St. Francis/Sokoki Missisquoi Abenaki Application For Vermont State Recognition PAGES 80 to 90, Etc:

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whites." Mitchel 34 U.S. at 346; see United States v. Seminole Indians, 180 Ct. C1. 375, 385-86 (1967) (determination of occupancy of definable territory necessary to support aboriginal title depends on the manner of land use over a period of time with dominion over the land as the dispositive criterion). In accordance with Mitchel and Seminole, this court's determination of whether the Missisquoi exclusively occupied and used a definable territory must be made in light of their lifestyle. The evidence established that for thousands of years, the Missiquoi inhabited a village which centered on the lower Missisquoi River and spread into the surrounding areas now known as Highgate and Swanton. FF. 97. Since 9300 B.C., the Missisquoi River watershed into Quebec and over to Lake Memphramagog, down into Missisquoi Bay, Alburg, the Champlain Islands, St. Albans, Swanton, Highgate, Fairfield, Fairfax, Georgia, Sheldon, Fletcher, and Northern Milton. (hereinafter "Missisquoi territory"). FF. 96. There is evidence of Missisquoi cultivation in some areas since 1123 A.D. FF. 7,60. Consequently, the court concludes that the Missisquoi's hunting, fishing, cultivation and settlements in the above named areas satisfies the occupancy and use requirement necessary to create aboriginal title in the Missisquoi territory.
The Court of Claims has considered the exclusive use and occupancy requirement as to other Native Americans. Six Nations, etc. et al. v. United States, 173 Ct. C1. 899, 910 (1965). The appeals court held that the evidence relied upon by the lower court was sufficient to support its determination that the Six Nations did not have the necessary

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exclusive use and occupancy of a particular area. The lower court relied upon evidence that Six Nations had not settlement in the contested area or nearby, that other Native Americans lived intermittently in the area and passsed through the area, that other Native Americans used the land, as much or more than the Six Nations and that the Six Nations used the area at most as a transitory passageway in common with other tribes. Id. at 910.

As to the exclusivity of the use of the Missisquoi territory, the court concludes that the Missisquoi occupied and used the Missisquoi territory to the exclusion of other tribes. No other tribes inhabited the Missisquoi territory or otherwise used or occupied the territory. The Missisquoi exercised dominion and control over the Missisquoi territory to the exclusion of other tribes. FF. 8.

The State contends that Native Americans' aboriginal title has two additional elements. First, use and occupancy of the land must be exclusive of whites. Second, there must be continuous exclusive use and occupancy of the land from which the establishment of the aboriginal rights until the present. The court disagrees with both of these propositions.

According to the United States Supreme Court the exclusivity element of the standard for creation of aboriginal title refers to other Native Americans not whites. As discussed previously, the Santa Fe Court stated taht the Walapais must have occupied a definable territory exclusive of other wandering tribes. Sante Fe at 345. Four years later in 1945, the Court confirmed that exclusivity referred to other Native Americans. Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 338 (1945). In Northwestern, the Court stated that a group of Native Americans may claim aboriginal title

PAGES 52 AND 53 OF THE ACTUAL WOLCHIK DECISION

NOT INCLUDED IN THE APPLICATION REVIEW.

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the Missisquoi, or as a result of their long land use and occupancy of the Missisquoi territory to the exclusion of other tribes, held aboriginal title and aboriginal fishing rights in the Missisquoi territory.

It is a settled principle that Native American's aboriginal rights are "as sacred as the fee simple of whites." Sante Fe, 314 U.S. at 345; Oneida II, 470 U.S. at 235 citing Mitchel et al. v. United States, 34 U.S. at 746. The continued existence of Native Americans' aboriginal rights is not dependent o nrecognition by treaty, statute or other formal government action. Oneida II, 470 U.S. at 236; Cramer, 261 U.S. at 229; United States v. Kent, 679 F.Supp. 985, 987 (E.D. Ca. 1987); Lipan, 180 Ct. Cl. at 492. Aboriginal rights are "entitled to the respect of all courts until it (they) should be legitimately extinguished..." Johnson, 21 U.S. at 592; see Worcester v. State of Georgia, 31 U.S. (6 Pet.) 405, 428 (1832).

Aboriginal rights are not perpetual; they may be extinguished by a number of different methods. Extinguishment can be accomplished by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy or otherwise." Santa Fe, 314 U.S. at 347 citing Beecher v. Wetherby, 95 U.S. 517, 525 (1877).

However, notwithstanding the method of extinguishment, that a predecessor sovereign or Congress intended the extinguishment of aboriginal title must be clear and unambiguous. Santa Fe at 345-6, 353; (no clear and plain indication that Congress intended to extinguish aboriginal title); United States v. Gemmill, 535 F.2d. 1145, 1147 (9th Cir. 1976) (government must clearly intend to extinguish aboriginal title); Lipan at 492 (citations omitted) ("While the selection of the means is a governmental perogative, the actual act

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(or acts) of extinguishment must be plain and unambiguous.") The requirement that extinguishment must be clear and unambiguous is apparent from the often cited rule that extinguishment will not be lightly implied. Menomiee Tribe v. United States, 391 U.S. 404, 413-14 (1968) (the intention of Congress to extinguish aboriginal rights will not be "lightly imputed"). Santa Fe at 354 "[(A)n extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards"]; accord Gemmill at 1147; Gila River Pima Maricopa Indian Commission v. United States, 494 F.2d. 1386, 1391 (Ct. Cl. 1974); Turtle Mountain Band of Chippewa Indians v. Unites States, 490 F. 2d. 935, 946 (Ct. Cl. 1974).

Extinguishment can also be accomplished by Native Americans' abandonment of their rights or by their cession of their rights. Mitchel, 34 U.S. at 746. "Abandonment" is defined as "the surrender or cession of property or rights; voluntary relinquishment." Black's Law Dictionary 2 (1979). The Missisquoi, however, never voluntarily abondoned any portion of their Missisquoi territory. FF. 56. The State's contention that the Missisquoi ceded their title and rights in the Missisquoi territory is addressed in section 2.

The State contends that this court cannot inquire into the means or the proprietariness of the act asserted to extinguishment aboriginal title. The State is correct that "[t]he manner, method, method and time of such extinguishment raise political not justiciable, issues", and the justness of an extinguishment is not open to inquiry in the courts Sante Fe at 347. Rather, the only issue this court is concerned with is whether any one of the various sovereign's actions clearly imply the sovereign's intent to extinquish aboriginal title. See United States v.

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Gemmill, 535 F.2d. 1145, 1148 (9th Cir. 1976) (the relevant question is whether governmental action was intended action was intended as extinguishment not whether extinguishment was effected by permissible means). Accordingly, this court is only concerned with whether or not extinguishment occured. Ftnt. 9.

The State also contends that that a sovereign state must have recognized aboriginal title or rights prior to the states' admission to the union if they are to be afforded federal protection. The cases cited by the State for this proposition are either distinguishable or against the weight of authority. The weight of authority takes a nearly opposite approach. As the court noted earlier, aboriginal title and rights, once established in fact, exist until extinguished or abandoned. Infra at 54-55. As one court stated, in discussing the proper posture in which to view aboriginal rights in relation to a sovereign republic not yet admitted to the Union, "Indian title based on aboriginal possession does not depend upon sovereign recognition or addirmative acceptance for its survival .... The correct inquiry is, not whether the Republic of Texas accorded or granted the Indians any

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Ftnt. 9. This court concludes that whether or not extinguishment occured is a justiciable question based on the precendent of the numerous courts who have decided this question. United States courts have adjudicated claims involving Indian claims and extinguishment where the argument is that extinguishment occured prior to the adoption of the United States Constitution; see Mitchel; United States v. Clarke, 33 U.S. (8 Pet.) 436 (1834); United States v. Arredondo, 31 U.S. (6 Pet.) 691 (1832), Johnson; and several cases where extinguishment allegedly occured before the Constitution was applicable and again, after the Constitution was applicable. See Oneida II; Oneida I; Santa Fe; United States v. Dann, 706 F.2d. 919 (9th Cir. 1983) rev'd on other grounds 470 U.S. ___ (198_); United States v. Atlantic Richfield Co., 435 F.Supp 1009 (1977); Lipan; 180 Ct. Cl. 492.

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rights, but whether that sovereign extinguished their pre-existing occupancy rights." Lipan 180 Ct. Cl. at 492.

The State argues that extinguishment of aboriginal rights can be accomplished by government acts and policies which imply the governments' intent that the land be used for purposes contrary to the Native Americans' possessory rights in accordance with the Santa Fe Court's statement that extinguishment could be accomplished by the "exercise of complete dominion adverse to the right of occupancy." Santa Fe, 314 U.S. at 347, Although the cases cited by the State do support the proposition that government intent to extinguishment can be implied from such acts, nearly all of the courts relied on a series of acts to ensure extinguishment was intended. United States v. Gemmill, 535 F.2d 1145 (9th Cir. 1976); United States v. Kent, 679 F.Supp. 985 (E.D.Cal 1987). This reliance inidicates that the courts were not convinced that a grant of land which was adverse to aboriginal rights qualified as an act which clearly and unabiguously implied the sovereign's intent to extinguish aboriginal title and rights. See Gemmill at 1149 (any one of these actions, including a designation of the land as federal reserve land, is insufficient by itself to unequivocally demonstrate extinguishment).

Although the Kent and Gemmill courts did consider governmental inclusion in federal forest reserves of land subject to aboriginal rights as one factor in determining whether aboriginal rights were extinguished, neither of the courts held that extinguishment was implied from that factor alone. In Kent, the court also considered the tribe's failure to make a timely claim under a federal statute and compensation to the tribe for the land. Kent at 987. In Gemmill, the

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2. Extinguishment of Aboriginal Title by the English.

The State did not prove by the preponderance of the evidence that the English sovereign, while in control of the Missisquoi territory, engaged in any act which clearly implied that the English sovereign intended to extinguish the Missisquoi's aboriginal rights to the Missisquoi territory. Specifically, the following acts did not clearly imply the English sovereign's intent to extinguish the Missisquoi's aboriginal rights: a) the 1763 Wentworth grants, b) the 1766 meeting at Isle La Motte and c) the New York governors' grants to Simon Metcalfe and the proprietors of the Prattsburgh grant. Nor was extinguishment accomplished by any of the other acts asserted by the State.

a) Governor Wentworth's 1763 grants:

First, the court considers whether Governor Wentworth's three August 1763 grants of land within the Missisquoi territory are acts clearly and unambiguously implying the English sovereign's intent to extinguish the Missisquoi's aboriginal rights in their Missisquoi homeland. The three grants, commonly known as the Swanton grant, the Highgate grant and the St. Albans grant, will be addressed collectively as "Governor Wentworth's grants" hereinafter. FF. 115.

The State concedes, although official acts within the subject matter jurisdiction bestowed upon an official are binding, a challenge to the act may be made on the basis that the official acted beyond his authority. United States v. Arredondo, 31 U.S. (6 Pet.) 691, 729

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(1832). See also, United States v. Clark, 33 U.S. (8 Pet.) 436, 451-2 (1834) (although a grant, if an act within a public officer's duty as assigned by king, is prima facie within his power, the Court would still hear argument that grant was invalid because officer acted beyond the power conferred upon him.) Therefore, this court can review whether or not Governor Wentworth's grants were within his authority, as a question of whether of extinguishment occured, without treading on nonjusticiable matters.

Governor Wentworth's authority was limited, in part, by England's Native American policy as manifested in several royal communications. FF. 114. If Governor Wentworth's grants were consistent with his authority as limited by this policy, his grants could conceivably be considered to imply English intent regarding Native American matters.

If, however, Governor Wentworth's grants are not consistent with his authority in that they violated England's Native American policy, then this court cannot consider Governor Wentworth's grants as acts which implied English intent regarding Native American matters. This court concludes that Governor Wentworth's grants were not within his authority as limited by English Native American policy, and therefore, are not acts which imply English intent much less acts which clearly imply  the English sovereign's intent to extinguish the Missisquoi's aboriginal title to the Missisquoi territory. Because the question of whether Governor Wentworth's grants extinguish aboriginal title is resolved by the English Native American policy's limitations on the Governor's authority to grant land, this court need not decide whether the Missisquoi territory was located outside the geogprahic boundaries

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of the Governor's jurisdiction in 1763 and thereby, beyond his authority.

English policy towards Native Americans originates with the Articles of Capitulation, is later reflected in the 1763 Treaty of Paris, and is subsequently manifested by a general Native American policy formally set out in a royal proclamation and royal instructions. In commenting on English relations with Native Americans, the United State's Supreme Court stated:

[o]ne uniform rule seems to have prevailed from their first settlement, as appears by their laws; that friendly Indians were protected in the possession of the land they occupied, and were considered as owning them by a perpetual right of possession in the tribe or nation inhabiting them as their common property from generation to generation, not as the right of individuals located on particular spots. Mitchel, 34 U.S. at 744.

As the Missisquoi were not enemies of the English, this uniform rule generally describes the English attitude towards the Missisquoi and the land they occupied. Ftnt. 13.

England's formal relationship with the Missisquoi was first defined by the Article of Capitulation. The Articles of Capitulation signed in 1760, marked the end of hostilities between the French and the English in the French and Indian War. Ftnt. 14. FF. 107. In accordance with Article XL, the English agreed that the Native American allies of the French King would be maintained in the lands they

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Ftnt. 13. Although the Missisquoi sided with the French during the French and Indian War, after the French defeat and the English succession to power in 1763 there is no evidence that the English viewed the Missisquoi as unfriendly.

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inhabited and not be molested for their support of the French King. FF. 107. The Missisquoi, as allies of the French King, fall within the protection of Article XL. Id. Under the Articles of Capitulation, the English were bound to treat the Missisquoi honorably and fairly. Id. Therefore, from the start of their formal relations with the Missisquoi, the English agreed to maintain the Missisquoi in their Missisquoi homeland, treating them honorably and fairly.

The Articles of Capitulation were followed up by the 1763 Treaty of Paris, which formally ended the French and Indian War. FF 108. The 1763 Treaty of Paris had the same purposes as the Articles and dealt with the Missisquoi and their homeland in the same manner. Id.

In the mid 18th century, the English formulated a general Native American policy that is prescribed in a royal proclamation, royal instructions and directions. FF. 110. The Crown learned from both its own and France's experience that peaceful relations with the Native Americans were necessary to the colonies' security and consequently, in the Crown's best interest. FF. 110-13. Motivated by its interest in avoiding conflict with the Native Americans, the Crown wanted to ensure that any acquisition of Native American land be carried out in an orderly fashion, by specific procedures, including treaties made by

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Ftnt. 14. The French were the "discoverers" of the Misssquoi territory and, therefore had the power to extinguish aboriginal rights. Although there was some evidence that French grants were made in the Missisquoi territory, the State did not assert that extinguishment occured under the French reign. Consequently, the Missisquoi's aboriginal rights were intact when England acquried the French territory which included the Missisquoi homeland.

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assemblies of the affected Native Americans. FF. 110, 112-13.

Apparently, the Crown also sought to maintain peaceful relations with the Native Americans by explicitly reserving land for them and protecting those rights from encroachment. FF. 112-13. See Johnson, 21 U.S. at 597. (England attempted to preserve peace with the Indians by quieting their alarms about their property by restraining white encroachment).

Royal communications by the Crown, including the Royal Instructions of 1761 and the Royal Proclamation of 1763, expressed this policy. FF. 112-13. The Royal Instruction of 1761 and the Royal Proclamation of 1763 had the effect of law in the colonies. See, United States v. Arredondo, 31 U.S. (6 Pet.) 691 at 713 (1832) (the instructions of the king to his governors are the supreme law superceding previous inconsistent ones.) Both the Royal Instruction and the Royal Proclamation prohibited royal governors, including Governor Wentworth, from making grants to certain lands. Id. Ftnt. 15.

Consequently, royal governors' grants were with their authority only if they were inconsistent with the Royal Instruction and the Royal Proclamation.

The Crown's 1761 Royal Instruction to several royal governors, including those of New Hampshire and New York, manifests England's

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Ftnt. 15. Dr. Calloway also concluded that Governor Wentworth's authority to grant land was restricted by the Royal Instruction of 1761 and the Royal Proclamation of 1763. C I at 93; C III at 80-2.

Obviously, there is MORE to the actual Judge Joseph J. Wolchik FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER; yet the allegedly "idnependent" scholar, Dr. Frederick Matthew Wiseman, PH.D. clearly "edited" the material to "selectively" address only the "good parts" that put the Missisquoi group in a "good light" judicially, socially and historically speaking. WHY? I surmise that the "other" pages of the Wolchik Decision were not valid, important or entertaining enough to use in this Application for State of Vermont Abenaki" "Recognition"?

It would appear that "the missing pages" of this Joseph J. Wolchik Decision (of August 1989), is not merely made accidentally; It is rather a seemingly "slight of hand" tactic in which to allegedly "prove", that the Missisquoi "Abenakis" and the group of which Mr. Wiseman PH.D. himself belongs to, are legitimate.

I think not.

Anyone care to read the Raleigh Elliott October 1991 Decision?

LINK: http://law.justia.com/cases/vermont/supreme-court/1991/op90-512.html

How about the Attorney General's (William Sorrell and Eve Jacobs-Carnahan) Response to the St. Francis/ Sokoki "Band of Abenakis" Petition For Federal Acknowledgement? ... or the Bureau of Indian Affairs O.F.A. Decisions of November 09, 2005 and or the June 22, 2007 FINAL REPORT regarding Mr. Frederick M. Wiseman PH.D., John S. Moody, and the bunch up in Swanton, Franklin County, Vermont led by April A. (St. Francis) Merrill?

St. Francis/Sokoki Missisquoi Abenaki Application For Vermont State Recognition PAGES 77 to 79, PLUS the MISSING PAGES 33 to 44 of the VT Judge Wolchik Decision of Aug. 1989:

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also provided for one who disguises himself and commits any of the above trespasses, abuses any person or leaves open any gate or fence to an enclosed area.
j. An Act Regulating Fisheries, March 8th 1787, 1787 Vt. Laws at 253; C I., Ex.. 22. This Act prohibits the erection of any structure across any river in the State which obstructs the natural passage of fish, except dams necessary for mills. One who does erect such a structure is guilty of nuisance and subject to a fine.
127. In 1791, the Republic of Vermont settled New York's claims to its lands with a $30,000.00 payment, clearing the way to entry into the Union. C I at 88.
128. The Missisquoi survived as a native American community in their traditional homeland throughout the existence of the Republic of Vermont, living openly and unmolested. C III at 111-112, 146.
129. No explicit acts or expressions of intention to extinguish Missisquoi aboriginal rights by any Vermont, New York, New Hampshire, Quebec, Continental Congress body or the United States federal government exist.
130. It was alien to the Missisquoi culture to go to colonial courts to maintain or vindicate property rights, and, therefore, it was not a viable option. C III at 158.

F. Missisquoi population figures
131. Using varying indirect methods of estimation, e.g. numbers Of houses times estimated number of people per house, the experts show1

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a Missisquoi native American population in the seventeenth and eighteenth century ranging from 200 to 2000 souls, with 750 being a fair estimate. In 1900 it had grown to 1500. As suggested above, the population in the homeland has now grown to as much as 2600. T I at 161, T II at 222, 228, T III at 110, 202, T IV at 46-47, C at 72.

132. The Court takes judicial notice of the following census figures derived from the 1988 Vermont Yearbook. These figures are the latest available* based upon the 1980 census.

Place ... Population
Vermont ... 511,456
Franklin County ... 34,788
Grand Isle County ... 4,613
Alburg ... 496
Fairfax ... 1,805
Georgia ... 2,818
Grand Isle ... 1,238
Highgate ... 2,493
Isle La Motte ... 393
Milton ... 6,829
North Hero ... 442
St. Albans ... 7,308
Sheldon ... 1,618
South Hero ... 1,188
Swanton ... 5,141

133. Eighty to ninety percent of tribal members still live in the 'Missisquoi homeland, while others return regularly. T IV at 73-74.
134. A small neighborhood in Swanton, consisting of several streets and known as Back Bay, has a forty to sixty percent Missisquoi population. T II at 171-172.
135. For a variety of reasons attributable to both the Native Americans and the census process, the Native American census count is it valid from 1790 forward. Moody T III at 154.
136. Though the details are not clear from the evidence, tribal Membership is a function of birth and a formal process of induction. T IV at 72.

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IV at 72.

G. Education, formal governance, employment and related issues

137. The Missisquoi governing body is a tribal council, with members elected by the tribe. T III at 45.

138. Needing a non-profit corporation and finding it inconsistent with tribal sovereignty to incorporate, the Missisquoi formed the Abenaki Self-Help Association, Inc. (ASHAI) in the early 1970's to act as a conduit for federal and other funds. T V at 188, 197.

139. Membership of ASHAI is one hundred percent Missisqoui Abenaki. T III at 45.
140. In order to receive federal funds through the Administration on Native Americans (ANA) an organization must be Native American to the satisfaction of the federal authorities. In 1982 ANA designated ASHAI as one of only ten nationwide grantees. T V at 163, 174.
141. In certain years, ASHAI funneled well in excess of $100,000 into the Missisquoi region, though not all of it was earmarked for Native Americans. The Vermont Housing Finance Agency's neighborhood Self-Help Development Program funds were not Native American specific. T V at 166, 171.
142. Abenaki Acres, a low income housing program was a cooperative effort between the Missisquoi and ASHAI. T V at 124.
143. Other federal program grants which ASHAI has served over the years include:
a. ANA weconomic development grant for the codification of tribal laws and leadership training, which was "almost a formula distribution among Indian people in New England."

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T V at 161.

b. Community Service Administration grant.

c. Community Food Program grant received because Missisquoi accepted as an Indian tribe and organization by the Indian Task Force of the federal regional council in Boston, Massachusetts. T V at 155.

d. Indian Manpower Program. ASHAI was the primary sponsor for Vermont and New Hampshire.

e. Department of Labor JTPA grant, designed for Native Americans and provides employment and training services to the Native American communities in Vermont and New Hampshire. T V at 203.

f. Title IV PART B grant for pre-school/kindergarten through office of Indian Education for Native American children. T V at 170, VI at 35-36.

g. Title IV C grant for adult basic education through the office of Indian Education. "ONly groups that had been accepted as Indian were eligible." T V at 165, T VI at 35-36.

144. Another grant, given to the public school systems in the Franklin Northwest Supervisory Union situated in the Missisquoi homeland, is Title IV A, a grant for services for native American children in the public schools. T VI at 35-36.

145. In 1984-1985, the Missisquoi community was the only one in the United States to get Title IV  Parts: A, B, and C funds. T VI at 35-36.

146. Other than preshool/kindergarten Missisquoi children

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attend the public schools of various towns in the region. T II at 144.

147. The Missisquoi are generally blended into the non-native American work force, are generally of low income, and have a dissproportionately high number of high school dropouts. T II at 147, T VI at 57-58.

148. The problems of poverty and poor education have been characteristic of the Missisquoi sicne the arrival of the Europeans. T IV at 97-98.

H. Genealogies

149. The testimony of John Moody, establishes that all but six of the defendants, Sylvia Wells, Tammy Lee Conger, Richard Rowe, Mark Rushlow, Raleigh Elliot, and Joy Mashtare, have blood relatives traceable back to Missisquoi living in the Missisquoi homeland prior to first European contact. T IV at 112, 119.

150. An overall reading of the testimony of John Moody establishes that the remaining defendants are looked upon at Indian by the Missisquoi Abenakis community.

I. Miscellaneous

151. A large number of local and state police officers testified in this case. From that fact and through judicial notice, we concluded that law enforcement is provided throughout the Missisquoi homeland by town, county, and state authorities. There is evidence to suggest the existence of a Missisquoi law enforcement authority.

152. We take judicial notice of the fact that each of the towns in the Missisquoi homeland is governed in accord with Vermont State law.

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153. There is no evidence to suggest that any authority other than each town providing municipal services to the Missisquoi.

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CONCLUSIONS OF LAW

A. INDIAN COUNTRY.

In State v. St. Francis, No. 84-85, slip op. at 2 (Vt., April 14, 1989), the Vermont Supreme Court framed and briefly analyzed the issues surrounding the so-called "Indian Country" defense advanced by all of the defendants:

[i]f the defendants are Indians and if the alleged offenses occurred, as defendant's claim, in "Indian country,"  as that term is used in 18 U.S.C. 1151 [-1152], the courts of this state would have no jurisdiction...

Under the federal statute, "Indian country" is defined to include Indian reservations, 18 U.S.C. 1151 (a) dependent Indian communities," 18 U.S.C. 1151 (b), and Indian allotments, 18 U.S.C. 1151 (c). Defendants concede that there are no Indian reservations or Indian allotments in Vermont. They assert, however, that the alleged offenses all occurred within a "dependent Indian community."

Defendants in this case make the same concessions and assertions.

1. Defendants' ancestry

The testimony of John Moody has established by a preponderance of the evidence, through the presentation of miticulously prepared genealogies, that all but six of the defendants, namely Sylvia Wells, Tammy Lee Conger, Richard Rowe, Mark Rushlow, Raleigh Elliot, and Joy Mashtare are related by blood to Missisquoi Abenakis who lived in the Missisquoi homeland prior to its discovery by Europeans. His testimony, read as a whole, established that the remaining defendants are recognized as Indian by the Missisquoi Abenaki community. These defendants, therefore, meet the widely accepted definition of an Indian:

[a] person meeting two qualifications: (a) that some of the individual's ancestors lived in what is now the United States before its discovery by Europeans, (b) that the

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individual is recognized as an Indian by his or her tribe or community. F. Conen, Handbook of Federal Indian Law 20; Turtle Mountain Band of Chippewa Indians vs. U.S., 490 F. 2d 935, 942-943 (Ct. C1.1974).

2. Origins and History

Felix Cohen tells us in his Handbook of Federal Indian Law, that "Indian Country"

is a Statutory term used for Indian lands under federal protection. The concept of a seperate territory for Indians within the boundaries claimed by another sovereign date from 1763, and the term "country" was sometimes used to describe such lands. The term "Indian country" appeared in the temporary Trade and Intercourse Acts of 1790 and 1799, int he first permanent Trade and Intercourse Act of 1802, and in the Trading House laws of 1796-1822. Cohen, supra at 29.

The United States Supreme Court dealt with Indian Country concept in two early foundational cases, Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) and Wocester vs. Georgia, 31 U.S. (6 Pet.) 515 (1832). Recalling these cases in an 1885 opinion that court reflected that "in the opinions in these cases [all Indian tribes] are spoken of as 'wards of the nation', 'pupils', as local dependant communities," United States v. Kagama, 118 U.S. 375, 382 (1885). (emphasis added).

The use of the word "dependent" in this context appears for the first time in an 1823 United States Supreme Court case: "The peculiar situation of the Indians, necessarily considered, in some respects, as a dependent, and in some respects as a dependent... people..." Johnson v. M'Intosh, 21 U.S. (8 Wheat) 543, 598 (1823).

In 1885, when the Supreme Court annoned Kagama, "dependent" was a word that meant solely reliant on the United States government for surivival basics: " Dependent for their daily food. Dependent for their political rights. They owe no allegiences to the States, and receive

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from them no protection. Because of the [?] ill feeling, the people of the States where they are found are often their deadliest enemies." Kagama, 118 U.S. at 384 (emphasis added).

The phrase "dependent Indian communities" is not defined by statute. When Congress included the term it chose to codify "the decision of the United States Supreme Court in United States v. Sandoval, 231 U.S. 28 (1913)." St. Francis, No. 84-550 at 2-3.

Cohen in his handbook agrees:

[i]n the 1948 codification of Indian Country, Congress relied on the Supreme Court's decisions in Donnelly, Sandoval, Pelican, (ftnt. 3) and McGowen, even to the point of codifying the Court's phrase "dependent Indian communities." Thus the intent of Congress, as elucidated by these decisions, was to designate as Indian country all lands set aside by whatever means for the residence of tribal Indians under federal protection, together with trust and restricted Indian allotments. Cohen, supra at 34 (emphasis added).

"Dependent Indian communities" derives from that part of th Sandoval which reads: "long continued and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and duty of exercising a fostering care and protection over all dependent Indian communities within its borders." Sandoval, 231 U.S. at 45-46 (emphasis added).

The "lands" in Sandoval were twenty native American pueblos (communities of stone or adobe houses) with an aggregate population of

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Ftnt. 3. "It must be remembers that the fundamental consideration is the protection of a dependent people." United States v. Pelican, 232 U.S. 442, 456. (1913).

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over eight thousand, [?] pueblo, on [?] consisted of seveteen thousand acres, held in communal fee simple ownership. Each pueblo was a seperate and isolated community. Sandoval, 231 U.S. at 38-39.

Congressed expended federal monies

in presenting them with farming implements and utensils and in their civilization and instruction agents and superintendents have been provided to guard their interests; central training schools and day schools at the pueblos have been established and maintained for the education of their children; dams and irregation works have been constructed to encourage and enable them to cultivate their lands, and sustain themselves; public lands, as before indicated, have been reserved for their use and occupancy where their own lands are deemed inadequate; a special attorney has been employed... [T]hey are dependent upon the fostering care and protection of the Government, like reservations Indians in general. Sandoval, 231 U.S. at 39-41.

For nearly sixty years following Sandoval the case law is nearly devoid (ftnt. 4) of any significant development concerning exercise of federal jurisdiction over dependent Indian communities. Then in 1971 the Tenth Circuit handed down United States v. Martine, 442 F. 2d 1021 (10th Cir. 1971), making room for the expansion of jurisdiction toward as yet undefined outer limites by broadly focusing on a myriad of elements of the physical and social geography of the land in issue. Referring to the federal district court trial the court stated:

[t]he Sandoval case indicates that the proper approach to this problem was followed in this trial. The trial court received evidence as to the nature of the area in question, the relationship of the inhabitants of the area to the Indian Tribes and to the federal government, and the established practise of government agencies toward the area... only after considering all of the various factors we have noted as well as any other relevant factors, can the trial court determine the state of a particular area. The mere presence of a group of Indians in a particular area would undoubtedly not suffice. United States v. Martine, 442 F. 2d 1021, 1023-1024 (1971) (emphasis added).

___________

Ftnt. 4. See United States v. McGowen, 302 U.S. 535 (1938).

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The inquiry is clearly wide ranging and "the test for determining what is a dependent Indian community must be a flexible one, not tied to any single technical standard such as percentage of Indian occupants." United States v. Mound, 477 F.Supp. 186, 160 (Dist. Ct. D.S. Dakota D.C. 1979).

In that spirit the courts have added other factors for our consideration. The court in United States v. Morgan, 614 F. 2d 166 (8th Cir. 1980) asks us to consider "cohesiveness":

[b]asic to the difinitions of "community" which we have reviewed is the existence of an element of cohesiveness. This apparently can be manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality. Cohesiveness or common interests can be more necessary to the existence of a community than can mere density of population. United States v. Morgan, 614 F.2d at 170. (emphasis added).

The court in United States v. Levesque 681 F.2d 75 (1st Cir. 1982) reviews prior cases and adds a furthe consideration:

[s]ince 1948 the Eighth and Tenth Circuits have had occasion to construe the meaning of "dependent Indian community" as used in 18 U.S.C. sec. 1151. United States v. South Dakota, 665 F.2d 837 (8th Cir. 1980);  Weddell v. Meirhenry, 636 F.2d 211 (8th Cir. 1980); United States v. Martine ... United States v. Mound ... these courts have concluded that section 1151 (b) mandates a functional inquiry into the nature of the community in which the crime occurred, the ultimate issue being whether the evidence shows that the area was established for the use, occupancy and protection of dependent Indians. United States v. Levesque, 681 F.2d at 77.

This so-called "ultimate issue" "is a difficult element of the test to prove." St. Francis, No. 84-550 at 3.

Because our Supreme Court in St. Francis cites State v. Dana, 404 A.2d 551 (Me. 1979) as a historical example of how courts have dealt with the dependent Indian community issue, we should pause and address it here. St. Francis at 3. This court considers the anomalous standard

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announced in the case unnecessary to the result, a result which can be justified by applying the tests outlined above. The Dana court states

[t]he decisions establish that ... "dependent Indian community" will include the land in Maine now occupied by the Passamaquoddy Indians if, as a bona fide tribe of Indians, the Passamaquoddies inhabited that land and had "Indian title" to it in 1790 when the Indian Trade and Intercourse Act became law, and if the status of the Passamaquoddies and the nature of their occupancy of the land was the same when the instant crime was committed on it. State v. Dana, 404 A.2d at 562.

Internally the standard is vague. What do "status" and "nature of occupancy" mean? Externally, it would be a rare community that could fit the general thrust of the standard - a people whose world had little changed since 1790. Fortunately for the Passamaquoddy they were able to meet the standard. We agree with the opposing standard set by the Eighth Circuit: "The important consideration is what the land in question is now.... " United States v. South Dakota, 665 F.2d 837, 842 (8th Cir. 1981).

Dana is a thorn between two roses, namely Passamaquoddy v. Morton, 528 F2d 370 (1st Cir. 1975) and United States v. Levesque, 681 F.2d at 75. Dana was decided by the Maine Supreme Court. Passamaquoddy and Levesque are First Circuit federal cases. All three deal with the Passamaquoddy tribe. Passamaquoddy comes before Dana. Levesque came after. Despite the notable decision in Dana, the Levesque court followed the United States v. South Dakota, Meirhenry, Martine and Mound case chain leading back to Sandoval. The thinking in Dana is creative but it only confuses the inquiry, and this court declines to resolve this case by attempting to apply its test.

The fact situation in Levesque is a model for a clean application

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of the Martine test which resulted in a findings of "dependent Indian community." The case was decided on

largely unrebuffed evidence of the three key factors identified in Martine ... nature of area ... assault occurred .. Peter Dana Point located within Indian Township. Except for 6000 acres located elsewhere ... all of Indian Township belonged to the Passamaquoddy Indians, being part of the Passamaquoddy Indian Reservation. As to .... relationship of the inhabitant to Indian tribes, it was shown that 94 percent of the inhabits ... were Passamaquoddy Indians .... As to the relationship of the community with the federal government and the practise of government agencies ... tribe now had the status of a federally ercognized tribe. Levesque, 621 F.2d at 78.

Compare the Levesque fact situation with the one in Weddell, where the Eighth Circuit refused to find a "dependent Indian community".

Weddell was convicted of a grand larceny and burglary of a Coast to Coast store in Wagner, South Dakota... Wagner, South Dakota is located within the exterior boundaries of the original Yankton Sioux Indian Reservation. However, as a municipal corporation, Wagner is independent from the Yankton Sioux Tribe... only 16.3 percent of the population of Wagner is Indian. And although federal funds comprise 25 per cent of the Wagner School District budget, the district court found that funding to be proportional to the Indian student enrollment. As the petitioner points out, the Bureau of Indian Affairs office and a Public Health Service hospital located in Wagner amdminister various federal programs for the members of the reservation. Weddell, 636 F.2d at 212-213.

The court went on to say:

[w]e agree with the district court that it would be unwise to expand the definitioin of a dependent Indian community under section 1151 to include a locale merely because a small segement of the population consists of Indians receiving various forms of federal assistance. Although the community of Wagner is biracial in its composition and social structure, it is clearly not a dependent Indian community under any of the definitions set forth in the cases discussed above. Weddell, 636, F.2d at 213.

The available evidence leads this court to conclude that neither the Missisquoi homeland or any part of it is Indian country. There is no specific piece of land one can point to as being "set aside

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by whatever means for tribal Indians under federal protection." Cohen supra at 34. The thrust of the evidence is that the Missisquoi community is thoroughly mixed if not blended into the non-native American community. Their children attend schools with non-native American children. Those who find work find it with non-native Americans. Municipal police protection is a function of Vermont State government and its subdivisions.

The issue is not whether a tribe whose roots can be traced back to pre-European contact continues to exist within the Missisquoi homeland. We have no doubt but that it does.

The evidence does not establish, however, that at this time the area is "established for the use, occupancy, and protection of dependent Indians." Levesque, 681 F.2d at 77. Clearly, it is established for the use, occupancy, and protection of its mixed population of Native Americans and non-Native Americans, the vast majority of whom are non-Native American. To the extent that this status lends to cohesiveness, it is not the cohesiveness described in Morgan.

These native Americans have and continue to receive substantial help through verious federal programs, but it cannot be said that these programs generally benefit the populous of the Missisquoi homeland as a whole. If we were to assume that the Missisquoi homeland consisted of only St. Albans, Highgate, and Swanton, the 2600 tribal members would comprise only 17.4 percent of the total population. Spread out over the entire homeland the figure would be much smaller. This court agrees that "merely because a small segment of the population consists of Indians receiving varous forms of federal

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assistance," as here, is no reason to find the existence of a dependent Indian community. Weddell, 636 F.2d at 213.

The court concludes that there is no way for the defendents to meet the Martine test on any other acceptable standard for establishing that the Missisquoi homeland or any relevant part thereof is a dependent Indian community. As a result, the court must deny the various motions to dismiss for lack of jurisdiction.

Pages 46 though 49 of the ACTUAL Wolchick Decision are NOT INCLUDED IN THE APPLICATION, nor do I have the pages either.

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:

Page [71.]

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