UNITED STATES DISTRICT COURT EASTERN DISTRICT OF …Aug 12, 2015 · Stockbridge, done by Indian...

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF WISCONSIN

FELIX J. BRUETTE, JR.,Plaintiff,

Case No.: 14-C-876

SALLY JEWELL, Secretary ofThe Interior

Defendant.

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

theActofCongress datedMarch 3~’J 1893, thereby/nvalidating anAct 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, 1893. [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;

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Case 1:14-cv-00876-WCG Filed 11/17/14 of 14 Document 12

“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, 1894. 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, 1874. (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

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party, who received allotment certificates (Pt. Ex. 10) in fee simple, in severalty, on July

31st, 1876. By report of the Secretary of the Interior on August 31St, 1892, “The

Stockbridge Indians had land allotted to them in severalty in 1874...” (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 ofei~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 18941 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.”

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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.”

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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 1856. [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

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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, 1893. What

was enacted by the Senate and House of Representatives of the United States of America

assembled;

“(1) That allpersons 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 sixofsaid 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 lawfulheirs 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]

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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 of Interior 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 1856. [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 faras the records in this office appear

to show, no certificates were issued to allotees underthe treaty of 1856.” (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.

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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 theirdesign 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

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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 1893Act.”

“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, 1893. [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, 1856. [11 stat 679]. He resided peacefully there until

1871. 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,

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‘~..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 ofany 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 partyofsaid tribe

as hereinafterprovided.” (16 stat 404)

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Certificates of allotments were issued July 31st, 1876. (P1. Ex. 10) The Citizen Roll

and the Indian Roll were approved, April 8th, 1874. 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 1871. 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 1871. 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

removaland cannotbe reconciled to have them remain (to which endyou willmake

an effon’) it becomes your duty to have them removed, and you are hereby

authoriz’edso to do. While this office mayregret the hardsh,i, to endure on account

ofsuch removal, yet it must, in discharge ofduty, directa faithful execution of the

law. “(Exhibit 11)

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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 1856. (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 SenatorJones 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 orseven eversettled 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 forhimself It requires, asyou know, quite a different operation to

make an allotment.

Now, out of the 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 settlerremains there, namely, Stephen Gardner.

The others made similar improvements and then went away, and when the

act of 1871 (whichyou 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 signedbyAgentKelsey, which Iherewith

inclose.

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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 stypersons

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 1871.”

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, 1893. 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)

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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 Se306 E. McArthur St.Appleton, WI 54911(920) 636-6779

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF …Aug 12, 2015 · Stockbridge, done by Indian...

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Transcript of UNITED STATES DISTRICT COURT EASTERN DISTRICT OF …Aug 12, 2015 · Stockbridge, done by Indian...