Page [80.]
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
Page [81.]
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.
Page [82.]
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
Page [83.]
(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.
Page [85.]
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
Page [86.]
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
Page [87.]
(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
Page [88.]
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.
Page [89.]
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?
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?
