Reporter's Statement of the Case 113 C. Cls. Lake Superior, the following described tracts of land, viz: * * * * 2nd. For the La Pointe band, and such other Indians as may see fit to settle with them, a tract of land bounded as follows: Beginning on the south shore of Lake Superior, a few miles west of the Montreal River, at the mouth of a creek called by the Indians Ke-Che-se-be-weshe, running thence south to a line drawn east and west through the centre of township forty-seven north, thence west to the west line of said township, thence south to the southeast corner of township forty-six north, range thirty-two west, thence west the width of two townships, thence north the width of two townships, thence west one mile, thence north to the lake shore, and thence along the lake shore, crossing Shag-waw-me-quon Point, to the place of beginning. Also two hundred acres on the northern extremity of Madeline Island, for a fishing ground. 3rd. For the other Wisconsin bands, a tract of land lying about Lac De Flambeau, and another tract on Lac Court Oreilles, each equal in extent to three townships, the boundaries of which shall be hereafter agreed upon or fixed under the direction of the President. * 7th. Each head of a family or single person over twenty-one years of age at the present time of the mixed bloods, belonging to the Chippewas of Lake Superior, shall be entitled to eighty acres of land, to be selected by them under the direction of the President, and which shall be secured to them by patent in the usual form. ARTICLE 3. The United States will define the boundaries of the reserved tracts, whenever it may be necessary, by actual survey, and the President may, from time to time, at his discretion, cause the whole to be surveyed, and may assign to each head of a family or single person over twenty-one years of age, eighty acres of land for his or their separate use; and he may, at his discretion, as fast as the occupants become capable of transacting their own affairs, issue patents therefor to such occupants, with such restrictions of the power of alienation as he may see fit to impose. And he may also, at his discretion, make rules and regulations, respecting the disposition of the lands in case of the death of the head of a family, or single person occupying the same, or in case of its abandonment by them. And he may also assign other lands in exchange for mineral lands, if any such are found in the tracts herein set apart. And he may 16 Reporter's Statement of the Case also make such changes in the boundaries of such reserved tracts or otherwise, as shall be necessary to prevent interference with any vested rights. All necessary roads, highways, and railroads, the lines of which may run through any of the reserved tracts shall have the right-of-way through the same, compensation being made therefor as in other cases. 5. The three reservations involved in this suit, namely, the Bad River Reservation, the Lac du Flambeau Reservation, and the Red Cliff Reservation, were always occupied by the Indians. Pursuant to the treaty of 1854, the Bad River Reservation and the Lac du Flambeau Reservation were selected by and surveyed for the Chippewa Indians of Wisconsin. Large portions of these reservations have since been allotted to individual Indians, the restrictions removed, and the allotments sold by the Indians. 6. The plats of survey of the townships within the La Pointe or Bad River Indian Reservation were approved as follows: T. 46 N., R. 2 W., September 20, 1873; T. 46 N., R. 3 W., October 18, 1873; T. 47 N., R. 1 W., December 20, 1861; T. 47 N., R. 2 and 3 W., T. 48 N., R. 2 and 3 W., September 23, 1864. The plats or survey of the townships within the Lac du Flambeau Reservation were approved as follows: T. 40 N., R. 4 E., October 20, 1865; T. 41 N., R. 4 E., February 8, 1866; T. 40 N., R. 5 and 6 E., T. 41 N., R. 5 and 6 E., January 27, 1865. As shown above, all of the sections numbered 16 involved in the Bad River and Lac du Flambeau Reservations were identified, i. e., surveyed and surveys thereof accepted, after the establishment of said Indian reservations. As early as 1870 and continuously thereafter the United States took the position that sections numbered 16 on the Lac du Flambeau and the Bad River Reservations belonged to the Indians who were residing thereon. No patent has been issued to the State of Wisconsin conveying these sections 16. No land within either of these reservations has been secured by the State of Wisconsin as school land, nor has the State of Wisconsin been permitted to gain title to any school lands in either of these reservations. 838936-49- -7 Reporter's Statement of the Case 113 C. Cls. 7. The State of Wisconsin was organized pursuant to the Enabling Act of August 6, 1846 (9 Stat. 56), and admitted into the Union as a State by the Act of May 29, 1848. Congress provided that upon the fulfillment of certain conditions by the State the 16th section in every township would be granted to the State for school purposes. The State of Wisconsin accepted the conditions prescribed by Congress, but as the Supreme Court of the United States later held, did not receive title to any section 16 until it was identified by survey. Before such identification became effective through survey the United States had disposed of all sections 16 within the exterior boundaries of the Bad River and the Lac du Flambeau Indian Reservations by making them a part of the said reservations, hence the State never became the owner of them. The land embraced in the Bad River Reservation and the Lac du Flambeau Reservation was at that time, and at all times thereafter, in the actual use and occupancy of the Indians, first, under the provisions of Article V of the treaty of 1837 and Article II of the treaty of 1842, and afterwards as permanent reservations and homes for the Indians under the treaty of 1854. 8. There is no section 16 within the Red Cliff Indian Reservation. The treaty of 1854 provided that the Indians of this reservation should secure four sections, and they eventually secured four sections and more. 9. The sections 16 hereinafter referred to are the following: Lac du Flambeau Reservation Section 16, Township 41 North, Range 4 East. Bad River Reservation Section 16, Township 47 North, Range 1 West. 16 Reporter's Statement of the Case 10. The State of Wisconsin made claim to certain sections 16 of the Lac du Flambeau and the La Pointe or Bad River Reservations as school sections, under the Enabling Act admitting Wisconsin into the Union as a State. It contracted to sell portions of certain sections 16 to various persons who entered into possession of the land and paid a part of the purchase price therefor, and, upon completion of the purchase price patents were issued by the State of Wisconsin to various purchasers, among whom were the following: W. T. J. Plummber in 1902. T. J. Keys in 1902. Ira Millard in 1883. 11. In the Lac du Flambeau Reservation trespassory cutting was done on section 16, T. 41 N., R. 5 E., and in 1898 there was collected therefor the sum of $774.24 from the Chippewa Lumber and Boom Company for 193,560 feet of timber. Other timber was cut on this section by trespass, for which Laird, Norton and Company paid the Government $2,820.37 for 2,403,080 feet of logs. For timber cut during the winters of 1897-98 and 1901-02, in section 16, township 47 north, range 2 west, and other sections 16 in the Bad River Reservation, the Stearns Lumber Company paid $7,925.93 and $23,885.77. Also the Clifford and Fox Lumber Company paid $1,285.76 for a timber trespass on E2 of SW4 and the W1⁄2 of SE of section 16, township 46 north, range 3 west. All of these sums were credited to the band of Indians residing on the respective reservation from which the timber was cut. The foregoing trespassory cuttings seem to have occurred while the several companies were logging, with authority, upon the reservations, but without authority to log on the school sections within the reservations. Such operations had begun at least as early as 1893. In 1917 logging operations were started on the school sections under the Act of 1916 (39 Stat. at 157) which provided for the cutting of the school lands and the placing of the proceeds in escrow to await the outcome of the then pending litigation. After the decision of the Supreme Court of the United States in United States v. J. S. Stearns Lumber Co., 245 U. S. 436, in Reporter's Statement of the Case 113 C. Cls. 1918, the proceeds were distributed to the Indians of the Bad River Reservation. 12. The logging operations carried on by the contractors under their contracts were economically conducted and did not waste the timber. 13. On October 25, 1924, the Commissioner of Indian Affairs at Washington directed Mark L. Burns, a Government lumberman, to make a stump calculation of timber alleged to have been cut from the so-called school lands on sections 16 of the Bad River Indian Reservation, prior to operations of the Stearns Lumber Company, which operations were authorized in 1917. Mr. Burns' reports in connection with this survey are in evidence as defendant's exhibits 3 and 4, which are made part hereof by reference. In the reports Mr. Burns detailed the scaling of stumps and the points from which he made his examinations, adding an allowance of 5% to 20%, depending on conditions, for stumps completely burned out or rotted away. He counted four logs to each tree though his report itself said that this was excessive and that many trees would not produce more than two logs. Mr. Burns found that many of the stumps examined were of very great age, and that some had decayed to such an extent that he allowed 2 to 6 inches for decay. Many of the white pine stumps were in a fair state of preservation. The decay in the Norway pine stumps was much greater. Repeated forest fires in the area caused the count to be very difficult of determination, so that the measurement of many of the stumps was largely guesswork. There was no indication of trespassory cutting on sections 16-47-1 and 16-47-2, the timber on those sections having been previously cut and paid for by the Stearns Lumber Company. Section 16-48-3 contained only five 40-acre tracts on which old cuttings were found. The evidence does not show whether the Burns reports included the cuttings that were later paid for as trespasses. If he did so include them, Mr. Burns' figure would be, for that reason, considerably higher than it should have been. As to section 16-47-3, his examination showed considerable Norway pine cut on the north half. It was very small |