58. The area is rich in natural resources, including animals, plants, birds and aquatic life. It lies on a natural north/south highway, the Hudson/Champlain/ Richilieu waterway connecting to the Great Lakes through the St. Lawrence River. T I at 163.
59. The bony remains of fish are found at Missisquoi archaeological digs going back seven 'thousand years; the Missisquoi have been fishing forever. 168.
60. Fishing and hunting formed the base of the Western Abenaki food supply. Those were supplemented by gathered plant foods in a minor way. Later, cultivated corn entered their diet. D at 68 and 114.
61. Fishing and hunting were almost the center of Western Abenaki culture. D at 114.
62. Today, fishing is still a great community preoccupation among the Missisquoi, one that has continued since it first began. T I at 37 and 168, T IV at 44, D at 119.
63. No other native American tribes ever fished in the Missisquoi homeland. T I at 168.
C. Missisquoi Abenaki culture
64. The Missisquoi are a body of Indians of the same or similar race united in a community under one leadership or government, inhabiting a particular though sometimes ill-defined territory and have been from time immemorial through the formation of the. United States up to the present. T I at 185, T II at 9, TV at 53, C III at 144, D at 80.
65. At the time of first European contact in 1609 the Missisquoi
67. This community was a non-hierarchical society marked by sexual equality. There was a feeling of belonging to a particular territory. The political organization was based on persuasion and consensus. They raised their children in a nonauthoritarian way. Religious beliefs were animistic. The core community values were cooperation, sharing, humility, a sense of personal privacy and a sense of oneness with the natural world. T I at 189.
68. Western Abenakis, a people that now or at one time inhabited areas in Canada and Vermont, were essentially one people at one time. D at 37.
69. The Western Abenaki, including the Missisquoi, are a distinct ethnic group, one that is characterized by presumed common descent, common language, a feeling of shared identity, common customs and a common world view. D at 21, 43-44.
70. The Missisquoi have maintained their distinct ethnicity throughout the course of their history. They are a distinct Native American group as of today and and [sic] view themselves a distinct from the
72. The fact that the Western Abenaki have stuck it out over the last two hundred years in their old homeland in the face of really great pressures evidences their deep evidences of attachment to the land. T I at 237.
73. The Missisquoi mythology includes a supreme being, a semi-human super shaman and a host of lesser creatures, including a "trickster." D at 71.
74. They continue the use of sweat lodge, which functions as it sounds as a means of spiritual purification. T II at 5.
75. The Missisquoi continue to have various ceremonies, but the numbers are reduced. D at 77.
76. The Missisguoi have an ethic of not wasting. They believe, for example, that you must respect animals and not waste their bounty on pain of their withdrawing their willingness to allow themselves to fulfill human needs. T I at 167.
77. The eighteenth century saw the Missisguoi become increasingly dependent upon Europeans for such things as woven cloth. They .adopted some things they wanted or found useful, but didn't discard all their old skills and techniques. C IV at 76.
78. The Missisquoi have not abandoned their identity, but sane items of their culture have disappeared. D at 106.
79. "Abenaki" is basically a linguistic term. At its limits it
81. The Missisquoi community no longer speaks Western Abenaki, as the Irish no longer speak Gaelic. T I at 213, T II at 101.
82. An extended family structure comprised of family bands exists now as it has since time immemorial. Each band is a component of the tribe as a whole, each linked by kinship, economics, leadership and a world view, which historically saw them thinking of themselves as being at the center of the universe. T I at 225, C III at 52.
83. There is an extraordinary amount of community interaction within and among the Missisquoi families. T BV at 69.
84. Traditional Missisquoi governance is by the great man. In essence the community waits for someone with sufficient prestige to rule by consensus. Though there is always same break in leadership with the death of a chief, the Missisquoi have been able to maintain a sequence of leaders and a feeling of group identity. The historical record shows that in 1760, for example, Louis Attolomaguin was looked upon as a leader. D at 84, 107, 111, 112.
85. Missisquoi cultural tradition has been to have representatives conduct relations with other peoples. T I at 235, D at 107.
86. Since 1972 the leadership has been somewhat formalized by an elected chief and tribal council, but there continues to remain intact an extensive network of heads of families and community leaders that surround and contain the formal leadership. T IV at 75-76.
87. Because of their continued feeling for an ethnic identity the
89. The simple fact that the Missisquoi are referred to in the record as Missisquoi indicates that throughout record history, to one degree or the other, they were regarded as a distinct community. C III at 50.
90. In dealing with Europeans the Missisquoi have tried to remain as inconspicuous as possible, dealing through a few front families. T I at 106.
91. The Missisquoi community has been characterized as well, by cooperative use and sharing of subsistence ground and other refuges and by sacred burial grounds. T IV at 58-59.
92. A workable definition of assimilation: When a people completely lose their identify and identify with the culture and society into which they have been assimilated. The Missisquoi have not become assimilated. T I at 211-212.To
93. To be a member of the Missisquoi tribe one must share a common set of values with its members; one must be "culturally Missisquoi." T III at 106.
D. Missisquoi geography
94. Archaeologists establish the eastern boundary of the Iroquois near the western boundary of the Missisquoi; they are separated by Lake
95. The Champlain islands, including North Hero, South Hero and isle La Motte are in Missisquoi territory. T I at 171.
96. The Missisquoi, without a break, have occupied the following territory since 9300 B.C.: The Missisquoi River watershed into Quebec and over to Lake Memphramagog, down into Missisquoi My. Alburg, the Champlain Islands, St. Albans, Swanton, Highgate, Fairfield, Fairfax, Georgia, Sheldon, Fletcher and Northern Milton. T I at 153-154, T II at 230, T III at 63, 153-1544
97. The Missisquoi village existed for thousands of years in an area that incorporates Swanton and Highgate. Its core was on the lower Missisquoi River. T I at 161, T III at 206.
98. The 45th parallel, which divides Vermont from Quebec province, runs pretty much through Missisquoi Bay. As a result, some of the Missisquoi homeland is now in Canada. C II at 39.
99. The various crimes with which the defendants stand charged happened on the following dates in the following places, all of which are in the traditional Missisquoi homeland:
a. August 23, 1986, Harold St. Francis, motor vehicle offense at Lake and Federal Streets, St. Albans, near Route 7.
b. October 27, 1986, Harold St. Francis, motor, vehicle offense on Grand Avenue, Swanton.
c. December, 1986, Harold St. Francis, motor vehicle offense, South River Street, Swanton.
f. July 11, 1987, John Churchill, misdemeanor, Carte Hill Road, Highgate.
g. July 11, 1987, John Churchill, motor vehicle offense, Route 78, Highgate.
h. October 18, 1987, thirty-one defendants fishing without a license or failure to display license, west side of Missisquoi River, Swanton.
i. January 6, 1988, Homer St. Francis, motor vehicle offense, Missisquoi Game Reserve access, Swanton.
j. April 23, 1988, John Churchill, felony, Hotel Riviera, Swanton.
100. In 1777, one could float a birch Lark canoe in the area of the fish-in. The river was more navigable than this. T IV at 250
E. The Coming of the Europeans
101. Ironically, it was the Fourth of July, 1609 when Samuel Champlain the first European to venture into Missisquoi Country, though he had no direct contact with the natives. D at 86.
102. Up until 1743 settlement in Missisquoi is almost non-existent. T III at 201.
103. records reveal a missionary' and military after 1723, followed by a missionary settlement in 1744. In 1748-1749, the
105. There has never been a cession, treaty, or action by the United States government the purpose of which was to deprive of or--- extinguish Western Abenaki or Missisquoi rights to their ancestral homeland. D at 130, C III at 141.
106. The French made land grants prior to being ousted by the Englsih [sic] after a losing effort in the French and Indian War. The LaVasseur grant, which required the grantee to begin development within five years, included Swanton. Others included Highgate and St. Albans. Most of the French grants were not developed. C 11 at 52-53.
107. The Missisquoi fought for the French during the French &amp; Indian War. The French defeat was certain by 1760. The Articles of Capitulation signified the end of hostilities. Article XL of that document makes provision for the honorable, good and fair of the French native American allies by the English. Because the Missisquoi were allies of the French King they were protected under the Articles of Capitulation. C I, Ex. C, The Articles of Capitulatlon 1760, England-France Article XL. C II at 62, 144 and C III at 59, 65.
108. The Treaty of Paris in 1763 made the English successors to the French interests in Vermont. The
109. For fourteen years (1763-1777) the English controlled what we now know as Vermont. From 1777 to 1791, when Vermont entered the Union as the fourteenth state, Vermont was an area in dispute among several governments; New York, the so called Republic of Vermont and, until 1783, the English as well. C I at 87.
110. It was not altruism that spurred protections of native American interests. The Crown did not want any more Indian wars, and they recognized the value of relations with the Native Americans. C III at 76. Accordingly, the English formulated a general Native American policy that is expressed in a royal proclamation, royal instructions and directions. C III at 61, 70, 71, 75. Because the purpose of the police was to maintain peace on the frontiers, any purpose of the policy was to maintain purchases of Native American land would necessarily have to be made from the Native Americans with truce occupancy claims. C IV at 187-88.
111. The 1755 Royal Instruction 671 recognized the danger posed to the security of the colonies by the unauthorized purchase of the it native Americans' land. Royal Instruction 671 recognised the danger poised to the security of the colonies by the unauthorized purchase of the Native Americans' land.
And whereas private persons in several of our colonies in America have frequently purchased lands from the indians without any license from us or from any person acting under our authority which PRACTICE is consistent with our rights and may endanger the peace and security of our said colonies "671. Purchase of Lands Fran Indians" II Royal Instructions to British Colonial Governor 1670-177 467 (Labarere ed. 1935), C I, Lx. B.
112. In its Royal Instruction of 1761 the Crown condemned the unauthorized appropriation of Native American land by both private
The Royal Instruction of 1761 reads in pertinent part:
Whereas the peace and security of our colonies and plantations upon the continent of North America does greatly depends upon the amity and alliance of the several nations or tribes of Indians bordering upon the said colonies and upon a just and faithful observance of those treaties and compacts which have been heretofore solemnly entered into with the said Indians by our royal predecessors, kings and queens of this realm; and whereas notwithstanding the repeated instructions which have from time to time given by our late royal grandfather to the governors of our several colonies upon this head, the said Indians have made and do still continue to make great complaints that settled have been made and possession taken of land the property of which they have by treaties reserved to themselves by persons claiming the said lands under pretense of deeds of sale and conveyance, illegally, fraudulently, and sureptitiously obtained of said Indians; and whereas it has likewise been represented unto us that some of our governors or other chief officers of our said colonies, have countenanced said unjust claims and pretensions by passing grants of the lands so pretended to have been purchase of the Indians; we therefore, taking this matter into our royal consideration, as also the fatal effects which would attend a discontent amongst the Indians in the present situation of affairs, and being determined upon all occasions to support and protect the said Indians in their just rights and possessions and to keep inviolable the treaties and compacts which have been entered into with them, do hereby strictly enjoin and command that neither yourself nor any lieutenant governor, president of the council, or commander in chief or our said province of --- do upon any pretense whatsoever upon pain of our highest displeasure and of being forthwith removed from your or his office, pass any grant or grants to any persons of any land within or adjacent to the territories possessed or occupied by the said Indians or the property or possession of which has at any time been reserved to or claimed by them; and it is our further will that and pleasure that you do publish a proclamation in our name strictly enjoining and requiring all persons whatever
113. On October 7, 1763, the Crown issued a Royal Proclamation, which established a boundary line that ran up the Green Mountains, (the Proclamation Line) and laid down certian procedures for acquiring Native American lands east of the range and reserving the lands west of the range to the Native Americans. C I at 101, 103; C III at 72-74, 11
Because the Green Mountains were the boundary, and land west of the boundary was reserved to the Native Americans, the Missiquoi territory is located within the lands reserved to Native Americans. C III at 74, C IV at 122, 138-39 . The Crown could extinguish aboriginal title in areas it thought proper for settlement with the agreement of the Native Americans by purchase of the Native Americans' land in formal, open meetings helf for that purpose by the Governor or Commander in Chief of
Additionally, any one who had settled on Native land, whether lawfully or not, was required to leave that land.
The Royal Proclamation of 1763 states in pertinent part:
And whereas it is just reasonable, and essential our Interest and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and live under our Protection, should not be molested or disturbed in the Possession of such Parts of our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them or any of them, as their hunting Grounds. -We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure .... that no governor or Commander in Chief in any of our other Colonies or Plantations in America (other that Quebec, East or West Florida) do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever, which as aforesaid, are reserved to the said Indians, or any of them.
And, We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and for the use of said Indians, all the Lands and Territories not included within the Limits or Our said Three new Governments, or within the limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West as aforesaid;
And We hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from any Purchases or Settlements whatever or taking Possession of any of hee Lands above reserved, our especial leave and Licence for that Purpose first obtained.
And, We do further strictly enjoin and require all Persons whatever who have either willfully or inadvertently seated themselves upon nay [sic] Lands within the Countries above described, or on any other Lands not having been to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.
And whereas great Frauds Abuses have been committed in purhcasing Lands of the Indians, to the prejudice of our interests, and to the great Dissatisfaction of the said Indians; In order, therefore to prevent such Irregularities in the future, and to the end that the
114. Royal governors administed crown authority in the New World. C I at 93. That authority, however, was restricted by the Royal Instruction of 1761 and the Royal Proclamation of 1763. C 1 at 93 C III at 80-82. Benning Wentworth,, after when Bennington, Vermont was named, was governor of the area known as New Hampshire between 1741 and 1766. C I at 93. After the Royal Proclamation of 1763, the exercise of crown policy toward Native Americans living west of the Proclamation line was in the hands of appointed Indian agents, not royal governors. C I at 123, C II at 43. One of these agents was Sir William Johnson. C I at 108. Irregardless of whether lands was east or west of the Proclamation Line, any English acquirement of Native American lands required their agreement and an open meeting of the Native Americans and either the governor or indian, whichever was appropriate. C IV at 121-22, 126-27.
115. Prior to the Royal Proclamation of 1763, on August 17, 1763, Wentworth made the St. Albans and Swanton grants, even though no native Americans were consulter or dealt with in any formal
122. The Continental Congress resolved late in 1775 that the St. Francis or the St. John Missisquoi could "be called upon in a case of real necessity...". C I, Ex. K, III Journals of Congress 1774-1789 400 (W. Chief ed. 1905). There is some confusion as to the nomenclature used to describe the Missisquoi in that period of time as they where sometimes referred to as St. Francis Indians and other times St. Johns Indians. C III at 166-68. During the American Revolution, American generals Washington and Schuyler were concerned that the Missisquoi were hostile and might attack. Ira Allen, as well, regarded them hostile. C II at 86.
123. The outbreak of the American Revolution found many Native American tribes divided over which side, if either, to support. The Missisquoi were no exception. Though most stayed out of it, some sided with the British and some with the Americans, apparently more with the
125. The Vermont Declaration of Independent reaffirmed the --- Wentworth grants, saying in effect that the 1764 Privy Council order should not apply. C I, Ex. 28 The Declaration of Independence paras. 2 and 3 (Vt. 1777); C I at 95, C II at 140.
126. The alleged Republic's legislature exacted statutes including the following:
a. An Act for Appointing County Surveyors Counties; and Directing them and Regulating them in the Execution of their Office, 17 February 1779, 1779 Vt. Laws at 80; C I, Ex. 12. This Act addresses the appointment of appropriately skilled surveyors as county for the purpose of performing surveys, and other services, the appointment of surveyor's assistants and penalties for interfering with surveyors.
b. An Act for Enabling Commuities to Maintain, and [?] and Defend their Common Rights, Estates and Interests, 19 Feb 1779 Vt. Laws at 42; C I, Ex. 13. By this Act, several entities grant holders and proprietors of undivided
d. An Act to Prevent unlawful settlement on unappropriated Lands, 16th March 1780, 1780 Vt. Laws at 190; CI, Ex. 17. Under this Act, anyone who wished to settle or improve unappropriated lands after March 16, 1780 was required to obtain legal title to the land first or they would have to give up possession and pay any damages. If it could be demonstrated that the or improvements were made due to mistake or a supposedly legal title, payment could be recovered for warning was also issued against fraudulent claims. At no time does thethe Act mention Native Americans or aboriginal title.
e. An Act Directing Against Forcible Entry and Detainer 4 October 22d 1782, 1732 Vt. Laws at 140; C 1, Ex. 15. This Act authorizes the Justice of the county to investigate any complaints made of forcib2e entry into or wrongful detainer of houses, land or tenements located in the county and enlists the aid of the sheriff to arrest the