Turtle Talk

A few years ago, we wrote a short article that included a section on South Fox Island, traditional home to many Michigan Anishinaabeg families, that was lost during the Termination Era of the 1950s. An Indian cemetery is out there, hidden, but now the island is owned by non-Indian real estate developers (see here). This is what we wrote about this question:

Non-Indians also used strained or invalid constructions of statutory authority to dispossess tribal communities of their lands. Returning to the notion that the United States compensated Indians and Indian tribes for their land cessions, there still remain the lands government officials sold without the consent of Indians and Indian tribes under the color of federal law. While there are numerous types or classes of lands dispossessed in accordance with the political will of non-Indians, the focus of this Part is on the so-called “‘secretarial transfers,”’ a subset of the kind of transactions often grouped together with “‘forced fee patents.”’ In a secretarial transfer, “BIA officials approved sales of inherited allotments on reservations without the consent of all beneficial heirs.” Under federal law, many secretarial transfers were valid. For example, the Secretary had authority to take an allotment out of trust status where the Indian beneficiary passed away and had one or more heirs who were “competent to manage their own affairs.” However, as discussed below, the Secretary abused this authority on numerous occasions, illegally extending the authority to lands that would not have been covered by the statutory authority.

Indian communities in the Great Lakes states suffered severely during the Termination Era as the Department of Interior began to issue thousands of invalid forced fee patents and illegally sell tribal lands without the consent of the Indians affected, often without adequate notice to the Indian landowners. The political blowhards of the era favoring termination supported what they called “removing federal restrictions on the property and the person of the tribes and their members.” Federal bureaucrats trumpeted the benefit of removing federal restrictions on the alienation of tribal lands as a rhetorical attack on the Soviet Union, arguing, “in the Soviet Union and other communist countries . . . individual property rights are either not recognized at all or regularly or systematically subordinated to the interests of the State or the larger group.” Despite these grandiose statements of federal policy, local private interests remained the driving force for the dispossession of tribal lands. Three political interests combined with vague statutory proscriptions and authorizations to cause the alienation of Indian lands to non-Indians. These three interests were: (1) Indian freedom from federal supervision, (2) Cold War rhetoric, and (3) local private interests.

This Part focuses on the circumstances surrounding the dispossession of tribal lands on South Fox Island, located in Lake Michigan off the shore of Leelanau County, where much of the Grand Traverse Band Reservation is located, well within the traditional territory of the Grand Traverse Band of Ottawa and Chippewa Indians. In accordance with the 1836 Treaty with the Ottawas, Etc. (“Treaty of Washington”), the Grand Traverse Band ceded South Fox Island to the United States. Despite ceding the land in the treaty, Grand Traverse Band members still used the island’s resources in the nineteenth Century, deciding occasionally to remain on the land during the winter. In 1848, the United States, seeing no permanent settlement on the island, put the land up for public sale. The purchasers of the land, however, later abandoned the island by 1860. Other non-Indians came and went; but, by 1880, most non-Indians had left the island.

Congress enacted three statutes in 1872, 1875, and 1876, opening up more lands for the selection of allotments by certain Grand Traverse Band Odawa and Ojibwe Indians, in a half-hearted and belated attempt to fulfill the requirements of the 1855 Treaty of Detroit. Three prominent, intermarried Grand Traverse Band families occupied South Fox Island by the 1890s, apparently in conformance with the statutes enacted after the 1855 Treaty of Detroit. Though the patents issued to the South Fox Island homesteaders provided that the trust status (and, therefore, tax exemption) would expire, Presidential Executive Orders extended the trust status indefinitely. Nevertheless, at the request of the Odawa landowners, the Secretary converted some parcels into fee simple status. This mixture of fee simple lands and trust lands, similar to the mixture at Indian Village on Burt Lake, may have contributed to later confusion.

At first, the United States respected the land ownership rights of the Odawas living on South Fox Island. Dr. James M. McClurken recounted that timber thieves had cut logs on trust lands, and federal officials expended great resources to win compensation for the landowners. One federal agent even memorialized in writing a pledge not to sell the land from under the Odawa landowners. Federal agents also protected the lands from being taxed by Leelanau County.

In 1934, Congress passed the Indian Reorganization Act. Various Michigan Anishinabe tribes, including the Grand Traverse Band, attempted to reorganize under the Act, but the Bureau of Indian Affairs refused to begin recognizing the tribes until 1980. Even after the denial of federal recognition in the 1930s, the federal government continued to protect the Indian homesteaders from state and local taxation. But as the Termination Era approached, the federal government’s view of the homesteaders on South Fox Island apparently began to change.

Professor Cohen described the beginnings of the Termination Era as it took place quietly in the federal bureaucracy in his groundbreaking article, The Erosion of Indian Rights, 1950-1953: A Case Study in Bureaucracy. The article broadly details the changes wrought in the Bureau of Indian Affairs during the late 1940s and early 1950s. He stated:

Within the past two years, the former habit of Indian Bureau officials of disposing of Indian tribal lands without the consent of the Indians–a practice which has already resulted in more than 80 million dollars in judgments against the United States by its own courts–generally has been reestablished as approved Interior Department practice.

As Associate Interior Solicitor during the 1930s and 1940s, Professor Cohen had a unique perspective on the damage done under the new regime. He described the practices of the Interior Department in issuing leases of tribal lands at Blackfeet and San Ildefonso Pueblo without tribal consent. Professor Cohen also reported that the Interior Department had proposed new legislation that would “re-establish the infamous ‘forced patent’ system.” As evidenced by the Department of Interior’s own memoranda from the 1970s, the Bureau of Indian Affairs did not wait for such legislation.

At South Fox Island, the national calls for termination of Indian tribes fueled a renewed federal interest in disposing of the South Fox Island homesteads. Non-Indian timber barons also asked the federal government to end the trust status of the homesteads in the archipelago. Shortly thereafter, the federal government sought bids for the parcels of land occupied by the homesteaders at South Fox Island, and accepted the offers of Sterling Nickerson, one of the non-Indian lumbermen. Dr. McClurken documented that the federal government sold the lands with the consent of few, if any, of the Indians with property interests in the lands. Most of the parcels became, and to this day are listed as, potential land claims in the Federal Register.

These are painful events for the Anishinabeg Indians affected. As Dr. McClurken noted:

The events by which the United States conveyed title to the South Fox Island trust properties took place less than fifty years ago. The events are still fresh in the memory of living Grand Traverse Band members who were directly involved in the search for heirs and know that their parents and grandparents refused to sign away their title claim to the South Fox Island homesteads.

Dr. McClurken reported that heirs to South Fox Island properties rarely returned the forms sent by the Bureau of Indian Affairs seeking their authorization to sell the allotments. Some of them thought the government would not care because the land values were relatively small. Others did not understand the meaning of the document, thinking that they were merely authorizing the government to lease the land out for a time to timber interests. One family, after not returning the form seeking their consent to sale of their lands, received a check for five dollars for the value of the land sold. Eva Petoskey, former Vice-Chair of the Grand Traverse Band Tribal Council, recalled a story whereby a federal agent visited her grandmother seeking consent to sell the lands:

She [Isabelle Oliver] was a tiny little woman, but she went on a tirade I guess and said, “Don’t ever come here again.” I don’t know what she . . . I wish I could have been there. She threw him out of her house and said, “Don’t ever come back. We’ve all suffered through enough injury and if you think I’m going to relinquish anything, you’re crazy.” Despite the obvious rejection of the federal government’s request for consent to sell these lands, the government sold them anyway.

To this day, the Michigan Odawas have been unsuccessful in restoring their rights to the lands on South Fox Island, particularly the cemetery that is located on land currently owned by a private real estate developer. The political power of lumber barons in the 1950s and real estate developers in the 2000s, along with the complicity of the federal government and state agencies, continues to deny Michigan Anishinabeg lands to which they are entitled.

Singel & Fletcher, Power, Authority, and Tribal Property, 41 Tulsa L. Rev. 21, 28-33 (2005).