St. Francis/Sokoki Missisquoi Abenaki Application For Vermont State Recognition PAGES 71 to 76, PLUS the MISSING PAGES of the VT Judge Wolchik Decision of Aug. 1989:

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Missisquoi] were there." T I at 163, D at 56.
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

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community subsisted on hunting, fishing and gathering, supplemented by horticulture. Community organization fluctuated to accommodate subsistence requirements, i.e. the people came together for planting, harvesting and fishing during spawning and dispersed for hunting into family bands. In short, the community was fluid and flexible accommodating movement, periodic dispersal's and re-groupings. C III at 5.

66. As of Community characterized by a subsistence economy, organized and acting in an independent way. T I at 185.
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

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rest of Vermont. T I at 205, T IV at 54, 64, D at 43-44 and 75.

71. The Western Abenaki share a common value and belief system exemplified by a sacred and extremely strong attachment to the homeland, which has no counterpart in contemporary American culture. T I at 179-180, D at 69.
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

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includes Western Abenaki, Eastern Abenaki and Passamaquoddy Maliseets. D at 22.

80. Under white pressure the Western Abenaki have narrowed to two groups, one at Missisquoi and one at St. Francis (Odanak). D at 79.
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

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Missisquoi largely marry now, as they did into the distant past, within their community. The endogamy (community intermarriage) figure is 60% or better. T T at 230, T IV at 57, D at 69.

88. This community intermarriage supports our conclusion that the Missisquoi are a body of Indians (as the precedential cases call them) of the same or similar race. T I at 86.
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

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Champlain. The derive these conclusions from finding, for example, distinctly different pottery remains on opposing shores of the lake. T I at 173.

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.

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d. February 26, 1987, Harold St. Francis, motor vehicle offense, County Road, Swanton.

e. Novmber 21, 1907, John Churchill, motor and motor vehicle offense, 40 Pine 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

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French established a sawmill in the lower falls of the Missisquoi homeland, establishing a community consisting of no more than 50 Europeans. T I at 158, D at 60.

104. Even in 1783, following the American Revolution, only a handful of Europeans were settled in Missisquoi. Those numbers continued to grow until today when thousands of non-native Americans reside in the area, the Missisquoi Abenakis comprise a decided minority with their numbers not exceeding 2600. C I at 74, T IV at 47.
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 & 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

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Treaty of Paris essentially had the same purposes as the Articles of Capitulation and deal with the effected Native Americans and their homelands in a similar manner. C III at 59, 67-8.
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

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persons and royal governors. Recognizing the danger to the colonies of this practice, the Crown prohibited the governors form passing any grants to land reserved to or claimed by the Native Americans and required that those who had settled on said lands remove themselves immediately. The Crown also prescribed the proper procedures for any future grants.

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

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who may either willfully or inadvertently have seated themselves upon any lands so reserved to or claimed by the said Indians without any lawful authority for so doing, forthwith to remove therefrom. And in case you shall find upon strict inquiry to be made for that purpose that any person or persons do claim to hold or possess any lands within our said province upon pretense of purchases made of said Indians without a proper license first had and obtained either from us or any or our royal predecessors or any persons acting under our authority, you are forthwith to cause a prosecution .... And where as the wholesome laws which have at different times been passed in several of our said colonies and the instructions which have been given by our royal predecessors for restraining persons from purchasing land of the Indians without a license for that purpose and for regulating the proceedings upon such purchases have not been duly observed; it is therefore our express will and pleasure that when any application shall be made to you for license to purchase land of the Indians, you do forebear to grant such license until you shall have first transmitted to us by our Commissioners for Trade and Planning the particulars of such applications as well in respect to the situation as the extent of the lands so proposed to be purchased and shall have received our further directions therein.

Circular: ... New Hampshire, New York ... Dec 12, 1761. "687, Settlements Interfering with Frontier Indians Forbidden". II Royal Instructions to British Colonial Governors 1670-1776 476, (L. Labaree ed. (1935), C 1, Lx, D.

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

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area where the Native American's land was located. C IV at 126-30.

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

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Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council strictly enjoin and require, that no private person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where We have thought proper to allow Settlement; but that if at any Time any of the said Indians should be inclined to dispose of the said Lands, the same shall be purchased only for Us, in our Name, at some Public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Comnander in Chief of our Colony respectively within which they shall lie; and in case they shall lie within the limits of any Proprietary Government, they shall be purchased only for the Use and in the name of (unreadable) Proprietaries ... "By the King. A Proclamation. October 7, 1763", II Constitutional History of Canda 1759-1791 163, 166-67 (A. Snort ed. 1918). C I, Ex. E. hereinafter referred to as the "Royal Proclamation of 1763".

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

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way. C I, Ex. 2, St. Albans Grant; Ex. 3, Highgate Grants and Ex. 4, Swanton Grant. None of the grants state that the land was unoccupied by Native Americans. It was was [sic] first in 1703 that Europeans settled the granted areas, which today have the same borders as found in the original grants. D at 132.

116. In 1764, with the advice of the Privy Council, the King issued an order, which scholars interpret as over turning, without mentioning them by name, without mentioning them by name, the St. Albans Highgate, and Swanton grants, because it established the Connecticut River as the boundary between New Hampshire and New York. C I at 93, 95, C II at 27.

117. In 1765 Moses Haven, a British soldier, petitioned royal governor of Lower Canada for a land grant in the Missisquoi region. The governor sent surveyors to establish inter alia whether there inhabitants. The governor turned down the petitions on the basis that the area was Indian land. C III at 93-94.

118. Sir William Johnson, consistent with the requirements of the Royal Proclamation, negotiated the Treaty of Fort Stanwix with the Iroquois in 1768. The apparently ultra vires treaty attempted to move the line of permitted settlement westward, west of the Missisquoi homeland. C I at 114-115, 117, 121; C IV 96-97.

119. The Treaty of Fort Stannix is controversial. It is apparent that Sir William Johnson exceeded his authority. COnsistent with the findings above, we find that the Iroquois sold out lands to which they had no legitimate claim, namely the Missisquoi. C I at 114-20; C IV at 96-97, infra, finding : 94 at18-19.

120. Even though Sir Johnson negotiated the movement of the Proclamation line Westward in 1768, the original Proclamation Line was

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fully negotiated unti the Quebec Act of 1774.. C I at 117, 128. The 1763 Proclamation line was still in effect in 1771. C II t 60.

121. In 1768, the royal governor of New York, Henry Moore, made the Metcalfe grant. C I, Ex. 25, 16 York Land Patents 30, Simon Metcalfe's Tract. Three years later in 1771, a subsequent royal governor of New York, John Earl of Dunmore, made the Prattsburgh grant adjacent to the Metcalfe grant. C I, Ex. 11, 16 New York Lands Patents 66, Prattsburgh Grants; C II at 57-60. These two Grants roughly encompass the same area as the grants. C I, E%. 10, J. Graggagnin The Shaping of Vermont, Map,(1983) .There is no evidence that the land granted by these two grants was obtained from the Native Americans in an open meeting with their consent as EnglishPolicy at that time. C IV at 121-22, 126-27.
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

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Americans. C 11 at 155, 162, C III at III. In 1786, Major Clement Gosselin stated in a letter written to Ira Allen that a number of Missisquoi served the United States. C I, Ex. 27, 1786 Letter from Major Clement Gosselin to Ira Allen.

124. The so-called Republic of Vermont declared its conditional independence in 1777. In order not to offend the Union, which it was looking to join, it declared itself free and but not in a way inconsistent or repugnant to any resolve of the Continental Congress. C III at 117.
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

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land were entitled to bring suit in the porper court to maintain, defend or recover their grants, interests or estates. The Act also entitled them to appear to defend suits against them and provided proper notice procedures.

c. An Act Regulating Proprietor's Meetings, 23 February 1779, 1779 Vt. Laws at 122; C 1, Ex. 14. This Act laid out the procedures by which Proprietor's meetings could be called and conducted, including the election of officers, recording of minutes, town business and voting thereon, the approval and recording of survey bills, and taxation proceedures.
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

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offender. It also provided procedures for an inquiry into the incident, a seizure of the property and penalization of the offender if appropriate. Procedures were also stated for incidents where a lessee allegedly held over property let to him.

f. An Act in Addition to an Act Regulating Proprietor's Meetings, October 23, 1783, 1783 Vt. Laws at 223, C I, Ex. 24. This Act grants town proprietors the power to permit one of the proprietors to use undivided lands to build mills which encourage settlement.

g. An Act Declaring Time When to Begin the Settlement of New Lands, that had been prevented by the late War Between Great Britain and America, October 23, 1783, 1783 Vt. Laws at 219; C I, Ex. 21. Recognizing that many grants were conditioned on settlement within a certain period and that the Revolutionary War disrupted settlement, the Legislature set an official date beginning the settlement period.

h. An Act Directing Proceedings Against Forcible Entry and Detainer February 20th 1787, 1787 Vt. Laws at 131; C I, Ex. 19. This Act is nearly identical in content to the preceding act of the same name enacted October 22, 1782. See finding 126 (e).

i. An Act for Punishing of Trespassers in Divers Cases and Directing PRoceedings Therein. March 8th 1787, 1787 Vt. Laws at 264; C I, Ex. 18. This Act provides for the punishment of any person who trespasses on another's lands or takes or destroys, timber, crops or fruit or sets fires. Punishment is

St. Francis/Sokoki Missisquoi Abenaki Application For Vermont State Recognition PAGES 60 to 70, Etc:

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In the 1980s the Missisquoi Abenaki exerted their autonomy and aboriginal rights to fish without a license in the State of Vermont by conducting a series of fish-in demonstrations to draw attention to their situation and force the state to recognize their presence and continued existence in their ancestral homeland. The state filed charges against Chief Homer St. Francis and other Missisquoi citizens and brought them to district court with Judge Wolchik presiding. Below are excerpts of the court's Findings of Fact which upheld Missisquoi's inherent right as a Native American tribe to fish without a license.

STATE OF VERMONT

FRANKLIN COUNTY, SS.

VERMONT DISTRICT COURT

FRANKLIN CIRCUIT, UNIT #2

STATE OF VERMONT    DOCKET NO. 1171-10-86Fcr

            1327-11-86Fcr

            V.                                          15-1-87Fcr

HAROLD ST. ERANCIS

STATE OF VERMONT    DOCKET NO. 703-5-88Fcr

         752-6-87Fcr

           V.                                       771-6-87Fcr

        1023-8-87Fcr

JOHN CHURCHILL                      1045-8-87Fcr

STATE OF VERMONT    DOCKET NO.  937-7-88Fcr

           V.

HOMER ST. FRANCIS

STATE OF VERMONT  DOCKET NO. (Fishing Without License)

           V.

HOMER ST. FRANCIS

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

NOT INCLUDED IN THE APPLICATION

Introduction

Defendants' in their cases consolidated for hearing on Motions to Dismiss, ask for dismissal because of superceding, ancient, tribal rights and/or for lack of jurisdiction. The bulk of these defendants are charged with either fishing without a licence or failing to show a license upon the request of a game warden. These Defendants seek dismissal on the ground that there has been no extinguishment of their alleged aboriginal right as members of the Missisquoi Abenaki tribe to fish in their aboriginal homeland. These same defendants join with the remaining defendants, who are charged with various crimes claiming that the site of each charge is in "Indian Country" and, therefor, is not subject to state criminal jurisdiction.*
For the reasons set out below this court dismisses the charges against all but six (ftnt. 1) of the so-called "fish-in" defendants because it recognizes their claims to extinguished aboriginal fishing rights. The court does not find that any of the charges occurred in Indian Country and does not dismiss any on that ground.
__________
* Due to technical difficulties the court will designate footnotes in the text by "ftnt" or "Ftnt." depending on placement.
Ftnt. 1. There is insufficient evidence to find that Sylvia Wells, Tammy Lee Conger, Richard Rowe, Mark Rushlow, Raleigh Elliot or Joy Mashtare are members of the Missisquoi Abenaki tribe with Missisquoi Abenaki Ancestry.

NOT INCLUDED IN APPLICATION REVIEW

PRELIMINARY STATEMENT

The application of the "ultimate legal issue" standard discussed in Riess v. A.O. Smith Corporation, No. 87-012 (Vt. Nov 10, 1988) was left open at the close of the evidence for study by the court. The court concludes that where the Riess objection was made the expert witness was not testifying about the ultimate legal issue before the court. Even if the testimony was on such issue there is sufficient supporting testimony, tested by cross-examination,, to support the findings made by the court without dependence on such testimony.
The court admitted Defendant's Exhibit U, an unsigned proclamation. The court now concludes that the document is irrelevant and excludes it.
The court initially excluded as irrelevant the State's Exhibit# 22 submitted in connection to the deposition of Dr. C. Calloway, An with the  Act Regulating Fisheries, March 8th, 1787. 1787 Vt. Laws at 253. After further review the court concludes that the Act has some relevance and now admits the exhibit.

In the conclusions of law references to findings of fact are desginated "FF."

Acknowledgement

The undersigned Judge: wishes to thank Susan Gilfillan, Esq., without whose scholarship, patience, energy and flexibility this decision would still be in its preliminary stages.

Page [61.]

FINDINGS OF FACT

The facts found below are a distillate of six days of trial testimony of lay witnesses, police officers and experts in anthropology and ethnology (ftnt. 2) and the deposition testimony admitted by stipulation of two experts in ethnology. All expert testimony is that of the defense; the State called only police officers. A large number and variety of exhibits, including maps and ancient documents, added valuable information. Neither here nor in the conclusions of law do we try to resolve the unresolvable questions, e.g. whether the Republic of Vermont ever was an independent nation. Those we leave for other tribunals at other times.
All found facts are anchored in particular testimony or exhibits. For the convenience of the close reader we provide source notes for virtually all of them, which translate as follows: T II at 12 means Volume II of the trial transcript at page 12; D at 11 beans the Gordon Day deposition at page 11; C I at 6 means Volume I of the Colin Calloway deposition,
________
Ftnt. 2. Ethnology is a branch of anthropology concerned with the different branches of the human race. D at 11 at page 6.

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A. Missisquoi Abenakis A continuing native American presence since time immemorial.

1. Over the last several decades researchers have recovered and literally unearthed documents and artifacts that have changed how even serious students of ethnology look at Vermont's native American population. For the longest time the most widely held opinion was that Indians never lived in Vermont, but new information has changed that notion. C III at 37, T 1132-133.
2. Historically, the Missisquoi Abenakis (Missisquois) are a group of Western Abenakis. D at 23.
3. The Missisquoi are one of several Western Abenaki tribes. The others include the St. Francis at Odanak, Quebec and the Penacooks of New Hampshire.
4. Western Abenakis inhabited primarily Vermont, New Hampshire, southern Quebec and western Maine. T I at 108.
5. The Eastern Abenaki, who inhabit a large part of Maine, differ primarily for the Western Abenaki linguistically. T I at 122.
6. Archaeologists have traced an essentially unbroken chain of evidence documenting Missisquoi presence in northwestern Vermont, back to 9300 B.C. They have found and examined extensive village sites, habitation and campsites and cemeteries. T I at 123-124.
7. Archaeological evidence exists that demonstrates the Missisquoi were farming in this homeland in the river flood plains at least as far back as 1123 A.D. T I at 163-164.
8. Up until first European contact no other tribe ever used, inhabited or otherwise occupied the Missisquoi homeland; the Missisquois had exclusive control and dominion over the area. T I at 124, T IV at

Page [63.]

30-31, D at 124-126 and C III at 53.

9. Other evidence, some of which is explored in more detail below, bolsters the archeological record. Place names have a Missisquoi source. The river that flows through the region is the Missisquoi. It flows into the Missisquoi Bay. "Missisquoi" is derived from the Western Abenaki "Mazipkoikis", meaning "place where there is flint." Oral traditions, stories carefully handed down from generation to generation place Missisquoi origins in northwestern Vermont. When given an opportunity the Missisquoi have consistently insisted upon their continued presence essentially forever. T I at 149.
10. In nonliterate societies oral traditions allow exploration of all levels of society. Written histories tend to focus merely on the concerns of the literate upper levels. Experience with oral histories demonstrates that they are just as reliable as written histories. T I. at 127 and 130. Accuracy of reporting can be maintained over extraordinary periods of time. T I at 128.
11. The Western Abenaki, including the Missisquoi, have a very definite, carefully maintained, carefully transmitted oral tradition, which is a useful source of information concerning the location of their ancestral homelands. D at 47-49.
12. By way of example, the Western Abenaki set their stories of creation and transformation in the Champlain Valley of Northwestern Vermont. In the creation and shaping of the earth the last element completed was Lake Champlain. Odziozo, the principal transformer, turned himself into stone so that he could watch for all eternity his finest creation, Lake Champlain. T I at 150 and D at 61.
13. These traditional stories of the early beginnings imply a

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long standing presence of Western Abenaki culture in northwestern Vermont. T I at 152.

14. In 1609 Samuel Champlain, when exploring the lake named after him, became aware of the presence of the Missisquoi, people residing in northwestern Vermont, whose ancestors had lived in that part of what is now known as the United States and whose tribe or comnunity recognized them as Indians. T I at 148.
15. In 1615 French missionaries observed established Missisquoi settlements settlements, including a village on the lower falls of the Missisquoi River, a group in St. Albans and a separate group on the Lamoille River. T I at 149 and T III at 112.
16. From the time of Champlain's explorations to the formal transfer of power to the British after the French defeat in the French and Indian wars (1609-1763) despite French presence and influence the Missisquoi remained in place as a distinct native American community. C III at 58.
17. Because the French depended upon the native Americans as, allies their policy was to pursue and maintain harmonious relations with them. C III at 56.
18. In 1635 Western Abenakis first appeared in history as a "distinct ethnic group," making contact with Europeans at Penacook or Concord, New Hampshire and Northfield, Massachusetts. D at 44.
19. The first specific historical references to Abenakis as a "distinct ethnic group" located on the eastern shore of Lake Champlain were made in 1680. D at 44.
20. Among the exhibits are a series of maps which demonstrate, in part, a continued Missisquoi presence on the eastern shore of Lake

Page [65.]

Champlain. The Court accepts these and the others mentioned from time to time below as legitimate and relevant. Among these are Defendants' Exhibit C, a map published in 1694. This map is the first printed view of the Lake Champlain watershed with many of the same place names we have today, e.g. Missisquoi (the village), Winooski and Otter Creek. T III at 179.

21. In 1723 written reference to Missisquoi as a geographical location appears because of the attacks of "Grey Lock, a Missisquoi war leader, who directed his efforts for the most part against the frontiers of Massachusetts. D at 45, 59, and 110; C III at 65.
22. Grey Lock's belligerence during the period 1700-1740 established Missisquoi in the minds of the English as a bastion of Abenaki resistance and brought the pace of British settlement to a screeching halt. C III at 66-67, T III at 189-190.
23. In 1730 a plague hit the Missisquoi area, which the inhabitants temporarily abandoned in favor of Odanak, Quebec. They returned by 1732. D at 139.
24. In the short period that followed quite a few Western Abenaki came from Odanak and settled in Missisquoi, which was a substantial village in 1738. D at 140.
25. During the 1730's-1740's the Missisquoi were coming to Fort Frederick, a French mission base across the lake in New York, to visit, be baptized or engage in other religious activity. Their names show up on the fort's baptismal records. C I at 53-54.
26. Defendants' Exhibit G is a map of New England and New France, published in 1749, showing Mississiasi (Missisquoi) at Missisquoi Bay.
27. In 1759 with the French and Indian war raging around it the

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Missisquoi community remained intact. T III at 213.

28. Defendants' Exhibit L. an English military map, shows the location of the Missisquoi village in 1762. T III at 226.
29. In 1765 a Canadian merchant, James Robertson, negotiated a ninety-one year lease of land with the heads of nineteen Missisquoi families. The property was located on the lower Missisquoi River and encompassed most of what we now know as the village of Swanton and all land down to the mouth of the Missisquoi river. T III at 221 and D at 138.
30. The alleged fishing violations of thirty-one of the defendants occurred within the boundaries of the lease. T III at 221.
31. Missisquoi culture did not countenance individual ownership of real property; the Missisquoi held their homeland collectively. As a result, the heads of family bands, which could comprise as much as fifty individuals each, signed on behalf of their bands.. T III at 220, C III at 87 and 89-90.
32. The lease by being a lease and not a sale, theoretically guaranteeing a reversion, demonstrates an effort by the Missisquoi to grapple with European settlement in a way that ensures long term sovereignty over the entire area. T III at 217.
33. Some of the Missisquoi who signed the lease used French baptismal names. When dealing with Europeans this practice was very common simply because it was easier. D at 172.
34. By it terms the lease demonstrates that the Missisquoi were planting and harvesting crops during the 1760's.
35. Grand Avenue and South River Streets, where some of the crimes alleged in the informations underlying the pending motions to dismiss

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allegedly occurred, are in the village of Swanton within the land encompassed by Robertson's lease. T IV at 153.

36. When the Treaty of Paris in 1763 ended the French and Indian war the Missisquoi suddenly found that they were included under the authority of the governor of New York, rather than of Canada, with whom they had been allied and Upon whom they depended for trade and supplies. D at 92-93.
37. La Motte, one of the Lake Champlain Islands that is a part of present day Grand Isle County, the governor of Quebec, Governor Murray, and the governor of New York, Governor Moore, met primarily to establish the forty-fifth parallel as the boundary between the two English territories. C II at 37, C III at 95, D at 92-93. Also present at the meeting was Daniel Claus, a deputy of the English Indian Affairs Office. C II at 37. The Missisquoi and the Caughnawaugas, a Catholic Mohawk tribe that was part of the Iroquois nation, sent representatives to the Isle La Motte meeting. C III at 97-98.
38. At the meeting, the Missisquoi complained of settlers on their land. C II at 56. The Caughnawauga claimed the Missisquoi territory on the basis that they were the descendants of ancient Mohawks who frequented the area. C I, Ex. F. XII Papers of Sir William Johnson 172 (M. Hamilton ed. 1957) "An Indian Conference"; C III at 95-96. Apparently in protest to the Caughnawaugas' claims to the territory, the Missisquoi claimed that they had controlled the Missisquoi territory "for time unknown to anyone here present" and no one else had laid claim to it with the exception of the French who requested to erect a sawmill. Hamilton, supra; C III at 100. The

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Caughnawaugas' then released their unsubstantiated claim to the territory, retaining only hunting and fishing rights. C II at 37-38, C II at 95-6, T III at. 77 at D at 96. There is some evidence that Daniel Clause considered the Caughnawaugas' cession to operate as a cession of Native American possessory rights in the Missisquoi territory. C. II 38, 111; C IV at 184.

39. The British did not have the overwhelming archaeological evidence available to us today to know that the Caughnawauga claim was unsupportable. There is no reason to believe they had any evidence to support the Caughnawauga position, either. In any case, the British took a most convenient position, that the Caughnawauga concession was something in their power to make. C II at 37-38, C II at 96.
40. Defendant's Exhibit M consists of two maps published in 1776, each noting the position of the Missisquoi village. T III at 228..
41. In the period 1775-1785 the Missisquoi lost control of choice farmland along the Missisquoi River as English and Dutch settlers moved in. D. at 87.
42. A letter from Clement Gosselin to Ira Allen substantiates the presence of Missisquoi in the Missisquoi homeland in 1786. They were claiming land and threatening to use force against the settlers. C II at 101-102.
43. In 1783 the Missisquoi engaged in a traditional non-confrontational response; they went "underground." More specifically their response to the influx of Europeans was withdrawal from central areas into other areas in the Missisquoi homeland, where they would be out of sight. There is no evidence that they ever abandoned their homeland, though some did move to Odanak. When

Page [69.]

underground they never had total invisibility. C I at 77, D at 140 and 186 and C I at 78.

44. These withdrawals were generally designed for various reasons of safety, including, e.g., protection against plague outbreaks, the Revolutionary War and threats from Iroquois and Algonquin tribes.. T I at 181-182, C at 78 and D at 174.
45. Following the Revolutionary War the majority of the Missisquoi stayed in the homeland.
46. After being dispossessed of lands the Missisquoi repeatedly asserted their claims to the land. D at 91.
47. British maps, oral traditions and public records confirm the continued existence of the Missisquoi community in the 1790's, though the tribe lost possession of same lands it formerly held. C III at 139-140, C I at 80.
48. In 1790 the Dutch settlers were getting along pretty well with the Missisquoi. Face to face confrontations with yankees over their presence and control of land are of record. C I at 75-76.
49. Defendant's Exhibit N is a map published in 1791, showing an Indian "castle." This term is misleading. It means a village, perhaps one where there was a palisaded area to which the inhabitants could withdraw in case of attack. T III at 234-235, C III at 134-135, C IV at 43.
50. This village is also noted on the maps as Grey Lock's castle. Construction of whatever palisaded structure that may have existed occurred late in the seventeenth century, C IV at 43, T III. at 30.
51. Although they remained united by 1791 the Missisquoi were dispossessed of the choicest part of their homelands and were in

Page [70.]

several neighborhoods around "a particular though ill-defined territory." D at 89-90, T 1203-204.

52. Defendant's Exhibit N is a map published in 1794, which continues to show the Missisquoi in place. T III at 236-238.
53. Defendant's Exhibit P is a map which shows the Missisquoi village still intact. That situation came to a final halt in 1798. From then on the Missisquoi no longer occupied their main village. T IV at 25, 33.
54. At the dawn of the ninteenth century the slow process of converting the Missisquoi into a group of family bands was complete, but the "ethoncentric historical juggernaut" that pressed for a conclusion that the Missisquoi had abandoned their homeland was fueled by fantasy C II at 189, T III at 149.
55. We know now that Western Abenaki presence in Vermont was significant at the time of European contact, that it remained significant, and that even though there is migration, movement and upheaval in their homeland there is a continuing and persistent Missisquoi presence to time present. C III at 38, T I at 156-157, T III at 203, and D at 129.
56. The Missisquoi never voluntarily abandoned any portion of their homeland. T IV at 32.

B. Fishing: Basic Native American subsistence

57. The Missisquoi homeland since time immemorial has been an "extremely good place to live." The main village was "one of the richest natural sites in the northeast." "That's why [the

St. Francis/Sokoki Missisquoi Abenaki Application For Vermont State Recognition PAGES 55 and 59, Etc:

Page [55.]

§ 853 (c) (8) The applicant has not been recognized as a tribe in any other state, province, or nation.

The Abenaki Nation at Missisquoi, St. Francis/Sokoki band, has not been recognized ill ally other state, Province or Country.

§ 853 (c) (9) Submission of letters, statements, and documents from: (A) Municipal, state, or federal authorities that document the applicant's history of tribe-related business and activities.

Included in this section are executive orders, proclamations, and samples of correspondence between federal/state agencies and municipal governments that describes the relationship between the Missisquoi Abenaki and these entities.

Page [56.]

The 1976 Governor SaImon Executive Order:

APPENDIX D
State of Vermont Executive Order of 1976
 
WHEREAS, Vermont has a unique history of recognizing the requests of minority groups, in that the State of Vermont was the first state to abolish slavery; and
 
WHEREAS, in 1974, certain native American people living within the State of Vermont as members of the Abenaki Tribe, reconstituted as their governing body the Abenaki Tribal Council; and
 
WHEREAS, the Abenaki Tribal Council as the governing body of the Abenaki Indian Tribe exercises internal governmental functions; and

WHEREAS, people of the Vermont Abenaki Tribe can trace their lineage in Vermont well into the 19th century; and

WHEREAS, Vermont Abenakis have resided primarily in the northern counties of the State of Vermont; and

WHEREAS, the Canadian Government has recognized the Abenaki people of the Odanek and Becancourt Reservation in the Province of Quebec; and

WHEREAS, the Quebec Abenakis endorse and recognize the tribal status of Vermont Abenakis; and

WHEREAS, there may be as many as 1,700 people living in Vermont claiming to be direct descendents of the original Abenaki Indian Tribe, and research indicates that many of these people are descendents; and

WHEREAS, many of these people suffer from low education attainment, severe poverty, inadequate housing and high unemployment;. and

WHEREAS, Congress has appropriated several millions of dollars of federal funds to provide benefits and services to Native Americans; and

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WHEREAS, without State recognition, Native Americans residing in Vermont cannot qualify for these programs; and

WHEREAS, the definition of Native American is varied, according to federal interpretation, and initial research indicates the existence of Native Americans residing in Vermont;

NOW THEREFORE, I, Thomas P. Salmon, by virtue of the authority vested in me as Governor of the State of Vermont do hereby recognize these Native Americans by federal definition as members of the Abenaki Indian Tribe; and
 
THEREFORE, in furtherance of the above recognition, I hereby establish the Governor's Commission on Indian Affairs.
 

GOVERNOR'S COMMISSION ON INDIAN AFFAIRS

1. The Governor's Commission on Indian Affairs shall investigate problems common to Indian residents of the State, as well as the special concerns of the Abenaki Tribe, and shall assist the Abenaki Tribal Council in its dealings with agencies of State and Local government.

2. The Commission shall further develop the initial research to provide historical data to define the Native American population in Vermont, and shall prepare a report to the Governor and Legislature. All State Agencies shall cooperate with the Commission in the performance of this function.

3. Each State Agency shall be responsible for evaluating its own services which are received by the Native American population, and shall propose means to provide adequate services. The head of each State Agency providing, or capable of providing, services to Native Americans is hereby directed to determine within three months whether or not federal, state or other funds are available to improve such services. Where it is determined that funds may be available for services and benefits to Native Americans, the-Agency and the Abenaki Tribal Council shall work together to prepare applications for such funds. The Commission's advice on such matters may be sought and the Commission shall be informed of all funding proposals submitted by State Agencies.

4. The Commission shall meet at least four times a year, and shall be comprised of five members, of whom two shall be appointed by the Abenaki Tribal Council, two shall be appointed by the Governor, and the fifth shall be chosen by the previous appointed four members.

Page [58.]

EXECUTIVE ORDER OF 1976  .............. 279

5. The Commission shall address itself to the problems of poverty, lack of education and high unemployment which exists within the Native American and Abenaki population.

6. In addition, the Commission shall prepare a report and recommendation for the Governor and the Legislature on the request by the Abenakis for unrestricted hunting and fishing rights within the State of Vermont; the inclusion of Abenaki Tribal members in the guardianship and management of the Mississquoi National Wildlife Refuge; and the request that legal title to the Monument of St. Francis, located north of Swanton, be transferred to the Abenaki Tribe.

IN WITNESS MY NAME HEREUNTO Subscribed and the Great Seal of the State of Vermont hereunto affixed, at Montpelier, this 24th day of November, A.D., 1976.

Thomas P. Salmon
GOVERNOR

By the Governor

Joseph Ja--le Jr.
Secertary of Civil and Military Affairs

EXCUTIVE ORDER NUMBER 36

Page [59.]

The 1983 Governor Snelling Proclamation:

STATE OF VERMONT

EXECUTIVE DEPARTMENT

A PROCLAMATION

I, Richard A. Snelling, recognize the St. Francis/Sokoki Band as a legitimate representative of individuals of Abenaki descent residing in the State of Vermont; and

I declare my sapport of the St. Francis/Sokoki Band in seeking recognition as the appropriate representafives in any and all federal. petitions designed to determine which groups are entitled to benefits designated by the United States Congress to individuals of Abenaki descent.

While I recognize sovereignty to be an exclusive attribute, and believe that Vermont is sovereign State within the sovereign United States of America, I support recognition of the St. Francis/Sokoki Band as a de facto entity representing those of Abenaki descent entitled to whatever attributes of sovereignty may be vested in them by due process actions of the people of the United States of America and Vermont.

Given under my hand and the Great Seal of the State of Vermont, this 17th day of June, 1983.

Richard A. Snelling
GOVERNOR

By the Governor:

Timothy Daguard (?)
Secrectary of Civil and Military Affairs

St. Francis/Sokoki Missisquoi Abenaki Application For Vermont State Recognition PAGES 53 and 54, Etc:

Page [53.]

Treaty - The 1760 Robertson's Lease

Page 962 VERMONT HISTORICAL MAGAZINE

THE OLD INDIAN LEASE

is deserving of some consideration, in connection with the first settlement effected under the English government at Missisquoi. After the surrender of their possessir as in 1760, all the region in the northeastern part of America, which the French had before claimed, came under the control of England. Previously to this, the British Crown had generally granted power to the governors of all the different colonies, to made concessions of territory, to all who should wish to settle within their respective jurisdictions. Such a privilege was conferred on Governor Wentworth, who accordingly in 1763 granted lands on the Missisquoi river, which were regarded as a part of New Hampshire. This early English grant was, probably, at that day -- perhaps it remained long subsequently -- entirely unknown to the Indians. It consequently had, so far as we know, little, perhaps no practical effect on the settlement and tenure of the lands granted, until many years after the time now under consideration in question need receive no further attention for the present.

Though the St. Francis Indians no doubt had, at least by possession, a fair right to the soil, they yet by being the allies of the French in one sense lost their title when the latter were defeated and yielded the whole of their vast claims in this portion of the country to the English. For all this, the Red men continued certainly, to some extent, to hold the lands at Missisquoi, and to assert their right to them long after the dominion of the French in this part of the continent had ceased. In consonance with this, they made an extensive lease of lands in this neighborhood to a wealthy trader, who for some time resided in St. Johns. As this contract stands intimately connected with a prominent period in the history of the place, it may be well that it be here cited entire. The following is an exact transcript of a copy of this instrument. The copy was originally taken for Ira Allen, by James Whitelaw, from the certified copy in the Register's office in Quebec.

Know all men by these presents, that we, Daniel Poorneuf, Francois Abernard, Francois Joseph, Jean Baptiste, Jeanoses, Charlotte, widow of the late chief of the Abenackque nation at Missisque, Mariane Poorneuf, Theresa, daughter of Joseph Michel, Magdaline Abernard, and Joseph Abomsawin, for themselves, their heirs, assigns and administrators, do sell, let, and concede unto Mr. James Robertson, merchant of St. Jean, his heirs, assigns and administrators, for the space of ninety-one years from the twenty eighth day of May, 1765, a certain tract of land lying and being situated as follows, viz; being in the bay of Missisque on a certain point of land, which runs out into the said bay and the river of Missisque, running from the mouth up said river near east, one league and a half, and in depth north and south running from each side of the river sixty arpents, bounded on the bank of the aforesaid bay &c., and at the end of the said league and a half to lands belonging to old Abernard; and on the north side of said river to lands belonging and reserving to old Whitehead; retaining and reserving to the proprietors hereafter mentioned, to wit: on the north side of said river five farms belonging to Pierre Peckenowax, Francois Nichowizet, Annus Jean, Baptiste Momtock, Joseph Compient, and on the south side of said river seven farms belonging to Towgishcat, Cecile, Annome Quisse, Jemonganz, Willsomquax, Jean Baptiste the Whitehead, and old Etienne, for them and their heirs,

Page [54.]

said farms contain two arpents in front nearly, and sixty in depth.

Now the condition of this lease is, that if the aforesaid James Robertson, himself, his heirs, and assigns or administrators, do pay, and accomplish unto the aforesaid Daniel Poorneuf, Francois Abernard, Francois Joseph, Jean Baptiste, Jeanoses, Charlotte, the widow of the late chief of said nation of the Abenackques at Missisque, and Mariane Poorneuf, Theresa, daughter of Joseph Michel, Magdaline Abernard, and Joseph Abomsawin, their heirs, assigns and administrators, a yearly rent of fourteen Spanish dollars, two bushels of Indian corn, and one gallon of rum, and to plow as much land for each of the above persons as shall be sufficient for them to plant their Indian corn every year, not exceeding more than will serve to plant one quarter of a bushel of corn for each family, to them and their heirs and assigns; for which and every said article well and truly accomplished the said James Robertson is to have and to hold for the aforesaid space of time, for himself, his heirs, assigns and administrators, the aforesaid tract of land as mentioned aforesaid, to build thereon and establish the same for his use, and to concede to inhabitants, make plantations, cut timber of what sort or kind he shall think proper for his use or the use of his heirs, assigns and administrators, and for the true performance of all and every [article of] the said covenant and agreement either of the said parties bindeth himself unto the other firmly by these presents.

In witness whereof we have interchangeably set our hands and seals hereunto this 13th day of June, in the 5th year of the reign of our Sovereign Lord, George the Third, King of Great Britain, France, and Ireland &c., and in the year of our Lord, 1765.

(Signed)

DANIEL POORNEUF, (L.S.)

FRANCOIS ABENARD, (L.S.)

FRANCOIS JOSEPH, (L.S.)

JEAN BAPTISTE, (L.S.)

JEANOSES, (L.S.)

CHARLOTTE, (L.S.)

MARIANNE POORNEUF, (L.S.)

THERESA, daughter of Michel, (L.S.)

MAGADLINE ABENARD, (L.S.)

JAMES ROBERTSON, (L.S.)

Witnesses present.---

(Signed),

Edward Simonds,

Peter Stanley,

Richard McCarty.

Sept. 20, 1765, Richard McCarty personally appeared before Thomas Brashay, J.P. and made oath on the holy evangelists that this instrument was signed as above indicated, and duly delivered to James Robertson.

George Powell, Secretary and Register, certified "The foregoing to be a true copy as recorded in the English Register, letter A, folio 179, in the Register's office of enrollments for the Provence of Quebec."

Such is the document, and it contains several points deserving of attention. In the first place, it appears that certain of the St. Francis Indians at Missisquoi, June 13, 1765, thus, after the treaty between France and England, and probably in view of their early title to the soil, made a lease of a considerable tract of land lying on both sides of the Missisquoi river in "James Robertson, merchant at St. Jean."

Mr. Robertson was undoubtedly of English extraction, as his name indicates. I is said that he originally resided in Quebec, and afterward established himself as a merchant at St. Johns, where he was extensively engaged in trade at the time he obtained this lease. He was thus living under the English government, and the instrument was properly authenticated and record in the office of registry. The lease which was duly executed was to run 91 years form the 25th day of May, 1765.

Again, the boundaries of the land conveyed require a moment's notice. The land in question is described as beginning at the mouth, and extending up the channel of the Missisquoi river nearly east one league and a half, and as being in depth north and south, from each side of the river, 60 arpents. Whether the reckoning in this measurement were according to the French or the English league is doubtful. That the standard of England was followed, though it be not certain, may seem to be probable, since the territory was no longer under the dominion of France. Were we to take the French standard, and reckon the league as 2.42 English miles, we should have less than 4 English miles as the extent of this land from the mouth of the river east; but adopting the English league we have about 4 1/2 miles. The arpent mentioned in this deed is evidently French, and should be estimated....

The following information is taken from with this blog:

LINK: http://reinventedvermontabenaki.blogspot.com/2011/01/final-determination-against-federal_8759.html

The PF concluded that the petitioner did not identify its current members as required by the regulations, and that although the petitioner claimed descent from the historical "Western Abenaki" Indian tribe, it did not document descent from that historical Indian tribe or any other historical Indian tribe.

The PF concluded that while the petitioner provided some genealogical information for its members, it did not demonstrate descent from the Western Abenaki Indians or any other historical Indian tribe.

There is significant documentation attesting to the presence of Western Abenaki Indians in Northern New England before 1800. However, for the PF, the petitioner did not submit genealogical information that linked the group's current membership to individuals belonging to the historical Indian tribe of Western Abenaki Indians in the 18th century.

However, the PF concluded that the petitioner did not demonstrate descent from the Abenakis named on the register at Fort Saint-Frederic or on Robertson's Lease. 23. With the exception of the Simon Obomsawin, none of the petitioner's claimed ancestors are named on the available 18th or 19th century lists that identified individuals as Abenaki Indians (Abenaki PF 2005, 114-119). The PF also noted that the petitioner's claimed ancestors are not identified as Indians on any of the decennial U.S. Federal censuses between 1790 and 1930 (Abenaki PF 2005, 120). Consequently, based on the available documentation, the PF concluded that the petitioner did not demonstrate descent, either of its members or its 20 "social core families," from any individuals belonging to a historical Abenaki Indian tribe, with the exception of Simon Obomsawin (Abenaki PF 2005, 128, 132).

FOOTNOTE:

23. The names Joseph Abomsawin and Marian Poorneuf [Portneuf] appear on Robertson's Lease in 1765, as names of the individuals, presumably Abenaki Indians, who leased land at Missisquoi to James Robertson. The petitioner claims an individual named Simon Obomsawin as a "primary" ancestor, and there are individuals with the "Obomsawin" and "Portneuf' surnames on the petitioner's membership lists. However, "there is no evidence in the current record showing that any of the petitioner's current members descend from these individuals [Joseph Abomsawin and Marian Poorneuf]" (Abenaki PF 2005, 128).

St. Francis/Sokoki Band of Abenakis of Vermont (Petitioner #68)

...documentation does not identify the other 18 "primary" ancestors either as Indians or as belonging to a particular Indian tribe.

The PF also discussed a methodology used by John Scott Moody of Norwich or Sharon, Vermont, etc. to support the petitioner's claim of descent from a historical Indian tribe and concluded that this methodology was unsound. The methodology posited genealogical connections based on similar surnames in geographically proximate locations. The researcher for the petition apparently searched for the family names of the SSA petitioner on 18th and 19th century lists for the St. Francis Indians at Odanak as well as in other local records ofthe greater Swanton area of Vermont. If the researcher found similarities between SSA surnames and the surnames in the greater St. Francis region of Quebec, Canada, he designated the SSA families to be "Abenaki" family lines. This is a flawed methodology for several reasons. First, it speculates about genealogical connections, but it does not document them; therefore, this methodology is not acceptable by current professional standards. Second, it does not adequately explain or document the unusually wide variations of the surnames in the analysis. 26. Third, it assumed that individuals with a surname that is also borne by many Indians or frequently associated with known Indians are also Indians. The available evidence indicates that only 8 of the petitioner's 1,171 full members on the group's current "2005b" membership list descend from the St. Francis Abenakis in Quebec, Canada, the group that John Scott Moody investigated for surnames that appear to be similar to those of SSA members (Abenaki PF 2005, 134-135). 27.

Because of the various difficulties the petitioner had in meeting criterion 83.7(e), the PF encouraged the petitioner to submit additional information so that the Department might better understand its membership, its ancestry, and its potential connection to a historical Indian tribe.

The PF determined that the available evidence did not establish descent from a historical Indian tribe and that "to pursue Federal acknowledgment, it must provide evidence.

In summary, the PF found that the petitioner did not provide a complete and properly certified membership list as required by the criterion 83.7(e). The petitioner did not document the descent of its members from a historical Indian tribe or from historical Indian tribes that combined and functioned as a single autonomous political entity. Furthermore, the methodology used to support the undocumented contention that its 20 "social core families" as "Abenaki" families is a speculative methodology that does not meet professional genealogical standards.

Although the petitioner certified its current membership list and provided two earlier membership lists during the comment period, the petitioner did not provide the Department with any of the additional information that the PF requested. Most important, neither the petitioner nor any other party submitted new evidence in response to the questions raised in the PF concerning the group's descent from the historical Indian tribe.

The Department's PF concluded, based on the available evidence, that the petitioner did not satisfy criterion 83.7(e) because it did not properly identify its members, certify its current membership list, and demonstrate its descent from a historical Indian tribe or tribes that combined and functioned as a single autonomous political entity. The PF noted, with some ambiguity, that the available evidence demonstrated that 8 of the 1,171 full members on the group's "2005b" membership list, defined by its "A1" adult members and "C1" child members, descend from a historical Indian tribe. Before the issuance of the PF. The two other, older lists the petitioner provided were of limited evidentiary value. There was no explanation describing the context or composition of these lists, and they did not help to establish a link to a historical Indian tribe or tribes. The "Against the Darkness" DVD presents no real genealogy that the Department can evaluate.

The available evidence does not demonstrate that these eight members were associated with the SSA petitioner before the 1990's. Furthermore, the available evidence does not demonstrate that the other remaining 1,163 members, or their claimed ancestors, descend from an earlier Missisquoi Abenaki entity in Vermont or any other historical Indian tribe.

LINK: http://reinventedvermontabenaki.blogspot.com/2010/12/state-of-vts-response-to-petition-for_23.html

To determine whether the current members are descendants of the historic Missisquoi tribe, we compared the names on these historic lists of known Abenaki Indians with the names of the ancestors shown on these charts. Not a single name matched. 78.

The first document examined was Robertson's lease, dated 1765 (Day 1981b: 68). This is the only known list of Abenaki Indians in Missisquoi. None of the twenty Abenakis listed in that lease appears in the 1995 Family Descendancy Charts of the petitioner.

However, Addendum C was apparently never provided to the Branch of Acknowledgment and Research (U. S. Bureau of Indian Affairs 10/23/2001). When genealogies were finally provided to the BIA, in the form of the Family Descendancy Charts in 1995, no indication of any connection to Robertson's Lease was indicated in any of the family charts. In fact, four families that were listed in the Petition Addendum as having....

FOOTNOTE:
78. This analysis, and those that follow, was based on the names that were disclosed in the charts in response to the Attorney General's Office request under the Freedom of Information Act. Obviously, names of living individuals were redacted from the 1995 Family Descendancy Charts. This had no effect on the analyses, since we made the comparison based on ancestors of living members, not the current members themselves.

.....genealogies linked "directly back to Robertson's lease" are not even included in the revised genealogies of present-day petitioner: LeDoux (Peckenowax), Mitchell, Crapo, and St. John (Compare Petition Addendum:327, n. 1472 and Family Descendancy Charts). Apparently, the contention that the present-day families can be traced to Robertson's Lease has been dropped. , perhaps because there was no real evidence to support it.

The second document examined was the 1805 grant of land in Durham, Quebec, to the Abenakis who had lost their lands at Missisquoi (Canada, Indian Affairs 1805, 79. Day 1981b:60-61; Charland 1964:175-76). If the Missisquoi Abenakis left Vermont at the time of the American Revolution and sought refuge in Canada among their kinsmen at Odanak./St. Francis, then their names should appear in this grant. However, none of the grantees shows up in the Family Descendancy charts of petitioner.

A check of all the names on the 1875 census again came up empty: none of them appears in the petitioner's charts as ancestors of the present day group. The inescapable conclusion from these comparisons is that the current day petitioner is not descended from the historic Missisquoi tribe of Abenaki, or from the Abenaki at Odanak/St. Francis.

There is simply no evidence that the families of the petitioner descended from the people who they claim were Abenaki Indians living in northwestern Vermont at the beginning of the nineteenth century (Davis Affidavit, Attachment AA-5).

MY RESPONSE:

AFTER 38 to 40+ years of "VT ABENAKI" CORPORATE EXISTENCE, and the official Petitioning for Federal Acknowledgment through the Bureau of Indian Affairs Branch "Office of Federal Acknowledgment" (CONTRARY to the LACK OF VALID DOCUMENTARY CLEAR AND CONVINCING EVIDENCE), this "Professor" Frederick Matthew Wiseman, PH.D., NOW, ALL OF A SUDDEN (since June 22, 2007) alleges to have found the DOCUMENTARY PROOF, that legitimizes his "Chief" April A. (St. Francis) Rushlow-Merrill's "Historical Abenaki Tribal-ness" and her "followers"/"members"?

Accordingly, the REVISIONIST SCHOLAR, Dr. Fred M. Wiseman himself (and through the help of Vincent Illuzzi and Hinda Milller) manipulated Criteria in Act 107 (S.222) that he himself sought, so as to go around the Findings and Conclusions of the O.F.A. and the VT State Attorney General's Office Response to aforesaid Petition For Federal Acknowledgment by the "St. Francis/Sokoki" "Abenaki" that Dr. Wiseman, himself, is a member of! Unbiased? Transparent? Fair? Scholarly independent?

I don't think so.

What this PH.D. Professor Wiseman, of Johnson State College in Vermont, has attempted to do is merely manipulate the documents to suit their "Vermont Indigenous Alliance" (founded in 2008) agenda and endeavors, fraudulently.

IF this "PROFESSOR" (along with his "Chief" ... and John Moody, etc.)could not substantiate the statements and claims made in the Petition in November 09, 2005, and up to June 22, 2007, what assumptions are being made now by the naive Vermont Politician(s)... that there is anything NOW that substantiates these ALLEGED and REINVENTED "Abenakis" claims?

IT WOULD APPEAR THAT THIS VERMONT STATE "APPLICATION FOR REVIEW" CLEARLY IS CONTRADICTING THE VERY FINDINGS AND CONCLUSIONS MADE BY THE STATE OF VERMONT ATTORNEY GENERAL'S OFFICE IN 2002 ... AND ALSO THE OFFICE OF FEDERAL ACKNOWLEDGMENT OF THE BUREAU OF INDIAN AFFAIRS PROPOSED FINDINGS AND CONCLUSIONS OF NOVEMBER 09, 2005 and the FINAL DECISION OF JUNE 22, 2007 AS WELL.

IT WOULD ALSO SEEM LIKELY THAT THE VERMONT STATE POLITICIANS FEEL THAT THE CONFABULATING AND DISTORTIONIST VERMONT COMMISSION ON NATIVE AMERICAN AFFAIRS (STACKED WITH APPOINTEE'S FROM THE VERY GROUPS THAT ARE SEEKING STATE OF VERMONT "ABENAKI" RECOGNITION) ARE SMARTER, BETTER THAN, AND MORE ABLE TO DETERMINE "ABENAKI" TRIBAL STATUS, THAN THE BUREAU OF INDIAN AFFAIRS OFFICE OF FEDERAL ACKNOWLEDGMENT?

WHEN DID THE STATE OF VERMONT LEGISLATURE (OR THE 2006 CREATED VCNAA) BEGIN TO MAKE DECISIONS, DETERMINATIONS, AND RULINGS THAT TRUMPED/OVERRULED THE FEDERAL GOVERNMENT'S FINDINGS AND CONCLUSIONS ON THE MATTER OF INDIAN TRIBAL STATUS?