STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5714

May 29, 1980

INDIANS:

Ownership of lands within Indian Reservation

POLICE:

Jurisdiction in and around Indian Reservation

STATE OF MICHIGAN:

Submerged lands and waters of Great Lakes

The L'Anse Federal Indian Reservation does not include those lands which have been sold by the United States prior to the 1854 Treaty.

The submerged lands and waters of Keweenaw Bay are not a part of the L'Anse Federal Indian Reservation.

Col. Gerald L. Hough

Director

Department of State Police

714 S. Harrison Rd.

East Lansing, Michigan 48823

You have requested my opinion concerning state and local law enforcement jurisdiction over certain land and water areas within and bordering the L'Anse Federal Indian Reservation in Baraga County. Your questions may be stated as follows:

If the areas in question are not 'Indian country' under 18 USC 1151,' ⁽¹⁾ state and local law enforcement officers may generally exercise the full range of their jurisdiction over both Indians ⁽²⁾ and non-Indians alike. See, Mescalero Apache Tribe v Jones, 411 US 145, 148-149; 93 S Ct 1267, 1270; 36 L Ed 2d 114, 119 (1973); see also, Cohen, F., Handbook of Federal Indian Law, pp 119-120 and authorities cited therein. If, however, these areas do constitute 'Indian country', state and local law enforcement jurisdiction is severely limited under the terms of the General Crimes Act, 62 Stat 757 (1948), as amended; 18 USC 1152, which extends federal jurisdiction to offenses committed within 'Indian country,' and reserves to Indian tribes exclusive jurisdiction over offenses committed by an Indian against the person or property of another Indian within 'Indian country,' and the Major Crimes Act, 62 Stat 758 (1948), as amended, 18 USC 1153, which provides for exclusive federal jurisdiction over fourteen specified crimes when those crimes are committed by Indians within 'Indian country.' ⁽³⁾

It is important to note at the outset that while the typical treaty reservation 'was not a grant of rights to the Indians, but a grant of rights from them--a reservation of those not granted,' United States v Winans, 198 US 371, 381; 25 S Ct 662, 664; 49 L Ed 1089, 1092 (1905), here we are faced with the converse.

The area involved in your questions has been the subject of not one but two separate treaties. The first of these was concluded on October 4, 1842 at LaPointe, in the territory of Wisconsin, with the Chippewa Indians of the Mississippi and of Lake Superior. In Article I of that Treaty, 7 Stat 591 (1842), the Indians ceded to the United States a large tract of land and water which, in Michigan, included the Western portion of the Upper Peninsula and of Lake Superior. Baraga County and the Keweenaw Bay lie within this tract. While the Treaty, in Article II, did reserve to the Indians 'the right of hunting on the ceded territory, with the other usual privileges of occupancy, until required to remove by the President of the United States, . . .' it made no reservation of lands within the ceded area to be held by or for the Indians. The effect of this cession was to vest title to this tract in the United States. Mole Lake Band v United States, 134 Ct C1 478; 139 F Supp 938 (1956), cert den, 352 US 892; 77 S Ct 130; 1 L Ed 2d 86 (1956); United States v Bouchard, 464 F Supp 1316, 1337 (WD Wis, 1978), appeal pending.

A second treaty, also concluded at La Pointe, was entered into on September 30, 1854 and was proclaimed by the President on January 29, 1856. In Article 1 of this Treaty, 10 Stat 1109 (1854), the Chippewas agreed to cede to the United States another tract of land to the West of and entirely outside of Michigan. In return for this cession, the United States agreed to provide various items of compensation including the following, contained in Article 2:

Thus, it can be seen that this reservation was a grant of lands from the United States to the Indians, lands to which the United States held title by virtue of the 1842 Treaty. The answer to your questions will depend upon the extent and meaning of this treaty grant, and upon the construction of 62 Stat 757 (1948); 18 USC 1151 which defines 'Indian country'. ⁽⁴⁾

I. Land areas within and bordering the L'Anse Federal Indian Reservation which had been sold prior to the effective date of the 1854 Treaty.

Information supplied by your staff indicates that numerous parcels of land within the townships specified in Article 2, Section 1st of the 1854 Treaty, supra, had been disposed of prior to the effective date of the treaty. The dispositions appear to have taken a variety of forms including cash entries, military land grants, and canal and swamp land selections. The majority of these lands are located in a strip along both banks of the Keweenaw Bay, although others are scattered throughout the reservation. Among the lands that had been disposed of within these townships are those which now constitute the Village of Baraga and the northern portion of the Village of L'Anse.

It is my opinion that, where these lands were disposed of prior to the effective date of the 1854 Treaty, ⁽⁵⁾ they did not become a part of the L'Anse Reservation under the terms of that Treaty and, thus, do not constitute 'Indian country,' at least by operation of the 1854 Treaty. ⁽⁶⁾

It would seem clear that these lands constitute no part of the L'Anse Reservation. As I noted above, the effect of the 1842 Treaty was to vest title to these lands in the United States. Mole Lake Band v United States, supra. To the extent that the United States had subsequently conveyed these lands to others prior to the 1854 Treaty, it could not, in the absence of appropriate eminent domain proceedings, convey these lands to the Indians as 'unsold lands,' under Article 2, Section 1st of the 1854 Treaty. See United States v Bouchard, supra, 464 F Supp at 1339-1340. Equally significant is the language of the 1854 Treaty itself which specifically limits the reservation to those lands which are 'unsold.' While it is a well-established canon of construction that ambiguities in Indian treaties are to be resolved in favor of the Indians, McClanahan v Arizona Tax Commission, 411 US 164; 93 S Ct 1257; 36 L Ed 2d 129 (1973), '. . . it remains at base a canon for construing the complex treaties, statutes, and contracts which define the status of Indian tribes. A canon of construction is not a license to disregard clear expressions of tribal and congressional intent.' DeCoteau v District County Court, 420 US 425, 447; 95 S Ct 1082, 1094; 43 L Ed 2d 300, 315 (1975). The word 'unsold' is unambiguous and clearly reflects the understanding of both parties that the promised reservation would include all of the lands in the designated townships except those which had already been disposed of by the United States.

That being the case, it follows that these lands are not 'Indian country' within the meaning of 18 USC 1151, supra, for they are not 'within the limits of' the L'Anse Reservation. This conclusion is fairly obvious with respect to those 'sold' lands which lie on the inside border of the townships reserved by the 1854 Treaty to the L'Anse Band, and thus are directly accesible via other non-reservation lands. Since, under the very terms of the Treaty, these lands were not included in the reservation, the reservation boundary does not follow the township and range lines but rather follows an irregular line which excludes these 'sold' properties.

A somewhat more difficult problem is posed by those lands which are scattered, checkerboard fashion, throughout the reservation and are thus completely surrounded and landlocked by reservation lands. The only cases which have been decided concerning somewhat similar parcels landlocked by reservation lands have held that those parcels were indeed 'Indian country.' See, e.g., Beardslee v United States, 541 F2d 705 (CA8, 1976); United States v Hilderbrand, 190 F Supp 283 (D Kan, 1960), aff'd 287 F2d 886 (CA10, 1961), cert den, 366 US 932; 81 S Ct 1655; 6 L Ed 2d 391 (1961), reh den, 368 US 872; 82 S Ct 65; 7 L Ed 2d 73 (1961); Guith v United States, 230 F2d 481 (CA9, 1956). However, in each of these cases, the land in question, unlike that here, was actually a part of a reservation and had simply come to be owned by a non-Indian. These cases are clearly distinguishable, and simply serve to illustrate the well-established rule, inapplicable here, that "when Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress." Seymour v Superintendent, 368 US 351, 359; 82 S Ct 424, 425; 7 L Ed 2d 346, 351 (1962), quoting United States v Celestine, 215 US 278, 285; 30 S Ct 93, 95; 54 L Ed 195, 197 (1909); see also, Mattz v Arnett, 412 US 481; 93 S Ct 2245; 37 L Ed 2d 92 (1973).

No cases appear to have considered the type of situation existing here, where the landlocked areas have never formed a part of the reservation. However, this is not to say that there is no guidance in the case law. It is well-settled that ceded lands do not constitute 'Indian country' under 18 USC 1151. DeCoteau v District County Court, supra; Ellis v Page, 351 F2d 250 (CA8, 1965); DeMarrias v South Dakota, 319 F2d 845 (CA8, 1963). Moreover, as the court noted in Youngbear v Brewer, 415 F Supp 807, 809 (ND Iowa, 1976), aff'd, 549 F2d 74 (CA8, 1977):

The lands in question here are clearly lands ceded by the Indians under the 1842 Treaty. To the extent that they were sold prior to the effective date of the 1854 Treaty, and have not been reacquired by the United States and placed in trust for the L'Anse band, it is equally clear that these lands have not 'been set apart for the use, occupancy and protection of dependent Indian peoples.' To the contrary, they were specifically excluded, by the terms of the 1854 Treaty, from the reservation created by that Treaty. It must be concluded, therefore, that these lands, whether or not landlocked by reservation lands, are not a part of the L'Anse Reservation and, although surrounded by reservation lands, are not 'within the limits of' the reservation within the meaning of 18 USC 1151.

It is true that this finding will result to some extent in a checkerboard pattern of jurisdiction over some areas of the reservation, with the state or local police having jurisdiction over one parcel and the tribal police having jurisdiction over the surrounding parcels. It must be assumed that the parties to the treaty were well aware that a checkerboard pattern reservation would to some extent result from the language used to describe the tract reserved, and that they were agreeable to such a pattern. Moreover, '. . . checkerboard jurisdiction is not novel in Indian law, and does not, as such, violate the Constitution.' Washington v Yakima Indian Nation, 439 US 463, 502; 99 S Ct 740; 58 L Ed 2d 740, 769 (1979), reh den, 440 US 940; 99 S Ct 1290; 59 L Ed 2d 500 (1979). See also, DeCoteau v District County Court, supra, 420 US at 429, n 3.

It is, therefore, my opinion that the L'Anse Reservation does not include those lands which had been sold prior to the effective date of the 1854 Treaty; that such lands are not 'Indian country' within the meaning of 18 USC 1151; and that state and local police may thus exercise their full jurisdiction over all persons on such lands.

II. The waters and submerged lands of the Keweenaw Bay.

Your second question concerns jurisdiction over the Keweenaw Bay. As with your first question, the answer will turn primarily upon whether or not the Bay, or at least that portion of the Bay which is within the lines, extended into the Bay, of those townships reserved to the L'Anse Band under the terms of the 1854 Treaty, forms a part of the reservation, thus constituting 'Indian country' under 18 USC 1151.

The question of title to the Keweenaw Bay was raised in People v Jondreau, supra. However, in finding that the L'Anse Band enjoyed a treaty right to fish in the Bay, the court stated that '. . . the interpretation of the treaty does not depend on the title to the waters and submerged lands of Keweenaw Bay.' People v Jondreau, supra, 384 Mich 539, 543; 185 NW2d 375, 377. For this reason the court declined to address the issue of title.

A. Title to the waters and submerged lands of the Great Lakes passed to the State, in trust for the public, under the terms of its admission into the Union.

It has long been recognized that title to the waters and submerged lands underlying navigable waters, including the Great Lakes, is in the sovereign in trust for the benefit of the public. Illinois Central R Co v Illinois, 146 US 387, 452-460; 13 S Ct 110, 117-121; 36 L Ed 1018, 1042-1045 (1892). 'The trust is a common-law one; it prevailed in England long before the American Revolution; it was in the Virginia cession of the territory northwest of the River Ohio; it continued during the period the United States held the Northwest Territory and passed as the same trust to the State of Michigan at her admission to the Union; . . .' Nedtweg v Wallace, 237 Mich 14, 17; 208 NW 51, 52 (1927). The existence of this trust was specifically recognized in the Northwest Ordinance of 1787, US Rev Stats, 2d Ed 1878, p 13, 15-16, which declared:

There can be no doubt that title to the waters and submerged lands of the Great Lakes, subject to this public trust, passed to the State upon its admission to the Union. In holding that the State of Illinois held title to the bed of Lake Michigan within its boundaries, the Supreme Court in Illinois Central R Co v Illinois, supra, 146 US 387, 434; 13 S Ct 110, 111; 36 L Ed 1018, 1036, noted that:

The court subsequently concluded that 'the State holds the title to the Lands under the navigable waters of Lake Michigan, within its limits, . . . It is a title held in trust for the people of the State. . . .' 146 US 387, 452; 13 S Ct 110, 118; 36 L Ed 1018, 1036.

This reasoning is, if anything, even more compelling in the case of Michigan. The entrance of Michigan into the Union took place in the midst of a heated border dispute with the neighboring State of Ohio which delayed Michigan's admission by approximately three years. See, e.g., Dunbar, Michigan: A History of the Wolverine State (W. B. Eerdmans Pub Co, 1965), ch 10, pp 301-319. As a result of the dispute, the Congressional Enabling Act providing for Michigan's admission was designed not only to authorize the admission, but also to resolve the border dispute. Section 2 of the Act, 5 Stat 49 (June 15, 1836) explicitly described the geographic and jurisdictional boundaries of the new State:

The Act further provided, in Section 3, that, as a precondition to admission, the boundaries described in Section 2 '. . . shall receive the assent of a convention of delegates elected by the people of the said State, . . .' This assent was given on December 15, 1836; Michigan was subsequently admitted to the Union on January 26, 1837. 5 Stat 144 (1837). Under the specific terms of its admission, Michigan thereupon assumed title to the beds and waters of the Great Lakes within the boundaries specified in the Act of June 15, 1836, subject to the public trust. Illinois Central R Co v Illinois, supra; Kansas v Colorado 206 US 46; 27 S Ct 655; 51 L Ed 956 (1906); Massachusetts v New York, 271 US 65; 46 S Ct 357; 70 L Ed 838 (1926); Nedtweg v Wallace, supra; Hilt v Weber, 252 Mich 198; 233 NW 159 (1930); Obrecht v National Gypsum Co, 361 Mich 399; 105 NW 2d 143 (1960). The Submerged Lands Act, 67 Stat 29 (1953); 43 USC 1301 et seq; served only to recognize and reaffirm the title. Bowes v City of Chicago, 3 Ill 2d 175; 120 NE 2d 15 (1954), cert den, 348 US 857; 75 S Ct 81; 99 L Ed 675 (1954).

The case of United States v California, 332 US 19; 67 S Ct 1658; 91 L Ed 1889 (1947); wherein it was held that the federal government, rather than the State of California, held title to the bed of the ocean seaward from the ordinary low water mark, is distinguishable. Aside from the question of whether the Great Lakes would follow the rules applicable to ocean as opposed to inland waters, cf Illinois Central R Co v Illinois, supra, and United States v California II, 381 US 139; 85 S Ct 1401; 14 L Ed 2d 296 (1965), reh den 382 US 889; 86 S Ct 159; 15 L Ed 2d 127 (1965), the Act granting statehood to California, unlike that for Michigan, did not expressly provide for an off-shore geographic and jurisdictional dictional border. See 9 Stat 452 (September 9, 1850). Moreover, in concluding that the United States, rather than the State of California, held title to the three mile marginal belt along the California coast, the court emphasized that this was a question of first impression which had never previously been raised and decided. See United States v California, 332 US 18, 36-39; 67 S Ct 1658, 1667-1669; 19 L Ed 1889, 1898-1900. In contrast, the court has repeatedly held that title to the bed of the Great Lakes rests in the States within whose boundaries those beds lie. Illinois Central R Co v Illinois, supra; Kansas v Colorado, supra; Massachusetts v New York supra; see also, Cummings v Chicago, 188 US 410; 23 S Ct 472; 47 L Ed 525 (1903), and Sands v Manistee River Improvement Co, 123 US 288; 8 S Ct 113; 31 L Ed 149 (1887).

It might be argued that, since the Keweenaw Bay was not ceded to the United States until the 1842 Treaty of LaPointe, it could not have passed to the State in 1837. However, as the Michigan Supreme Court stated in Ballou v O'Brien, 20 Mich 304, 321-322 (1870) in referring to a similar grant:

Thus, under the great weight of authority, it is clear that title to that portion of the Great Lakes lying within its boundaries, including the Keweenaw Bay, has passed to the State of Michigan under the terms of its admission to the Union. In the words of Justice Hooker in State v Lake St Clair Fishing & Shooting Club, 127 Mich 580, 601; 87 NW 117, 125 (1901), '[t]he Federal Government having lost its title in 1836, these lands could form no part of the grant of 1850'--nor of the Treaty of 1854. The federal government may not grant lands which it no longer owns. Harden v Jordan, 140 US 371; 11 S Ct 808; 35 L Ed 428 (1891).

B. Whether or not the United States held title to the waters and submerged lands of the Keweenaw Bay in 1854, the Treaty, by its very terms, fails to convey that title to the L'Anse Band.

Totally aside from the question of whether the United States had any title in the Keweenaw Bay to convey to the L'Anse Band in 1854, I am convinced that the language of the Treaty did not have the effect of conveying that title.

It is significant that the description of the area reserved was set forth, not in metes and bounds, but as specified portions of townships, i.e., '. . . all of the unsold lands in the following townships. . . .' While a metes and bounds description very likely would involve boundary lines extended into and across the Bay, the latter description clearly did not.

The townships described in the Treaty were established by a survey commissioned by the Federal Government. See Dunbar, supra, pp 238-239. In keeping with standard surveying practice, a meander line was run along the shore; township and range lines ended at the meander line and were not extended into the Bay. See, e.g., people v Bouchard, 82 Mich 156; 46 NW 232 (1890). Thus the survey maps would have shown the townships ending at the water's edge.

This construction is consistent with Michigan cases which have held that township boundaries do not extend into the Great Lakes. See, People v Bouchard, supra; People v Coffee, 155 Mich 103; 118 NW 732 (1908); Andrews v Ellsworth, 190 Mich 157; 156 NW 115 (1916), and with federal cases which have held that a grant of land extends only to the high water mark unless there is some clear indication to the contrary. United States v Holt State Bank, 270 US 49; 46 S Ct 197; 70 L Ed 465 (1926); Taylor v United States, 44 F2d 531 (CA9, 1930), cert den, 283 US 820; 51 S Ct 345; 75 L Ed 1436 (1931).

It is true that numerous cases have found that specific reservations included adjacent navigable waters within their boundaries. See, e.g., Alaska Pacific Fisheries v United States, 248 US 78; 39 S Ct 40; 63 L Ed 138 (1918); Donnelly v United States, 228 US 243; 33 S Ct 449; 57 L Ed 820 (1913); Choctaw Nation v Oklahoma, 397 US 620; 90 S Ct 1328; 25 L Ed 2d 615 (1970), reh den, 398 US 945; 90 S Ct 1834; 26 L Ed 2d 285 (1970); Moore v United States, 157 F2d 760 (CA9, 1946); Montana Power Co v Rochester, 127 F2d 189 (CA9, 1942); United States v Romaine, 255 F 253 (CA9, 1919); United States v Stotts, 49 F2d 619 (WD Wash, 1930). However, in each of these cases, the treaty or executive order creating the reservation was much more susceptible of a reading which would include the adjacent waters within the reservation. Even more significantly, each of these cases involved treaty or executive order reservations which preceded the admission of the state in which the reservation was located. As the court noted in United States v City of Anchorage, 437 F2d 1081, 1085 (CA9, 1971), there is a '. . . crucial distinction between a reservation of lands beneath navigable waters made prior to statehood and an attempted reservation of such lands made subsequent to a state's admission.'

Finally, as noted above, many of the lands which had been sold prior to the treaty were along the shore of the Keweenaw Bay; in fact it appears that the vast majority of those lands bordering the Bay fall into this category. This fact was presumably known to the parties negotiating the treaty and further militates against the conclusion that the reservation was intended to extend into the Bay.

The placement of the reservation in shch close proximity to the Bay, together with the substantial reliance of the Chippewa on fishing as a means of sustenance, concededly suggests the intent to provide the L'Anse Band with access to the waters of the Bay for purposes of fishing. The Treaty right of the L'Anse Band to fish the waters of the Bay has already been judicially determined. See People v Jondreau, supra. In my opinion, however, title to the waters and submerged lands of the Keweenaw Bay is in the State of Michigan.

In summary, then, it is my opinion that the L'Anse Reservation does not include those lands which had been sold prior to the 1854 Treaty, unless specific parcels have been purchased and properly added to the reservation, nor does the reservation include the waters and submerged lands of the Keweenaw Bay. These areas are not 'Indian country' within the meaning of 18 USC 1151 and both the state and local police may therefore exercise their full jurisdiction over both Indians and non-Indians within them.

Frank J. Kelley