UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Transcription

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN FELIX J. BRUETTE, JR., Plaintiff, SALLY JEWELL, Secretary of The Interior Defendant. Case No.: 14-C-876 Response to Defendants Motion to Dismiss Paragraph 1. Line 7, Introduction. I call into question the Department of Interior s interpretation of my claim. Specifically the first paragraph of their introduction. Mr. Bruette alleges that the Inter/or Department failed to take the roll required by the Act ofcongress dated March 3~ J 1893, thereby/n validating an Act ofcongress and impacting his ri~jhts as an owner of tribal Iand ~ The rights I ask of the court are the same rights Congress affirmed to my Grandfathers on March 3, [27 stat 744] The right to occupy tribal lands established by treaty [11 Stat 663], lands held in common with individual land selections, and to share in pro rata tribal funds. [27 stat 744] Paragraph 2. Defendant s motion; 1 Case 1:14-cv WCG Filed 11/17/14 Page 1 of 14 Document 12

2 However, a National Archive record shows that this roll was in fact established in accordance with the 1893 Act. Attached as Exhibit 1 is a certified reproduction of a National Archive record of the Census of the Stockbridge and Munsee tribe ofindians, as made by C. C. Painter, revised by the commissioner of Indian Affairs and approved by the Secretaiy of Interior, underact of Congress March 3, 1893,27 Stats. Page 744. Indian Agent Thomas H. Savage submitted a Census of the Stockbridge Munsee Indians of Green Bay, June 30th, He enumerated 503 Stockbridge and Munsee of Indians. His Census was completed prior to the C.C. Painter Census and without any provisions. (P1. Ex. 29) The1895 Census of the Stockbridge and Munsee Indians, again done by Indian Agent Savage, enumerated 505. (P1. Ex. 30) In 1893, the Census of the Stockbridge, done by Indian Agent Charles Kelsey (June 30th, 1893) enumerated 141 Stockbridge. (P1. Ex. 28) The defendant s motion the that this roll was in fact established/n accordance with the 1893 Act is erroneous. The CC Painter Census approved June 12th, 1894, final approval July 13th, 1894, contain 503 names, including members and their descendants, who separated from the tribe by enrolling in either the Indian Party or the Citizen Party, April 8th, (P1. Ex. 13 p.23 & p.24) Enrollment upon either was a separation from the treaty and the tribe. [16 Stat 404] (Sec.2, Sec.6 and Sec.7) The Department of the Interior s official roll, the C.C. Painter Census (Def.Ex.1) includes over 47 heads of families, and their descendants, who are members of the Indian 2 Case 1:14-cv WCG Filed 11/17/14 Page 2 of 14 Document 12

3 party, who received allotment certificates (Pt. Ex. 10) in fee simple, in severalty, on July 31st, By report of the Secretary of the Interior on August 31St, 1892, The Stockbridge Indians had land allotted to them in severalty in (P1. Ex. 24) The Department of Interior is in direct conflict with the provisions enacted by the Senate and House of Representatives of the United States of America in Congress assembled. March 3, 1893 Congress enacted; All members who entered into possession of lands under the allotments of et~hteen hundred and fifty-sbc~ and of ei~zhteen hundred and seventy-one and who by themselves or by their lawful heirs have resided on said lands continuously since, are hereby declared to be owners ofsuch lands in fee-simple in severalty. Furthermore, a letter from within the Department of the Interior, November 26th, 1894, to United States Indian Agent, Thos. H. Savage, Esq., from D.M. Browning, Commissioner, approved from the Commissioner and the Secretary of Interior. (P1. Ex. 31. p.2). The enrollment provided to be taken in the first part of section two, said act has been made and it was approved by the Secretary of Interior June 12, 1894, and there now remains to be done, under that act, the identification of the Aiotees under the treaty of 1856 (11 Stats. 663) and the act of 1871, (16 Stats. 404) who have either themselves, or by their lawful heirs resided on the lands received in allotment continuously since they were so received, with a view to the issuing to them of the patents provided for/n the first section ofthis act ~ Report of the Commissioner of Indian Affairs (Def.Ex.3) In my report for stated that it was my intention to have this work done as soon as a special agent of the office could be spared for thatpurpose. 3 Case 1:14-cv WCG Filed 11/17/14 Page 3 of 14 Document 12

4 Report of the Commissioner of Indian Affairs (Def.Ex.3) February lit/i, 1895, Agent Savage was directed by this office to take no further steps to carry out the instructions relative to the identification ofthe Stockbridge and Munsee aiotees until further orders. Report of the Commissioner of Indian Affairs (Def.Ex.3) Under Department instructions of May 19, 1895, I directed Agent Savage, May 29, 1895 to resume the work of identifying the aiotees under his former instructions. No report from him on that subject has been received. Defendant s state in their motion to dismiss...by June of 1894 the Interior Department completed the tribal roll required by the 1893 Act. (Def.Ex.lp.7)This is fictitious. The C.C. Painter official roll is no more than what it states it is, a Census. Paragraph 3. Accordingly, this case is not moot nor should it be dismissed for want of subject matter jurisdiction. The defendants did not produce an Official Roll in conformity with the provisions the Act of March 3, 1893 required, therefore invalidating a Federal statute. By the DOI s own admission they suspended all activities related to the 1893 Act. This suspension is still in effect. The DOl is in conflict with the provisions Congress enacted and therefore are not entitled to judgment as a matter of law. FACTUAL AND HISTORICAL BACKGROUND Defendant s Factual and Historic Background, Page 2. Line 3. As part of the treaty, the United States provided the tribe with land in the state of Wisconsin to bedistributed to tribal members who were heads of households. 4 Case 1:14-cv WCG Filed 11/17/14 Page 4 of 14 Document 12

5 The United States did notprovide land for the Stockbridge and Munsee Tribe of Indians. The tribe ceded certain lands in Calumet County for lands under the treaties of [11 stat 663] (P1. Ex. 3) and 111 stat 679] (P1. Ex. 4) In 1856, for the purpose of settling all past differences in the trilic, and again uniting the members thereof in a common brotherhood, a treaty was concluded and signed by the individual members of the tribe, by which treaty the Indians surrendered their lands at Stockbridge and received in exchange the lands at Shawano, where theyhave eversinceresidecl (Pl. Ex. 15, Par.1 Line3) Article 3. of the Stockbridge and Munsee treaty, February 5th, 1856, grants the right to occupy Tribal lands as a selection, with a clause for due process to acquire absolute title. No Certificates of allotments were issued under Article 3 of the 1856 treaty. [11 stat 663] Only six or seven ever settled on the present reservation, and none of them had allotments. (P1. Ex. 26) Until title or certificate is obtained the only right to occupy tribal land is by selection. Id. at Article 3. Defendant; The 1856 Treaty further required the United States to prepare a roll of the actual members ofthe Tribe so that the land and money could be distributed to the proper individuals. Id atarticle 5. This roll was attached to the 1856 Treaty. 11 Stat.663. Fouryears later, in 1860, Stephen Gardnerreceiveda landpatent for sivty acres of/and. (Defendant s Factual and Historic Background, P. 2, Line 6). The Department of the Interior s interpretation of the 1860 patent is misleading. (Def. Ex. 2) In 1860 President Buchanan issued Stephen Gardner a patent and whereas it appears 5 Case 1:14-cv WCG Filed 11/17/14 Page 5 of 14 Document 12

6 from the aforesaid list B, that Stephen Gardner... List B (P1. Ex.1 and P1. Ex. 2 and P1. Ex. 33) is located in Calumet County, Wisconsin. Our Tribes old reservation (P1. Ex. 7). Defendant is misinterpreting patent. List C, D, and E are not mentioned. The defendant s explanation of the act of 1893 continues to mirror the DOl s failure to abide by the provisions made in conformity with the Act of March 3rd, What was enacted by the Senate and House of Representatives of the United States of America assembled; (1) That all persons who were actual members of the said tribe of Indians at the time of the execution of the treaty of Februaiy fifth, e,~ihteen hundred and fifty-six, and their descendants, and (2) all persons who became members ofthe tribe under the provisions ofan icle six ofsaid treaty and their descendants, (3) who did not in and by said treaty, and have not since its execution, separated from said tribe, (4) are hereby declared members of said Stockbridge and Munsee tribe ofindians and (5) entitled to theirpro rata share in tribal funds and in the occupancy of tribal lands ~ ~.. Congress fun her enacts... (6) and all members who entered into possession of lands under allotments of 1856 and 1871, ançl (7) who by themselves or by their lawful heirs have resided on said laths continuously since, are (8) hereby declared to be owners of such lands in fee simple, in severalty, and the government shall issue patents to them therefore. [27 stat 744] 6 Case 1:14-cv WCG Filed 11/17/14 Page 6 of 14 Document 12

7 Plaintiff directs attention to the fact that the DOl s final sentence of paragraph two be declared owners of the land/n fee simple and receive patents for the land omits hereby declared to be owners of such lands in fee simple, in severalty, and the government shall issue patents to them therefore. Section 2 of said act; That it shall be the duty of the secretary of the Interior, without necessaly delay after the passage ofthis act, to cause to be taken an enrollment ofsaid tribe on the basis of the provisions of this act, which enrollment shall be filed, a copy in the Depan ment ofinterior and a copy in the records ofsaid tnbe: provided, that in all cases where allotments of eighteen hundred and seventy-one shall conflict with allotments ofeighteen hundred and fifty-sty, that latter shallprevail [27 stat 74] It is a matter of public record, on July 31, 1876, Sterling Peters acquired such a certificate [16 stat 404, Sec.2] and used that allotment certificate to claim my Grandfather s land selection. (P1. Ex.10, No. 25) The land Stephen Gardner occupied by selection, since the treaty of [11 stat 663] There was no individual ownership. As soon as practicable after the selection of the lands Article 3 of the treaty. Id. The DOl in a letter dated November 26th, 1894, So far as the records in this office appear to show, no certificates were issued to allotees underthe treaty of (P1. Ex. 31.Pg.6, ~ar.2). Stephen Gardner s selection under Article 3 of February 5th, 1856 treaty, did not prevail over Sterling Peters certificate of allotment (allotment certificate No.25). (P1. Ex. 10) Stephen Gardner was arrested for trespassing and jailed. 7 Case 1:14-cv WCG Filed 11/17/14 Page 7 of 14 Document 12

8 Department of Interior, October 21St, 1882;...that one Stephen Gardner, Zera Gardner and Joseph Doxtator, with their families, are occupying the church property, and refuse to vacate the same... (P1. Ex. 17) Mr. Spaulding, from the Committee on Indian Affairs, submitted the following; f.. The Government of the United States in recogni~ing the de facto government, has affirmed the said enrollment, and denied the excluded portion of the tribe any rellei~ referring the whole matter to Congress. Following up their design to drive the majority ofthe tribe offthe reservation, and absorb to their own use the tribal property, the minority have notified the excludedportion ofsaid tribe to leave the reservation, and the Secretary of the Interior has directed their removal The committee have had this matter under consideration for several months, and have given it careful attention, and the committee belleve that great injustice is intended to the portion of the tribe sought to be excluded from the reservation. They gave up their homes at Stockbridge and moved to this reservation under treaty st,oulations, to which each one was a party. (PL Ex. 18) In a DCI letter to Indian Agent Richardson the right to occupy by treaty is terminated. In reply you are informed that if the families referred to have no right to remain upon the reservation, and the authorities of the tribe insists upon their removal and cannot be reconciled to have them remain (to which end 8 Case 1:14-cv WCG Filed 11/17/14 Page 8 of 14 Document 12

9 you will make an effort) it becomes your duty to have them removed, and you are hereby authorized so to do. (P1. Ex. 11) Defendant s Factual and Historic Background, P.3, Par.2; On January 31st, 1895, the Senate issued a resolution directing the Interior Department to suspend all activities being carried outpursuant to the 1893 Act. February 12th, 1895, the Interior Department compiled with the Senate resolution and suspended all activities related to the 1893 Act [27 stat 744] (Defendant s Factual and Historic Background, P.4, Par.1). The resolution to suspend is equal to termination to all members who were to be placed upon the official roll of the Tribe, made in conformity with the provisions established and enacted by Congress on March 3, [27 Stat 744]. Our Historic and factual background differs from the DOl s interpretation. Under Article Ill and Article V of the February 5th, 1856 Treaty, [11 stat 663] my Grandfather made his land selection and had the right to occupy tribal land. Land established by Treaty with the Menominee, February 11th, [11 stat 679]. He resided peacefully there until The preamble in the Act of March 3rd, 1893; Whereas by the interpretation placed by government officials Congress on February 6th, 1871 enacted 16 Stat 404. (P1. Ex. 8) Mr. Paine: I would ask the gentleman from Pennsylvania (Mr. Armstrong) if this bill is in accordance with the wishes of this tribe of Indians? Mr. Armstrong: It is; at least so the committee is informed. (P1. Ex. 8, P. 587) Memorial of J.C. Adams, February 28th, 1885, 9 Case 1:14-cv WCG Filed 11/17/14 Page 9 of 14 Document 12

10 ~..a minority of the tribe, by distortion and gross misrepresentation, aided by outside parties, obtained the passage of the law through Congress, on the 9h of Februa,y 1871 ~... (P1. Ex. 20, P.9, Par. 7) Also in the memorial of J. C. Adams, 48th, Congress, 2d Session, Senate, Mis.Doc. No.61; The circumstances under which the law of 1871 was passed, and the proceedings under it were such as to justify the belief that misrepresentations and fraud were resorted to by those who urged the passage of the law and had charge of the enrollment under it and the manner in which its provisions were executed, constitute a flagrant wrong against the tribe which ought to be redressed as speedily as practicable (P1. Ex. 20, P. 12, Par. 1) Congress creates a tribe under the act of 16 stat 404, February 6th, 1871; Section 7. And be it further enacted, That after the said rolls shall have been made and returned, the said Indian Party shall thenóeforth be known as the Stockbridge tribe of Indians, 7 and may be located upon lands reserved by the second section ofthis act, or such other reservation as may be procured for them, with the assent of the council ofsaid tribe, and their adoption among them of any individual, not of Indian descent, shall be null andvoid. (16 stat 404) (P1. Ex. 9) Section 2. f.. subject to allotment to members ofthe Indian party ofsaid tribe as hereinafterprovided. (16 stat 404) 10 Case 1:14-cv WCG Filed 11/17/14 Page 10 of 14 Document 12

11 Certificates of allotments were issued July 31st, (P1. Ex. 10) The Citizen Roll and the Indian Roll were approved, April 8th, The Citizen roll was a monies for land roll, in severalty. One hundred and thirty eight names appear on that roll. The Indian roll is the allotment roll. One hundred and twelve names appear on that roll. Stephen Gardner s name does not appear on either the Indian roll or the Citizen roll (16 stat 404). (P1. Ex. 13, P. 23 & P.24). One of the first acts after the passage of 16 stat 404, was the removal of families not enrolled under the act of My Grandfathers right to occupy was under the authority of 11 stat 663, Article 3, which was terminated under Section 2, of the Act of He was removed from the reservation. Sir: / have received your communication of the 12 ~, inst., stating that there are some ei~ht or ten families On the Stockbridge and Munsee Reservation, who, under the late act ofcongress for the reliefofthe Stockbridge and Munsee Tribe of Indians, are cut off from all ri~iht or title to the lands upon which they have been llvi4g, and that the authorities of the tribe have called upon you to remove such familles from the reservation. You therefore ask for instructions and authority for their removal. In replyyou are informed that ifthe families referred to have no r,~ ht to remain upon the reservation, and the authorities of the tribe insists upon their removal and cannot be reconciled to have them remain (to which endyou will make an effon ) it becomes your duty to have them removed, and you are hereby authoriz edso to do. While this office may regret the hardsh,i, to endure on account of such removal, yet it must, in discharge of duty, directa faithful execution of the law. (Exhibit 11) 11 Case 1:14-cv WCG Filed 11/17/14 Page 11 of 14 Document 12

12 Over the next 21 years John C. Adams brought before congress a bill in support of Stephen Gardner, his right to occupy, as a tribe, tribal lands established under the treaty of (11 Stat 663) Senator Philetus Sawyer blocked those bills until February 15th, 1893, 52nd Congress, 2d Session, when Mr. Jones, of Arkansas, presented the following; Letter dated January 28th, 1893 from J.H. McGowan to Hon. Philetus Sawyer (P1. Ex. 26); Dear Senator: The report made by Senator Jones in the Stockbridge case was based largely upon the fact, as he alleged, that the Old Citizen party had settled on the present reservation and had allotment made to them. This is a mistake. Only sk or seven ever settled on the present reservation and none of them had allotments. I could not make Mr. Jones understand the difference between a selection and allotment. An Indian can make a selection for himself It requires, as you know, quite a different operation to make an allotment. Now, out ofthe whole list of the Old Citizen party, compromising about 170 persons, not to exceed 8 of them made selections and settled upon this reservation. Only one settler remains there, namely, Stephen Gardner. The others made similar improvements and then went away, and when the act of 1871 (which you hadpassed) was executed these otherseyen Indians who had made the itt/e improvements came back on the reservation and received the pay for their improvements, and again went away. All this is certified to by the papers signed byagent Kelsey, which I herewith inclose. 12 Case 1:14-cv WCG Filed 11/17/14 Page 12 of 14 Document 12

13 As the repon rested wholly upon this point, the bill shouldbe at once taken from the calendar and sent back to the committee. United States Indian Agent Chas. S. Kelsey, December 30th, 1892 (P1. Ex. 26, P.2, Par.4): That for many years past, and at the present time, there is only one person, namely, Stephen Gardner, who is occupying the land selected and the improvements for which he receivedpayment, as aforesaid, the other sty persons named having died several years ago, and that of the land selected by those deceased persons only that of William Gardner is occupied by his heirs. I/earn also, by inquily among Stockbridge Indians, that no allotments of/and were ever made on that reservation other than said selections ofpremises by individuals, prior to the allotment under the act of On March 3rd, 1893 Congress reaffirms the treaty of February 5th, 1856 [11 Stat 663] And [27 Stat 744] (P1. Ex. 27) and my grandfather Stephen Gardner s right, to occupy land established by said treaty. January31, 1895, Senate issued a resolution directing the Interior Department to suspend all activities being carried out pursuant to the Act of Congress March 3, Id....and that all further proceedings under said act be suspended until said report is made and until further action of Congress. (P1. Ex. 34, P.1563, Line 19) February 12, 1895,...the Interior Department complied with the Senate resolution and suspended all activities related to the 1893 Act. (Defendant s Factual and Historic Background, P.4) 13 Case 1:14-cv WCG Filed 11/17/14 Page 13 of 14 Document 12

14 DISCUSSION Defendants should not be granted a motion to dismiss. Defendants claim by June of 1894 the Interior Department completed the tribal roll required by the 1893 Act. Plaintiff shows Commissioner and Secretary of Interior stating otherwise. Plaintiff shows allotment certificates and rolls of those who had separated from the tribe in severalty, became citizens of the United States, yet remain up the C.C. Painter Census, used by the DCI as an official roll. Plaintiff shows letter from Senator P. Sawyer. February 12th, 1895, the Interior department states it resumes complying with other aspects of the 1893 act including the issuance of land patents and per capita payments. The DCI implies that Stephen Gardner s 1860 patent by President Buchanan was from the 1856 Treaty, Plaintiff has shown it is not. Plaintiff does claim the DCI failed in its duties, failed Stephen Gardner, and generations of his descendants. To state ~any ofmr. Gardner s descendants shouldhave known about any alleged wrong many decades ago justifies the Department of Interior invalidating an Act of Congress, a law, is obscene. CONCLUSION My complaint is valid, with merit and should not be dismissed. Relief can be granted and the Statute of Limitations are not applicable due to the nature of the complaint. By: Felix J. Bruette Jr., Pro Se 306 E. McArthur St. Appleton, WI (920) Case 1:14-cv WCG Filed 11/17/14 Page 14 of 14 Document 12