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The 1837 and 1855 Chippewa Treaties in the Context of EarlyAmerican Wildlife Law Thomas Lund INTRODUCTION In 1837 the Mille Lacs band of Chippewa Indians was party to a treaty with the United States which contained the following provisions: Article 1. The said Chippewa nation cede to the United States all that tract of country included within the following boundaries: ... Article 5. The privilege of hunting and fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the President of the United States. In 1855 the Mille Lacs band was party to a treaty with the United States which contained the following provision: Article 1. ... And the said Indians do further fully and entirely relinquish and convey to the United States, any and all right. title, and interest. of whatsoever nature the same may be, which they may have in, and to other any other lands in the Territory of Minnesota or elsewhere. In July 1993, I was contacted by attorneys for the Mille Lacs band of Chippewa Indians and retained to provide an opinion concerning certain issues relevant to the case in light of my expertise regarding the history of early American wildlife law. This report addresses the following three questions: 1. Would the drafters of the 1855 treaty have understood a grant of all right. title and interest in land to compromise the right to take fish and game on the conveyedland ? Tanner, Lund, and Nichols 2. Would the 1837 or 1855 treaty drafters have understood the privilege of hunting and fishing guaranteed under Article V of the 1837 treaty to be right, title or interest in lands? 3. On which lands, public and private, would the 1837 treaty drafters have understood that the Chippewa could exercise the privilege of hunting and fishing guaranteed under Article V of that treaty? I have been asked to prepare a historical analysis of these questions, focusing on the prevalent legal doctrines of the period and the likely understanding of anAmerican lawyer of the day who had been commissioned to draft the treaties. I have not undertaken, nor have I been asked to undertake, an analysis of the Indians' understanding of the treaties , or the proper construction of the treaties based on currently applicable legal doctrines and canons of construction developed by the federal courts to construe the meaning of Indian treaties.1 The proper analysis of these questions calls for historical analysis. Archaic common law doctrines are involved such as hereditaments, the various franchises of the chase, and the interests of free, several, and common fisheries. The nineteenth-century privilege to enter land involves the doctrines of trespass, but not -trespass vi et armis: not -trespass to try title,- not -trespass on the case: but only-trespass quare clausum fregit: A historian may alert the court to the importance of nineteenth-century procedural rules. Common law practice analyzed the plaintiff's case according to the writ he or she had chosen. Each -form of action- involved a substantive law unique to the particular writ. As F. W Maitland observed, a plaintiff might find -that, plausible as his case may seem, it just will not fit anyone of the receptacles provided by the courts [within the writs, the forms of action] and he may take to himself the lesson that where there is no remedy there is no right:2 As the United States Supreme Court explained,-Want of remedy was, therefore, quite reasonably synonymous with want of right:3 A historian may help the court identify and evaluate sources. Modern research tools such as computer databases do not cover early sources. A historian can provide assurance that the basic texts are identified. Furthermore a historian may provide insight into the weight of sources, the significance of Blackstone, for example, as an authority second only to the Bible.4 A historian may provide the court expert information on foreign law. Nineteenth-century American law -received- the English common law -to the extent applicable to the new conditions on the American continent:s English precedents were often more important than American cases. Finally a historian may help explain the context of a distant transaction. Courts often rely upon context to understand modem controversies; a historian discovers and explains the context of remote events. My credentials as a historian appear in full in appendix II. I have not previously appeared as an expert witness nor do...

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