered for settlement 6,860 acres

Estimated acreage reserved for other purposes 675 acres

Estimated acreage of unentered surplus lands 7,704 acres

*Data is from the 1934 Consolidated Chippewa Agency Report on “Unentered Surplus Lands” for the Grand Portage/Pigeon River Reservation. Acreage amounts are rounded up.20

The Grand Portage data are presented in Table 4-4 above, which indicates that

7,704 acres were available for restoration. The Agency Superintendent Burns advocated

the restoration of that acreage to tribal trust status.21 In a cover letter to the

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Commissioner of Indian Affairs, Burns also advocated for a broader acquisition strategy at Grand Portage, stating that “[t]he present land holdings are insufficient to meet the needs. Enough …lands can be bought within the boundaries of the reservation…to meet the needs,” and indicating that there were 29,000 additional acres potentially available within the reservation boundaries.22

Ultimately, a Departmental Order issued by the Secretary of Interior in 1935

restored 9,277.59 acres within the Grand Portage Reservation.23 The lands were

originally restored in the name of the Grand Portage Band, however, that trust category

designation became controversial, and was subsequently changed from “band” to “tribal”

trust status. The 1935 Grand Portage restoration brought the tribal land tenure issue of

“tribal” vs. “Band” trust status into clear focus, and forced the question of whether title

to newly-acquired lands was to be held on behalf of the Minnesota Chippewa Tribe, or on

behalf of the resident Bands. In a 1937 Memorandum, the Assistant Commissioner of

Indian Affairs, F. H. Daiker, discussed the unique land tenure issue and the related issue

of reservation lands acquired prior to the actual formation of the Minnesota Chippewa

Tribe:

It should be explained that the land acquired for Grand Portage was bought

before the Chippewa were organized and, therefore, title was taken in the

name of the Grand Portage Indians. The Constitution of the Chippewa tribe

provides that the tribal council shall administer all tribal lands. While as yet

no serious difficulty has arisen out of the Grand Portage situation, some day

it may come up. Another serious question which has presented itself is in

connection with the restoration of lands to the Chippewas which were ceded,

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as to how title shall be taken when this land is restored. There are arguments

on both sides, namely, that title should be taken in the name of the band which

ceded the land and the other side argues that title should be taken in the name

of the organized Chippewa Tribe.24

The end result was that the 1935 Departmental Order was modified in 1938, and

the trust land category was changed from the Grand Portage Band to the Tribe. In a

“Departmental Order Modifying the Departmental Order,” the Secretary of Interior

ordered that the lands restored within the Grand Portage Reservation “be modified as to

make the beneficiary the Chippewa Indians of Minnesota instead of the Grand Portage

Band of Chippewa Indians of the Grand Portage Reservation.”25 The articulated justification for the change in beneficiary was to acknowledge “the interests in those lands possessed by the other Chippewa Indians of Minnesota.”26

Regarding the consolidated Leech Lake Reservation, similar land tenure data was

also gathered and reported by the Consolidated Chippewa Agency, in an effort to identify

potential lands available for tribal restoration. The 1934 Agency Report on the

“Unentered Surplus Lands” for the consolidated Leech Lake Reservation included specific information on the smaller reservations of Cass Lake and Winnibigoshish, the

Leech Lake, and the White Oak Point Reservations. That Report provided data on the

amount of reservation acreage ceded and placed into the public domain, the acreage

amount of land opened to settlement, the acreage amount of reservation land actually

entered for settlement or reserved for other purposes, the acreage amount of land granted

to the State of Minnesota as swamp land, the amount granted for the Chippewa National

Forest, plus other miscellaneous federal land grants (see Table 4-5 below).

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Table 4-5 Unentered Surplus Lands at the consolidated Leech Lake Reservation, 1934* Approximate acreage of original surplus land opened to settlement 466,064 acres

Estimated acreage entered for settlement 149,899 acres

Estimated acreage reserved for other purposes (school and Agency) 678 acres

Estimated acreage of unentered surplus lands 316,166 acres Entered for State Swamp land 133,418 Entered for USA Forestry (Chippewa National Forest) 181,420 Entered for “forest-grazing” 1,328 Total (See Note 1 below) 316,166

*Data is from the 1934 Consolidated Chippewa Agency Report on “Unentered Surplus Lands,” for the consolidated Leech Lake Reservation (including Leech Lake, White Oak Point, and Cass Lake and Winnibigoshish, which were “all considered one reservation”).Acreage amounts rounded.27 NOTE 1: Although the report indicates over 300,000 acres unentered surplus lands, those lands had in fact been granted to other entities and were not available for possible return to the Tribe. In answer to the question of whether the unentered lands should be returned to Indian use, the Superintendent stated that “all lands not owned by U.S.A. (Forestry) should be returned to Indian use.” In answer to the question of what conditions or factors affect the return of those surplus lands and need to be taken into consideration, the Superintendent replied with the following Notes: 1) “181,420.26 acres acquired by U.S.A. and comprises Chippewa National Forest;” and 2) “133,418.22 acres State Swamp Lands.” NOTE 2: The 1936 Consolidated Chippewa Agency Annual Statistical Reports for Cass Lake and Winnibigoshish Reservations, the Leech Lake Reservation, and the White Oak Point Reservations provides acreage figures on the separate reservations and the acreage amounts ceded and opened to settlement. The consolidated total, however, does not match the data provided in the “Unentered Ceded Lands” Report, but are useful to illustrate the ratio breakdown of ceded lands for the separate reservations.28 Cass Lake & Lake Winnibigoshish 113,450 acres Leech Lake 471,449 White Oak Point 3,331 Consolidated total 588,231

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In 1934, Superintendent Burns also found an “acute need for additional land” within the Leech Lake Reservation.29 Burns broadly advocated for the acquisition of

9,000 acres of agricultural land and 84,000 acres of forest, and he recommended the

purchase of land south of the federal dam at Sugar Point and all vacant land within the

original Leech Lake Reservation. Burns acknowledged that the existence of the

Chippewa National Forest within the Leech Lake Reservation presented the greatest

obstacle to tribal land acquisition, because of the Forest’s extensive grip on land

ownership within the Leech Lake Reservation. The Superintendent remarked that

“[m]ost of the Leech Lake Reservation north of Leech Lake comprises the Chippewa

National Forest, and cannot be acquired.”30 It was apparent even in 1934 that the lands

taken for the Forest as well as the state’s swamp land had produced a dramatic and long-

lasting effect upon Indian land tenure within that reservation. Those two categories of

land eliminated potential tribal ownership of 314,838 acres of reservation territory,

effectively monopolizing ownership of that land.

In 1936, the Tribal Executive Committee of the Minnesota Chippewa Tribe and

the General Council of the Red Lake Band recommended restoration of 29,000 acres of

surplus land to tribal ownership. In a 1938 Order of Restoration, the Secretary of Interior

restored 29,015.94 acres of land within several of those reservation territories to “tribal

ownership for the use and benefit of the Chippewa Indians of Minnesota,” and that data is

presented in Table 4-6 below.31 Within the consolidated Leech Lake Reservation, 5,680

acres of land were restored under the 1938 Order of Restoration, including designated

lands within the White Oak Point, Cass Lake, Leech Lake, Chippewa of the Mississippi,

and Winnibigoshish Reservations (see Table 4-6 below).

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Table 4-6 1938 Tribal Land Restoration within The Minnesota Chippewa Tribe*

Reservation Amount of acreage restored to tribal trust status Bois Fort (Nett Lake) 19,533.14 acres Fond du Lac 975.16 acres White Oak Point 40.00 acres Leech Lake 2,610.28 acres Cass Lake 166.60 acres Chippewa of the Mississippi 1,775.37 acres Winnibigoshish 1,088.44 acres White Earth 2,726.95 acres TOTAL 29,015.94 acres

*Data is taken from Letter of December 27, 1937 from William Zimmerman, Assistant Commissioner of Indian Affairs to Secretary of Interior through the Office of the Commissioner of the General Land Office. The total acreage restored within the consolidated Leech Lake Reservation was 5,680.69 acres (comprised of the White Oak Point, Leech Lake, Cass Lake, Chippewa of the Mississippi, and the Winnibigoshish Reservations). The Order attached to the Letter indicates that lands were already previously restored within the Grand Portage Reservation in 1935, therefore, the Grand Portage land restorations were not included as part of the 1938 Order of Restoration.32

In the end, the number of acres of reservation land actually restored to tribal trust

status pales in comparison to the amount of acreage lost during the prior periods,

although tribal land restoration proved to be more effective for the Grand Portage Band

than it was for the Leech Lake Band. In terms of acreage amounts alone, the Grand

Portage Band reacquired more reservation land than did Leech Lake through the tribal

land restoration process. Comparatively speaking, the amount of restored acreage at

Grand Portage represents a larger percentage of that reservation, while the restored

acreage at Leech Lake is a significantly smaller percentage. One of the key contributing

factors at Leech Lake was the limits on the amount of available land, which had already

been severely restricted due to the expansive federal ownership of the lands within the

Chippewa National Forest.

Other Tribal Land Acquisition

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In addition to tribal land restoration, tribal land acquisition also involved land purchases, and public domain withdrawals. Similar to the land restorations, the public domain withdrawals involved the release of lands from the public domain (from government ownership), and the transfer of those lands back into tribal trust status. A limited number of public domain withdrawals were made during the years between 1934 and 1948, and all of the lands withdrawn were located within the consolidated Leech

Lake Reservation.

Special legislation was required for public domain withdrawals, even for small parcels of land. Under the Act of May 29, 1935, lands within the Minnesota National

Forest were withdrawn, and 168.44 acres were reserved for the Chippewa in Minnesota for village purposes. Those lands were located on the east shore of Agency Bay on Leech

Lake, across from Onigum.33

Congress authorized another withdrawal of lands from the Chippewa National

Forest occurred in 1940, for lands that had been originally reserved for the “Old Leech

Lake Agency and School Reserve.” Under the Act of June 8, 1940, these 589.85 acres of

land were returned to the Minnesota Chippewa Tribe as a “permanent reserve” on July

11, 1941.34 This was not a gratuitous gift, however, for the Minnesota Chippewa Tribe

provided monetary compensation to the United States Forest Service for the lands.35

Wild rice reserves were also established under the Act of July 25, 1935 for the

benefit of the Ojibwe people in Minnesota.36 Data were not readily available to verify the

locations of those wild rice reserves, nor could I locate the acreage amount. Additional

wild rice reserves, or campsites, were purchased with tribal funds throughout the 1940s,

as will be discussed below.

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As was illustrated in Chapter Three, both the Leech Lake and Grand Portage

Bands had engaged in limited land acquisition efforts prior to the passage of the Indian

Reorganization Act, including islands at Grand Portage, and a ball park and village sites at Leech Lake. The pre-IRA land acquisitions are notable because I had assumed at the start of this research that tribal land acquisition did not commence until after 1934.

However, those early land acquisitions demonstrate that both Grand Portage and Leech

Lake were concerned and intent upon re-acquiring their reservation territories long before

1934, and their post-IRA land acquisitions demonstrate their continued efforts at tribal land acquisition.

Charged with the tribal land acquisition responsibilities under the Indian

Reorganization Act, the Bureau of Indian Affairs began to actively embrace that charge during the 1930s and 1940s. The Bureau began to allocate funds to purchase available tracts of land within reservation territories and began to actively engage in the land acquisition endeavor. Throughout, tribal funds were also used for land purchase projects, as the “Chippewa in Minnesota Fund” was tapped to cover land purchases. Specific land purchases were made from 1934-1945, at both Grand Portage and Leech Lake, and some of those land purchases are discussed, and a summary total of the acreage amount purchased for the two Bands is provided. It was not possible to provide a detailed presentation of all the land purchases made during that time, since specific and reliable data are not readily available.

The Consolidated Chippewa Agency, and the district land office, actively pursued tribal land acquisition within the Grand Portage Reservation. The Grand Portage Band was quick to become active in land acquisition, as well, and worked collaboratively with

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the local Bureau agencies to effectuate a remarkable amount of land purchases. During that active period of land acquisition, one of the key elements of success for the Grand

Portage Band was the existence of a steadfast advocate who assumed the leadership role in land acquisition and who was dedicated to that effort.

Alton Bramer served in various official capacities for the Band during that time, including service as the Chairman of the Grand Portage Council in 1944 and as the

“Forest Guard” for Grand Portage in 1947.37 The historical evidence demonstrates that

Bramer was an active and knowledgeable leader who vigorously attended to their land business and needs. In his official capacity, Bramer consistently dealt with the local

Agency staff to secure the Band’s land purchases; as issues and problems arose, they were generally resolved between Bramer and the local agents and proposed land

purchases continued to be developed collaboratively.

As the apparent manager of the land acquisition program for the Grand Portage

Band, Bramer monitored the shifting real estate market, watching both the private and

state lands to determine their availability for purchase. Bramer also identified available

land for purchase, negotiated land purchases, and generally ensured that the appropriate

land transactions were finalized by the Bureau. One of the strategies utilized by Bramer

was to examine the list of State lands for sale and then present a written justification for

the purchase of certain parcels of land for the Band.38

As indicated earlier, the amount of lands purchased at Grand Portage was quite

remarkable. For example, the Consolidated Chippewa Agency reported that 11,023.81

acres were purchased on November 19, 1937, and that the lands were intended for Indian

administration, educational purposes, home sites, and for general tribal use.39 The Grand

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Portage Band actively pursued other land purchases for use as homesites. In 1942, for example, the Band was notified that 3,158.08 acres had been transferred into trust status, and those parcels of land were generally assigned as homesites.40 Similar land purchases

were also reported, such as the 1943 purchase of five tracts of land, containing over 512

acres.41 Another land purchase of 159.20 acres was reported in 1944, and these tracts of land were generally designated for homesite use.42

This land tenure history of the Grand Portage Band demonstrates that the Band was extremely successful in acquiring lands during the era of Indian Reorganization. In fact, there were a total of 22,213 acres purchased at Grand Portage between 1934 and

1956, according to Theodore Taylor.43 Tribal land acquisition activities became so

prominent at Grand Portage during that time that the Bureau of Indian Affairs was once

referred to as the “Indian Land Company” by a private landowner.44 Through their

representative Bramer, the Grand Portage Band collaborated with the Bureau of Indian

Affairs in a focused effort to retrieve Ojibwe land ownership within that reservation. The map below illustrates the land tenure status of the Grand Portage Reservation in 1936, identifying the restored lands, the purchased lands, and the entrusted allotted lands. The map presents visual documentation of the success of the Grand Portage Band in their land

acquisition efforts during the era of Indian Reorganization (see Map 7 below).

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Map 7. Grand Portage Reservation Land Tenure Status, 1936 SOURCE: Cartographic Records of the Forestry and Grazing Division, Bureau of Indian Affairs (1936). The Map shows allotments, lands restored to Tribe, and lands purchased for Tribe.45

NOTE: The Map provides a distinct image of the original reservation boundary, which was corrected in 1982 and expanded to include the Pigeon Point area; the Pigeon Point area is the eastern tip that is plotted, but is blank, reflecting that no allotments were assigned within that area, and no land acquisition of any kind occurred within that area.

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During the era of Indian Reorganization, other events also impacted land tenure and jurisdiction within the Grand Portage Reservation. For example, the State of

Minnesota established the Grand Portage State Forest within the Grand Portage

Reservation in 1932.46 In addition, the Commissioner of Indian Affairs ordered the establishment of “Roadless and Wild Areas” on several Indian reservations in a national policy effort to preserve undeveloped territories and “something of the wilderness values

[that] people crave,” and strike a balance between developed and undeveloped areas.47

Under that authority, a “Wild Area” was designated within the Grand Portage

Reservation, which encompassed approximately 11,000 acres of land, and motorized

transportation was excluded from that Area.48

A national monument was also established within that reservation, on land that

was relinquished by the Minnesota Chippewa Tribe and the Grand Portage Band for that

purpose. Although the Grand Portage National Monument was not established until 1958,

it will be discussed herein. Under the Act of September 2, 1958, the Grand Portage

National Monument was established for the preservation of “an area containing unique

historical values.”49 Special provisions were made for Tribal and Band preference in

employment and business opportunities, as well as rights to cross the land to engage in

traditional cultural activities.50 That Act also provided a reversionary clause, such that

that the Indian lands conveyed for the National Monument will “automatically revert to

the Minnesota Chippewa Tribe and the Grand Portage Band,” if the lands are abandoned

for use as the National Monument.51

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During the era of Indian Reorganization, it became clear that federal preservation and conservation land use policies were taking hold and becoming accepted among the

Grand Portage Band members and the Tribe. The Grand Portage Reservation had become known for its spectacular Lake Superior landscapes and its pristine beauty. As is evidenced by the establishment of a forest and wilderness area, and the preservation of a historic site, the Grand Portage Reservation had become valued as a forest-park area, not unlike Leech Lake, but on a smaller and less-contested scale.

Leech Lake

The Leech Lake Band also benefited from the tribal land purchasing program, and similar purchasing and acquisition activities also took place there. There were differences, however, particularly in the scale of land acquisition activity at Leech Lake as compared with Grand Portage. Most significantly, other land ownership interests competed against the interests of the Leech Lake Band in their tribal land acquisition efforts. As previously noted, 316,000 acres of the Leech Lake Reservation were owned by the state or the federal government, creating a virtual monopoly upon land ownership that seriously impacted tribal land acquisition within that reservation.

Those federal land holdings represent the Chippewa National Forest lands, which were taken from within the boundaries of the Leech Lake Reservation. The existence of the Chippewa National Forest significantly inhibited tribal land acquisition during the

1930s, as it does today, because a large amount of reservation acreage is effectively monopolized and not available for acquisition. At the expense of the tribe, the United

States Forest Service aggressively pursued additional lands for the Forest, and found a friendly advocate in Mark Burns, the Superintendent of the Consolidated Chippewa

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Agency. For example, Burns openly advocated to the Commissioner of Indian Affairs that any lands previously reserved for school purposes should revert to the Chippewa

National Forest, and be granted national forest status.52 The Commissioner also

recommended that the original Orders reserving those lands should be revoked.53

Within that land tenure reality, and despite the limitations created by the Forest,

some lands were successfully purchased within the Leech Lake Reservation during the

1930s and 1940s. Lands were purchased for historical reasons, for wild rice reserves, and

for homesites to benefit the people. The details of some purchases are not readily

available, unfortunately, such as the exact location or the acreage involved. For example,

5.02 acres were purchased at Leech Lake in 1939 for use as a “cooperative marketing site which was a benefit to entire tribe,” however, the location of the site could not be identified.54 There is also evidence of similar land purchase proposals, but it appears that

most were never completed, and I could not verify them.55 Several wild rice sites were

purchased from 1936 to 1946 for the Minnesota Chippewa Tribe, some of which appear

to be located within the Leech Lake Reservation.56

In addition, the Sugar Point battle site was purchased for the Minnesota Chippewa

Tribe in 1942. The Minnesota Chippewa Bulletin, a newsletter published by the local

Bureau agency, reported that the Sugar Point tract was the site of the “Battle of Sugar

Point” of October 5, 1898; the Tribe acquired the land in order to assure its preservation as a “fitting commemoration of the battle known as the Last Indian Uprising in the

United States.”57 Similar to Grand Portage, land suitable for building homes was also an

urgent need at Leech Lake, and tribal land acquisition efforts led to the purchase of

several tracts of land in 1942 at Onigum, Mission, Sugar Point, Bena, Squaw Lake, and

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Ball Club for that purpose (acreage amounts not available).58 According to Theodore

Taylor, 1,609 acres were purchased within the Leech Lake Reservation and placed back

into trust status, between 1934 and 1956.59

The tribal land use categories that emerged post-allotment at Grand Portage and

Leech Lake continue to resonate with those bands today. Those categories reflect

ongoing tribal land acquisition priorities, and continue to serve as useful categories for

examining contemporary land acquisition efforts. I have categorized the tribal land needs

of the Indian Reorganization era into the following general categories:

1. Community, public, and recreational purposes (e.g. Ball park); 2. Cultural and historical purposes (e.g. Battle of Sugar Point historical site); 3. Government purposes (e.g. Bena school site); 4. Economic/business purposes (e.g. wild rice sites) 5. Housing/homesites 6. Village sites (e.g. Ball Club, Bowstring/Inger, Onigum).

By 1940, land acquisition activity at the tribal level had also increased. As the

Minnesota Chippewa Tribal government articulated its land needs, it included the categories listed above, as well as specific needs for veterans and the preservation of burial grounds. In fact, the Tribe began to invest tribal funds towards the purchase of lands within their reservation territories.60 The consolidation of the fractionated

ownership of the allotted lands had also become a tribal priority, and tribal funds were

appropriated for the purchase of fractionated interests in the allotted lands in 1947.61 The

Tribe explored the possibilities of land exchanges in efforts to consolidate tribal land holdings into compact areas, and explored acquisition of lands whose intended use had since been abandoned.62 The Bureau of Indian Affairs conceded that certain land tenure

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impediments existed to inhibit land exchanges due to the “conflicting interests of the

State, the United States Forest Service, and the Indian Service.”63 Ultimately, the Tribe

became dissatisfied with the Bureau’s land acquisition program for the Tribe, as it had

not produced sufficient land, and the Tribe insisted on more aggressive consideration for

their land purchase program.64

The governing body of the Minnesota Chippewa Tribe, the Tribal Executive

Committee, also began to address other tribal land tenure and acquisition issues. That

Committee adopted a Resolution on May 13, 1942 which prescribed alternative land

acquisition procedures for tribal land conveyances, “designed to simplify, facilitate, and

expedite the transfer” of lands to the Tribe.65 The Resolution was apparently adopted in

response to a 1937 Solicitor’s Opinion that asserted “ample authority for the Secretary of

Interior to sell or otherwise convey inherited lands under existing law with or without the consent of the heirs,” which was a process to be used in “lieu of deeds.”66 The Solicitor is legal counsel for the Department of Interior. That process later became known as the

“Secretarial Transfer” process, which the Secretary would later use to transfer allotted lands out of Ojibwe trust ownership, often without the full consent of the heirs, which

will be discussed in the next chapter.

The Minnesota Chippewa Tribe also addressed the percolating issue of Tribal vs.

Band ownership of lands on all of its six-member reservations. By 1946, approximately

90,000 acres of land were owned in common by the Minnesota Chippewa Tribe on the

six reservations.67 That year, the Tribal Executive Committee discussed the Tribe’s

authority to manage its own property, especially lands situated across a “wide territory,”

and how those lands should be administered.68 A tribal “Land Management Law” was

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adopted, which delegated land administrative authority “to the people of the several reservations” through their “Reservation Councils.”69 Not without some controversy, the

Land Management Laws authorized local reservation communities to handle their own

land management issues, such as preferences to tribal members in homesite assignments,

regardless of whether the land was held in trust for the tribe or the band.70

These complexities created persistent issues, and it became clear to the local

Agency during this time that effective administration of the entrusted Ojibwe lands was

problematic. When the title histories of tracts of land were researched, numerous

questions and issues were raised, as some of the lands had been subjected to rights-of-

way, some had been subdivided, some had been leased, transferred, or sold, and the land

records contained many discrepancies as a result of resurveys and acreage changes.71 In fact, the Commissioner of Indian Affairs visited the Consolidated Chippewa Agency in

1947, and “learned that the basic problem of this area was in the matter of lands, the administration of all types of lands and the future plan for land management.”72

One federal response to the problems of Indian land tenure administration and

management was a huge project undertaken by the Bureau of Indian Affairs in 1940 to update the Indian land records.73 As part of that project, a unit of the Works Project

Administration (WPA) was assigned the task at the Consolidated Chippewa Agency. The

Indian land records project was designed to capture and document every allotment with

its corresponding allotment number, and the legal description and location of every tract

of land allotted, the date(s) of trust and fee patents, and make a determination whether the

allotment remained in trust or fee status. Furthermore, the WPA project was designed to

capture all ownership and probate information and document the ownership status of

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heirs, identify those owner-heirs and their respective fractionated interests, and determine the fractionated interests owned by non-Indians. The heirship status of each allotment was determined, and discrepancies over land ownership status of allotted lands were resolved in this process.74 In addition, maps of township plots were also developed under

the project.75

The WPA Indian land records project produced a significant and valuable record

of Indian lands within the Minnesota Chippewa Tribe, as the data for each allotment was

recorded on an “Allotment and Estate” Record (now referred to as “A and E Cards”). The

data contained within the “A and E” Cards provide baseline information on the allotted

lands within the Minnesota Chippewa Tribe, as they document the land ownership history

of each tract of allotted land, based on the most accurate information available to the

Bureau of Indian Affairs at the time. The Allotment and Estate” Records continue to be

utilized by the Bureau of Indian Affairs to supply necessary baseline data on the Ojibwe

allotted lands.

Summary

The federal policy Era of Indian Reorganization was a significant time in the

history of Indian land tenure and tribal land acquisition across the country, as federal

effort and resources spent on tribal land acquisition reached its peak during that time and

produced some measurable improvements for Indian land tenure. As previously noted,

however, the acquisition of lands is insignificant compared to the amount of Ojibwe lands

that had been previously expropriated, but they do represent some federal effort to

address the urgent need for tribal lands. Most of those lands acquired remain in trust

status today. During that policy era, the federal government also began to document the

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status of Indian land tenure, in an effort to properly manage and administer the trust land base, which is also historically significant.

Much of the modern complexities of Indian land tenure originated during the allotment and assimilation years, and the structure of Indian land tenure as we know it today grew out of the legal institutions created to sustain the reservation and allotment systems. However, the development of Indian land tenure and acquisition and the modern trust doctrine were shaped during the Era of Indian Reorganization, and they also remain an essential part of the contemporary Indian land tenure landscape. A myriad of Indian land tenure issues have also developed relating to the ownership, management, use, and control of the lands within reservation territories today. In addition, most of the lands held in trust for individual tribal members are mired with fractionated ownership issues today and related probate issues.

Some of the other contemporary Indian land tenure issues revolve around the process of tribal transfers of land into trust, including the governing regulations and local opposition to transfers into trust, as well as the lack of adequate federal resources for tribal land acquisition. Jurisdictional issues remain a serious challenge for tribes today, as they assert their sovereign authority within a chilly judicial climate that tends to measure sovereignty in terms of the tribe’s trust land holdings. Also, federal mismanagement of trust property and funds (IIM accounts) is a contemporary issue across Indian country, and there is currently a class action lawsuit against the government for its failure to honor its trust responsibilities.

In the end, an improved national Indian land tenure situation materialized during the federal Indian policy era of Indian reorganization, and 1934 served as a turning point

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for national Indian land tenure. The improved national Indian land tenure situation resulted from the renewed protection extended to the allotted lands, along with the new tribal land restoration and acquisition programs. However, the era of Indian

Reorganization witnessed an overall loss in Indian land ownership, in terms of actual amounts of land reclaimed. On the national level, there were 71 million acres of

Indigenous land at the start of the era of Indian Reorganization in 1928, however, that amount continued to decrease to 52 million acres of land by 1934. In 1934, the sale of allotted lands had been halted, land restorations were accomplished, and an active tribal land acquisition program was implemented and funded by the Bureau of Indian Affairs.

Following on the heels of that policy, the amount of Indian trust land began to increase slightly, and had increased to 55 million acres of Indigenous land ownership by 1945.

The Grand Portage and Leech Lake Bands share similar, yet distinctive, land tenure histories. Both Bands were able to reclaim portions of their reservation territories during the era of Indian Reorganization. Both Bands reclaimed portions of the previously ceded surplus lands through restoration, and they also acquired lands through land purchases and public domain withdrawals. Their shared, yet, separate land tenure histories demonstrate that the efforts of the Bands produced different results and the two

Bands were much differently situated at the end of Indian Reorganization.

Table 4-7 below highlights significant land tenure events in the histories of the

Grand Portage and Leech Lake Bands, and provides a recapitulation of the reservation acreage area ceded under the Nelson Act, the acreage area actually entered for settlement, the acreage area of the allotted lands, and the percentage of allotted lands that were already in fractionated ownership status by 1936. At Grand Portage, over 10,000 of the

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remaining 11,461 acres in trust were in fractionated ownership. At Leech Lake, over

40,000 of the remaining 45,684 acres in trust were in fractionated ownership. By its very nature, fractionated ownership of the allotted lands will continue to grow exponentially.

Table 4-7 Acreage Recapitulation of Ojibwe Land Tenure History of Grand Portage and Leech Lake Reservations

Name of Original Area Area 1936 1936 1934-1946 Reservation Area of Ceded Allotted Allotted Tribal Additional Reservation (Nelson (Nelson Lands In & Band Lands Act) Act) Ojibwe Lands In Acquired Trust Ojibwe In Ojibwe Trust Trust Grand 40,422 ac. 15,239 ac. 24,975 ac. 11,461 ac. 7,704 ac. Restorations Portage 9,278 ac. Reservation Fractionated 10,303 ac. Purchases 22,040 ac.

Leech 682,260 ac. 466,064 ac. 91,651 ac. 45,684 ac. 2,139 ac. Restorations Lake 2,610 ac. Reservation Fractionated 40,134 ac. Public .Domain Withdrawals 758 ac.

Purchases 1,609 ac.

As the above data illustrates, the land tenure histories of the Grand Portage and

Leech Lake Bands began to separate and diverge during the Era of Indian

Reorganization. The evidence documents that there was clearly an improvement in the

status of Ojibwe trust lands at Grand Portage during that era, and the Band successfully

retrieved a large percentage of their reservation land base through the land restoration alone, which was supplemented with a considerable amount of reservation land that was also purchased.

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The Leech Lake Band, on the other hand, was only able to retrieve 1% of their reservation land base, reclaiming a small amount of land through the restoration process, and paltry amounts of land through land purchases. One of the key factors in land acquisition on that reservation was that little land was available for restoration or purchase, because a majority of the lands had been taken for use by the Chippewa

National Forest and by the State of Minnesota for swamp land. Ultimately, the status of

Indian land tenure within the Leech Lake Reservation was remarkably different than the status of Indian land within the Grand Portage Reservation by 1945. The land tenure history of the Leech Lake Band reflects the national Indian land tenure narrative, while the land tenure history of the Grand Portage Band is unique and diverges from the national Indian land tenure narrative, as well as from the Leech Lake story.

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Endnotes

1 Consolidated Chippewa Agency Annual Statistical Report (1937), compiled by J.J. Munnell, Land Clerk (April 27, 1937), §Loss of Indian Land. NARA, Washington, D.C., RG 75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Report and Other Records, 1933-1948, File unmarked. Box 15: PI 163: Entry 963 (Box 15 contains various Annual Statistical Reports for years 1936-1938, and appear in two separate files, one generally on “Land.” 2 George P. Castille, “Native North Americans and the National Question,” in The Political Economy of North American Indians, ed. John H. Moore (Norman: University of Oklahoma Press, 1993), 273. 3 Klara B. Kelley, “Federal Indian Land Policy and Economic Development in the United States,” in American Indian Economic Development, ed. by Roxanne Dunbar Ortiz (Albuquerque: University of New Mexico Press, 1983), 39. See also, Felix S. Cohen, “Original Indian Title,” Minnesota Law Review 32 (1947): 28. 4 Act of June 18, 1934, also known as the Indian Reorganization Act, 48 Stat. 984. 5 Commissioner of Indian Affairs Annual Report (1940), John Collier, Commissioner, 367. 6 Theodore W. Taylor, “Report on Purchase of Indian Land and Acres of Indian Land in Trust, 1934- 1975,” prepared under contract for the Bureau of Indian Affairs, United States Department of Interior (May 1976). 7 Constitution and ByLaws of the Minnesota Chippewa Tribe, Minnesota, Approved by Department of Interior July 24, 1936 (Washington: GPO, 1936). 8 As discussed previously, the Chippewa National Forest continued to remain a contested political issue, even in 1934. James Coffey, a member of the Fond du Lac Band of Minnesota Chippewa, addressed the Committee on Indian Affairs regarding the transfer of Indian forest lands to the national Forest. Coffey assertively presses the Ojibwe claim that the forest reserve lands were taken without their consent and over their protest. Coffey indicates that, in 1908, the Ojibwe enjoyed undisturbed possession of the forest reserve territory. In that same year, the General Council of the Chippewa was called to discuss a proposed forest reserve; they were told “that the United States wanted to establish a permanent reservation for their use, and wanted their expression to that proposition.” (Coffey Statement, January 22, 1934). Coffey indicates that the Ojibwe were “dispossessed, ejected and then their title wrested from them” regarding the forest reserve lands, under the “Order of October 31, 1922” (the date of the Commissioner’s visit to the Ojibwe, when the Resolution was presented to them for their consideration). Dispossessed from the forest reserve lands, Coffey argues that the Ojibwe people are “greatly in need” of those lands and have been “reduced to want and hardship.” (Coffey Statement, January 22, 1934). Coffey makes it clear that Agent Wadsworth engaged in “steam-rolling tactics” to achieve the government’s goal, utilizing “great graft” and bowing to the “political and commercial interests of Cass Lake” (Coffey Statement, January 22, 1934). 9 Consolidated Chippewa Agenccy Annual Statistical Report (1937). 10 Letter from Superintendent of Consolidated Chippewa Agency to Commissioner of Indian Affairs (January 17, 1930). NARA, Kansas City, KS, RG 75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Circulars 1922-1931, File: 1930. 11 Consolidated Chippewa Agency Annual Statistical Report (1937). 12 Letter from M.L. Burns to Commissioner of Indian Affairs with attached and undated worksheets (October 9, 1934). NARA, Washington, D.C., RG 75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Report and Other Records, 1933-1948, File untitled. Box 15: PI 163: Entry 963.Undated handwritten worksheet “Minnesota: Consolidated Chippewa Agency: Grand Portage Reservation”: 1-2. 13 Memorandum Relative to Chippewas in Minnesota, from F. H. Daiker to Assistant Commissioner of Indian Affairs (March 6, 1937). NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and Other Records, 1933-1948, File Unmarked. Box 14: PI- 163, Entry 963. 14 Consolidated Chippewa Agency Annual Statistical Report for the Grand Portage Reservation (1937), compiled by J.J. Munnell, Land Clerk on April 27, 1937, §Loss of Indian Land. NARA, Washington, D.C., RG 75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Report and Other Records, 1933-1948, File untitled. Box 15: PI 163: Entry 963 (Box 15 contains various Annual Statistical

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Reports for years 1936-1938, and appear in two separate files, one generally on “Land;”the 1936 Consolidated Chippewa Agency Annual Statistical Report for the Grand Portage Reservation is also located therein, §Land. NARA, Washington, D.C., RG 75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and Other Records, 1933-1948. Box 14: PI-163, Entry 963. 15 Ibid. 16 Consolidated Chippewa Agency Annual Statistical Report for Grand Portage Reservation (1936), compiled by Dorothy Chosa and verified by Jacob J. Munnell. NARA, RG 75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and Other Records, 1933-1948. Box 15: PI-163: Entry 963. See also, Report from Consolidated Chippewa Agency, untitled), NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and Other Records, 1933-1948, File indicates the following note “TC-BIA CnCHIP E-C” in blue marker. Box 14: PI 163: Entry 963. The file contains comprehensive reports on land tenure status and more for the Minnesota Chippewa Tribe reservations under the jurisdiction of the Consolidated Chippewa Agency. 17 All of the above information on the allotments and their trust status came from the following three reports, 1) Consolidated Chippewa Agency Annual Statistical Report for Cass and Winnibigoshish Reservation (1936); Consolidated Chippewa Agency Annual Statistical Report for Leech Lake Reservation (1936); Consolidated Chippewa Agency Annual Statistical Report for White Oak Point Reservation (1936), which were all compiled by Dorothy Chosa and verified by Jacob J. Munnell. NARA, Washington, D.C., RG 75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and Other Records, 1933-1948, Box 15: PI-163: Entry 963. 18 Consolidated Chippewa Agency Annual Statistical Reports for the Cass Lake and Winnibigoshish Reservations, the Leech Lake Reservation, and the White Oak Point Reservation (1937), data compiled by J.J. Munnell, Land Clerk on April 27, 1937. NARA, Washington, D.C., RG 75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Report and Other Records, 1933-1948, File untitled. Box 15: PI 163: Entry 963 (Box 15 contains various Annual Statistical Reports for years 1936-1938, and appear in two separate files, one generally on “Land;” and, the 1936 Consolidated Chippewa Agency Annual Statistical Report for the Cass Lake and Winnibigoshish Reservations, the Leech Lake Reservation, and the White Oak Point Reservation. 19 See generally, Consolidated Chippewa Agency Reports on “Unentered Surplus Lands” on the various Chippewa Reservations (1934-35). NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Records of the Division of Extension and Industry/Records regarding Land Use Survey 1934-35, Alaska-Mississippi, File “Minnesota: Consolidated Chippewa.” File: Minnesota Chippewa/Consolidated Chippewa. Box 1: PI-163: Entry 763. 20 Consolidated Chippewa Agency Report on “Unentered Surplus Lands” for the Grand Portage or Pigeon River Reservation (October 18, 1934), signed by M.L. Burns, Superintendent and Special Disbursing Agent. NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Records of the Division of Extension and Industry/Records regarding Land Use Survey 1934-35, Alaska-Mississippi, File “Minnesota: Consolidated Chippewa.” File: Minnesota Chippewa/Consolidated Chippewa. Box 1: PI-163: Entry 763. 21 Ibid. 22 Letter from Mark L. Burns, Superintendent, to Commissioner of Indian Affairs(October 9, 1934). 23 Secretary of the Interior Report (Washington: GPO, 1936), 192 and Secretary of the Interior Report (Washignton:GPO, 1937), 204. See also, Departmental Order Modifying Departmental Order By Restoring Undisposed-Of Opened Lands Of Grand Portage Reservation, Minnesota, to Chippewa Indians of Minnesota (April 6, 1938), Kapplers 3:1421-1422. 24 Memorandum Relative to Chippewas in Minnesota, F.H. Daiker (March 6, 1937). 25 Departmental Order Modifying Departmental Order By Restoring Undisposed-Of Opened Lands Of Grand Portage Reservation, Minnesota, to Chippewa Indians of Minnesota (April 6, 1938), Kapplers 3: 1421-1422. In that Order, the Secretary of Interior also ordered that the land restoration at Red Lake be made to the “Chippewa Indians of Minnesota,” and not to the Red Lake Band alone. 26 Ibid. 27Consolidated Chippewa Agency Report on “Unentered Surplus Lands” Report for the consolidated Leech Lake Reservation (October 18, 1934), signed by Mark L. Burns, Superintendent and Special Disbursing

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Agent, October 18, 1934. NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Division of Extension and Industry, Land Use Survey, 1934-35, Alaska-Mississippi. Box 1: PI-163: Entry 793. File “Minnesota Chippewa/Consolidated Chippewa.” 28 Consolidated Chippewa Agency Annual Statistical Reports for Cass and Winnibigoshish, Leech Lake, and White Oak Point Reservations (1936). 29 Consolidated Chippewa Agency Report on the “Minnesota: Consolidated Chippewa, Leech Lake,” submitted by M.L. Burns, Superintendent (Report is undated and handwritten, but was filed with with various agency reports on Indian land tenure status, generally dated October, 1934). NARA, Washington, D.C., RG 75, Records of the Bureau of Indian Affairs, Records of the Division of Extension and Industry, Records relating to Land Use Survey, 1934-1935, Alaska-Mississippi, File “Minnesota: Consolidated Chippewa.” Box 1: PI-163: Entry 793. 30 Ibid. 31 Secretarial Order of Restoration regarding “Chippewa Indian Reservations, Minnesota,” signed by Harold Ickes, Secretary of Interior (February 23, 1938), Kapplers 7: 1408. 32 Letter from William Zimmerman, Assistant Commissioner of Indian Affairs, to the Secretary of Interior, through the Commissioner of the General Land Office (December 27, 1937). The Zimmerman letter provides the cumulative data on the acreage and location of the lands, a comprehensive list of the lands to be restored with their legal descriptions, and the justification for the restoration. Acopy of that letter is located at the Leech Lake Land Department; see also, Secretarial Order of Restoration regarding “Chippewa Indian Reservations, Minnesota” (February 23, 1938). 33 Act of May 29, 1935, An Act transferring 168.44 acres from the Minnesota National Forest Reserve for an Indian village for the benefit of the Chippewa Indians, 49 Stat. 312, P.L. 83-74. The Act set aside the following described lands: S1/2, SW1/4, NE1/4, and Lots 9-30, of Section 17-142-30. See also, Commissioner of Indian Affairs Annual Report (1935), 153, and “Legal History of the Loss of the Minnesota Chippewa Reservation Land,” Unknown author (circa 1980). 34 Act of June 8, 1940, An Act to set aside certain lands for the Minnesota Chippewa Tribe in the State of Minnesota, and for other purposes, 54 Stat. 254, P.L.574-76. See also, the Minnesota Chippewa Bulletin” (November 24, 1941), which states that the 589.85 acres were returned to the Minnesota Chippewa Tribe on July 11, 1941, and that tribal funds were transferred as payment to the United States Forest Service. NARA, Kansas City, KS., RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Agency Publications, Government Publications, Non-Government publications, Press Clippings. Box 440: HM: 1989: File: The Minnesota Chippewa Bulletin (November 24, 1941). 35 Act of June 8, 1940. See also, Minnesota Chippewa Bulletin (November 24, 1941).. 36 Act of July 25, 1935, 44 Stat. L. 763, P.L. 217-74. The Act amends the Act of June 27, 1926 and authorizes the creation of wild rice reserves for Indians of Minnesota. 37 See generally, Consolidated Chippewa Agency correspondence regarding “Land.” NARA, Kansas City, KS., RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN, Grand Portage Alphabetical Correspondence File, Superintendent’s Correspondence with Employees at Grand Portage and Grand Marais. Box 503: HM 1990: Folder: Land. 38 Letter from Rex. H. Barnes, District Land Officer, to Alton Bramer, Forest Guard, Grand Portage, MN (March 1, 1947). NARA, Kansas City, KS., RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN, Grand Portage Alphabetical Correspondence File, Superintendent’s Correspondence with Employees at Grand Portage and Grand Marais. Box 503: HM 1990: Folder: Land. 39 Letter from Louis Balsam, Field Representative in Charge, Consolidated Chippewa Agency, to Commissioner of Indian Affairs (December 20, 1937). NARA, Washington, D.C., RG 75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and Other Records, 1933-1948. Box 14: PI-163: Entry 963. File: Consolidated Chippewa Agency. See also, Record of Federal Real Estate, prepared by same on same date, id. NOTE: Another significant land purchase was reported within the Grand Portage Reservation in 1939 by the Superintendent of the Consolidated Chippewa Agency, however, no other reference could be found to substantiate this land purchase. The Agency reported that 16,237 acres of land had been purchased within the Grand Portage Reservation in 1936, and that the purchased lands were intended to “benefit the entire tribe as they will be enabled to establish commercial fishing.” See, “Indian Reorganization Act Land Status

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Table-Office of Indian Affairs-Land Acquisition Section,” Proposed Indian Reorganization Act purchases, “Remarks.” The Table reports on the Land Needs as of July 1, 1935, submitted by A.L. Hook, Superintendent of Consolidated Chippewa Agency. NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Records of the Land Division, Miscellaneous Records Relating to Indian Lands, Allotments, Schedules, Tract Books, Deeds, Census Lists, and Related Matters, circa 1854-67, Indian Reorganization Act Land Status Table-Office of Indian Affairs, Land Acquisition Section, Proposed Indian Reorganization Act purchases, Fiscal Year 1939. Entry 406, Vol. 210. 40 Memorandum from Jacob J. Munnell to Alton Bramer (March 18, 1942). NARA, Kansas City, KS., RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN, Grand Portage Alphabetical Correspondence File, Superintendent’s Correspondence with Employees at Grand Portage and Grand Marais. Box 503: HM: 1990: Folder: Land. The “Grand Portage Purchased Tracts, and their acreage amounts, were designated as follows: Tract No. 107(3), containing 1 acre; Tract No. 1000, containing approximately 250 acres; Tract No. 1002, containing 2,234.08 acres; and Tract No. 1010, containing approximately 700 acres; for a total of 3158.08 acres. 41 Letter from F.J. Scott, Superintendent of Consolidated Chippewa Agency, to Alton Bramer (December 17, 1943). NARA, Kansas City, KS., RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN, Grand Portage Alphabetical Correspondence File, Superintendent’s Correspondence with Employees at Grand Portage and Grand Marais. Box 503: HM: 1990: Folder: Land. Those five purchased tracts of land were designated as follows: Tract No. 226, containing 193.98 acres; Tract No. 1010, containing 132.81 acres; Tract No. 1011, containing one-half acre; Tract No. 1007, containing unknown acreage, but less than 40 acres; Tract No. 1009, containing 184.92 acres It was also noted that one of the above tracts had been previously reserved by the United States for lighthouse purposes. 42 Letter from F.J. Scott, Superintendent of Consolidated Chippewa Agency, to Paul LeGarde, Secretary and Treasurer of Grand Portage Council (May 29, 1944). NARA, Kansas City, KS., RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Grand Portage Alphabetical Correspondence File, Superintendent’s Correspondence with Employees at Grand Portage and Grand Marais. Box 503: HM: 1990: Folder: Land. Those two purchased tracts of land were designated as follows: Tract No. 306, containing 79.20 acres; Tract No. 1017, containing 80 acres. NOTE: There is also evidence that the Grand Portage Company conveyed “any and all commercial fishing rights to the United States in trust for the Grand Portage Band of Chippewa” in 1937 and 1943. The conveyance encompassed all parcels held by the Grand Portage Company where fishing rights had previously been reserved. That transaction was done in connection with the condemnation proceedings to establish Trunk Highway No. 61, and those fishing rights were conveyed by Quit Claim Deeds of December 1, 1943, and January 18, 1937. See, Letter from E.J. Scott, Superintendent of Consolidated Chippewa Agency, to Alton Bramer, Chairman, Grand Portage Council (January 6, 1944). NARA, Kansas City, KS., RG 75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Grand Portage Alphabetical Correspondence File, Superintendent’s Correspondence with Employees at Grand Portage and Grand Marais. Box 503: HM: 1990: Folder Land. 43 Theodore W. Taylor, “Report on Purchase of Indian Land and Acres of Indian Land in Trust, 1934- 1975,” prepared under contract for the Bureau of Indian Affairs, United States Department of Interior (Washington, May 1976). 44 Letter from Rex Barnes, District Land Officer, to Mrs. Addie Guenther (July 17, 1946). NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN, Grand Portage Alphabetical Correspondence file, Superintendent’s Correspondence with Employees

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at Grand Portage and Grand Marais. Box 503: HM 1990: Folder: Land (Barnes letter refers to Ms. Guenther’s earlier letter which was addressed to the “Indian Land Company”). 45 Map of the Grand Portage Reservation (1936). NARA, College Park, Maryland (cartographic records). RG75, Records of the Bureau of Indian Affairs, Cartographic Records of the Forestry and Grazing Division, Sl-13, Entry 793. Description of the map is a “blueline print of map of reservation and Pigeon Point showing types of allotments, lands restored to Tribe, and lands purchased for Tribe.” 46 Consolidated Chippewa Agency Report on Grand Portage, 1. NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and Other Records, 1933-1948, File indicates the following note “TC-BIA CnCHIP E-C” in blue marker. Box 14: PI 163: Entry 963. The file contains comprehensive reports on land tenure status, and more, within the Minnesota Chippewa Tribe reservations under jurisdiction of Consolidated Chippewa Agency. 47 Departmental Order (October 29, 1937), signed by the Commissioner of Indian Affairs and relating to the establishment of Roadless and Wild Areas on Indian Reservations. Kapplers VII, Part IV, Executive and Departmental Orders Published in the Federal Register (Vol. 3-1938). 48 Ibid. According to the Departmental Order, the designated “roadless” areas were defined as “one which contains no provision for the passage of motorized transportation and which is at least 100,000 acres in forested country and at least 500,000 acres in non-forested country.” 49 Act of September 2, 1958, An Act to provide for the establishment of Grand Portage National Monument in the State of Minnesota, and for other purposes,” 72 Stat. 1751, P.L. 85-910. 50 Ibid. That Act provided the following: Sec. 4:“Preferential privilege” to Tribal members to provide “visitor accommodations and services, including guide services”; Sec. 5: Employment preference to Tribal members; Sec. 6: Encourage Tribal members to produce and sell “handicraft objects” at the Monument; Sec. 7: Tribal members not to be “denied the privilege of traversing the area included within the Grand Portage National Monument for the purposes of logging their land, fishing, or boating, or as a means of access to their homes, businesses, or other areas of use and they shall have the right to traverse such area in pursuit of their traditional rights to hunt and trap outside the monument,” in accordance with regulations to be prescribed by Secretary.

51 Ibid. 52 Letter from Mark L. Burns, Superintendent of the Consolidated Chippewa Agency, to the Commissioner of Indian Affairs (May 16, 1931). NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Correspondence regarding Land, 1926-1944. Box 131: HM: 1989: Folder 1930. 53 Letter from C.J. Rhoads, Commissioner of Indian Affairs, to Secretary of the Interior (June 11, 1931). NARA, Kansas City, KS, RG 75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Correspondence with the Commissioner of Indian Affairs, 1928-1932, File: Jan.-June, 1931. 54 “Indian Reorganization Act Land Status Table-Office of Indian Affairs-Land Acquisition Section,” Proposed Indian Reorganization Act purchases, Fiscal year 1939, id; Land Needs as of July 1, 1935, submitted by A.L. Hook, Superintendent of Consolidated Chippewa Agency, “Remarks.” NARA, Washington, D.C., RG 75, Records of the Bureau of Indian Affairs, Records of the Land Division, Miscellaneous Records Relating to Indian Lands, Allotments, Schedules, Tract Books, Deeds, Census Lists, and Related Matters, ca. 1854-67. Entry 406, Vol. 210. Cover title: “Restoration “Opened” Lands/Also IRA Purchases”, FY 1937-1939, “General land needs schedules under IRA.” 55 Ibid. In that Report, the Superintendent reported another proposed purchase of 1675 acres of land in 1937, a proposed purchase of 9,000 acres of land, slated for purchase in 1938. A nother proposed purchase was reported in 1939 by the Office of Indian Affairs (Land Acquisition Section) to purchase wild rice sites for the benefit of the Chippewa Tribe, including 2000 acres at Nett Lake and 2500 acres at Leech Lake (for a cooperative marketing enterprise. 56 Table Showing I.R.A. Land Purchases, 1939-1946. NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Master Charts of Land Acquisition Acreage. Entry 406, Vol. 1.

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57 Minnesota Chippewa Bulletin 50 (December 26, 1942), 3. The Minnesota Chippewa Bulletin was developed in 1941 and published by the Consolidated Chippewa Agency, Cass Lake, MN, and covered a variety of topics of interest to tribal members, including information on land acquisition activities. NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Agency Publications, Government Publications, Non-government publications, Press Clippings. Box 440: HM: 1989. Files: “The Minnesota Chippewa Bulletin.” 58 Minnesota Chippewa Bulletin 51 (January 20, 1943), 5-6. 59 Taylor, “Report on Indian Land,” 67. 60 Commissioner of Indian Affairs Annual Report (1946), 246. 61 Minnesota Chippewa Bulletin (January 23, 1947), 1. 62 See generally, Minnesota Chippewa Bulletin (1941-1947). 63 Minnesota Chippewa Bulletin (June 28, 1946), 6. 64 Letter from A.L. Hook, Land Field Agent, Consolidated Chippewa Agency, to J.M. Stewart, Director of Lands, Bureau of Indian Affairs (September 26, 1940). NARA, Washington, D.C., RG75, Records of the Bureau of Indian Affairs, Records of the Land Division, Miscellaneous Records Relating to Indian Lands, Allotments, Schedules, Tract Books, Deeds, Census Lists, and Related Matters, circa 1854-1867. Entry 406, Vol. 210: File: “Restoration “Opened” Lands/Also I.R.A. Purchases,” FY 1937-1939, “General land need schedules under I.R.A.” 65 Minnesota Chippewa Bulletin (May 22, 1942), 7. 66 Ibid. 67 Minnesota Chippewa Bulletin (July 30, 1946), 5. 68 Minnesota Chippewa Bulletin (March 22, 1946), 10. 69 Ibid. 70 Minnesota Chippewa Bulletin (March 21, 1947), 11. 71 Letter from Louis Balsam, Field Representative in Charge, Consolidated Chippewa Agency, to Commissioner of Indian Affairs (December 20, 1937). NARA, Washington, D.C., RG 75, Records of the Bureau of Indian Affairs, Records of the Statistics Division, Reports and Other Records, 1933-1948. Box 14: PI-163: Entry 963. File: Consolidated Chippewa Agency. 72 Information Letter, by Commissioner of Indian Affairs and reporting on Commissioner’s visit to Leech Lake (August 15, 1947). NARA, Kansas City, RG 75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Receipts for Articles Distributed/Transmittal and Progress Sheets of Land Allotment & Estate Records, Agency Publications. Box 439: HM: 1989, File: Consolidated Chippewa Newsletter. It was noted that the Consolidated Chippewa Newsletter replaced the Minnesota Chippewa Bulletin. 73 Letter from B.O. Angell, Examiner of Inheritance, Department of Interior, to William S. Kelley, WPA Supervisor (June 13, 1940). NARA, Kansas City, KS. RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN, CCC-ID Subject Correspondence File, Land Allotment and Heirship Records Project. Box 436: HM 1989: Folder: Angell-Examiner of Inheritance. 74 See generally, the files of the “Land Allotment and Heirship Records Project.” NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN, Land Allotment and Heirship Records Project, General Correspondence and Related Records, Receipts for Aricles Disbursed. Box 437: HM 1989. 75 Letter from George M. Weber, Statistician, to William S. Kelley, WPA Project Supervisor (June 10, 1940). NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN, Land Allotment and Heirship Records Project, General Correspondence and Related Records, Receipts for Articles Disbursed. Box 437: HM 1989: Folder: Correspondence-Weber Oct. 1939 to June 1940, incl.

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CHAPTER FIVE

THE TERMINATION ERA: SOLD WITHOUT THEIR CONSENT

We believe that the solution to the problem is for the Government to provide funds for purchase of allotments that cannot be sold to the public and to add these lands to the United States Forest Service…or to be used for trading purposes [with the State] or private companies in order to consolidate forest holdings1 Minneapolis Area Director (1955)

The Termination Era spanned the years from 1945-1960 and represented a

reversal of federal Indian policy. Although the political interests in termination as federal

policy were expressed in Congress in 1944, the policy was not officially inaugurated until

the 1953 House Concurrent Resolution No. 108 was adopted. In that Resolution,

Congress declared it federal policy to terminate the federal trust relationship with tribes and authorized the termination of those trustee relationships as quickly as possible.2 As the Termination Era took hold in 1945, and governed federal Indian policy until 1960, assimilation and integration of Indian people into the general population became, once again, the vogue federal policy.

Under the prior federal Indian policy of Indian Reorganization, commendable gains were made towards tribal land acquisition, yet tribes have still recovered little of their reservation land base to date. As federal Indian policy shifted to termination in

1945, there were 55 million acres of land held in trust on behalf of tribes and tribal members.3 As the policy shifted, so did tribal land activity also shift towards disposal,

even though some land acquisition continued to occur. By that time, the management and

administration of the entrusted Indian lands was very time consuming and complex, and

involved: the tracking of allotted trust lands, and all fractionated interests in allotted trust

lands; tracking the issuance of patents (trust and fee); identifying, locating, and tracking

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heirs; conducting probates, surveys, and appraisals; monitoring trust lands for possible trespass; trust land leasing and sales; and the management and distribution of trust funds.

A federal Administrative Law Judge who probates Indian estates with trust lands summarized the modern federal administration of Indian land tenure:

In short, land administration, particularly of allotments, is a

quagmire. All of this is due to incessant tinkering with Indians

and their resources as though Indians were chess pieces. Indians

were precisely given what the government created and special

interest groups wanted. Now the government has an unholy mess

on its hands and an expensive-to-administer one. Indians are

prisoners of others’ insanity and blamed for the negative results.4

Through the termination process authorized under the 1953 House Resolution, the

trust relationship between the federal government and specific tribes was ended, or

terminated. As part of that process, state jurisdiction was imposed within the tribal

territories, all exemptions from state taxing authority were ended, and the trust lands of

the “terminated” tribes were expropriated. In 1953, Congress also transferred federal

jurisdictional authority over certain reservations to certain states, conferring both civil and criminal jurisdiction. Public Law 280 was designed to bolster the policy goal of assimilation and integration, and it would also alleviate some of the federal administrative costs associated with the exercise of federal jurisdiction over Indian country. The law originally transferred federal jurisdiction to five “mandatory” states,

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including Minnesota, and a sixth state was added later. The transfer of federal jurisdiction was implemented regardless of tribal preference for or against the transfer.5 In 1968, a

tribal consent provision was authorized, to prevent States from acquiring P.L. 280

jurisdiction over tribal objections, but by that time, it was too late for the Minnesota

Chippewa Tribe.6

The policy impact of termination upon tribal communities and nations was appalling,

and that impact is summarized by David Getches in his textbook on federal Indian law:

The termination policy adopted by the federal government following these

events has had a major impact on the attitudes of subsequent generations

of Indian leadership. Though now formally repudiated by the federal

government, the memory of Congressional committees and bureaucrats in

Washington “terminating” the existence of hundreds of tribes across

Indian country still lingers threateningly for Indian leaders even today.

Termination stands as a chilling reminder to Indian peoples that Congress

can unilaterally decide to extinguish the special status and rights of tribes

without Indian consent and without even hearing Indian views.7

Under the termination policy and process, the federal-tribal relationship of 109 tribes was

“terminated,” including the Menominee Tribe in Wisconsin and the Klamath Tribe of

Oregon, and Indian land holdings were diminished by “a minimum of 1,362,155 acres.”8

In addition, Indian trust acreage continued to be expropriated through other federal mechanisms that were devised to ease the administrative burden of Indian lands administration, at the expense of the tribes.

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Department of Interior and Bureau officials sought opportunities to reduce the amount of fractionated interests in the allotments, as well as to reduce the amount of

Indian trust land, and mechanisms were devised to pursue that strategic goal. As discussed in the prior chapter, government lawyers in 1937 were already asserting the authority of the Secretary of Interior to sell inherited allotted lands, with or without the consent of the rightful Indian heirs.9 Between 1940 and 1950, political pressure increased to remove trust restrictions and approve sales of Indian trust land, and in 1947 alone,

35,000 acres of Indian land were fee patented and alienated from Indian ownership.10 In

1948, the Commissioner of Indian Affairs noted the political pressure, and acknowledged that removal of the restrictions “endangered the advances made in the previous 15 years” to Indian land tenure.11

Congress reacted to the political pressure, and passed the Act of May 14, 1948, which amended the Indian Reorganization Act and authorized the Secretary of Interior to issue fee patents and approve sales of Indian trust lands upon application.12 Under the

new legislative authority, the Bureau of Indian Affairs also began to administratively

transfer ownership of Indian trust lands to other governmental agencies, such as the

United States Department of Agriculture. The administrative process of transferring ownership of entrusted allotted lands would later became known as “Secretarial

Transfers,” and the bulk of these Secretarial Transfers were made during the decade of

the 1950s. The Secretarial Transfers of allotments that were sold without the consent of

all the rightful heirs were later deemed to be illegal transfers, and legal claims were

established by the Minnesota Chippewa Tribe on the allotments subject to these illegal

transfers, which will be discussed herein.

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Ultimately, the national Indian land tenure narrative during the Termination era reveals that the Indian land base was diminished from 55 million acres in 1945 to 53.4 million acres in 1960. The IRA-tribal land acquisition programs were continued in a very limited capacity, but little land acquisition was actually achieved. Overall, a larger amount of lands were alienated from Indian ownership than was acquired for tribes during the termination decades. After John Collier left the Indian Affairs office, Bureau personnel were hired who reflected the changes in political orientation of termination.

Within the Bureau and Congress, there was growing opposition to funding the tribal land acquisition program or any Indian land tenure advances. In fact, the Senate opposed removing any lands from the tax rolls, including land purchases for Indians.13

In part, general Congressional resistance to such funding was a result of the huge

World War II debt and the need for funds to implement the Marshall Plan. This was also

known as the McCarthy era in American history, and fear was pervasive, particularly

about anything that could appear to be communistic, such as communally-administered

Indian trust lands. As two American Indian scholars later observed, “Department

officials…live in mortal fear that they will be questioned….and that Congress will

discover that they have helped Indians get more land.”14

The end result of the Indian land tenure policy trend of the termination era was that a

larger proportion of Indian trust land was alienated from Indian ownership than was

acquired for tribes. Theodore Taylor documented those results, and that data indicates that over 1.8 million acres of allotted land were fee patented and taken out of trust from

1945-1960, while only 210,000 acres of land were acquired by purchases and exchanges for Tribes and tribal members across the country (See Table 5-1 below). In the course of

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his research, Taylor recognized the inconsistencies with the Bureau’s Indian trust land data. Although he acknowledged that the Indian trust land data is inconsistent over time, he also observed that the data does “indicate the nature of the movement of land in and out of trust.”15

Table 5-1 Indian lands fee patented and Indian land acquired during the Termination Era* Year Allotted Land Lands acquired for Tribes and Notes Issued Fee Individual Tribal members and patents placed in trust

1949 146,055 acres fee patented 1950 96,555 acres fee patented 1955 521,777 acres fee 10,165 acres purchased for Tribes patented and individual Tribal members 1961 1,090,000 acres 130,000 acres acquired by purchases Fee patented acreage includes 759,000 fee patented and exchanges for Tribes and acres of the terminated Menominee individual Tribal members and Klamath Tribes 70,000 acres of public domain land transferred to eight Pueblos

*Data are taken from Theodore W. Taylor’s “Report on Purchase of Indian Land and Acres of Indian Land in Trust, 1934-1975”: 16-19.16

That same Indian land tenure trend was played out “on the ground” across the tribal

nations, and was certainly reflected within the Grand Portage and Leech Lake Bands.

Termination Era at Grand Portage and Leech Lake

During the Termination Era, the Bureau’s land acquisition program for the

Minnesota Chippewa Tribe was carried forward in a limited capacity, and lands

continued to be purchased under the authority of the Indian Reorganization Act. A

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limited amount of lands were purchased within the Grand Portage and Leech Lake

Reservations from 1946 to 1956, and no such purchases were reported after 1956:

1. Grand Portage Reservation: 173 acres purchased;

2. Leech Lake Reservation: 1,417 acres purchased.17

The complex status of allotted lands within the Minnesota Chippewa Tribe

continued to plague the Bureau of Indian Affairs, who had the formidable task of trust

management and administration of all Ojibwe trust lands. Federal efforts continued in

order to resolve the fractionated ownership issues of allotted lands, and the local Bureau

agents began to craft a solution to those issues within the Minnesota Chippewa Tribe. In

response to an inquiry on what steps would be necessary to terminate the Indian Service,

the Minneapolis Area Director discussed the fractionated ownership and heirship

problems plaguing the Minnesota Chippewa allotments in 1955. Area Director Pryse

suggested that the “individual Indian allotment problem” must be resolved prior to the

end of the Indian Service as “over 95% of the allotments” aren’t being used or occupied

by the owners and are in heirship status.”18

Once again, the sale of Indian land became the proposed solution to the “Indian

problem.” The Area Director made a broad policy determination that the Ojibwe

allotments were of little or no monetary value, except for use by other federal agencies,

when he indicated that 75% of the allotments were of “low value, isolated, and cannot be

sold to the public,” adding his opinion that:

In these circumstances we believe that the solution to the problem is for the

Government to provide funds for purchase of allotments that cannot be sold to the

public and to add these lands to the United States Forest Service…or to be used

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for trading purposes [with the State] or private companies in order to consolidate

forest holdings.19

Based upon the “low monetary value” policy mindset, and armed with the legislative

authority of the Act of May 14, 1948, the Minneapolis Area Office initiated a resolution to the “problem by proceed[ing] to dispose of such lands through supervised sales.”20

Once the Bureau had decided on its policy, methods, and procedures for resolving the fractionated ownership issues, the Bureau began to advocate that the United States

Department of Agriculture should be considered the primary purchaser of the fractionated allotted lands. The Bureau eventually came to recommend that Congress appropriate funds to the Department of Agriculture to enable that Agency to purchase the fractionated allotted lands for inclusion within the national forest system. In fact, the Minneapolis

Area Director made the following recommendation to the Commissioner of Indian

Affairs in 1954:

The Area Realty Officer strongly recommends that the Indian Bureau

request Congressional appropriations with which to purchase those

unused Minnesota allotments in heirship status which do not attract

private bidders because their only value is as part of a large forestry

area. After purchase, if desirable to do so, such lands could be

transferred to the U.S. Forest Service.21

The Bureau justified its position based upon the previously articulated determination that

the fractionated allotted lands retained no intrinsic or potential monetary value, except as

forestry land. The Bureau had to acknowledge, however, that the “lands sold to the

public had a much higher value per acre than those purchased by the Forest Service.”22

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The Superintendent of the Minnesota Agency, an agency under the administrative authority of the Minneapolis Area Office, quickly embraced the Area Director’s recommendation. The Superintendent also recommended that Congress appropriate funds to federal departments for purchase of the Minnesota Chippewa allotments, and that special appropriations be made to the Department of Agriculture to purchase the allotments on Leech Lake, Nett Lake, and Fond du Lac Reservations “that cannot be sold to the public, unfortunately.”23 Federal intention to increase the land base of the

Chippewa National Forest through purchase of the Ojibwe allotted lands within the Leech

Lake Reservation was solidified in 1955, when Congress appropriated $90,000 to the

Department of Agriculture specifically for the purchase of “Indian allotments within the

Chippewa National Forest.”24

With clear policy direction and sufficient funding, the Minnesota BIA Agency

staff began to prepare the allotted lands for sale, conducting research in 1955 to

determine the trust status for each of the Minnesota Chippewa allotments. The research

conducted on the entrusted allotments was designed to provide accurate data on the

allotted lands in order to ready those lands for sale.25 The maintenance of the trust land

status quo, or even an increase in the Indian land base, was no longer an option. In May,

the Agency proceeded with land surveys in order to identify the allotments that were

isolated and of low value, and that could be sold.26 The Leech Lake, Grand Portage, Nett

Lake, and Fond du Lac reservations were targeted first, as it appears those reservations were deemed to have the largest portion of allotted land available for sale.27 The survey

work and “statistical information for all six reservations and communities” of the

Minnesota Chippewa Tribe was complete in February of 1956.28 Updated maps of the

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Grand Portage and the Leech Lake Reservations were also completed, which illustrated the ownership status of those lands.29 During this time, the personnel from the

Minneapolis Area Office and the Minnesota Agency continued to lament on the laborious

task of Indian land tenure management and administration, specifically that they spent

“considerable time” trying to locate heirs.30

It appears from the record that the Bureau of Indian Affairs could act promptly and

efficiently, especially in situations involving the sale of Indian land and with the

theoretical opportunity to reduce their administrative workload. “Supervised land sales”

became the “buzz” as the sales of the Ojibwe allotted lands were operationalized. In one

month, for example, the Minnesota Agency sold 61 allotments, which encompassed

4,025 acres.31 The operational language of “supervised land sales” relegated the

degradation of Ojibwe land tenure to a procedural and bureaucratic process.

As noted earlier, the sale of lands within the Leech Lake Reservation became a top priority for the Minnesota Agency, and the data for the period ending in June of 1955 reflects the heyday of Leech Lake land sales. In that one month period alone, 224 sales of allotted lands were reported within that reservation, in which complete or fractional interests in 14,093 acres of trust land were sold to the United States Forest Service for the

Chippewa National Forest. In addition to the Forest Service sales, there were also 89 sales of Leech Lake allotments made to private individuals, involving 5,102 acres.32

The supervised sales of the allotments continued at that level for quite some time, as they continued to be a key part of the Bureau’s strategy to resolve the fractionated ownership issues of the allotted lands. There is also some evidence to suggest that the

Minnesota Chippewa Tribe was also interested in resolving those issues, as the

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Minneapolis Area Director indicated in 1957 that the Tribe had inquired as to “what might be done to alleviate the difficulty in selling heirship allotments where a large number of heirs are involved.”33 In addition, the strategy of some Ojibwe families was to

consolidate their fractionated ownership interests in order to keep their inherited

allotments under familial ownership. In 1955, for example, four families proceeded to

consolidate fractionated ownership interests in their inherited allotted lands, in order to

perfect their title to “their homes.”34

Ultimately, the administrative process of supervised land sales, including the

Secretarial Transfers, resulted in the alienation of trust land ownership within the Grand

Portage and Leech Lake reservations.35 It was to be discovered later that many of the allotments sold under the Secretarial Transfer process were, in fact, sold illegally. Many

of the supervised sales of the allotted lands within the Minnesota Chippewa Tribe were

sold without the consent of all the rightful, legal heirs. The Solicitor General, who served as the attorney for the Bureau of Indian Affairs, interpreted the Act of May 14, 1948 and

determined that it required the “unanimous consent [of all heirs] before all interests in

those IRA reservation allotments can be conveyed.”36 Therefore, many of the supervised

land sales and transfers made by the Secretary of Interior were actually made in violation

of the terms of the Act of May 14, 1948.

Many years later, an attorney who formerly served as an Associate to the Solicitor

General, stated that the Secretarial Transfers of allotted land made without the consent of

all beneficial owners were done without “adequate authority,” and those Transfers were

deemed illegal by the Solicitor in 1979.37 The 1979 interpretation precipitated research to

document and identify the land claims associated with the disputed Secretarial Transfers,

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along with other types of land claims associated with the allotted lands. The Secretarial

Transfer claims also came to be referred to as “partial consent sales” or “non-consent sales.” That extensive research project was conducted by the Minnesota Chippewa Tribe under contract with the federal government and under the legal direction of the regional

Solicitor’s office.

During the course of that research project in the 1980s, the Minnesota Chippewa

Tribe researched and documented hundreds of land claims, involving lands on all six of the Tribe’s reservations. The Minnesota Chippewa Tribe §2415 Land Claims Project was an extensive lands records investigation that was originally designed to identify cases of improper claims of trespass, ownership, or possession by others, of allotted lands in trust.

However, the initial research quickly produced evidence of claims that involved more than just trespass, as the early documentation revealed significant numbers of questionable land transfers throughout all six reservations. Questionable land transfers legally translated into questionable land titles, and land claims involving title to thousands of acres were discovered and documented by the Land Claims Project.

Between 1979 and 1982, the Land Claims Project identified several types of land claims, and separate case files were prepared for each of the allotments subject to a claim and were presented to the Solicitor’s office for potential litigation.

Ultimately, the tribal research project documented that the Secretarial Transfer process resulted in the illegal sale of 34,881 acres of Minnesota Chippewa allotted lands, which had been sold without the full consent of all the heirs.38 Within the Grand Portage

Reservation, 569.96 acres of allotted trust land were sold without the full consent of all

beneficial Indian owners (see Appendix G, Minnesota Chippewa Tribe Land & Claims

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Report, 1982).39 Within the Leech Lake Reservation, the impact was more severe than at

Grand Portage. As stated earlier, one of the Bureau’s strategic land tenure goals was to sell the Leech Lake allotted lands to the United States Forest Service, for inclusion in the

Chippewa National Forest.40 As a result, the bulk of the Leech Lake Secretarial Transfers

were made to the United States Department of Agriculture, and its subsidiary agency, the

United States Forest Service. In total, there were 26,825 acres of allotted lands that were sold without the full consent of the Indian owners.41 An estimated 16,000 acres, or 60%

of those illegal sales, were made to the United States Forest Service and included within

the Chippewa National Forest.42 The justification for this new method of land

expropriation was articulated in terms of the need for public recreation, while also

serving the federal desire to get out of the Indian business, to get out from under its trust

responsibility for the administration of Indian land.

As indicated earlier, case files were diligently prepared on the Secretarial Transfer

land claims. Through the research, it was discovered that the notification process used by

the Bureau was flawed, as the Bureau made a policy assumption to the detriment of the

Indian owners/heir, which basically cost many Indian heirs their inherited allotments. If

the Bureau did not receive a written response from an individual heir after an official

notice to sell had been sent to the heir, then it was assumed by the Bureau that it had obtained the consent of an heir to sell. Often, however, the Bureau’s notice to sell was never received by the heir, which left that heir without a legal opportunity to respond or disapprove the proposed land sale. As previously mentioned, the Bureau was challenged to locate and identify heirs, and the Bureau turned that challenge into an opportunity to facilitate the sale of Indian land.

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During the course of the Land Claims Project, Elmer Nitzcshke, the Field

Solicitor notified the Solicitor General that the Department of Interior would not pursue litigation on the Secretarial Transfer claims, or “non-consent sales.”43 Of course, the bulk

of the claims appear on Leech Lake, and most of those sold to the Forest Service,

according to a Land Claims Project Report.44 The decision not to pursue litigation was

justified on the basis that “an ultimate solution to the problem will be sought through

legislation,” suggesting that the claims were considered more of a political, rather than

legal, matter (see Appendix H for copy of letter).45 At that time, the Tribe certainly

understood that a federal solution to the claims, in the form of legislative proposals,

would be forthcoming.46

To date, however, the federal government has not pursued litigation or legislative

settlement for those outstanding land claims. As stated above, the largest percentage of the non-consent sales were at Leech Lake, and the government’s failure to pursue a resolution to those land claims remains a point of contention between the Band and the federal government. Marianna Schulstad, the former Associate Solicitor who served as the lead attorney on the Minnesota Chippewa Tribe land claims and who was in private practice in 2001, suggested that recovery of some allotted trust lands should be actively pursued, and that the allotted lands transferred without adequate legal authority should be considered available land for that land recovery effort.47

Summary

During the federal Indian policy era of Termination, the national Indian land tenure

narrative documents the impact of policies designed to achieve complete integration of

Indian people, which is evidenced in the termination of the federal-tribal relationship

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with certain tribes and the transfers of federal jurisdictional authority over Indian country to the states. In addition, bureaucratic procedures were developed in an effort to reduce the Indian land administrative burden, but at the expense of Indian people and their rights as property owners.

Although a diminished tribal land acquisition program still remained during the termination era, the policy impact of the entire range of federal Indian policies implemented during that time was the reduction in Indian land by approximately 1.6 million acres. The severe consequences of the termination era stand as a contemporary tribal reminder that federal Indian policies can shift abruptly, often without adequate tribal notice, input, or consideration. In light of termination and prior federal policies, advocates have argued for a solid Indian land tenure policy, pleading that the political

“hidden agendas” aimed at “confiscat[ing] Indian lands in the name of progress, patriotism, or religion” should be terminated “[i]n the name of justice, mercy, sanity, common sense, fiscal responsibility, and rationality.”48

As federal Indian policies were implemented “on the ground,” the Grand Portage and

Leech Lake Bands did not become targets of federal termination efforts, and both bands did benefit from limited land acquisition during the termination era. However, both were subject to the process of supervised land sales, which was designed to rid the government of its trust responsibility over the entrusted allotted lands and solve the fractionated

ownership issues. In total, 34,881 acres of Minnesota Chippewa lands were sold without

proper authority or consent of the rightful owners, which evidences the real Indian land

tenure impact of the federal Indian policies of termination at the tribal level.

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For the Grand Portage and Leech Lake Bands, the result at the end of the termination era was a net loss in Ojibwe ownership of their reservation territories. At Grand Portage,

173 acres of land had been acquired, while 570 acres of allotted land were illegally sold and taken out of trust status. The impact was even more severe at Leech Lake, as 26,825 acres were illegally sold and taken out of trust status, while only 1,417 additional acres were acquired. The record clearly evidences that the existence of the Chippewa National

Forest within the boundaries of the Leech Lake Reservation continued to impact tribal land tenure and acquisition there, as the Forest was granted priority purchasing status in the Secretarial Transfer process and gained ownership of 16,000 acres within that reservation.

While the Grand Portage and Leech Lake Bands share a common tribal identity, and shared similar land tenure histories, differences once again emerged during the termination era. Both Bands reclaimed some acreage during the era of termination, and both were subjected to the same local and regional Bureau agencies who implemented the policies designed to dispose of Indian trust lands. At the end of the termination era, the

Indian land tenure status of the Grand Portage Band continued to be better situated than at Leech Lake. In 1962, there were 41,557 acres held in trust at Grand Portage

Reservation, including 32,913 acres in tribal trust status and 8,644 acres held in individual trust status. At Leech Lake Reservation in 1962, there were 23,720 acres held in trust, including 12,320 acres in tribal trust status and 11,402 acres in individual trust status.49

During that era, it was apparent that the Leech Lake Reservation was a more

contested territory than Grand Portage. The contested nature of Leech Lake is evidenced

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in the sheer numbers of acres that were illegally sold within that reservation, as compared to Grand Portage. The impact of the Secretarial Transfer process upon Leech Lake was at a greater scale than at Grand Portage. Furthermore, the bulk of the outstanding land claims involve Leech Lake lands and the Chippewa National Forest, which contributes to adversarial positions between the Leech Lake Band and the Forest Service. The existence of those outstanding land claims falls within the historical pattern presented within this land tenure history, and they represent a modern day example of government failure to abide by its trust obligations.

Endnotes

1 Monthly Narrative Report, submitted by Memorandum from E. Morgan Pryse, Minneapolis Area Director, to Commissioner of Bureau of Indian Affairs (August 5, 1955). NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN/Annual Reports 1942-1946, Monthly Narrative Reports, Folder: 100 Narrative and Statistical Records (area) 1955-1958, cover Memo dated August 5, 1955: 19-20. 2 David H. Getches, Charles F. Wilkinson, and Robert Williams, Jr., Cases and Materials on Federal Indian Law 4th ed. (St. Paul: West Publishing Co., 1998), 209. 3 Theodore W. Taylor, “Report on Purchase of Indian Land and Acres of Indian Land in Trust, 1934-1975,” prepared under contract for the Bureau of Indian Affairs, United States Department of Interior (Washington: GPO, May 1976), 93-97. 4 Administrative Law Judge Sally Willett, “The Full Court Press: Termination by Adjudication,” unpublished and distributed at 2002 Indian Land Consolidation Annual Meeting (November 1, 2001). 5 Public Law 280, 28 U.S.C., §1360, 18 U.S.C. §1162. For an excellent overview and discussion of Public Law 280, see alo Carole E. Goldberg, “Public Law 280: The Limits of State Jurisdiction Over Reservation Indians,” UCLA Law Review 22 (1975): 535-559. 6 Civil Rights Act of 1968, 25 U.S.C. §1326 (1970). According to David Getches, “no tribe has consented to state jurisdiction under P.L. 280 under the 1968 provision,” Getches, Federal Indian Law, 492. 7 Getches, et al, Federal Indian Law, 4th Ed., 204. 8 Ibid., 209. 9 Minnesota Chippewa Bulletin (May 22, 1942). NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Agency Publications, Government Publications, Non-

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government publications/Press Clippings, Box 440, HM: 1989, File: The Minnesota Chippewa Bulletin, May 22, 1942: 7. 10 Taylor, “Report on Indian Land,” 14. 11 Ibid., 15, citing to the Commissioner of Indian Affairs Annual Report (1948). 12 Act of May 14, 1948, 62 Stat. 236. 13 Taylor, “Report on Indian Land,”26-27, 35. 14 Kirke Kickingbird and Karen Ducheneaux, One Hundred Million Acres (New York: Macmillan Publishing Co., 1973), 57. 15 Taylor, “Report on Indian Land,” 10. 16 Ibid., 16-19. 17 Ibid., 53-55. 18 Memorandum from E. Morgan Pryse to Commissioner of Bureau of Indian Affairs (August 5, 1955), 19. 19 Ibid., 19-20. 20 Ibid., 19. 21 Monthly Narrative Report, submitted by Minneapolis Area Director to Commissioner of Indian Affairs (December 1954). NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN/Annual Reports 1942-1946, Monthly Narrative Reports, Folder: 100 Narrative and Statistical Records (area) 1955-1958, cover Memo dated December 21, 1954: 2, submitting Monthly Narrative Report. 22 Ibid. 23 Ibid., 20. 24 Ibid. 25 Monthly Narrative Report, submitted by Memorandum from R.D. Holtz, Minneapolis Area Director, to Commissioner of Indian Affairs (May 3, 1956), 4. NARA, Kansa City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN/Annual Reports 1942-1946, Monthly Narrative Reports, Folder: 100 Narrative and Statistical Records (area) 1955-1958. 26 Monthly Narrative Report, submitted by Memorandum from Minneapolis Area Director to Commissioner of Indian Affairs (June 7, 1955), 2. NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN/Annual Reports 1942-1946, Monthly Narrative Reports, Folder: 100 Narrative and Statistical Records (area) 1955-1958. 27 Ibid., 2. 28 Monthly Narrative Report, submitted by Memorandum from Minneapolis Area Director to Commissioner of Indian Affairs (February 2, 1956), 3. NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN/Annual Reports 1942-1946, Monthly Narrative Reports, Folder: 100 Narrative and Statistical Records (area) 1955-1958, cover Memo dated February 2, 1956: 3. 29 Letter from W.W. Palmer, Superintendent of Minnesota Agency, to R.D. Holtz, Minneapolis Area Director (September 24, 1956), 2. NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN/Annual Reports 1942-1946, Monthly Narrative Reports, Folder: 100 Narrative and Statistical Records 1955-1957 (Agency). 30Monthly Narrative Report, submitted by Memorandum from Acting Minneapolis Area Director to Commissioner of Indian Affairs (March 11, 1957), 3. NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN/Annual Reports 1942-1946, Monthly Narrative Reports, Folder: 100 Narrative and Statistical Records (area) 1955-1958. 31 Monthly Narrative Report, submitted by Memorandum from R.D. Holtz, Minneapolis Area Director, to Commissioner of Indian Affairs (December 2, 1955), 2. NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN/Annual Reports 1942-1946, Monthly Narrative Reports, Folder: 100 Narrative and Statistical Records (area) 1955-1958. The data on the supervised land sales were located in the monthly reports of the Minnesota Agency for the period from 1955 to 1958, and those reports were incorporated into the “Monthly Narrative Reports” of the Minneapolis Area Director. 32 Monthly Narrative Report, Minneapolis Area Director (August 5, 1955), 19.

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33Monthly Narrative Report, submitted by Memorandum from R.D. Holtz, Minneapolis Area Director, to Commissioner of Indian Affairs (April 1957), 1 of Memo. NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN/Annual Reports 1942-1946, Monthly Narrative Reports, Folder: 100 Narrative and Statistical Records (area) 1955-1958. 34 Monthly Narrative Report, submitted by Memorandum from Minneapolis Area Director to Commissioner of Indian Affairs (April 7, 1955), 2. NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Cass Lake, MN/Annual Reports 1942-1946, Monthly Narrative Reports, Folder: 100 Narrative and Statistical Records (area) 1955-1958. 35 Minnesota Chippewa Bulletin (May 22, 1942), 7. NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Agency Publications, Government Publications, Non-government publications/Press Clippings, Box 440, HM: 1989, File: Consolidated Chippewa Newsletter. See also, “Information Letter,” (February 16, 1953), 5 and “Information Letter,” (April 23, 1953), 1. NARA, Kansas City, KS, RG75, Records of the Bureau of Indian Affairs, Consolidated Chippewa Agency, Agency Publications, Government Publications, Non-government publications/Press Clippings, Box 440, HM: 1989, File: Consolidated Chippewa Newsletter. 36 Memorandum from the Solicitor, Leo M. Krulitz, to All Regional Solicitors (August 20, 1979). The Memorandum is regarding “28 U.S.C. 2415 claims: conveyances of inherited allotments pursuant to the Act of May 14, 1948, 25 U.S.C. §483 (August 20, 1979). Copy in author’s possession. 37 Mariana Schulstad, “Allotted Lands: Fractionated Ownerships and Land Claims,” presentation at legal education conference (October 8, 2001). Prior to private practice, Schulstad worked for the Office of the Field Solicitor in St. Paul, MN and was the lead federal attorney assigned to the Minnesota Chippewa Tribe §2415 Land Claims Project to develop the land claims for litigation. In 2001, Schulstad was in private practice at the law firm of Leonard, Street and Deinard in Minneapolis, MN. 38 Minnesota Chippewa Tribe §2415 Land Claims Project Report, “The Minnesota Chippewa Tribe Reservations, Total Acreage for Active Claims,” (February 4, 1982). Copy in author’s possession. 39 Ibid. 40 “Information Letter” (February 16, 1953), 5. 41 Minnesota Chippewa Tribe Land Claims Report. 42 Interview of Pauline Johnston, Director of Leech Lake Land Department (2002). See also, Lenee D. Ross, Project Director, “The Minnesota Chippewa §2415 Land Claims Project Summary and §2415 Claims Fact Sheet” (undated, circa 1980). Copy in author’s possession). 43 Letter from Elmer T. Nitzschke, Field Solicitor, to Edwin L. Demery, Minneapolis Area Director, August 24, 1979, accompanied by Solicitor’s Memorandum of August 20, 1979 regarding 2415 land claims (August 24, 1979). Copy in author’s possession). 44 Lenee D. Ross, Project Director, “The Minnesota Chippewa §2415 Land Claims Project Summary and §2415 Claims Fact Sheet,” (undated, circa 1980). Copy in author’s possession. 45 Letter from E. Nitzschke to E. Demery (August 24, 1979). 46 Ross, §2415 Land Claims Project Summary (undated, circa 1980). 47 Schulstad, “Allotted Lands”. 48 Kickingbird and Ducheneaux, One Hundred Million Acres, 232. 49 Elizabeth Ebbott, Indians in Minnesota, 4th ed., ed. Judith Rosenblatt (St. Paul: Minnesota Historical Society Press, 1985), 25.

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CHAPTER SIX

SELF-DETERMINATION: CONTROL THE LAND, CONTROL THE FUTURE

To ensure that all land within the original boundaries of every reservation and other areas of high significance where tribes retain aboriginal interest are in Indian ownership and management.1 Indian Land Tenure Foundation Mission Statement (1999)

The era of self-determination began in 1960 and marked the end of termination as official federal Indian policy. The federal Indian policy of self-determination continues to govern today, and was initially heralded as an affirmative measure based upon the fundamental recognition of the permanency of tribes and the need to strengthen tribal sovereignty. In an effort to embrace a more responsive approach to federal Indian policy,

Congress enacted significant legislation providing for a greater tribal role in decision- making and increased tribal participation in the provision of services. The early federal legislation of the new era specifically addressed tribal self-determination, Indian education, civil rights, child welfare, religious freedom, and Indian land tenure.

The termination era policies negatively impacted the national Indian land tenure history and resulted in another aggregate reduction in the amount of Indian trust land.

Although the IRA-established tribal land acquisition programs were carried forward into the termination era, they were significantly reduced in scope, and minimal land purchases were made. More importantly, federal laws effectuated the “termination” of certain tribes and the outright expropriation of their landholdings. Other methods were employed to facilitate the transfer of Indian trust lands, some of which proved to be legally flawed and

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land claims were identified regarding those questionable land sales, and those claims remain outstanding and unresolved within the Minnesota Chippewa Tribe today.

I assert that the tribal land acquisition mandate of the Indian Reorganization Act has survived and continues to exist as an integral aspect of the federal trust responsibility today. Now broadly articulated as stabilization of the tribal land base, the policy of tribal land acquisition is codified in the land-into-trust regulations, even though it has been given low policy priority and its parameters restricted. In its roles as trustee, for example, the government has tried to resolve the fractionated ownership issues by developing remedial legislation designed to help tribes consolidate their ownership interests. Overall, however, the federal role in tribal land acquisition has been substantially decreased as land acquisition services and resources to tribes have been reduced, restrictions on tribal trust land acquisition were tightened, and the failure to process tribal land-into-trust applications has become routine. The recalcitrant federal role has created contemporary challenges and obstacles for tribal land tenure and acquisition, which occurs within the broader context of tribal sovereignty.

Since 1960, there has been a dynamic shift in the relationships between tribes and the federal government. Tribes began to exert authority in many arenas, and assumed responsibility over numerous government services under the Indian Education and Self-

Determination Act (Public Law 638). Many tribes now manage many of their own programs and services, under “638” contracts with the government. Tribes also started to engage in gaming activities, generating their own economic revenue, under their sovereign authority. That tribal activity precipitated the regulatory legislation of the

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Indian Gaming Regulatory Act of 1988 and created a new facet in their evolving relationship with the Bureau of Indian Affairs.

Over time, the Bureau of Indian Affairs began to disengage from many tribal governmental processes, as tribes began to insist on making their own decisions on internal tribal matters. Recent legislation reflects further adaptations to the modern federal trust responsibility. For example, the Indian Self-Governance Act effectuated another shift in the tribal-Bureau relationship, authorizing tribes to request federal appropriations directly in order to allocate those resources in the manner they see fit.

Ultimately, the federal trust responsibility remains intact, even though the tribal exercise of sovereignty has fundamentally changed the federal-tribal relationship. During the last four decades, the concepts of tribal sovereignty and tribal nationhood have taken hold, and tribes themselves have begun to define and assert their sovereign authority in many arenas, including tribal land acquisition.

The contemporaneous federal trust responsibility is at issue in a class action lawsuit that alleges that the federal government mishandled millions of dollars held in trust for tribal members, and the government is being held accountable for its failed trust responsibility. In Cobell v. Norton, the plaintiffs allege that the federal government failed to act appropriately as the “trustee” for the entrusted property and resources of individual tribal members; the entrusted resources includes allotted trust lands and the income from those trust lands (which are placed into “Individual Indian Money Accounts” or “IIM

Accounts”). During the course of that litigation, federal officials have acknowledged that ancient and sloppy record-keeping systems have resulted in the government’s inability to

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keep track of what it owes each individual tribal member, as well as to serious mismanagement of the Indian trust fund.2 In an effort to address the underlying issues

raised by the Cobell litigation, the Bureau of Indian Affairs has created the Office of

Trust Reform. Public access to the Bureau’s website and e-mail servers has also been

restricted in response to that litigation, which effectively prohibits access to certain

records, such as reports on the status of Indian trust lands.

Indian Land Consolidation Act

Proper management of the fractionated property interests in the trust lands represents

a critical aspect of the federal trust responsibility regarding Indian land tenure and

acquisition, and Congress has attempted legislative solutions that address fractionated

ownership of the allotted Indian estate. The Indian Land Consolidation Act of 1982 was

generally intended to reverse the effects of the allotment policy and to prevent further

fractionation of the Indian land base.3 It was designed to consolidate fractionated

ownership interests in allotted lands into usable parcels of land, and to consolidate

fractionated interests into tribal trust status, thereby enhancing tribal sovereignty. Section

207 allowed tribes to consolidate fractionated ownership interests of 2% or less.

However, Section 207 was subsequently ruled unconstitutional by the Supreme Court—

the first time in 1987, and the amended version, in 1997.4

Subsequent amendments in 2000 were intended to correct the constitutional

problems raised by the Supreme Court. Those amendments limited the inheritance rights

of non-tribal members which resulted in a “rush on fee patents,” as many tribal members

applied for fee patents on their fractionated interests to ensure that their children, many of

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whom are not enrolled tribal members, would inherit their trust estate.5 The American

Indian Probate Reform Act of 2004 was intended to address some of those issues relating

to inheritance rights.6

Indian Land Consolidation Pilot Program

An administrative solution was implemented to address the fractionated ownership

issues, and Congress appropriated $5 million in 1998 to fund the program. The “Indian

Land Consolidation Pilot Program (ILCPP),” also referred to as the “Buy-Back

Program,” was designed to facilitate tribal purchases of fractionated ownership interests

within their respective reservations.7 The Bureau’s Midwest Regional Office created and

developed the ILCPP, and designed the implementation processes. The program was later

codified pursuant to the 2000 amendments of the Indian Land Consolidation Act.8 The

ILCPP goals are to consolidate fractionated ownership of trust lands, reduce the

administrative costs of managing the fractionated ownership interests, and determine the

willingness of the owner/heirs to sell their interests. The Midwest Regional Office

continues to be responsible for program implementation and oversight.

Three Ojibwe tribes in Wisconsin were initially selected to participate in the Indian

Land Consolidation Pilot Program, including Bad River, Lac du Flambeau, and Lac

Courte Oreilles. Later, both the Fond du Lac Band and the Leech Lake were also selected. The tribal personnel who implement the ILCPP suggest that the program does not solve the fractionated ownership issues. The Bureau maintains strict control of the program, yet the Bureau is not equipped to process all of the land-into-trust transfers relating to the purchase of fractionated interests, and many are left to languish.

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Furthermore, the program does not allow for consolidation of fractionated interests within families or for individual tribal members.

Tribal Land Acquisition and land-into-trust regulations

As previously noted, it is articulated federal Indian policy to strive for stabilization of the tribal land base, and tribal land acquisition is a key aspect of that policy. The tribal land acquisition provisions of the Indian Reorganization Act continue to govern tribal acquisition of trust lands, and those provisions are embodied in the federal land-into-trust regulations. As set out in the regulations, the land-into-trust process provides the only method for tribes to acquire lands and place them into trust status. Tribes today utilize the land-into-trust acquisition process in their efforts to reclaim some of their lost lands, to strengthen their territorial land base, and to achieve self-sufficiency and sovereignty.9

The land-into-trust regulations have become increasingly restrictive, however, which seriously constrains tribal land acquisition efforts. Seventy years ago, it was federal

Indian policy to address the severe problem of Indian land loss and repair that devastation

and, ironically, that policy now governs today, as well.

The land-into-trust regulations provide procedural guidelines for the Secretary of the

Interior to evaluate and process applications to transfer land-into-trust on behalf of either

an individual tribal member or a tribe. The first such regulations were adopted in 1980.10

Those regulations were subsequently modified in 1985 in response to a federal court case that challenged the constitutionality of the underlying legislation.11 The 1985

amendments created additional restrictions to the process for trust land acquisitions. In

1999, additional amendments were proposed to the land acquisition regulations that

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would have further restricted tribal acquisitions of land-into-trust; however, those amendments were later withdrawn by the Secretary of the Interior.12

The current land-into-trust regulations provide for the acquisition of lands for a tribe

in trust status in specified circumstances. Tribes may transfer lands into trust if the land is

located within, or adjacent to, the reservation boundaries, or if the land is located within a

“tribal consolidation area.” In addition, lands may also be acquired for a tribe in trust,

when the tribe already owns an interest in the land or when the Secretary determines that

the land is necessary for tribal self-determination, economic development, or tribal

housing.13 The current regulations also provide that lands may be acquired for an individual tribal member in trust status, when the land is within reservation boundaries, or adjacent to, and when partial interests in the land are already in trust status.14

In the 1985 amendments, criteria were established for the Secretary to utilize in evaluating proposed land-into-trust acquisitions, differentiating between lands located on or off a reservation.15 Additional criteria were established to evaluate off-reservation land

acquisitions.16 Provisions were made for a “notice and comment’ period, and for

objections and appeal rights, for state and local governments on proposed land transfers.17

State and local governments with regulatory jurisdiction are now allowed to comment on the “potential impact[s] on regulatory jurisdiction,” including the impact on real property taxes and special assessments of proposed land-into-trust transfers. Once submitted, the

Bureau must allow the tribe to either respond to the comments, or request an immediate

Secretarial decision.18

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Attorney Dough Nash has suggested that the current land-into-trust regulations violate the Congressional intent of the Indian Reorganization Act, and that that the transfer of tribal lands-into-trust under the current regulations has largely become a

“fiction.”19 Nash examined Cass County v. Leech Lake Band of Chippewa Indians, in which the taxation of tribally-owned lands held in fee status was at issue.20 In that case,

the Leech Lake Band asserted that reservation lands reacquired by the tribe, but still held

in fee status pending a trust transfer, were not subject to local and state taxation. The

purchased lands were considered “surplus lands” under the Nelson Act and had not been allotted. Cass County disagreed, as did the Supreme Court. The Supreme Court concluded that “when Congress makes Indian reservation land freely alienable, it manifests an unmistakably clear intent to render such land subject to state and local taxation.”21

The basis of Nash’s argument is that the legislative authority has been left within the

discretion of the Secretary of the Interior, who has developed such stringent regulations

that they serve to chill tribal fee-to-trust transfers, because the regulations 1) are very

complicated; 2) appear to favor state and local interests over tribal interests; and 3) there

is a “regulatory bias” against taking lands into trust that are located off-reservation.22

Nash concludes:

The process should not be this complicated nor should it contain a bias against

applications or a bias in favor of state and local governments. The history

common to most tribes puts Indian Tribes and people in the ironic position of

having to purchase what was once their traditional homelands. Those

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homelands typically extend far beyond current reservations. Having land

taken into trust within those traditional homelands should be a right afforded

to Indian tribes and people.23

Under the current regulations tribal land acquisition has become a slow and

adversarial process. The land-into-trust provisions result in prolonged delays with the transfer process, and the Bureau has since slowed the land-into-trust process nearly to a stop. It appears that the tendency of the agency is to allow the transfer applications to

languish while objections are made, and generally fail to finalize the transfer process

once the objections have been made and answered. The slow and adversarial land-into-

trust process has created significant challenges for tribes as they attempt to stabilize their

land base. As I have previously summarized:

As tribes confront the policy issue surrounding their land base and

develop strategies to strengthen their territory, the IRA-authorized

land-into-trust acquisition program can, and should, continue to provide

a meaningful opportunity to do so. However, tribes must closely monitor

many different political, judicial, and administrative arenas in order to

engage in potential decisions that may affect the land acquisition program.

The political and legal opposition to these types of acquisitions, and the

governing regulations that continue to be modified and restricted, create

chilling effects on tribal attempts to utilize the land acquisition program.

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The preservation and protection of the land acquisition program would

certainly serve tribal interests nationally. In addition, tribal land strategies

should also include an ongoing exploration of other potential methods to

acquire land, in addition to the land-into-trust acquisitions.24

The general failure of the Bureau to transfer tribal lands-into-trust has certainly

chilled tribal ability to purchase additional lands, as tribes pay local property taxes on

lands purchased but not yet placed into trust status. According to Doug Nash, “many

tribal nations are paying a combined millions of dollars in property taxes waiting for the

Department of Interior to approve/complete fee to trust applications.”25 As the case study

evidences, both the Grand Portage and Leech Lake Bands are caught in that jurisdictional

and financial predicament; for Leech Lake, in particular, the bulk of their purchased lands

have not been transferred into trust status since 1990, while the Band is forced to pay

property taxes on those landholdings. Once the purchased lands are in placed in trust status, the exemption from local and state taxation applies and tribes are no longer

required to pay property taxes on those lands.

Another chilling effect of the general failure of the government to transfer tribal lands

into trust status is the impact upon tribal jurisdictional status, as the judiciary continues to

bolster a “membership-based” vision of tribal sovereignty, rather than a “geographically-

based” vision. As tribes exercise their sovereignty and jurisdictional authority, they must

have the appropriate means to enforce that authority within their territorial reservation

boundaries, and not just upon the tribal citizens residing within the reservation territory.

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Increased trust ownership of tribal reservation territories will strengthen their sovereign authority.

Public opposition to tribal trust lands acquisitions has generated legal objections, appeals, and litigation. State and local opposition to transfers of land-into-trust have been articulated in terms of economic fears, which include the fear losing lands from the existing tax base, fear of providing mandated government services without a corresponding tax base to support the services, and fear that the existing jurisdictional status quo will be modified. Exercising an over-active judicial imagination, one court articulated a fear of abuse by tribes, speculating that a Tribe could purchase lands anywhere based solely upon political interests, such as the purchase of the Empire State

Building for a political loyalist as a wedding present.

Enlivened public opposition is all brought to bear in the contemporary tribal land tenure and acquisition arena, and the land-into-trust processes occur within the context of broader public opposition expressed against tribal sovereignty. Many tribes actively assert their sovereignty in a broad range and scope of tribal government activities, including: the establishment of gaming and other business enterprises; establishment of schools and colleges; the provision of tribal health and social services; the adoption of codes and laws, such as zoning and land use regulations; and, the development of tribal judicial and law enforcement systems. Tribal sovereignty is considered politically intolerable by many in the general public, and it is within that context that tribal neighbors and local governments actively resist attempts by tribes to strengthen their territorial land base.

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A court case involving local opposition to tribal land acquisition encapsulates both the tone and tenor of those arguments, and provides a keen glimpse into evolving judicial interpretations of the land acquisition provisions. In South Dakota vs. United States

Department of Interior, South Dakota joined with a local city government to object to the acquisition of a 91-acre parcel by the Lower Brule Sioux Tribe for use as an industrial park.26 The State and city argued that the land-into-trust acquisition provisions of the

Indian Reorganization Act were unconstitutional. During the course of that litigation,

which was heard by the Eighth Circuit Court of Appeals and later brought to the Supreme

Court, judicial concerns were raised over the land-into-trust provisions. It was also during

the course of the South Dakota case that the 1985 amendments were adopted, and the

newly tightened restrictions addressed some of those judicial concerns, ultimately

impacting the final outcome of the case.27 Based upon those newly modified regulations, the United States Supreme Court vacated the appellate court judgment and remanded the case back for reconsideration.

In South Dakota vs. United States Department of Interior, the Court of Appeals broadly interpreted the Congressional delegation of authority to the Secretary of the

Interior over the land-into-trust acquisitions. The judicial intolerance for the federal policy of purchasing lands for Indian tribes in trust became apparent, as that Court found there to be no limits on the tribal land acquisition mandate, concluding that the Indian

Reorganization Act tribal land acquisition provisions permitted the Secretary of the

Interior to “purchase the Empire State Building in trust for a tribal chieftain as a wedding

present,” or “provide a lake home for a politically faithful tribal officer.”28

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The majority of the appellate court makes it clear that, in its opinion, Congress must reconsider and re-evaluate the federal policy of tribal land acquisitions. However, a strong dissenting opinion was registered by Judge Murphy in the South Dakota case.

Murphy argued that the majority opinion failed to give proper judicial deference to

Congress, the branch of government that is authorized to adopt federal policy on tribal land acquisitions. Furthermore, Murphy took judicial aim at the majority’s fears of potential abuse of the Secretary’s authority to take land-into-trust, arguing that their fears were neither relevant, nor based on the record:

Plaintiffs’ allegations raise state and local concerns relating to taxation and

regulation of land and possible gambling operations. These concerns appear to

have influenced the majority, but they are not directly relevant to the

constitutional analysis. Whether federal policy should support the taking of

land into trust for Indian tribes is up to the other branches of government, not

the judiciary.”29

Murphy’s sharp analysis brings some objectivity and balance to the judicial discourse

regarding tribal land acquisition, as she keenly observed that undue influence had been

brought to bear in the case and unjustifiable consideration was thus given to the local

fears of losing jurisdictional and taxing authority. The majority opinion illustrates the

scope of negative public opinion regarding tribal land acquisition, and how those public

perceptions become ingrained within the fabric of our legal institutions and seep into

judicial attitudes and interpretations of the law. The judicial tone and rhetoric in the

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South Dakota decision is indicative of the chilly Indian land tenure environment that tribes operate in today.

Within that Indian land tenure environment, tribes have continued to prioritize land acquisition and consolidation and have assumed an increasingly active role in those efforts and assuming control over many aspects of Indian land tenure and acquisition.

Without assistance from the Bureau, for example, tribes have begun to purchase lands outright. Tribes are also participating in federal Indian land consolidation programs, as part of their broader efforts. The driving force behind tribal efforts to stabilize their tribal land base is the need to provide for the future sustainability of the tribal nations, and the understanding that “the tribes’ land bases are the linchpin to tribal existence and autonomy as sovereign nations.”30 As is demonstrated in this case study, tribes will pursue the purchase or acquisition of even the smallest parcel of land in their larger efforts to reclaim ownership of their reservation territories. As Kickingbird and

Ducheneaux observed, “Indian people feel that reclaiming even a little land is the highest task they can undertake.”31

In addition to tribal efforts, other Indigenous strategies have been developed to

response to the complex Indian land tenure issues and the scarcity of an adequate

Indigenous land base. Non-profit agencies have organized and formed to address

contemporary Indian land tenure issues, such as the Indian Land Working Group

(ILWG). The ILWG was established in 1991 to assist tribes, Indian individuals, and

Indian landowner associations to resolve problems stemming from fractionated

ownership of allotted Indian land. One of the Group’s strategic goals was to share

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knowledge and ideas on how to address Indian land tenure problems associated with mixed land ownership of Indian homelands. Towards that effort, the Indian Land

Working Group sponsors an annual symposium which addresses shared Indian land tenure issues across Indian country; the Indian Land Working Group also produces educational materials, provides technical assistance, and assists in the development of legislation addressing Indian land tenure issues.32

In 1999, the Indian Land Working Group examined Indian land tenure issues

within an eight-state region, including Minnesota. As part of that project, funded by the

Northwest Area Foundation, research was conducted and data gathered on the original

acreage size of the reservations within the region, and the acreage amounts of land under

tribal and individual trust ownership.33 The research results were published in 2001 as part of the “Indian Land Tenure Partnership Plan,” an action plan developed to address

the severe economic impact of diminished land ownership upon tribal nations, and it was

premised on the belief that “Indian people’s survival depends on land ownership”34 One of the tenets of the Plan was that “increased ownership of trust land and increased management, both control and use by Indians, are key elements to create wealth for

Indian people.”35

The end result of theIndian Land Tenure Partnership Plan was the establishment

of the Indian Land Tenure Foundation, a non-profit entity that was created to achieve the

following vision:

a long-term, sustainable, locally driven mechanism to acquire

lands of our Indian people that will help tribal economies, culture,

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and sovereignty. Land is a limited resource and must be used for

the long-term health of the people and the various resources. A

government trustee from far away should no longer make decisions

from across the nation or in a state capital. We must educate our

Indian leaders so they can help the community to build and improve

our way of life for the future. It is our decision to make, moving into

new partnerships, adopting new ways of thought, boldly speaking a

phrase that has worked for thousands of years on this land: When we

take care of the land it takes care of us.36

The Foundation’s Mission is to “ensure that all land within the original boundaries of

every reservation and other areas of high significance where tribes retain aboriginal

interest are in Indian ownership and management.”37 To effectuate its mission and to

strive toward its vision, the Indian Land Tenure Foundation engages tribes, tribal and

Indian land-related organizations to educate, encourage, and empower Indian landowners,

utilizing four general strategies: 1) promote education; 2) discover cultural wealth; 3) grow economic assets; and, 4) reform legal mechanisms.38 The Indian Land Tenure

Foundation provides grant funds to assist in the development of educational materials and curriculum on Indian land tenure, and to establish quality information on Indian land tenure.39

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Clearly, there is a direct connection between tribal ownership of land within their territories and a tribes’ political ability to exercise its maximum sovereign strength and provide for the needs of the tribal community. Despite the lack of federal engagement and a lackluster approach to stabilization of the Indigenous land base, “some tribal governments have been able to take effective political action, depending upon the extent to which their respective land titles allow them to exercise self-government over certain land.” 40

The era of self-determination is considered to be improved federal Indian policy and a

positive change for tribes, and the national Indian land tenure narrative shows a slight

advancement since termination. The aggregate status of Indian land tenure nationally was

53.4 million acres of Indian land holdings in 1960, which decreased to 51 million acres

by 1974.41 However, the Bureau of Indian Affairs reported that Indian trust landholdings

had increased to 53.6 million acres by 1985, and increased again to 55.7 million acres by

1997.42

Self-Determination at the Grand Portage and Leech Lake Reservations

The Grand Portage and Leech Lake Bands are both engaged in the exercise of

sovereignty, as they build their communities, generate their own economic revenues, and

increase their communal expertise and knowledge in many areas. As they build for the

future, the Bands strive to ensure an adequate land base, and are doing so, despite limited

assistance or resources from the Bureau of Indian Affairs. From the Bands’ perspective,

the Bureau’s role in tribal land acquisition has been steadily reduced since 1960, and

serves tribal needs now in a minimal capacity. During the 1970s, the local Bureau agency

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continued to purchase lands and fractionated ownership interests, on behalf of tribes. The

Bureau essentially handled, and paid for, all of the work associated with tribal land acquisitions on behalf of the tribes. At that time, the Bureau ordered and paid for the abstracts of title and the title opinions, administered all aspects relating to the land transactions, and funded the purchase of lands and fractionated ownership interests.

Once purchased, the Bureau automatically transferred those lands-into-trust status on behalf of the Tribe or the Band.43

A shift occurred in the 1980s, as the Minnesota Agency began to transfer

responsibility for land acquisitions to the tribes and incrementally withdrew tribal land

acquisition funds, staff, and resources over a period of years. Eventually, the Bureau quit

funding tribal land acquisitions but continued to handle the associated paperwork.44 By

1990, the Bands were funding virtually all the expenses associated with tribal land

acquisitions, and were providing their own legal counsel to handle the land transactions,

and they were handling all of the associated paperwork, as well. The Bureau had stopped

funding tribal land acquisitions due to budgetary concerns, and stopped handling the land

transaction paperwork due to a serious lack of expertise within the Bureau, according to

Annabell Kingbird, Realty Specialist for the Leech Lake Band of Ojibwe and former

Realty Specialist for the Minnesota Agency.45 The end result of that shift is that Band

resources are now burdened with facilitating land acquisitions, including the appraisals,

abstracts of title, and legal counsel and fees. Also, the Bands are burdened because the

transfers of land-into-trust used to be done automatically, but are now nearly impossible

to obtain.

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The differences in land tenure status between the Grand Portage and the Leech Lake

Reservations were well established by 1960, as the Grand Portage Band entered the self- determination era in a much better land tenure situation than did the Leech Lake Band, and was also better positioned as compared with the national Indian land tenure history.

The Grand Portage Band has continued to have great success in tribal land acquisition from 1960 to the present. By 1962, 41,557 acres of the Grand Portage Reservation were under Ojibwe trust ownership.46 That amount slowly increased over the next twenty years, reaching 44,765 acres of Indian trust land by 1985.47 And, by 2001, 45,882 acres,

or 81%, of the 56,512 acre Grand Portage Reservation were held in Ojibwe trust

ownership.48 In 2006, the Grand Portage Band reported that there were 44,477 acres of

trust land within the reservation, including 38,239 acres held in trust for the Tribe or the

Band, and 6,238 allotted acres in fractionated trust ownership.49

In 2006, the Grand Portage Band also reported that the acreage size of the reservation

was 48,568 acres.50 However, there is ambiguous data on the acreage size of the

reservation, and the amount reported by the Band conflicts with the generally reported

acreage amount of 56,512 acres. As previously noted, the generally reported figure of

56,512 acres has been used for purposes of this study. That ambiguity illustrates the need

for clarity in Indian land tenure records, and the need for tribes to reclaim those records.

Throughout the self-determination era, the Grand Portage Band has remained intent

upon acquiring ownership of all the land within the reservation territory, and has utilized

various strategies for land acquisition. It is apparent that the Grand Portage Band made

some deliberate and considered policy choices regarding land acquisition, use, and

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management within their reservation territories. According to the Grand Portage Tribal

Council, the Band has always resisted development within their reservation territory, and the Band’s land purchasing and use intentions are embodied within their Land Use

Ordinance, which restricts or strictly prohibits development on the majority of the land within the territory.51 As a political and policy choice, the Grand Portage Band has

resisted development, even though the Tribal Council collectively acknowledged that the

Band “could make a fortune” leasing lakeshore lots on Lake Superior.52

There also appears to be clear consensus among the Band’s leadership that

Ojibwe trust ownership of the entire reservation land base is a necessity and a top priority

for the Grand Portage Band. As the members of the Grand Portage Tribal Council

discussed the Band’s reasons for land acquisition and specific needs for land in 2003,

they spoke of the Band’s need for land ownership, access, and control over lands in order

to gather medicinal plants necessary for traditional healing.53 They also spoke of the need

for large, expansive territories to sustain the large game population, and acknowledged

that land development negatively impacts the sustainability of large game animals, citing to when the moose were driven further away by previous land development.54 The

Council members collectively articulated their vision of complete ownership of their

reservation land base, equating it to “freedom” and an assurance that the land will always remain in Ojibwe ownership. As Tribal Council member Kenneth Sherer expressed that

collective sentiment, the Band strives to “control the land, control the future.”55

The Grand Portage Band has formalized its preservation and conservation policies in the Grand Portage Land Use Zoning Ordinance, which was adopted in 1995. Through its

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Land Use Ordinance, the Band sets the policy tone for land acquisition, use, and management by promoting preservation and conservation, and asserts its jurisdictional authority to control economic development through restrictions on development and leasing.56 The Band has essentially codified their policy choice regarding the use of the

land under their ownership, use, and control, which is to preference preservation and

conservation over development.57 The Band’s policy choice is eloquently stated in the

Land Use Ordinance, “[T]he Grand Portage Band believes in the inherited responsibility

of perpetual stewardship of the land and the ancestral ties that link people with past

generations. Land use management under the jurisdiction of the Grand Portage Tribal

Council is intended to reflect those governing Ojibwe values.58 It is interesting to note that Cook County favors the Band’s Land Use Ordinance, and that county has adopted ordinances which reinforce the Grand Portage ordinance, indicating a cooperative working relationship.59

Highlights of the most significant Grand Portage events that have impacted the

Band’s land tenure and acquisition since 1960 are discussed herein. The population

within the Grand Portage Reservation in 2006 was approximately 518 people, of whom

approximately 50% are Band members.60 The 1982 correction and expansion of the

reservation boundary was the most significant development in the land tenure history of

Grand Portage. Under the authority of the Indian Reorganization Act, the Assistant

Secretary of Indian Affairs proclaimed certain lands to be part of the Grand Portage

Reservation, including the Pigeon River arrowhead area, expanding the reservation

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boundaries as lands were “added to and made a part of the Grand Portage Indian

Reservation.”61

That boundary expansion was based upon an historical error that occurred when the

Grand Portage Reservation boundary was originally established. The Band had

consistently asserted the historical error, and it was the Grand Portage Band who

prompted the 1982 boundary correction, according to the Grand Portage Chairman

Norman Deschampe. The Band based its assertion on the collective historical knowledge

and understanding within the Band regarding the 1854 treaty and the Pigeon River

arrowhead area. The Band understood that the Pigeon River arrowhead area was

originally intended to be included within the boundary of the Reservation at the time of

its establishment, but that the area had somehow been overlooked.62 The 1982 boundary expansion increased the area of the Grand Portage Reservation to its present day size of

56,512 acres, which resulted in an increase in the overall Indian trust land acreage, as the newly acquired lands were transferred in trust for the Grand Portage Band (See Appendix

I for copy of the 1982 Proclamation).63

Another significant development occurred in 1991, when the Grand Portage Band

established the Grand Portage Lodge and Casino, the largest employer in Cook County, according to the Band. That gaming enterprise began to generate new revenue for the

Band, and some of those revenues have been allocated to the Band’s land acquisition efforts. Since the gaming business was started, the Grand Portage Band has accelerated land purchases as opportunities arise in a concerted effort to acquire 100% ownership of the land within the reservation.

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The Band also enjoys cooperative relationships with the local county and state governments, and with the Minnesota Agency of the Bureau of Indian Affairs. The

Grand Portage Band has taken advantage of its good working relationship with the local county government and other interested stakeholders in order to maximize land acquisitions within their reservation territories. The Grand Portage Tribal Council reported that the Minnesota Agency plays a “supportive” role in facilitating land acquisitions, and that the Council has an excellent working relationship with Cook

County.64 In fact, the Band and the County collaborate on various projects, such as

sharing resources to build the Heritage Center.65 The Grand Portage Band also has joined

with the state to accomplish land acquisition projects, such as the joint effort to secure the

transfer of the Grand Portage State Park to the Band, as well as the Mineral Center

Cemetery.66

The acquisition of the 300-acre Grand Portage State Park presents an interesting and

innovative approach to tribal land acquisition. The Grand Portage State Park is located at

the easternmost tip of Minnesota on the Grand Portage Reservation, and is seven miles

northeast of the village of Grand Portage, lying on the international boundary of Canada

and the United States. At his death, the owner of the park land passed the land to his heir, who decided to sell the land. At the time, a Minneapolis investor was interested in purchasing the property, as was the Grand Portage Band. The Band, however, did not

have sufficient funds to purchase the land. The State of Minnesota stepped in and

purchased the land on behalf of the Grand Portage Band, ultimately transferring

ownership to the United States in trust on behalf of the Grand Portage Band in 1989.67

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This was an unusual, yet uniquely practical, solution to preserving the 300-acre pristine tract of park land. A great deal of cooperation between the Grand Portage Band and the State of Minnesota was required to accomplish this land transfer. The Grand

Portage State Park was established in 1989 through cooperative efforts of the State of

Minnesota and the Grand Portage Band, and is the only state park that is not owned by the State of Minnesota. In fact, the land is held in trust by the United States on behalf of the Grand Portage Band, and the Bureau of Indian Affairs leases the land to the State of

Minnesota. The development and operation of the Park are managed by the State’s

Department of Natural Resources, through the Division of Parks and Recreation.68

In order to accomplish this feat, a 50-year lease was executed by the Band to the State for establishment and operation of the Grand Portage State Park, and a joint committee of

Band, State, and County representatives was formed to establish the Park and establish the working relationship between all parties.69 One of the tasks of the committee was to ensure that Bands members were able to work at the State Park into the future.70 In fact,

the joint committee negotiated with the state employee’s union to establish a new

category of state employee, the “Grand Portage” employee, in their efforts to ensure that

Grand Portage Band members would have employment opportunities at the Park.71 In

1991, the Grand Portage Band executed a co-management agreement with the State of

Minnesota’s Department of Natural Resources, articulating an agreement regarding the

management of the Grand Portage State Park.

In a similar strategy, the Grand Portage Band successfully acquired over 900 acres

from the Nature Conservancy, on October 12, 1990.72 The Band leveraged its cooperative

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abilities again in 2002, when the Grand Portage Band worked with Cook County in order to secure a land transfer of the Mineral Center Cemetery to the Band. Originally established in 1920, the Mineral Center Cemetery was a public cemetery that had been abandoned for years; Cook County eventually assumed ownership over the cemetery.73

Prior to 2002, Cook County had previously conveyed the small tract of land next to the cemetery, where the rectory was located, to the Band.74 Cook County wanted to convey

the cemetery tract of land to the Grand Portage Band, but special State legislation was required to authorize such a transfer. Together, Cook County and the Grand Portage Band lobbied the state legislature and secured the requisite legislation, and Governor Ventura signed the law authorizing Cook County to transfer the Mineral Center Cemetery to the

Grand Portage Band on March 14, 2002.75 The Grand Portage Band thereafter applied to transfer the tract of cemetery land into trust status in 2003.76

In addition to the successful land acquisitions discussed above, the Grand Portage has also engaged in the outright purchase of lands over the last four decades. The Grand

Portage Band has a designated attorney on retainer who provides legal counsel for the

Band on land acquisitions and transfers into trust status.77 Since 1990, the Grand Portage

Band has purchased 20 parcels of land and applied for land-into-trust transfers, which were pending as of 2003.78 The Grand Portage Band was required to pay approximately

$20,000 in property taxes on those 20 parcels of purchased lands, while the fee-to-trust

transfer remained pending.79 According to Laura J. Smith, there were 660 acres of land

transferred into trust status on behalf of the Grand Portage Band during the period from

1992-1998, with a total market value of $1,253,800.80 That Band has also been

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purchasing fractionated interests in the allotted lands, especially the interests of tribal members willing to sell, in the broader effort to consolidate the Band’s title in those lands.81

In the ongoing efforts of the Grand Portage Band to attend to land tenure issues, the

Band has established a project in partnership with the Indian Land Tenure Foundation to

develop a Grand Portage land tenure history information system. One of the main

purposes of the “Grand Portage Land History Project” is to gain ownership of the history

of the land within the Grand Portage reservation territory. The website of the Grand

Portage Land History Project contains history, timeline, maps, and more information

regarding the land tenure history of the Grand Portage Band.82 The Project is an excellent step for the Band, as acquiring the land records is essential to effective tribal land acquisition, use, and management. The following Indian land tenure data were taken from the Grand Portage Land History Project website in 2006, and a map showing the current status of the allotted lands is presented below:

6,238 acres Allotted lands; fractionated interests in trust status 38,239 acres Tribal or Band trust status 1,250 acres Owned by State or federal government 1,000 acres Privately owned 1,898 acres Recent purchases by Grand Portage Band; pending trust transfer 48,568 acres Total reservation acreage83

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Map 8. Grand Portage Allotment Status, Current SOURCE: Grand Portage Land History Project (2006).84

The success of the Grand Portage Band in their tribal land acquisition efforts can be attributed to consistent efforts by the Band to pursue tribal land acquisition, beginning with the Indian Reorganization programs. The Grand Portage Band has also developed innovative partnerships, and seized land acquisition opportunities with the local county, with the State, and with private land trust organizations. The 1982 boundary expansion can be credited to the efforts of the Grand Portage Band, and its good working relationship with the local Bureau agency. Ultimately, one of the primary factors of success for the land acquisition efforts of the Grand Portage Band has been the collective and consistent focus on tribal land acquisition within the leadership of the Band.

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Leech Lake Band

The Leech Lake Band of Ojibwe entered the era of self-determination with little reservation land under Ojibwe ownership, and the Indian land tenure experience of the

Leech Lake Band presents a more typical history within the national Indian land tenure narrative. As noted earlier, the Grand Portage represents more of the exception to the rule within the national Indian land tenure narrative due to its remarkable recovery of over

80% of their reservation land base. In this contemporary era, the differing impact of prior federal Indian policy upon the land tenure histories of the Grand Portage and Leech Lake

Bands is clearly distinguishable.

In fact, by 1962 there were only 23,720 acres in Ojibwe trust ownership at Leech

Lake, which is a mere fraction of the reservation’s total 677,099 acreage.85 By 1985, a

small increase brought the total to 27,579 acres of land-in-trust within the Leech Lake

Reservation.86 By 2001, there was still only a mere fraction of the total acreage in trust, as only 28,013 acres, or 4%, of Leech Lake reservation land was held in trust status.87 By

2001, the Leech Lake Band had also purchased an additional 4,000 acres of land, but those lands remained in fee status, pending a land-into-trust transfer. In 2006, the Leech

Lake Band reported that there were 29,717 acres of land-in-trust, which included 13,545 acres held in tribal trust, 3,663 acres held in Band trust, and 12,509 allotted acres held in fractionated trust ownership.88 The combined total of the Indian trust lands and the

purchased lands held in fee status represents Ojibwe ownership of less than 5% of the

Leech Lake Reservation. Map 9 below depicts the current trust lands within that

reservation.

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Map 9. Current trust lands within Leech Lake Reservation

SOURCE: This map was created by the Leech Lake Band of Ojibwe, Division of Resource Management (2006).89 NOTE: The map highlights the allotted trust lands (highlighted in dark blue), the lands held in trust for the Band (highlighted in orange), and the lands held in trust for the Tribe (highlighted in red).

The small percentage of Indian trust land makes it painfully obvious that the Leech

Lake Band faces enormous land acquisition challenges today. The Leech Lake Band also

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faces a full slate of related issues surrounding their efforts to reclaim ownership of their reservation land base, including opposition, objections, appeals, and persistent taxation issues. Taken together, those Indian land tenure realities demonstrate that the Leech Lake

Reservation remains a more contested territory than Grand Portage today.

Within that Indian land tenure reality and facing a huge unmet need for land, the

Leech Lake Band has continued its efforts to acquire additional lands. As the Leech Lake

Band has increased its role in tribal land acquisition, the Bureau’s role has been proportionally decreased. Particularly in the case of Leech Lake, the evidence indicates that the Bureau provides little assistance in land acquisition efforts, specifically in the realm of funding for land purchases, legal preparation relating to land transactions, and processing of the applications to transfer lands-into-trust. Furthermore, the governmental relations of the Leech Lake Band with Stat and local governments are strained over issues of taxation, economics, and jurisdictional issues, which have created additional land acquisition challenges for the Band. The Leech Lake Band has established three casinos that generate revenue to provide for land acquisition, but have also generated increased public angst towards the Leech Lake Band over tribal sovereignty and jurisdiction, taxation, and tribal land acquisition.

One of the Indian land tenure realities for the Leech Lake Band is that significant federal, state, and county landholdings within the reservation boundaries inhibit land acquisition by restricting the amount of available land. As previously discussed, the

Chippewa National Forest is an expansive territory within the Leech Lake Reservation that is owned by the United States government that now encompasses 285,824 acres,

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according to the Leech Lake Band in 2006.90 The reality is that the United States government has monopolized the ownership of over 42% of the Leech Lake Reservation.

Those federally-owned reservation lands are generally not available for acquisition, which inhibits adequate and effective land acquisition for Leech Lake.91 Furthermore, the State of Minnesota owns 146,061 acres of Leech Lake reservation lands, in addition to the 30,983 acres owned by four county governments, according to the Band.92

Together, the lands owned by the federal, State, and local governments total 462,868 acres, which means that nearly 70% of the reservation lands are not readily available for acquisition. The evidence indicates that the State and county lands are somewhat more available than the federally-owned lands.

Despite the realities of the land tenure situation described above, tribal land acquisition remains a top priority for the Leech Lake Band, because there is an extreme need for land within the Band. Lands are needed for cultural resources and access, for economic development, governmental services, environmental protection, educational facilities, and other societal needs. One example is the 30 acres of land purchased by the

Band which now serves as the campus for the new Leech Lake Tribal College.93 The

Leech Lake Band is also interested in reclaiming lands such as cemeteries, and other lands of significance to them.

The most urgent need for land is suitable and adequate land for housing. According to Pauline Johnston, Leech Lake Land Director, there is an extreme shortage of lands for housing needs, and the Band is desperate to purchase decent land to build homes for

Band members. According to Johnston, there are over 600 individuals currently on the

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housing waiting list, and over 300 are waiting for homesite leases. Although the Band has purchased numerous small parcels of land, many are simply not suitable for building construction, but are considered valuable for other reasons.94

Since 1970, the Leech Lake Band has prioritized land purchasing and acquisition, and

has allocated resources towards that effort. As they established gaming enterprises, the

Leech Lake Band became positioned to allocate resources for land acquisition. Currently,

the Leech Lake Band operates gaming casinos in Deer River, Walker, and Cass Lake, and

those economic ventures have generated much-needed tribal resources to address

historically-unmet needs, including land acquisition. In fact, the Band annually allocated

approximately $1 million for land acquisition between 2000 and 2004, demonstrating the

Band’s commitment to land acquisition. In addition, land acquisition policies were

drafted, and a Land Acquisition Committee was created to assist in the land acquisition

process.95

The lands purchased since 1970 by the Leech Lake Band were intended to address a

variety of tribal land needs, such as housing, economic development, and government

infrastructure, and cultural needs. The data presented in Table 6-1 below demonstrates

the land acquisition activity by that band in the self-determination era, and the lands purchased are categorized according to their intended use at the time of the purchase. The data reveals that 141 parcels of land were purchased between 1970 and 2002,

encompassing 4,038 acres. The need for suitable land for housing clearly emerged as the

top priority, as that category represents 54% of the lands acquired.

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Table 6-1 Leech Lake Land Acquisition, 1970-2002

Intended No. parcels Acreage % of Total Use Purchased involved Acreage Purchased Housing 64 2,199.04 acres 54%

Government 29 417.37 acres 10% Program needs

Economic 29 487.81 acres 12% Development

Multi-Use 1 327.00 acres 8%

Environmental Protection (natural state) 7 263.50 acres 7%

Recreational 2 114.60 acres 3%

Cemetery 3 75.79 acres 2%

Exchange 3 85.00 acres 2%

Other 3 68.00 acres 2% (cultural, lakeshore, water tower)

TOTAL PURCHASED 141 4,038.11 acres 100% (1970-2002)

SOURCE: Data are taken from “Leech Lake Land Department List of Lands Purchased Between 1970-January, 2002” (2004).96

The purchasing of land at Leech Lake is challenging, however, due to the market

forces that drive real estate prices. At present, the land within the Leech Lake Reservation

represents some of Minnesota’s prime real estate, and is known for its high-end

recreational opportunities, as many walleye fishermen and their technology-enhanced

fishing gear, and many deer hunters come to Leech Lake every year. In 2003, lakeshore lots of 3.2 acres on Leech Lake were listing for $800,000 and the homes on those lots

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were going for more than $1 million. As one realtor exclaimed, “Minnesota lakeshore is a hot commodity these days. There’s only so much lake shore in Minnesota. We can’t manufacture more, and so what little there is, is just bound to go up in price.”97 The

Leech Lake Band must compete with the prime real estate prices when negotiating a land purchase, which impacts the financial ability of the Band to purchase lands outright from private sources.

In addition to purchasing land, the Leech Lake Band has pursued other land

acquisition strategies alternatives to outright purchasing of land. For example, the Band

has successfully exchanged two parcels of land with Cass County, and those parcels

were placed into trust with no objections registered from the county to that transfer.98

Since 1993, the Band has also pursued a land transfer of a site that is located by the

Winnibigoshish dam, which is owned by the federal government and administered by

the Army Corp of Engineers. Fish ponds, or holding tanks, were originally built on the

site in 1949. The original ponds had become dormant, and the Leech Lake Band

acquired resources in 1993 to build new fish ponds at the site. The Band purchased a

portion of the pond site from the State for a nominal payment.99 The Band worked to

have the General Services Administration deem an adjacent 60 acre parcel to be “surplus

land,” which would then make the land available for transfer to another federal

department or agency. In the case of the “Winni Ponds,” the intention was to have the

lands transferred into trust on behalf of the Leech Lake Band, under the auspices of the

Department of the Interior. The proposed land transfer of the 60 acres of “surplus” land

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has languished within the General Services Administration, however, and the Band had

not been able to secure the transfer of that land into trust as of 2006.100

Another Leech Lake land acquisition strategy is the concerted effort to purchase

fractionated ownership interests in order to consolidate the Band’s ownership interests in

the allotted lands. There are large numbers of owners to the allotted lands and many of

them cannot be located or found. In fact, there are less than five original allotments that

do not have fractionated ownership issues today.101 The land tenure reality is that fractionated ownership renders much of the allotted lands unusable, and presents a tremendous challenge for the Leech Lake Band. One response of the Band was to begin participation in the Indian Land Consolidation Pilot Program in 2004. Since then, the

Band has prepared 20 applications to purchase fractionated ownership interests, and to transfer those interests into trust on behalf of the Band.102 An interesting note to the

fractionated ownership interest dilemma is that the local county governments now own

fractionated interest in the allotted lands also, primarily due to tax forfeitures.103

Another response of the Leech Lake Band was to assume the responsibility for many of the Bureau’s realty functions, including probates and wills, and consolidation services, under the terms of the Indian Self-Governance Act. Certain trust responsibilities cannot be delegated to tribes under that Act, including the final authority to approve and finalize land-into-trust transfers, and that authority still remains with the Bureau of Indian Affairs.

In the process of assuming the other realty functions, however, the Band has encountered obstruction from the local Bureau Agency, who often “[refuses] to provide the land data that the Tribe needs on both allotted and tribal lands.”104 For example, the

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Band prepares their own applications for land-into-trust transfers and submits them to the

Bureau for review and processing. However, their applications for trust transfer generally stall at the Bureau of Indian Affairs, and are not timely or effectively processed to completion, especially in cases where an objection is filed by a local or state entity. For example, in 2000 the Leech Lake Band applied to transfer 21 acquired parcels of land- into-trust of approximately 325 acres. The Bureau provided the notice and comment period to the proper entities of the Agency’s intent to acquire those lands in trust, however, none of those land-into-trust transfers have been processed to date.105 The

Bureau has indicated that they “do not have the personnel, nor the time, to process

[Leech Lake’s] requests.”106

The data indicates that the Bureau has processed few land-into-trust applications for

Leech Lake since 1996, although the Leech Lake Band has submitted applications that

were ready for approval. In November of 1999, the Band prepared a report that

summarized their pending land-into-trust applications; at that time, the Band had forty-

four (44) parcels of land pending a fee-to-trust transfer, encompassing 2,113.87 acres.

The Band also reported that the Band had purchased a total of 157 fractionated interests

from individual heirs, which had not been transferred into trust.107 The land-into-trust

process certainly appears to have become a fiction at Leech Lake, as the regulations are

essentially not being applied as intended to acquire lands in trust for tribes and to

stabilize their land base.

Since 1990, there has been consistent local and State opposition to Leech Lake’s

proposed land-into-trust transfers. The general basis for their objections is the claim of

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economic hardship and unfair burden imposed on other property taxpayers, who are forced to pay for the provision of government services to the beneficiaries of trust property, who do not pay property taxes. Cass County is the geographically largest county within the Leech Lake Reservation, and that county has taken the political lead against Leech Lake’s attempts to transfer newly-acquired lands back into trust status. The

Cass County litigation, discussed earlier, is evidence of the political determination of

Cass County to oppose any land-into-trust transfers and their removal from the tax base.

That litigation also demonstrates the willingness of Cass County to allocate its resources to push that agenda forward.

The position taken by Cass County was clearly articulated in a 2000 letter written by their attorney, Earl Maus, in a formal objection to a proposed acquisition of land-into- trust on behalf of the Leech Lake Band. Maus stated that “[i]t has always been the policy of the Cass County Board of Commissioners to oppose the changing of property status from fee to trust status. The continued erosion of the tax base without any reductions in the demand of services, places an unfair burden on the remaining taxpayers of the

County. We, therefore, are continuing our policy of opposing this transfer to trust status.108

Itasca County has followed the Cass County strategy, as that county opposed a

Leech Lake trust land acquisition. The Itasca County letter of objection indicated that

their Board of Commissioners supported a May 1996 policy opposing any net loss of

taxable acreage in Itasca County. The language of the Itasca County letter is nearly

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identical to the Maus letter, as the Itasca County Auditor/Treasurer Robert Zuehlke stated:

It is the policy of Itasca County to oppose the changing of property to non-

taxable status and that any exemption from taxation be narrowly

construed. The erosion of the tax base without any reduction in demand

for services, places an unfair burden on the remaining taxpayers of the

county. We therefore, are opposed to this transfer to trust status.109

The State has joined the cacophony of opposition against land-into-trust acquisitions.

In 1999, the State of Minnesota opposed a proposed Leech Lake trust land transfer. Diane

Drewry, General Counsel for the State of Minnesota, articulated the State’s policy regarding land-into-trust acquisitions:

It is the general policy of the State of Minnesota to oppose the changing of

property status from fee to trust basis. While each individual parcel of land

changing status may have only a small impact upon the tax base,

collectively the requests place an unfair burden on the remaining

taxpayers. The transfer of the land from fee to trust status leaves a smaller

number of taxpayers responsible for all law enforcement, fire protection,

social services, public health services, road construction, highway

maintenance and educational facilities for the area.110

Clearly, the positions staked out by the State and the local governments regarding

land-into-trust acquisitions are all based upon the same economic fears that unduly

influenced the South Dakota decision. In an obvious attempt to garner greater political

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support within the county constituency, for example, the Cass County Assessor reported in 2001 that the Indian trust land acreage in the county could yield $6 million in property taxes, if the county could tax those properties.111 One Cass County constituent, however,

took issue with the Assessor’s assertions, stating that the “information reflects a

speculation of what would happen if we were living in an entirely different reality of laws

and history,” concluding that “such a comment can only serve to pander to existing

resentments and the darker side of community relations. To encourage division between

people does not seem like an appropriate function of government at any level.”112

The political and legal opposition of the State and counties is played out in the

process of Leech Lake’s attempts to transfer lands-into-trust. During that process, the

Leech Lake Band is forced to address “accusations and misinformation” which is

fundamentally grounded in the perceived lack of “faith or respect for our Tribal

government,” according to former Leech Lake Chairman Eli Hunt.113 For example,

Leech Lake specifically responded to a Cass County objection in 1999 with the following statement:

The welfare and social needs of Leech Lake Band members, in this

instance, is providing housing for our members. The Leech Lake Band

is in very short supply of homesites within our reservation boundaries.

We do not believe that this is detrimental to the welfare and social needs.

This property has been renovated by the Leech Lake Housing Authority.

Previously, the building was deteriorated, and a blight to the community.

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Therefore, we believe that since the Leech Lake Band has taken control of

this property, the community has been improved.114

In general, the position of the Leech Lake Band in response to the land-into-trust

objections has been articulated as follows:

1. Most of the land purchased is for tribal homesites, which provides stability for tribal members and ultimately, is an economic boost to the local economy; 2. The percentage of land owned by the Band constitutes a very small portion of the reservation land base and is not sufficient to meet the lands needs of the Band; 3. The government-to-government relationship between the federal government and tribal governments is historically and legally grounded, and is the foundation for federal authority to take land into trust on behalf of tribes; 4. The Band’s environmental standards are equal or higher than the local or State standards; and, 5. The anticipated devaluation of property values, if transfer into trust occurs, does not reflect reality, as the county’s assessment of property taxes against the Band’s property is usually increased, rather than decreased.115

The position taken by the Leech Lake Band is bolstered by the enormous economic

impact of the Band within the region. According to the Band in 2006, the Band pays over

$5 million a year in payroll annually for over 2,200 employees. An additional $17 million was paid in 2005 in contributions to health care coverage and medical payments for the

Band’s employees. The Band also contributes over $50,000 a year to local fire associations (Cass Lake and Deer River), plus another $85,000 in contributions to ambulance services. In addition, the Leech Lake Band contributes to the local economy through goods and services obtained for grant-funded projects and construction, all of which are circulated into the local economy.116 A recent, local news article addressed the

local land-into-trust controversy and presented the position of Cass County within the

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context of the Band’s beneficial economic impact within the region. The article quoted the Band’s attorney who spoke to that issue:

Bohn [Leech Lake tribal attorney] argued that the beneficial economic

impacts of Leech Lake gaming from employee wages, health care, taxes

paid and construction projects, far outweighs any lost tax revenue. He also

cited the benefits of a tribal police force to back up the Sheriff’s

Department, and contributions Leech Lake makes to fire protection and

ambulance services.117

The adversarial positions taken by the State and counties have created political and

legal obstacles that are brought to bear in Leech Lake’s land acquisition strategies. In one recent instance, the Leech Lake Band applied, by Tribal Council resolution in 1997 and

1999, to transfer three separate parcels of land in trust, which were to be used for

women’s services and tribal health programs, and for residential housing. Cass County

pursued its objection all the way through the administrative appeals process, and the

highlights of that case will be discussed herein to illustrate the dynamics of the slow and

adversarial land-into-trust process, and the burdens placed on the Band as a result.

After the notice and comment period, during which Cass County submitted its comments, the Superintendent of the Minnesota Agency notified the relevant parties of the Bureau’s intent to take the three parcels into trust for the Leech Lake Band. The

County and the City of Cass Lake then appealed the Superintendent’s three decisions to the Regional Director, who affirmed the Superintendent’s decision to place the lands- into-trust. Cass County then filed appeals on all three of the decisions to the Interior

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Board of Indian Appeals, while the City of Cass Lake appealed two of the transfers

(relating to the properties located within the city limits). In legal briefs, the Band urged the Interior Board of Indian Appeals to affirm the decisions of the Regional Director, and that Board subsequently affirmed the Regional Director’s decision in the “Order

Affirming Decisions” of March 21, 2006.118 Although the decision to transfer those three

parcels into trust was affirmed in 2006, the actual transfer of those three parcels of land- into-trust status has not been finalized by the Bureau of Indian Affairs.119

According to the data provided by Laura Smith, some trust land transfers have been

accomplished in Minnesota. She researched the trust land transfers that occurred between

1992-1998, and Smith reported that 8940 acres of land were transferred into trust status

during that period, with an estimated total market value of $7.5 million. Of that amount,

Smith indicated that 897 acres of land within Cass and Beltrami Counties were

transferred into trust on behalf of the Leech Lake Band, with an estimated market value

of $3.6 million.120

From the perspective of the Leech Lake Band, however, the rate of success has been

dismal, and the trust transfer process has turned into a near futile endeavor as the Band

spends time, funds, and resources to purchase lands in order to acquire a sufficient land base. As is provided under federal law and policy, the Band then diligently prepares their

land-into-trust transfer applications, and responds appropriately and timely to the

registered objections. However, even with the Band does secure an official Bureau

decision to transfer, on appeal or otherwise, the transfer applications continue to languish and the transfers remain incomplete.

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As this study demonstrates, the issue of taxation is one of the driving forces behind the land-into-trust political contest, and there are a range of sub-issues included within the broader taxation issue. For example, the land-into-trust discourse addresses the related issues of payment-in-lieu of taxes, property taxes paid under protest, state authority to tax tribally-owned fee lands, and state tax exemptions that are being withheld from the tribes and bands, which will be discussed herein.

The motive behind the consistent adversarial position taken by Cass County against land-into-trust transfers is unambiguous. The primary goal of Cass County is to seek federal reimbursement to the County as payment for the loss of taxes resulting from land- into-trust transfers, referred to as “payments-in-lieu-of- taxes” (or P.I.L.T. money, as it is commonly called). Cass County advocates that the federal government should provide

P.I.L.T., payments-in-lieu-of-taxes, for all Indian trust lands located within the county.

Cass County attorney Maus unequivocally presented the county’s position in a personal interview, stating that “[t]he perfect solution for this would be from a federal level. And if the federal government wants to take it in trust and would pay a payment in lieu of tax at the same rate, that local properties are taxed, we don’t care where the money comes from.”121 In the alternative scenario, P.I.L.T. would be sought from the Band for the trust

lands, as other counties have pursued with the respective tribes in their area. With a little

Ojibwe humor, the Leech Lake Band speaks of the payment-in-lieu-of-taxes sought after

by Cass County, not as “P.I.L.T.” money, but as “guilt money.”122

State property taxation, which is imposed by the local county units of government,

continues to be assessed against the purchased lands of the Leech Lake Band that remain

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in fee status while their applications for a trust transfer are pending with the Bureau. As noted previously, the State of Minnesota, including Cass County, began assessing property taxes against tribal and band-owned fee lands located within the reservations of the Minnesota Chippewa Tribe after the 1998 Supreme Court decision in Cass County v.

Leech Lake Band of Chippewa Indians, according to the attorneys for the Minnesota

Chippewa Tribe in 2001.123 As county property taxes are assessed against the fee lands,

the Band is forced to pay those property taxes on an annual basis. Although the Leech

Lake Band pays those property taxes “under protest,” the annual property tax payments create a significant financial burden on the Band. For example, the Leech Lake Band

expended approximately $100,000 in 2003 for those property taxes, which represents a

significant amount of tribal resources.124

A related legal issue has surfaced regarding the taxability of certain Indian lands within the State. Current Minnesota law provides a tax exemption for certain categories of property and, under that law, “Indian lands” are exempt from property taxation.125

However, the legislation does not provide a clear definition of the term “Indian lands,”

and the Minnesota Attorney General has developed a narrow interpretation of that term.

The Attorney General has opined that the State tax exemption only applies to Indian

lands held in trust, and that the exemption does not apply to tribally-owned fee lands on

the reservations located within the State.126

There is another State tax exemption that is also relevant to this discussion and that

has evolved into a legal issue that is now ripe for litigation. The laws of the State of

Minnesota provide that “all public property exclusively used for any public purpose” is

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exempt from property taxation.127 According to the statutory language, that tax

exemption should be applied to the fee lands of the tribe or bands, when those lands were

purchased and intended to be used for public purposes, such as for hospitals, social

programs, and educational institutions. However, the State of Minnesota does not provide

that tax exemption to the tribe or the bands in those circumstances, even though the

Minnesota Chippewa Tribe has argued that the “public purpose” exemption should be

applied to tribes for their public properties. The basis for the Tribe’s legal argument is

that the Minnesota Supreme Court has equated “public” with “government,” and that

“[t]he public property exemption rests on the common-law principle that government, by

virtue of its sovereign power, is immune from taxation.” 128

The tribal attorneys have developed a persuasive argument that the position taken by

the State of Minnesota serves to undermine a “cornerstone” of federal Indian law. The

position of the tribal attorneys is that “tribes are sovereign governments,” and that the

State of Minnesota has acknowledged and honored that legal reality in its government-to-

government relations with the Tribes. To follow that logic to its proper conclusion, the

State taxation of tribally-owned fee lands that are used for public purposes “runs directly

to the recognition of Tribes as sovereign governments, and to the principle of government

to government relations.”129 Based on the above, the tribal attorneys advocate for a

legislative amendment that would clarify the State’s recognition of tribes as sovereign

governments and its intentions to treat tribes as equals with other governments for

taxation purposes.

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The position taken by the State is reminiscent of Singer’s analysis of the Brendale decision, as it appears that a system of “racial caste” has been established within the legal system, and tribes are alternatively treated as simple property holders, or as sovereign nations, depending upon the outcome desired. The tribal attorneys fittingly summarized the situation:

This is especially ironic in light of the circumstances under which

much of the reservation trust land first passed to fee status. As the

State has learned all too well through treaty litigation, much of the

Indian land on reservations was acquired in huge land grabs that

never adequately compensated the Tribes. Much of the land was lost

through tax forfeiture. Now, when Tribes can and do reacquire land,

the fee to trust process is stopped by county and state intervention.

Counties are still engaging in hostile actions aimed at the removal of

Indian communities from the reservations. They are doing so by using

one of the oldest weapons in their arsenal—taxation.130

During this era of tribal self-determination, some advances have been made in Indian

land tenure status at Leech Lake, and those advances are primarily due to the land acquisition efforts of the Band. As discussed earlier, there were 23,720 acres of land in trust in 1962, and that amount has grown slightly to reach 28,013 acres of land in trust, as of 2001. The amount of land in trust within the Leech Lake Reservation, as of 2006, is

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29,717 acres, according to the Leech Lake Band. 131In addition to the entrusted lands,

there are also 4,038 acres of land that have been purchased by the Band and are currently

held in fee status, pending a transfer into trust.132

As this study has demonstrated, current federal administration of the tribal land

acquisition program has created a political environment that does not promote and

encourage tribal land acquisition activity. In addition, the hostile intervention from the

state and local governments stands as an enormous obstacle to trust land acquisitions by

the Leech Lake Band. The imposition of state taxation is particularly problematic and

costly. Furthermore, the federal, State, and local land ownership has created a virtual

monopoly on the reservation’s land tenure that seriously impacts the availability of land

for band acquisition.

In her research and analysis of land-into-trust transfers within the State, Smith found

that tribal land acquisition is a challenging and arduous task for tribes today, and that

land-into-trust transfers impact issues of tribal economics, tribal self-determination, and

tribal sovereignty. Smith argued that the local objections and conflicts over the trust

transfer process stand as primary obstacles to tribal land-into-trust acquisitions, even

though “much of the land purchased by tribes in Minnesota is undeveloped and without

great value in relation to the total property wealth of the respective counties.”133

Based on her research, Smith also acknowledged that the role of the Bureau of Indian

Affairs in land-into-trust process has become obstructionist, as that agency inconsistently applies the regulatory criteria to tribal detriment. Smith argued that the Bureau now discriminates in the trust transfer process, as its factors the geographic location of the

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land, as well as the economic success of the applicant tribe, into its evaluation process.

Smith observed that “it seems that applications are now treated differently based on the geographic location of the land and the economic ‘success’ of the applicant tribe.”134 In her final analysis, Smith projected that there will continue to be heightened scrutiny to the land-into-trust applications of economically successful tribes, and that there will be increased political pressure from the local governments for financial contributions from tribal governments, such as the payment-in-lieu-of-taxes that is sought after by Cass

County at Leech Lake.

There is a slight bit of hope that the local hostility may be easing a bit. In 2006, the

Cass County Commissioners and the local Pike Bay Township agreed not to oppose the

Leech Lake Band’s efforts to place a 30-acre parcel of land-into-trust, the land upon which the new Leech Lake Tribal College campus has been built.135 In fact, the Leech

Lake Band of Ojibwe was recently notified by the Bureau that the transfer process is underway and that the 30 acre parcel will, indeed, be taken into trust in the near future.136

The County Commissioners also designated representatives to serve on a joint committee of Leech Lake Band and County representatives in order to “study future fee-to-trust transfers.”137 The County actions do seem to indicate a slight movement away from the

staunch political position previously taken. It is ironic that the Band attempts to acquire

land upon which to provide the governmental services much-complained of by the

County, while the County continues to oppose those trust land acquisitions.

The data illustrates the dismal effects of prior federal Indian policy upon the land

tenure of the Leech Lake Band. The summary data on the land tenure at Leech Lake

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presented below makes it painfully obvious the damage done under federal Indian policy. The 2006 data reveals that only a small fraction of the lands within the Leech

Lake Reservation is under Ojibwe ownership, while other governments, entities, and private individuals own the majority of the reservation lands.

Total acres within Leech Lake Reservation (Including 300,000 acres of lakes and 162,591 acres of wetlands/ponds) 864,158 acs.138

Acreage owned by U.S.F.S./Chip.National Forest 285,824 acres Acreage owned by State of Minnesota: 146,061 acres Acreage owned by Cass County: 18,170 acres Acreage owned by Itasca County: 7,441 acres Acreage owned by Beltrami County: 3,265 acres Acreage owned by Hubbard County: 2,107 acres Acreage of Indian lands owned in trust: 29,717 acres Acreage owned by others: 130,836 acres Total acres of Indian lands owned in trust In tribal trust: 13,545 acres In individual trust: 12,509 acres (fractionated) In Band trust: 3,663 acres Total trust acres 29,717 acres *This data is taken from the website of the Leech Lake Band of Ojibwe, and was prepared by the Division of Resource Management (2006).139

Summary

The federal Indian policy era of self-determination has been a most interesting period of time for tribal land acquisition. The national Indian land tenure narrative reveals that prior federal Indian policies resulted in an insufficient Indigenous land base

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today, one that cripples tribal ability to provide for their communities. While

stabilization of the Indigenous land base remains essential to tribal existence, and

remains as articulated federal policy, the outdated and complex Indian land tenure

mechanisms appear to favor limits on the amount of trust lands in order to ease the

government’s administrative burdens. Left to clean up the “unholy mess” of the

fractionated ownership of the allotted lands, tribes bear the burden of that land tenure

issue as they attempt to consolidate the ownership of those lands and prevent further

fractionation. In addition, the judicially-crafted legal nexus between tribal sovereignty

and tribal land ownership is associated and problematic issue for American Indian

nations, as tribal jurisdiction is now linked the Indian land tenure status of the tribe’s

reservation territories.

Nevertheless, tribes and bands continue to press forward with their land acquisition efforts within a landscape colored by minimal federal effort, bureaucratic obstruction, and persistent local opposition. However, tribes are attempting to rebuild their nations and infrastructure with limited resources that are stretched to meet a wide range of needs.

Norman Deschampe, Grand Portage Chairman, provided a broad tribal perspective on today’s Indian land tenure landscape. Chairman Deschampe stated that the biggest land issue for tribes today is a direct result of the severe diminishment of the tribal land base, and tribes have been left with the tremendous challenge of reclaiming land ownership within their reservation territories. According to Deschampe, land acquisition is an important tribal endeavor because the land tenure status of a reservation impacts a tribe’s jurisdictional and regulatory authority, particularly in the areas of taxation, zoning,

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environmental regulations, and forest management. Deschampe also acknowledged that the slow and cumbersome land-into-trust process dampens tribal ability to purchase lands and place them back into trust status. In his final analysis, Deschampe indicated a need for broad public education regarding tribal land acquisition, use, and tenure, as well as treaty rights, in order to properly inform the public about the meaning and significance of land to tribal people.140

Differences in the implementation of federal Indian policies resulted in different land

tenure experiences for the Grand Portage and Leech Lake Bands. Since the beginning of

this federal Indian policy era in 1960, the Grand Portage Band has continued to

successfully reclaim large and small portions of their reservation territory, such as the

Band’s efforts that prompted an expansion of their reservation boundary. The Band has pursued conventional methods of land acquisition, such as outright purchasing, and has utilized creative methods to achieve their goal of reclaiming their entire reservation land base.

The Leech Lake Band, however, experiences a different land tenure reality and it continues to encounter land acquisition obstacles and challenges that Grand Portage does not. Although the Leech Lake Band has allocated significant time, resources, and funds to land acquisition since 1960, the Band has reclaimed only a small percentage of their

reservation land base. Today, the Grand Portage Band owns over 80% of their reservation

lands, while Leech Lake struggles with less than 5% ownership of their territories.

Therefore, while Grand Portage and Leech Lake share a common tribal identity and a

similar history, they have distinct land needs today. This research clearly indicates that

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the Leech Lake Reservation has been, and remains, a much more contested territory than the Grand Portage Band in tribal land acquisition efforts.

The contemporary federal trust responsibility requires a solid federal Indian land tenure policy that is truly designed to achieve stabilization of the Indigenous land base, rather than the reduction of the entrusted tribal land base for the sake of administrative convenience or to please external political interests. Without such a policy and without an adequate and sufficient land base, tribal ability to provide for the sustainability of their nation and its citizens will continue to be hampered.

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Endnotes

1 Mission Statement, Indian Land Tenure Foundation, www.indianlandtenure.org. 2 John Gibeaut, “American Indian Rights: Another Trust, ” American Bar Association Journal (September 1999): 40-47 and 98-99. 3 Indian Land Consolidation Act of 1982, 25 U.S.C.A., §2201-2221, as amended. 4 Hodel v. Irving, 481 U.S. 704 (1987) and Babbitt v. Youpee, 519 U.S. 234 (1997). 5 Indian Land Consolidation Act of 1982, as amended. 6 American Indian Probate Reform Act of 2004, 118 Stat. 1773, P.L. 108-374. See also, Robert Desjarlait and Marcie Rendon, “No Quick Fixes: A Look at the Bureau of Indian Affair’s Indian Land Consolidation Pilot Program,” (Little Canda, MN: Indian Land Tenure Foundation), www.indianlandtenure.org/resources. 7 25 U.S.C. Chapter 24, §2212, The Pilot Program for the Acquisition of Fractional Interests. 8 Ibid. 9 The discussion regarding IRA land acquisitions is taken from an article published by the author. See, Leah J. Carpenter, “Policy Analysis of the Land into Trust Acquisition Provisions of the Indian Reorganization Act: Tribal Opportunities, Obstacles, and Opposition,” Wicazo Sa Review 15:1 (Spring 2000): 29-47. 10 “Information Packet on Proposed Amendments to Regulations Governing Taking Land Into Trust for Indians,” Bureau of Indian Affairs, Department of Interior; see also, 25 C.F.R., Chapter 1, part 151, “Land Acquisitions” (April 1999): 1. 11 25 C.F.R. Chapter 1, part 151, “Land Acquisitions” (April 1, 1998). See also, State of South Dakota vs. United States Department of Interior, U.S. Court of Appeals, 69 F.3d 878 (8th Cir 1995), vacated and remanded, 117 S.Ct. 286 (1996): 888-89, note 2. 12 “Final Rule Revises and Clarifies procedures to acquire land in trust,”Federal Register, Vol. 66:10: 3457-3466 (January 16, 2001). See also, “Withdrawal of Final Rule of January 16, 2001,” Federal Register, Vol. 66: 218: 56608-56610 (April 19, 2001). 13 25 C.F.R. Chapter 1, part 151.3. 14 Ibid. 15 Ibid., part 151.10. 16 South Dakota, 888-89, note 2. 17 Ibid. 18 25 C.F.R., Chapter 1, parts 151.9-151.10. 19 Doug Nash, “Fee to Trust: Fact or Fiction?”, Indigenous Lands Reporter (Summer 2003), 4, citing to Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998), 115. 20 Cass County. 21 Nash, “Fee to Trust,”4, citing Cass County, 115. 22 Ibid., 5. 23 Ibid. 24 Leah J. Carpenter, “Policy Analysis of the Land into Trust Acquisition Provisions of the Indian Reorganization Act: Tribal Opportunities, Obstacles, and Opposition,” Wicazo Sa Review 15:1 (Spring 2000): 42-43. 25 Nash, “Fee to Trust,” 4. 26 South Dakota. 27 Ibid. 28 Ibid., 881-882. 29 Ibid., 888 (emphasis added). 30 Jeanette Wolfley, “Ecological Risk Assessment and Management: Their Failure to Value Indigenous Traditional Ecological Knowledge and Protect Their Homelands,” American Indian Culture and Research Journal 22:293. 31 Kirke Kickingbird and Karen Ducheneaux, One Hundred Million Acres (New York: Macmillan Publishing Co., Inc., 1973), 58.

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32 See generally, Indian Land Working Group website at www.ilwg.net. See also, Annual Indian Land Consolidation Symposium Registration and Informational packets (2003 and 2004). 33 The Indian Land Tenure Partnership Plan, Appendix E: Indian Land Working Group Report (Northwest Area Foundation, February 2001). 34 Ibid., Executive Summary. 35 Ibid., Our Present. 36 Ibid., Vision. 37 Mission Statement, Indian Land Tenure Foundation. 38 The Indian Land Tenure Partnership Plan, Executive Summary. 39 Indian Land Tenure Foundation website at www.indianlandtenure.org. 40 Kickingbird and Ducheneaux, One Hundred Million Acres, 5. 41 Theodore W. Taylor, “Report on Indian Land,” Purchase of Indian Land and Acres of Indian Trust Land, 1934-1975,” prepared under contract for the Bureau of Indian Affairs, Department of Interior (Washington: GPO, May 1976), 93-97. Note: For the 1960 data, Taylor cites to a Report prepared by the Bureau of Indian Affairs, “Lands under Jurisdiction of BIA,” reported as of June 30, 1960. For the 1974 data, Taylor cites to the Bureau of Indian Affairs Annual Report on Indian Lands (as of June 30, 1974). 42 Bureau of Indian Affairs Annual Report on Indian Lands, (1985 and 1997), “Acreage Recapitulation by Area Office, Department of the Interior Lands Under Jurisdiction of the Bureau of Indian Affairs As of December 31, 1997.” The Bureau’s Annual Report of Indian Lands was published for the years 1976-1985 and 1996-1997, but was not published from 1986-1995. 43 Annabell Kingbird, Realty Specialist for Leech Lake Band of Ojibwe (interview, 2004). 44 Ibid. 45 Ibid. 46 Elizabeth Ebbott, Indians in Minnesota, 4th ed., ed. Judith Rosenblatt (Minneapolis: University of Minnesota Press, 1985), 25. 47 Bureau of Indian Affairs Annual Report on Indian Lands, (1985). 48 The Indian Land Tenure Partnership Plan, 51. 49 Grand Portage Land History Project website (2006), www.geoportage.org/history. There is inconsistent data regarding the contemporary acreage size of the Grand Portage Reservation. On their website, the Grand Portage Band indicates that the acreage size of the reservation is approximately 48,000 acres. However, the Bureau of Indian Affairs and most other sources indicate the Grand Portage Reservation is 56,512 acres. 50 Ibid. 51 Land Use Ordinance of the Grand Portage Band of Lake Superior Chippewa Indians, Ordinance Number 95-02, as amended (June 26, 1996). The Ordinance was prepared by Grand Portage Land Use Management Task Force. 52 Norman Deschampe, Grand Portage Tribal Chairman (interview with all Grand Portage Tribal Council members, 2003). 53 Gilbert Caribou, Norman Deschampe, John Morrin, Kenneth Scherer, and Lorraine Wipson (interview with all Grand Portage Tribal Council members, 2003). 54 Ibid. 55 Kenneth Scherer, Grand Portage Tribal Council member (interview with all Grand Portage Tribal Council members, 2003). 56 Grand Portage Land Use Ordinance, Mission Statement. 57 Deschampe interview. 58 Grand Portage Land Use Ordinance, Mission Statement. 59 Bill Vogel, Grand Portage Band Land Use Manager (interview, 2002). 60 Grand Portage Land History Project website, 61 Secretarial Proclamation (May 14, 1982), Federal Register, Vol. 47, No. 105 (June 1, 1982). 62 Deschampe interview. 63 Secretarial Proclamation (May 14, 1982). 64 Caribou, Deschampe, Morrin, Scherer, and Wipson interview.

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65 Ibid. 66 Ibid. 67 Deschampe interview. 68 Grand Portage State Park Informational brochure (Department of Natural Resources, State of Minnesota, 2001). 69 Deschampe interview. 70 Curtis Gagnon, Grand Portage Band Land Department staff (interview, 2003). 71 Deschame interview. 72 Marvlyn L. Hyde, Realty Officer, Bureau of Indian Affairs, Minnesota Agency, “Report on the Total Number of Acres on Minnesota Reservations at Establishment of Reservations, and Total Number of Acres by Individual (allotted) and Tribal (inc. Band) Today” (November 28, 1990). Copy of Report is located at Leech Lake Land Department and copy is in author’s possession. Hyde’s Report states that “Grand Portage acquired 900 additional acres from the Nature Conservancy Oct. 12, 1990.” 73 Vogel interview. 74 Ibid. 75 An Act Authorizing County Conveyance of Mineral Center Cemetery Land and Property to Grand Portage Reservation, Minnesota Session Laws, Chapter 237, H.F. 2987, 82nd Session (2002). Signed by Governor Venture on March 14, 2002; effective date of enactment, March 15, 2002. http://ros.leg.mn/revisor/pages/search_status/status_detail.php?b=House&f=HF2987&y=2002&ssn=o. 76 Gagnon interview. 77 Caribou, Deschampe, Morrin, Scherer, and Wipson interview. 78 Ibid. 79 Ibid. 80 Laura J. Smith, Native American Trust Land Transfers in Minnesota.” CURA Reporter 19 (Spring 2004):23. 81 Caribou, Deschampe, Morrin, Scherer, and Wipson interview. 82 Grand Portage Land History Project website. 83 Ibid. 84 Grand Portage Land History Project website. 85 Ebbott, Indians in Minnesota, 25. The continued integrity of the greater Leech Lake Reservation boundary, as finally established in 1874, was confirmed in litigation by the Leech Lake Band against the State of Minnesota over hunting and fishing rights within the reservation, in Leech Lake Band of Chippewa vs. Herbst in 1971. 86 Bureau of Indian Affairs Annual Report on Indian Lands (1985). 87 The Indian Land Tenure Partnership Plan, 51. 88 Leech Lake Band of Ojibwe, Division of Resource Management, website. http://www.lldrmenvironmental.com/Page05-Managed%20Acreage.htm (2006). 89 Map of Leech Lake Reservation (2006). The Map was prepared by the Leech Lake Band of Ojibwe, Division of Resource Management and shows the current status of Indian land trust lands within that reservation. Permission to copy the Map for purposes of this dissertation was personally granted to the author by the Director of the Division of Resource Management, Richard Robinson, in 2006. 90 Leech Lake Band of Ojibwe, Division of Resource Management, website. 91 Pauline Johnston (interview, 2003). 92 Leech Lake Band of Ojibwe, Division of Resource Management, website. 93 See generally, Leech Lake Tribal College website, http://www.lltc.edu. 94 Johnston interview. 95 Ibid. 96 “Leech Lake Land Department List of Lands Purchased Between 1970-January, 2002” (2002). The List of Lands Purchased is located at the Leech Lake Land Department, Division of Resource Management. 97 Jeff Forester, “Broken Dreams,” Pulse Magazine (August 6, 2003), News and Features. 98 John Ringle, Biologist for Leech Lake Band of Ojibwe (interview, 2003), and Earl Maus, Cass County Attorney (interview, 2004).

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99 Ringle interview. 100 Ibid. 101 Johnston interview. 102 Ibid. 103 Ibid. 104 The Indian Land Tenure Partnership Plan, Appendix E, 52. 105 “Letter of Intent,” from Joel Smith, Superintendent of Minnesota Agency, to Governor Jesse Ventura (September 14, 2000). The “Letter of Intent” lists 21 parcels of land located in the following counties: Cass County, over 233.65 acres; Itasca County, 51.64 acres; and Beltrami County, 37.80 acres. Copy of “Letter of Intent” located at Leech Lake Land Department. 106 Eli O. Hunt, Chairman of Leech Lake Band of Ojibwe, “Comments on Fee to Trust” document, attached to “Comments on 25 CFR 151-Acquisition of Title to Land in Trust,” presented to the Bureau of Indian Affairs Office of Trust Responsibilities (May 27, 1999). 107 “Pending Fee To Trust-Leech Lake, November 1999” Report, prepared by Leech Lake Band of Ojibwe ( November, 1999). 108 Letter from Earl E. Maus, Cass County Attorney, to Joel Smith, Superintendent of Minnesota Agency (April 17, 2000), regarding four parcels to be acquired for the Leech Lake Band (Dougherty, Henriqeus/White, Trinity Lutheran, and Vikre properties). Letter is located at the Leech Lake Band of Ojibwe Land Department. 109 Letter from Robert Zuehlke, Itasca County Auditor/Treasurer, to Joel Smith, Superintendent of Minnesota Agency (April 23, 1999), regarding an application for trust acquisition of property owned by the Leech Lake Band of Ojibwe. Letter is located at the Leech Lake Band of Ojibwe Land Department. 110 Letter from Diane Drewry, General Counsel for the State of Minnesota, Office of the Governor, to Bureau of Indian Affairs Minnesota Agency (August 23, 1999), regarding a trust acquisition for the Leech Lake Band ( formerly Ayers parcel). 111 “Tax Exempt Indian trust land could yied $6 million in taxes, assessor says,” article in The Pilot- Independent (Walker, MN, February 15, 2001). 112 John Grimley, Letter to Editor, “Taxing the tax exempt,” The Pilot-Independent (Walker, MN, February 20, 2001). 113 Hunt Comments on Land into Trust (May 27, 1999). 114 Letter from Eli O. Hunt, Chairman of Leech Lake Band of Ojibwe, to Earl E. Maus, Cass County Attorney (April 23, 1999), regarding a Reply to Statement of Reasons, Appeal of Trust Status, County Attorney File No. 99-287. Letter is located at the Leech Lake Band of Ojibwe Land Department. 115 Letter from Hunt, (April 23, 1999). 116 Report on Leech Lake Band of Ojibwe economic contributions regarding Payroll, Healthcare, Police and Fire Protection, Housing, and Goods and Services, prepared by Wayne Bohn, Tribal Attorney for Leech Lake Band of Ojibwe (February, 2006). This document was prepared for the February 2006 meeting with the Cass County Commissioners regarding the proposed fee-to-trust transfer of the Leech Lake Tribal College property. Copy located at Leech Lake Legal Department, and a copy is in the author’s possession. 117 Gail DeBoer, staff writer, “Cass Board will not oppose Leech Lake Band’s application for trust status on tribal college land.” The Pilot Independent (Walker, MN, March 8, 2006), http://www.walkerman.com/placed/index.php?story_id=215757&view=text 118 Cass County, Minnesota and City of Cass Lake, Minnesota v. Midwest Regional Director, Bureau of Indian Affairs, Interior Board of Indian Appeals, 42 IBIA 243 (March 21, 2006). 119 Ibid. 120 Smith, “Trust Land Transfers,” 23. 121 Maus interview. 122 Johnston interview. 123 Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998). See also, “Briefing Paper: Treatment of Tribes as Governments for Purposes of State Taxation,” prepared by the Law Offices of Johnson, Hamilton, Quigley, Twait and Foley, PLC (February 21, 2001). The Briefing Paper was prepared on behalf of the Minnesota Chippewa Tribe Tribal Executive Committee (copy located at Leech Lake Band

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of Ojibwe Land Department). Also note that the Ringle interview substantiates the taxation of fee lands at Leech Lake after 2001. 124 Ringle interview. 125 Minnesota Statutes, Section 272.01, Subdivision 1, as cited by “Briefing Paper.” 126 “Briefing Paper,” 1. 127 Minnesota Statutes Section 272.02, Subd. 1(7) (1998), as cited in “Briefing Paper,”2. 128 Little Earth of United Tribes, Inc. v. County of Hennepin, 384 N.W.2d 435 (Minn. 1986), as cited and quoted in “Briefing Paper,” 2. 129 “Briefing Paper,”2. 130 “Briefing Paper,”2-3. 131 Leech Lake Band of Ojibwe, Division of Resource Management, website. 132 Johnston interview. 133 Smith, “Trust Land Transfers,” 24. 134 Ibid. 135 DeBoer article, “Cass Board.” 136 George Goggleye, Chairman of the Leech Lake Band of Ojibwe (information conveyed in personal conversation between Chairman Goggleye and the author, January 29, 2008). 137 DeBoer article, “Cass Board,” 138 Leech Lake Band of Ojibwe, Division of Resource Management, website.As with the Grand Portage Reservation, there is conflicting data on the acreage size of the Leech Lake Reservation. The Leech Lake Band of Ojibwe reports that the reservation acreage totals 864,158 acres, with approximately 300,000 acres covered by water, according to the Leech Lake Band of Ojibwe website, link to Division of Resource Management, Managed Acreage. However, the Bureau of Indian Affairs and most other sources utilize the 677,099 acreage amount. 139 Leech Lake Band of Ojibwe, Division of Resource Management, website. 140Deschampe speech (2004).

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CONCLUSION

WE CANNOT AFFORD TO LOSE ANY GROUND

Americans need to reflect on the ramifications of manifest destiny, the historical term given to America’s relentless westward expansion. That concept fostered “an extreme sense of entitlement” among Americans who often ignored the rights of indigenous peoples.1 Wilma Mankiller, former Chief of the Cherokee Nation (2002)

A tribal land base is an essential element for tribes to achieve self-sufficiency and maximum sovereignty, and a sufficient land base is necessary for a tribe to adequately meet the needs of the community. American Indian reservation territories form the geographic boundaries of tribal jurisdiction and support a resident population.

Reservation lands provide places for cultural practices and are the foundation for tribal economic development and revenue generation. Tribal sovereignty and land ownership were historically linked and, under modern case law, the extent of tribal jurisdiction increasingly rests upon the extent of tribal land ownership.

American Indian contestation over place is linked to local and global power relations, and the Indian land tenure status of reservation territories continues to exist at the crux of tribal relationships with federal, state, and local governments. As tribal sovereignty and authority are strengthened, a “backlash” has been created within the general public, particularly around tribal land acquisition efforts. Many tribes today strive to ensure that their reservation territories are preserved in tribal ownership, in order to exercise their jurisdiction without external regulatory interference.

Federal Indian policies have had devastating effects upon Indian communities and tribes, including the break up and diminishment of the tribal reservation land base, and continue to impact tribal nations today. In 1934, Congress attempted to correct that

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situation by adopting new law and policy that was intended to conserve and develop

Indian lands and resources, and adopted a long-term land acquisition program to meet the needs of tribes with an insufficient land base. That land acquisition program continues to provide one of the existing methods that tribes use to acquire land today and to strengthen their land bases. There has been opposition to tribal attempts to acquire land in trust, sometimes reaching the level of litigation, and a pattern of organized opposition has surfaced. Tribes are engaged in a multifaceted exercise of sovereignty and jurisdiction, establishing casinos and other business enterprises, tribal judicial and law enforcement systems to enforce tribal law, and adopting zoning regulations. In some situations, tribal exertion of sovereignty is considered politically intolerable and there is resistance to tribal attempts to add lands to its territory. Discriminatory and racial aspects have emerged in the federal Indian law and legal discourse, and some of the judiciary has disagreed with the social policy choice made by Congress to buy lands for Indian people and place them in trust, finding that land-into-trust applications are granted arbitrarily or frivolously.

Tribal capacity for economic development is hindered by the lack of reservation land ownership and further exacerbated by the fractionated ownership status of the allotted lands. Furthermore, tribal efforts to meet enormous social needs, such as housing, are often hampered due to an inadequate and insufficient tribal land base, while local entities drain tribal resources in their opposition to tribal trust land transfers upon which those government service programs would be built. In addition, cultural practices are restricted within reservation territories by non-tribal ownership of land, and tribal access to the cultural resources is often prohibited.

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The judiciary has taken a diminished approach to tribal sovereignty, as tribal jurisdictional authority has been increasingly weakened by judicial decisions that correlate the scope of tribal jurisdictional authority directly to the percentage of tribal land ownership within reservation territories. As it has evolved, federal judicial preference in tribal jurisdictional disputes now leans towards the “membership-based vision” of tribal jurisdictional authority, under which tribal sovereign authority is applied only to a tribal members, lending credence to the judicially-crafted legal nexus between tribal ownership of land and their sovereign authority. The alternative judicial vision of tribal sovereignty is the “geographic-based” vision, which provides a broader interpretation of tribal jurisdiction that is more in accord with current federal Indian policy and that strengthens tribal self-determination and tribal sovereignty. According to the “geographic-based” vision, tribal sovereignty is viewed as a territorial concept under which the tribe has the ability to govern and enforce laws against all individuals within the tribal territory, regardless of their category or tribal membership. The “geographic- based” vision of tribal sovereignty represents a geographic “sphere of influence” within which the tribe has certain governmental authority over the people and territory.

From a tribal perspective, the “geographic-based” vision of tribal sovereignty encompassed the fundamental attributes of sovereignty. The former Chief Executive of the Mille Lacs Band of Ojbwe, Marge Anderson, articulated those fundamental attributes of tribal sovereignty in 1996, which are listed herein:

1. A distinct, unique group of people;

2. A distinct language;

3. A distinct moral and religious structure;

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4. A distinct cultural base;

5. A specific geographic area that they control and regulate, within which they

possess governmental powers, including the power to tax, the power to change

their governmental structure. “These governmental powers must be

acknowledged by the people who are subject to them, and they must be

enforceable by some sort of authority, whether it be military, police, or

general citizen control”;

6. Recognition by another sovereign, which was consummated by the United

States by treaties with Indian tribes. 2

As understood and articulated by Anderson, tribal sovereignty is a territorial concept, and that tribal exercise of sovereignty and governmental authority is tied to a tribe’s specific geographic area. Ultimately, Anderson challenged other tribes to be vigilant about their tribal sovereignty and tribal governmental authority, cautioning them to “use your list to keep watch over sovereignty. We cannot afford to lose any ground, and must work to strengthen any areas that are weak.” 3

This comparative case study examines the national Indian land tenure patterns

over time and the fluctuating federal Indian policies that have produced the severe

diminishment of the Indigenous land base. This research explored whether those national

patterns emerged at the local level, as federal Indian policies were applied at the tribal and band level. This research shows that the Indian land tenure patterns within the Grand

Portage and Leech Lake Reservations generally reflect the national patterns of Indian land tenure, at least through the allotment and assimilation era. The era of Indian

Reorganization proved to be a point of divergence for the Grand Portage Band, and their

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Indian land tenure experience began to diverge from the national patterns, as well as the

Leech Lake experience. At that time, the Grand Portage experience turned in a more positive land tenure direction, and today the Band owns over 80% of the reservation. The

Leech Lake experience represents a more typical example of the national Indian land tenure patterns, and the band has reclaimed ownership of less than 5% of the reservation.

During the Formative Years, Indigenous territories were subject to sweeping land cessions, as American Indian reservations were carved out of that original expanse of land. Although the reservations were reserved as permanent tribal lands, the permanency quickly gave way to a precarious tenure and the reserved lands were swiftly “redeemed from the incubus of Indian title,” just as the expansive original territories had been. That national pattern was also played out in Ojibwe territory, and treaties effected vast land cessions and the establishment of reservations, including the Grand Portage and Leech

Lake Reservations. The Ojibwe people were clear about the need to preserve permanent tribal ownership of their reservation territory, yet the ownership of those lands were quickly put at risk. The results were just as predicted by Chief Wah bah na kwed, who indicated that the loss of tribal land ownership would lead to poverty, to further removal and geographic constraint, to further reductions in political power, and to further restraints on tribal control over the resources within their tribal territories.

The federal Indian policy of allotments and assimilation generally triggered the privatization of the tribal land base through allotment, and the taking of huge portions of reservation land through the surplus lands process. That era also witnessed the subsequent alienation of the allotted lands as the trust protections were soon dissolved to appease the political interests of the day. Once the allotted lands were left unprotected by

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the trust, they quickly became vulnerable to coercion, fraud, and outright trickery. By

1934, approximately 50% of those entrusted lands had been expropriated from Indian trust ownership.

Within Ojibwe territory, the same patterns emerged as with the national Indian land tenure experience. The Nelson Act authorized privatization of the tribally-held reservation land base through allotment, while the remaining reservation lands were taken as surplus lands. The precarious tenure of Ojibwe land ownership at that time is demonstrated in the fact that 53% of the Grand Portage Reservation was transferred out of tribal ownership and placed within the public domain. As the federal Indian policy of allotment and assimilation was applied at Leech Lake, an incredible 86% of that

Reservation was claimed, taken, and placed within the public domain. The voracious political appetite had not yet been quelled in Ojibwe territory, however, and the two localized Indian land tenure histories also recount how the entrusted allotted lands were expropriated. As with the national Indian land tenure pattern, 50% of the allotted lands at both Grand Portage and Leech Lake had been alienated and transferred out of Ojibwe trust ownership by 1937.

The federal Indian policy inaugurated with the Indian Reorganization Act was designed to take affirmative action to correct the historical damage done to Indian land tenure, and to address the “shambled legacy” of allotment. Tribal land restorations were authorized, and new tribal land acquisition programs were mandated. In fact, the tribal land acquisition mandates of that period survived and continue to resonate through federal Indian policy and the federal trust responsibility today. The aggregate national

Indian land tenure narrative evidences that the Indian Reorganization policy stopped the

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steady alienation of the Indian trust land base and reversed the national Indian land tenure trend.

Similar to the national pattern, the tribal land restoration process produced land recovery for both the Grand Portage and Leech Lake Bands. The Grand Portage Band was able to secure a substantially larger portion of their reservation, than was Leech

Lake. As the tribal land restoration policy was applied at Grand Portage, approximately

25% of that reservation was restored to trust status; initially held in trust on behalf of the

Band, that was later changed to tribal trust status. Land purchases at Grand Portage were also part of the land acquisition picture for that time period. As applied at Leech Lake, federal Indian Reorganization policies also produced some measurable gains through restoration and other acquisition, but not at the same level as Grand Portage. That policy era marks the beginning of a steady Indian land tenure progression for the Grand Portage

Band, as the Band has been actively engaged in land acquisition since that time and has since recovered a significant amount of their reservation territories.

The termination era of federal Indian policy reversed some of the national Indian land tenure advances made in the previous era. As the government implemented the termination process against tribes, bureaucratic mechanisms were also developed that produced the expropriation of additional trust land. Although the Grand Portage and

Leech Lake Bands were not targets of termination, both bands were subject to federal policy designed to address the fractionated ownership problems plaguing the Indian estate. To the detriment of the Indian heirs, who had become owners of fractionated interests in the allotted lands through inheritance, the Bureau proceeded to apply an administrative mechanism referred to as “Secretarial Transfers.” The Bureau conducted

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administrative sales of allotted lands, often sold without the full consent of all Indian owners. Within the Leech Lake, more of those transfers were made there than at Grand

Portage, and the majority of those sales were made to the United States Department of

Agriculture for inclusion in the Chippewa National Forest. Those administrative land sales have been documented and remain as outstanding and unresolved legal claims.

Under the contemporary federal Indian policy of self-determination, stabilization of the American Indian land base is one of the articulated trust responsibilities of the federal government. However, that federal Indian policy has manifested into an Indian land tenure environment that severely hampers contemporary tribal land acquisition and tribal ability to ensure continued cultural integrity, ultimately impacting the contemporary exercise of tribal sovereignty. The government provides limited resources for tribal land acquisition, and responsibility for tribal land acquisition has been basically shifted to the tribes. Furthermore, complicated and restrictive land-into-trust regulations provide an open window for intervention by State and local governments that is often hostile and based on unsupported fears. While public funds are expended for legal costs associated with State and local objections, tribes are left to finance their own land acquisition and the necessary legal costs to defend their positions. Although those regulations provide a process for tribes to acquire land and place them into trust status, it appears that those transfers have become more fictional, than real, as so many are not properly processed or finalized by the Bureau. That is particularly true for the Leech

Lake Band.

The Grand Portage Band presents an Indian land tenure history that is divergent from the national pattern and from the Leech Lake pattern. During self-determination, the

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Grand Portage Band has achieved remarkable gains in their land acquisition efforts, which includes the 1982 boundary expansion and state lands deeded to the Band for the

Grand Portage State Park. Within the Grand Portage Reservation today, 81% of the reservation acreage is in Ojibwe ownership, held in trust for the tribe, the Band, or for an individual, or purchased Band lands held in fee status, pending a trust transfer. Overall, the Grand Portage Band has been extremely successful in their efforts to reclaim their reservation territories, beginning with the significant acreage that was restored in 1935.

The exemplary success of the Grand Portage Band in land acquisition is attributable to several factors, starting with the Band’s early and active engagement in tribal land acquisition efforts. One great example of that is the 1917 Executive Order that returned four islands to the Grand Portage Band. Also, during the heyday of tribal land acquisition in the 1930s and 1940s, the Grand Portage Band had a leader who assumed responsibility for all aspects of the land acquisition process. Alton Bramer fulfilled a critical role for the Band during that time, and his leadership and commitment was a contributing factor in their early land acquisition success. In my opinion, the existence of such a leader is representative of the Band’s collective political will, at that earlier time, to actively pursue the reacquisition of their reservation territories.

This case study also produced evidence that the Grand Portage Band has consistently capitalized upon federal policy to maximize tribal land acquisition opportunities. The political will of the Grand Portage people today, expressed and acted upon by their Tribal Council, has created an alignment between the Band’s preservation and conservation land policies and the prevailing sentiment of federal and state land policies for that geographic area. From the first, Grand Portage has consistently made it

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clear that the reservation was to remain undeveloped, as development and land leasing is generally prohibited. The wilderness area designation, the establishment of the park and the national monument all evidence federal and state preference for preservation within the Grand Portage Reservation.

In addition, the Grand Portage Band has developed excellent cooperative relationships with state and local governments, particularly with Cook County, and those relationships have produced successful transfers of reservation land to the Band. The

Grand Portage Band has also developed an excellent working relationship with the

Minnesota Agency of the Bureau of Indian Affairs, which has also produced positive results for the band in tribal land acquisition. The good will that is built upon long term relationships and cooperative partnerships is an important and contributing factor in tribal land acquisition today. All things considered, the choices made by the Grand Portage

Band have created a political environment conducive to tribal land acquisition efforts.

The Grand Portage Band has worked diligently and persistently to acquire ownership of their reservation land base over a long period of time, and those efforts have been rewarded. Furthermore, the geographic location of the Grand Portage Reservation has also been a contributing factor to their success, as discussed above, partly because it has not generated the contestations over territory that exists at Leech Lake, and partly because there has been more lands available for acquisition. As a result, the Grand

Portage Band is far better positioned in regards to land ownership within their reservation territories, compared with the Leech Lake Band.

Clearly, Indian land tenure at Leech Lake has not been as resilient as at Grand

Portage, and Leech Lake has not yet recovered from the historic and dramatic loss of land

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ownership that occurred under federal Indian policies. With only 5% of the Leech Lake

Reservation in Ojibwe ownership (tribal, Band, or individual trust, or as tribal fee lands), the Leech Lake Band is now forced into the ironic situation of purchasing lands within their reservation territories, and fighting to get those lands back into trust status. The tribal land acquisition gains made at Leech Lake have been at a slower and more reduced rate than Grand Portage, and land purchases have become the primary method of land acquisition. Leech Lake, in particular, has been significantly and directly impacted by the decreased role of the local Bureau of Indian Affairs in land acquisition, leaving the Band to take the lead and carry the burden. In addition, Leech Lake encounters the full panoply of obstacles to land acquisition, especially in terms of local opposition, objections, and litigation.

The Leech Lake Band has experienced a different land tenure history than the

Grand Portage Band, in part because that reservation has been a much more contested territory. Early on, it became clear that the general public considered the Leech Lake

Reservation a more prized territory, because of its centralized location, its woods and lakes, and the abundant natural resources within. The superimposition of the Chippewa

National Forest within the boundaries of the Leech Lake Reservation is indicative of that territorial contestation. Overall, the Indian land tenure history of the Leech Lake

Reservation is in accord with the national Indian land tenure pattern, as many tribes are also poorly situated in terms of Indian land ownership within their reservation territories.

One of the major obstacles to effective tribal land acquisition by the Leech Lake

Band is the existence of a federal land ownership monopoly in the Chippewa National

Forest, which represents a large portion of the reservation. Other federal, state, and local

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government land ownership has locked up additional lands and inhibits the ability of

Leech Lake to engage in effective tribal land acquisition, as those lands are generally not available for purchase. Another land acquisition obstacle is that the real estate market forces drive up the costs of buying land, which also inhibits Leech Lake’s ability to purchase lands from private sources.

One of the other primary obstacles to effective tribal land acquisition at Leech

Lake is the chronic bureaucratic inertia of the Bureau of Indian Affairs. At the local

Bureau level, this case study has demonstrated that the federal government appears to hinder, rather than facilitate, tribal land acquisition. Leech Lake applications to transfer lands-into-trust status are routinely held without proper processing, apparently condemned to “pending” status. Any opposition from the local and state governments regarding a proposed transfer effectively blocks the fee-to-trust applications from the

Leech Lake Band at the Agency level. In my opinion, this is attributable to poor working relationships between the Band and the Bureau, yet the Bureau could prioritize the trust transfers, if it chose to do so.

The costs associated with bureaucratic ineptitude, and state and local objections to trust land transfers, are borne by the Leech Lake Band. The Leech Lake Band must expend its limited resources to respond to the opposition, including extensive legal costs associated with defending fee-to-trust applications on appeal. There is also a direct financial cost associated with a fee-to-trust application that is not timely processed; the

Leech Lake Band pays property taxes on those purchased lands not yet placed into trust status. In addition, Leech Lake carries the administrative burden of preparing the paperwork and providing the related services necessary to complete land transactions and

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transfer into trust, which becomes quite a costly endeavor. The high percentage of fractionated ownership interests in the Leech Lake allotted lands is another challenge to contemporary tribal land acquisition. This comparative study revealed that the Leech

Lake Band encounters these obstacles to tribal land acquisition to a greater degree than does the Grand Portage Band.

The Indian land tenure reality is that most tribal nations continue to endure insufficient and inadequate tribal territories. In response to that reality, many tribal nations have prioritized land acquisition. This comparative case study provides evidence that Indian people have always struggled to maintain their land base and continue to fight to maintain their relationship with the land, which is an essential element of tribal existence key to the cultural survival of the people. Over the last 30 years, land purchases have emerged as the primary land acquisition strategy for tribes, along with the purchasing of fractionated ownership interests in the allotted lands.

Tribal land acquisition strategies and policy recommendations

As this study indicates, both the Grand Portage and Leech Lake Bands have prioritized land acquisition, and have utilized various strategies in order to reclaim lands, and even the smallest parcel of land has been pursued for acquisition. From the start, this study was intended to serve as “action research” that is responsive to the needs of tribal communities and that contributes to tribal efforts to protect “indigenousness” and

“sovereignty.” Therefore, the land acquisition strategies utilized by the Grand Portage and Leech Lake Bands, as summarized below, are provided for the future consideration by other tribal nations in their land acquisition efforts:

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1. Consolidation of fractionated ownership through the purchase of the fractionated

ownership interests in allotted lands, as they become available and as Band

members desire to sell. At Leech Lake, their participation in the Indian Land

Consolidation Pilot Project contributes to that endeavor;

2. Purchasing private parcels of land as they become available, primarily

accomplished with Band resources today;

3. Negotiation with county and State governments on potential land transfers and

land exchanges. For example, the recent Mineral Center Cemetery land transfer to

the Grand Portage Band, and Leech Lake’s negotiated Leech Lake land exchange

with Cass County;

4. Correction of historical error through special legislation or administrative

authority, such as the 1982 Secretarial Proclamation for the boundary expansion

of the Grand Portage Reservation;

5. Pursuit of land transfers of federal “surplus” or excess land, such as the federal

surplus lands (Winni fish ponds) that Leech Lake is seeking transfer;

6. Special legislation, such as the 1928 Act reserving the Ball Club Village site and

the 1940 Act withdrawing nearly 600 acres from the Minnesota National Forest;

7. Executive Orders have also been utilized for tribal land acquisition, such as the

orders relating to the establishment of Leech Lake Reservation or the 1917 order

transferring ownership of islands to Grand Portage.

As tribal nations engage in land acquisition efforts, I also make the following recommendations for their consideration. I suggest that tribes closely monitor the real estate market within their reservation territories. A tribe that is focused and

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knowledgeable of the private real estate market will be better positioned to understand the market trends and to seize private land purchasing options as they become available on the market. I also suggest that tribes monitor the county tax-forfeited land lists, along with the county processes and dates for tax-forfeited land sales, as that information will better position tribes to take advantage of those land acquisition opportunities. Tribes should also closely monitor federal lands within their reservation territories, in order to determine their availability as federal “surplus” lands. Essentially, I recommend that tribes should be armed with accurate and timely information on the contemporary tenure status of all lands within their territories, which should contribute to improved tribal land acquisition efforts.

The lack of accurate information and data on Indian land tenure status is one of the primary obstacles to tribal land acquisition, and to tribal administration and management of tribal land tenure. In order to acquire that data and information, the Bureau of Indian

Affairs must cooperate, as that agency is the official trust manager of Indian lands and record-keeper of Indian land tenure data. As this case study illustrates, however, the

Bureau has shown little willingness to assist with the transfer of the land tenure records, even as the tribes have begun to assume some of the realty functions previously handled by the Bureau of Indian Affairs.

Tribes have historically faced difficult and almost insurmountable external forces for ownership and control over their territories, and those external forces remain on the contemporary Indian land tenure landscape. Increasingly, state and local governments oppose tribal trust land acquisitions, and there is a general lack of public understanding about Indian land tenure, and growing public resentment towards tribal sovereignty, all of

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which impact tribal land acquisition. Therefore, there needs to be a broad tribal educational effort regarding tribal sovereignty and jurisdiction, as well as Indian land tenure issues and the importance of tribal land acquisition today, in order to educate their membership, as well as the general public. I also suggest that tribes, whenever possible, make concerted efforts to improve working relationships with the federal, state and local governments, and the local Bureau agency. In my opinion, solid working relationships would contribute to greater land acquisition success, as Grand Portage case study demonstrates.

Furthermore, I suggest that tribes give serious consideration to a “payment-in-lieu-of- taxes” arrangement, which would go a long way to alleviate some of the local opposition to trust land transfers, such as is occurring at Leech Lake. Of course, due diligence would be first required in order to determine an appropriate rate that should be paid. Although the Leech Lake Band is vehemently opposed to such an arrangement, it is my opinion that a “payment-in-lieu-of-taxes” arrangement may ultimately require fewer Band resources in the long run. For example such an arrangement would alleviate some of the legal costs caused by local objections, as well as the payment of property taxes now made under protest. In the alternative, the Band could advocate for the payment-in-lieu-of taxes from the federal government, as Cass County has suggested.

As I have previously argued, the issue of future provision of government services has been raised by opponents to land-into-trust acquisitions.4 The underlying issue with the

local units of government is that land will be removed from the tax base while they are

still responsible for the provision of those services. In response to those arguments, some tribes have entered into agreements with local governments to provide such services or to

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agree to pay for the provision of such services by the local governments.5 Such arrangements appear to be an effective tribal strategy for deflating the opposition’s main argument, and for building political goodwill among their neighboring units of government.

For the Minnesota Chippewa Tribe specifically, I also suggest that the Tribe as a whole attend to the taxation issue with the State of Minnesota regarding lands used for governmental purposes. Tribal pursuit of legislation could effectively address that outstanding issue which affects Indian land tenure and tribal sovereignty today.

In the end, tribal strategy should include the use of the land-into-trust acquisition

process. Although enacted over sixty years ago, the land acquisition program should continue to provide viable opportunities for tribal land acquisition today.

Federal Trust responsibility and policy recommendations

The governing federal trust responsibility continues to encompass responsibility for tribal land acquisition, and this study has identified some of the future implications for the federal responsibility towards Indian land tenure and acquisition. Although tribal land acquisition is an important aspect of the contemporary trust responsibility, it appears to have become a latent responsibility. I assert that the federal trust responsibility for tribal land acquisition must, and should, be revived to become an effective and engaged responsibility that will promote tribal self-determination and sovereignty.

Prevailing international standards recognize that Indigenous communities have an international right to re-acquire their permanent homelands. The United States has acknowledged to the international community that historic federal Indian policies resulted in the severe diminishment of the Indigenous land base prior to 1934. The United States

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also acknowledged that a substantial tribal land base is essential to tribal society and culture, and that the United States has a federal trust obligation to promote the stabilization of the Indian land base and to assist in tribal land acquisition efforts.

The doctrine of federal trusteeship, or the federal trust responsibility, establishes a federal obligation to pursue the preservation and protection of Indian lands and resources.

Based upon that federal trust doctrine, the current domestic policy of self-determination mandates affirmative action and attention to tribal land acquisition, requiring a transformation of policy into real tribal land acquisition in order to correct that unmet federal obligation. As this case study had demonstrated, the federal trust model has often been applied to the disadvantage of tribes and has become largely ineffective.

Contemporary tribal land acquisition occurs within a prohibitive Indian land tenure environment. The executive branch has tightened the restrictions on land-into-trust transfers and has nearly stopped processing transfer applications entirely. The judicial branch has instituted other restrictions on tribal land acquisition, increased state taxing authority, and developed new limitations on the exercise of tribal sovereignty. Within that environment, trust status is actively sought by most tribes and is often considered the best land tenure option. In fact, Indian trust lands represent the bulk of Indian-owned land within reservation territories, and the entrusted lands are protected from state taxation and jurisdiction. In general, tribes prefer to retain lands in trust, as tribal sovereignty and jurisdiction appears more secure when tribal lands are held in trust, especially in this chilly judicial climate.

While I agree that the federal trust model must be re-evaluated and “modernized,” I am also skeptical that the tribes will lose what little protections they have while the

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federal government tries to determine which course should be pursued. I suggest that the federal government take some affirmative measures now to facilitate tribal land acquisition, within the existing parameters of federal Indian policy. For example, one affirmative federal measure should be the modification of the land-into-trust regulations, to alleviate the expenditure of limited tribal resources to accomplish a land-into-trust transfer on purchased lands. I agree with Nash tribal applications to taken land-into-trust within their traditional homelands should be a right afforded to tribes.

I assert that it is incumbent upon the United States to review and evaluate governing federal Indian law and policy in order to improve tribal land acquisition efforts. The federal government must allocate additional resources to tribal land acquisition efforts, re-evaluate existing Indian land tenure mechanisms, processes, and systems, and work with tribes to develop viable alternatives for future tribal land acquisition that aligns with international standards. All of this must be done collaboratively with tribes and ensure tribal input throughout the entire process. I suggest that such affirmative measures include the following components:

1. Improve Indian land tenure administration and record-keeping, and compile

accurate information on Indian land tenure, including a comprehensive study

on Indian land acreage in trust and the status of fee-to-trust applications and

acquisitions;

2. Develop a plan to provide for tribal access to land tenure information and

data, and facilitate tribal acquisition of their respective Indian land tenure

records; tribal acquisition of their own land tenure records is critical if tribes

are to effectively plan to acquire lands within their reservation territories;

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3. Conduct an initial assessment of tribal land needs, current Indian land

ownership status, and the current and future needs of the Indigenous people

for cultural, spiritual, social, economic, and material well-being, accounting

for demographic changes and trends;

4. Establish a minimal baseline that would provide standards for an adequate and

sufficient Indigenous land base, such as a formula that proposes a certain

required number of acres per individual tribal member. Kickingbird and

Ducheneaux advocated for such a formula that was based on a formula of 135

acres per individual as the minimum acreage necessary for a viable and

adequate Indigenous land base;

5. Federal consideration to modifying the restrictive and complex requirements

of the regulations governing the land-into-trust acquisitions, to provide for

automatic transfers into trust of lands lying within reservation territories (as

discussed above);

6. Continued federal effort to resolve the fractionated ownership issues

associated with the allotted lands, working collaboratively with Indian land

owners, tribal land departments, and organizations such as the Indian Land

Working Group to bring forth an effective solution;

7. Focused review of federal surplus lands within or contiguous to reservation

boundaries, for potential administrative transfer of those lands to the

respective tribes;

8. Federal pursuit of a legislative settlement for documented land claims,

specifically including those land claims involving the “Secretarial Transfer”

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sales of allotted lands without the full consent of all Indian owners. Such a

legislative settlement could resolve the land claims at Leech Lake that

encompasses 16,000 acres of lands that are now under federal ownership.

Alternatively, the federal government could pursue a direct transfer of land

from the Chippewa National Forest on behalf of the Leech Lake Band of

Ojibwe on the basis that the 6,000 acres of land were illegally taken from the

Indian owners by the federal government, through the Secretarial Transfer

process.

The United States government acknowledges that tribal self-determination is governing federal Indian policy and that stabilization of the Indian land base is essential to that policy. However, that policy in action has produced an unfavorable environment for tribal land acquisition. It is time for the United States to act on such a policy in a good faith effort to honor its trust responsibility and not leave that policy to stand as hollow political rhetoric. It is time for the United States government to respect the principles of the federal trust responsibility and to promote tribal land acquisition and stabilization of the Indian land base. For tribal nations today, the status of Indian land tenure within their reservation territories has direct and serious implications for tribal economic development, social systems, and persistent legal issues. American Indian efforts to reacquire their land base will promote the autonomy and self-determination of American

Indian people and will ensure that the federal trust responsibility is honored.

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Endnotes

1 Wilma Mankiller, Former Chief of the Cherokee Nation, “Former Chief Explores American Indians’ Survival in Land of Lewis and Clark,” Pittsburg Post-Gazette (Pittsburg, November 15, 2002), A13, [email protected] (November 19, 2002). 2 Marge Anderson, Chief Executive of the Mille Lacs Band of Ojibwe, “Framework of Tribal Sovereignty,” American Indian Research and Policy Institute Spring Forum (1996), 1. http://www.airpi.org/marge1.htm. 3 M. Anderson, “Framework of Tribal Sovereignty.” 4 Leah J. Carpenter, “Policy Analysis of the Land Into Trust Acquisition Provisions of the Indian Reorganization Act: Tribal Opportunities, Obstacles, and Opposition,” Wicazo Sa Review (Spring 2000): 44. 5 Ibid., citing Shirley Van Alstine, Realty Officer, Minneapolis Area Office (personal conversation with the author, April 12, 1999).

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APPENDICES

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APPENDIX A 1855-1874: The Establishment of the Leech Lake Reservation

Parcel # Date Treaty or Reservation Notes and Explanation Established Executive Name (See attached map for reference) Order #1 1855 Treaty Leech Lake This parcel primarily contains the main body 2-22-1855 (original) Of Leech Lake with some land along the easterly and westerly boundaries of the lake; this parcel was later enlarged by Parcels #4, 6, & 8 #2 1855 Treaty Lake This is the rectangular parcel of land that 2-22-1855 Winnibigoshish contains (original) The northerly portion of Lake Winnibigoshish; this Parcel was later enlarged by Parcel #7 #3 1855 Treaty Cass Lake This is the odd hour-glassed-shaped parcel that 2-22-1855 contains the Northerly portion of Cass Lake

#4 1864/1867 Treaty Set aside for 1864 Treaty added lands encompassing a large 5-7-1864 Chippewas of area, from south point of Leech Lake, to Red and Mississippi; Lake Reservation, Thief River, and Deer River, Treaty Constitutes Excepting lands already reserved under 1855 3-19-1867 Addition #1 to Treaty. Leech Lake 1867 Treaty ceded some lands secured in 1864 Reservation Treaty, but also reserved a large parcel of land which Contains the central portion of the consolidated Leech Lake Reservation; the ceded lands were in 2 separate tracts, and 4 portions were later reserved by 3 Executive Orders in 1873 and 1874 (see Parcels #5-8 below). #5 1873 Ex.Order White Oak This is the square parcel lying at the 10-29-1873 Point southeasterly Edge of Leech Lake Reservation #6 1873 Ex.Order Addition #2 to Added lands at southern point of Leech Lake, 11-4-1873 Leech Lake including islands and represents the Reservation Large southern triangle addition to Leech Lake

#7 1874 Ex.Order Addition #1 to Added lands at Mississippi River exit from 5-26-2874 Lake Lake Winnibigoshish and represents the Winnibigoshish Northerly addition to that reservation Reservation #8 1874 Ex.Order Addition #3 to Added parcel of land contiguous to original 5-26-1874 Leech Lake Leech Reservation Lake Reservation northeasterly boundary and Represents the baseball diamond shaped parcel.

Prepared by Leah J. Carpenter, 3-10-04

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APPENDIX B Map of the Leech Lake Reservation, showing the establishment of the Leech Lake Reservation

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APPENDIX C Executive Orders of October 29, 1873, November 4, 1873, and May 26, 1874

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APPENDIX D Trust Patent issued to Wah zhow ush cogah bow, an Indian belonging on the Chippewa Reservation in Minnesota

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APPENDIX E Executive Order of March 21, 1917

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APPENDIX F Map Showing Grand Portage islands transferred per 1917 Executive Order

APPENDIX F

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APPENDIX G Minnesota Chippewa Tribe §2415 Land Claims Project Report on “The Minnesota Chippewa Reservations, Total Acreage for Active Claims, “February 4, 1982

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APPENDIX H Elmer Nitzschke, Field Solicitor, letter of August 24, 1979, and Leo Krulitz, Solicitor, Memorandum of August 20, 1979

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AAPPEN

APPENDIX J

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347

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APPENDIX I Secretarial Proclamation regarding Grand Portage Indian Reservation; Proclaiming Certain Lands as part of the Grand Portage Indian Reservation, May 14, 1982

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Kelley, Klara B. and Harris Francis. “Places Important to Navajo People.” American Indian Quarterly (Spring 1993): 151-169.

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______. “Twentieth-Century Indian History: Achievements, Needs, and Problems.” Organization of American Historians Magazine of History 9 (Fall 1994).

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Priest, Loring Benson. “The Development of Indian Land Policies.” Uncle Sam’s

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Stepchildren: The Reformation of United States Indian Policy: 1865-1888. Lincoln: University of Nebraska Press, 1969: 217-232.

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Sando, Joe. Nee Hemish: A History of Jemez Pueblo. Albuquerque: University of New Mexico Press, 1982.

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Wheeler-Voeglin, Ermine and Harold Hickerson. Chippewa Indians I: The Red Lake and

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Pembina Chippewa; part of Garland Series on American Indian Ethnohistory: North Central and Northeastern Indians. Ed. and compiled by David A. Horr. New York: Garland Publishing, Inc., 1974.

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Doctrine Revisited.” Utah Law Review (1994): 1471 et. seq.

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Treaties, Laws, Cases and Other Legal Documents

TREATIES

Treaty of April 7, 1866. Between the United States and Bois Fort Band. 14 Stat. 765.

Treaty of August 2, 1847. Between the United States and the Chippewa of the Mississippi and Lake Superior. 9 Stat. 904.

Treaty of August 21, 1847. Between the United States and the Pillager Bands of Chippewa Indians. 9 Stat. 908.

Treaty of August 19, 1925, also known as the Treaty of Prairie du Chien. Between the Chippewa, Sac, and Fox, Menominie, Ioway, Sioux, Winnebago, and part of the Ottawa, Chippewa and Pottawatomie Tribes Living on the Illinois. Kappler’s Indian Affairs Vol. 2: 250-254.

Treaty of February 22, 1855. Between the United States and the Mississippi Bands of Chippewa. 10 Stat. 1165.

Treaty of July 29, 1837. Between the United States and the Chippewa Nation of Indians. 7 Stat. 536.

Treaty of March 11, 1863. Between the United States and the Chippewa, Mississippi, and Pillager and Lake Winnibigoshish Bands. 12 Stat. 1249.

Treaty of March 19, 1867. Between the United States and the Chippewa of the Mississippi. 16 Stat. 719.

Treaty of May 7, 1864. Between the United States and the Mississippi, and Pillager and

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Lake Winnibigoshish Bands of Chippewa. 13 Stat. 693.

Treaty of October 4, 1842. Between United States and Chippewa of the Mississippi and Lake Superior. 7 Stat. 591.

Treaty of September 30, 1854. Between the United States and the Chippewa Indians of Lake Superior and the Mississippi. 10 Stat. 1109.

LAWS

Act of April 14, 1896. 29 Stat. 92.

Act of August 1, 1914. 38 Stat. 582.

Act of August 23, 1894. 28 Stat. 489.

Act of August 27, 1894. 28 Stat. 504, as amended.

Act of February 8, 1887, known as the General Allotment Act or the Dawes Act. 24 Stat. 388.

Act of February 14, 1913. 37 Stat. 678.

Act of February 24, 1896. 29 Stat. 12.

Act of January 14, 1889, An Act for the Relief and Civilization of the Chippewas of Minnesota, known as the Nelson Act. 25 Stat. 642, as amended.

Act of July 1, 1898. 30 Stat. 571.

Act of July 6, 1894. 28 Stat. 99.

Act of July 18, 1894. 28 Stat. 112.

Act of July 25, 1935. 44 Stat. 763.

Act of June 2, 1890. 26 Stat. 126.

Act of June 4, 1935. 74th Congress, Chapter 168. 49 Stat. 321.

Act of June 7, 1897. 30 Stat. 62.

Act of June 7, 1897, Indian Appropriations Act. 30 Stat. 90.

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Act of June 8, 1940. 54 Stat. 254.

Act of June 14, 1880, River and Harbor Act.

Act of June 18, 1934, The Indian Reorganization Act. 48 Stat. 985, 25 U.S.C. §461 et. seq., as amended.

Act of June 21, 1906. 34 Stat. 325.

Act of June 25, 1910. 36 Stat. 855.

Act of June 27, 1902, known as the Morris Act. 32 Stat. 400.

Act of March 1, 1907. 34 Stat. 1015.

Act of March 2, 1889. 25 Stat. 1010.

Act of March 3, 1905. 33 Stat. 1048.

Act of March 14, 2002. “An Act Authorizing County Conveyance of Mineral Center Cemetery Land and Property to Grand Portage Reservation.” Minnesota Session Laws 2002, Chapter 237. H.F. 2987, 82nd Session. Effective date of enactment, March 15, 2002. http://ros.leg.mn/revisor/pages/search_status/status_details.php?b=House&f=HF2 987&y=20002&ssn=o.

Act of 1907. 34 Stat. 1018. Kappler’s Indian Affairs, Vol. 3: 476.

Act of March 3, 1881, River and Harbor Act.

Act of May 8, 1906, known as the Burke Act. 34 Stat. 182.

Act of May 14, 1948. 62 Stat. 236.

Act of May 21, 1928. 70th Congress, Chapter 663. Pub.L. 70-461. 45 Stat. 684.

Act of May 23, 1908, known as the Minnesota National Forest Act. 35 Stat. 268.

Act of May 27, 1902. 32 Stat. 245, as modified.

Act of May 29, 1908. 35 Stat. 444.

Act of May 29, 1935. 74th Congress, Chapter 157. 49 Stat. 312.

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Act of September 2, 1958. Pub. L. 85-910. 72 Stat. 1751.

American Indian Probate Reform Act of 2004. 118 Stat. 1773, P.L. 108-374.

American Indian Religious Freedom Act of 1978. 42 U.S.C.A. §1996 et. seq.

Federal Property and Administrative Services Act of 1949. 63 Stat. 377, as amended by P.L. 93-599, 88 Stat. 1954 (1975).

Indian Civil Rights Act of 1968. 25 U.S.C. §1301-1303.

Indian Child Welfare Act of 1978. 25 U.S.C.A. §1901-1963.

Indian Gaming Regulatory Act of 1988. 25 U.S.C. §2701-2721.

Indian Land Consolidation Act of 1982. 25 U.S.C.A. §2201-2211, as amended.

Indian Self-Determination and Education Assistance Act of 1975. 25 U.S.C. §450 et. seq., as amended.

Minnesota Statutes. §272.01-.272.02.

Public Law 280. 28 U.S.C. §1162.

White Earth Reservation Land Settlement Act of 1985, as amended. P.L. 99-264. 100 Stat. 61 (March 24, 1986).

RESOLUTIONS

Joint Resolution No. 17. February 23, 1897. 29 Stat. 702.

EXECUTIVE ORDERS

Executive Order. “Winnebagoshish Reserve.” October 29, 1873

Executive Order. “Leech Lake Reserve.” November 4, 1873.

Executive Order. “Leech Lake and Winnebagoshish Reserves.” May 26, 1874.

Executive Order. (No. 2550 regarding Grand Portage Reservation). March 21, 1917.

Executive Order. (Regarding Minnesota National Forest). May 24, 1928.

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DEPARTMENTAL ORDERS AND PROCLAMATIONS

Departmental Order of the Commissioner of Indian Affairs. Regarding the establishment of Roadless and Wild Areas on Indian Reservations. October 29, 1937. Federal Register Vol. 3, 1938.

Departmental Order Modifying Departmental Order By Restoring Undisposed-Of Opened Lands of Grand Portage Reservation, Minnesota, to Chippewa Indians of Minnesota. April 6, 1938. Kappler’s Indian Affairs, Vol. 3: 1421-1422.

Secretarial Order of Restoration regarding “Chippewa Indian Reservations, Minnesota.” February 23, 1938. Kappler’s Indian Affairs, Vol. 7: 1408.

Secretarial Proclamation. “Grand Portage Indian Reservation: Proclaiming Certain Lands as Part of the Grand Portage Reservation.” Federal Register Vol. 47: No. 105: 23813, May 14, 1982.

RULES AND REGULATIONS

25 C.F.R. Chapter 1, part 151. “Land Acquisitions.” April 1, 1998.

25 U.S.C. Chapter 24, §2212. The Pilot Program for the Acquisition of Fractional Interests.

Final Rule to Revise and Clarify Procedures to Acquire Land in Trust, implementing proposed 1999 amendments to 25 C.F.R. Chapter 1, part 151. January 16, 2001. Federal Register Vol. 66: No. 10: 3452-3466.

Withdrawal of Final Rule of January 16, 2001. November 19, 2001. Federal Register Vol. 66: No. 218: 56608-56610.

LEGAL CASES

Babbitt v. Youpee. 117 S.Ct. 727, 519 U.S. 234, 1997.

Brendale v. Confederated Tribes and Bands of Yakima. 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343, 1989.

Cass County v. Leech Lake Band of Chippewa Indians. 524 U.S. 103, 1998.

Cass County, Minnesota and City of Cass Lake, Minnesota v. Midwest Regional Director, Bureau of Indian Affairs. Interior Board of Indian Appeals. March 21, 2006. 42 IBIA 243.

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Cobell v. Norton, 240 F.3d. 1081 (D.C. Cir. 2001), 229 F.R.D. 5 (D.D.C. 2005). This case was previously titled Cobell v. Babbitt, and is now titled Cobell v. Kempthorne.

County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation. 520 U.S. 251 (1992).

Hodel v. Irving. 481 U.S. 704, 1987.

Johnson v. McIntosh. 21 U.S. (8 Wheat) 543, 5 L.Ed. 681 (1823).

Leech Lake Band of Chippewa Indians v. Herbst. 334 F.Supp. 1001 (D.Minn.1971).

Little Earth of United Tribes, Inc. v. County of Hennepin, 384 N.W.2d 435 (Minn. 1986).

McCulloch v. Maryland. 17 U.S. (4 Wheat) 316, 1819.

Montana v. United States. 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed. 493, 1981.

South Dakota v. Bourland. 508 U.S. 679, 1993.

State of South Dakota v. United States Department of Interior. U.S. Court of Appeals. 69 F.3d 878 (8th Cir. 1995), vacated and remanded, 117 S.Ct. 286 (1996).

Worcester v. Georgia. 31 U.S. (6 Pet.) 515, 1832.

INTERNATIONAL LEGAL DOCUMENTS

Concluding Observations of the Human Rights Committee: Canada. United Nations, New York City, NY. Adopted by the United Nations Human Rights Committee, Sixty-fifth session, Doc. No. CCPP/C/79?Add.105 (Concluding Observations/Comments), July 4, 1999.

Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries. United Nations, New York City, NY. Adopted by the International Labour Conference, United Nations, June 27, 1989 (entered into force September 5, 1990).

Draft United Nations Declaration on the Rights of Indigenous Peoples. United Nations, New York City, NY. Adopted by the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Resolution No. 199445, United Nations, Doc. No. E/CN.4/1995/2, E/CN.4/Sub.2/1994/56, 1994.

General Recommendation of 1997 Regarding Indigenous Peoples. United Nations, New

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York City, NY. Adopted by the United Nations Committee on the Elimination of Racial Discrimination, 1997.

United States Report to the United Nations High Commissioner of Human Rights. United Nations, New York City, NY. Submitted to the Human Rights Committee, International Covenant on Civil and Political Rights, as part of the “Initial Reports of States Parties Due in 1993: United States of America,” United Nations, Doc. CCPR/C/81/Add 4, August 24, 1994.