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Old-time origins of modern sovereignty: state-building among the Keweenaw Bay Ojibway, 1832-1854.

In June 1965 Michigan Conservation Officer Richard Beach cited William Jondreau, a member of the Keweenaw Bay Indian Community KBIC, for violating state fishing regulations. Jondreau had accidentally caught some lake trout in his herring nets and brought them ashore instead of throwing them away. Later in court, Jondreau told the judge that he did not approve of the state rules that caused him to waste fish and asserted that, in any case, he did not have to obey those laws. As a Keweenaw Bay Indian, he had treaty rights to fish that superseded state authority. Jondreau's rights were affirmed by the Supreme Court of Michigan several years later. Meanwhile, Indians from all over northern Michigan and Wisconsin began treaty right fishing. The fishermen's motives were many, but their actions raised questions about hundred-year-old social and economic relations between Ojibways and whites and allowed the Indians to redefine their political situation. (1)

Treaty fishing forced whites to reexamine Ojibway history and the origins of native sovereignty. Many whites dismissed Indian rights as the creation of activist liberal judges, left-leaning intellectuals, and manipulative attorneys. Even well-informed people, Indian and white, have often misunderstood the historical bases for Ojibway sovereignty and the full implications of modern treaty right claims. (2)

This article examines a brief period of Lake Superior Ojibway history in detail. It describes the territorial dimensions of usufructuary rights and tells how one Ojibway community at Keweenaw Bay, William Jondreau's home, reorganized itself as an Anishnabe state in the 1840s and early 1850s. It argues that this state-building grew out of Ojibway efforts to defend their rights and resources through an assertion of sovereignty. State-building developed in opposition to federal removal policy. It was guided by the experience of other Indians, especially the Mississaugas and Cherokees, and shaped by the advice of Mississauga Methodist missionaries. It probably reflected a familiarity with John Marshall's Cherokee decisions. More generally, state-building drew upon the Keweenaw Indians' sense that they were, in fact, sovereign people.

In 1832 army lieutenant James Allen sailed the south shore of Lake Superior from Sault Ste. Marie to Fond du Lac as a military attache to Henry Schoolcraft's expedition to find the source of the Mississippi River. An experienced traveler and careful observer, Mien kept a journal in which he noted natural features, flora, and fauna and described the Indians living along the coast. He found the Indians' situation deplorable. They struggled in poverty. With game animals depleted, they relied on Lake Superior fish for food from late spring through fall. But in the winter they could not support themselves. The traders fed them. Otherwise, many would go hungry, and some might starve. (3)

Allen noted the difficult situation of the Keweenaw Bay Ojibways who depended on the resident American Fur Company trader, John Holiday, for food and supplies. The Indians had no means of paying Holiday for the goods he provided them. Their only abundant resource, Lake Superior fish, had no market value in the early 1830s. Holiday fed the Ojibways knowing he would not be repaid. An old-style trader who had married an Indian woman, he could not suffer to let his friends and relatives struggle through the long Lake Superior winter. By the late 1820s, the Indians relied on Holiday's continued generosity for their survival. As Anishnabe debts rose, Holiday's profits fell. He could see that animal populations had declined, but he blamed unfair competitors such as George Berthkeht for his economic woes. Berthkeht enticed the Ojibway trappers with alcohol. The Indians would seldom bring their furs to him, Holiday thought, when they could get liquor from his rival. Even worse, they kept drinking and brawling and would not trap until they drained the last drop. Holiday watched the people's degradation with dismay. No doubt, members of the Indian community spoke with him about the people's woes, and his superiors in the fur company had warned him to shore up his declining business. So, in the early 1830s, he moved to halt the decline that threatened his Ojibway friends and destroyed his trade. To drive his rival away, he complained nonstop about Berthkeht to government officials and to his superiors in the American Fur Company. And, in 1832, he invited Methodist missionary John Sunday, a Mississauga Ojibway, to Keweenaw Bay, hoping a Christian awakening would lift the Indians out of their self-destruction. Holiday never got rid of Berthkeht, but in time his Methodist initiative succeeded. (4)

John Sunday and other Mississauga missionaries established Methodism on the east side of Keweenaw Bay in the community of L'Anse, or the Ance, as it was often called back then, during a time of troubles. With their economy in shambles and their independence at risk, the Bay area Anishnabeg faced grim prospects in the 1830s. Based upon what they had already seen in Canada, the Mississauga missionaries warned of threats yet to come. But the missionaries also brought hope for spiritual renewal, economic uplift, and cultural and political survival. They urged the Keweenaw Anishnabeg, or at least their leaders, to create a white-style government that had coercive power and that delegated day-to-day authority to a few elected leaders. Such a government could defend the interests of the people living around Keweenaw Bay. The missionaries probably also pressed the leaders chosen by this new government to assert "communal ownership" over resources, treaty benefits, land, and fishing rights. (5)

Under Methodist tutelage the Indians established political institutions and procedures that regulated power and how it was to be obtained and exercised. Now the community could better control its members, coerce them if necessary, and defend its interests against outsiders, whether Ojibway or white. Political reform weakened the old kin-linked bands and strengthened a government seeking to control the land and the resources around Keweenaw Bay. Territorial sovereignty developed in response to local conditions, but it was shaped by the experiences of Ojibway people in lower Canada and the Sault Ste. Marie region.

TERRITORIALISM OLD AND NEW: THE SCHOLARLY DEBATE

An old aboriginal strategy for controlling and allocating resources, territorialism has been widely examined. Most studies focus on the resources in order to determine their characteristics and the circumstances under which they came to be "owned" or distributed territorially. Allocated resources were usually relatively abundant and predictably available.

Frank Speck initiated scholarly discussion of land tenure systems (i.e., territoriality) among Woodland Indians in 1915 when he published two articles describing what he called "family-owned hunting territories" among early-twentieth-century Native groups in Ontario. Speck insisted that these modern arrangements derived from aboriginal systems of ownership and that private property antedated European intrusions into Indian life. (6)

Speck suggested that pre-Columbian Woodland Indians had "definite claims to their habitat" and that these claims had boundaries and could be inherited. He believed that such arrangements involved "actual ownership of territory." Ownership, he thought, was vested in a "family hunting group as a kinship group composed of folks united by blood or marriage, having the right to hunt, trap, and fish," in a district with definite and well-known boundaries. These territorial divisions allocated and conserved resources. Speck quoted a headman from Lake Temagami, Ontario, "We took care of the game animals, especially the beaver.... These families of hunters would never think of damaging ... the supply of game." (7) Other Indians could not hunt on allocated land. Outsiders, people without use rights, had to get permission before taking resources. Speck referred to a "family proprietorship" in the hunting territories of the Lake Temagami Indians.

Speck extrapolated his theories about aboriginal origins from the testimony of informants without doing any archival research. This risky strategy may have led him astray. Nevertheless, he did describe a well-established territorial system that functioned in the early twentieth century, regardless of when it began. And his ideas shaped scholarly debate over the next several decades.

Scholars such as Diamond Jennes and Eleanor Leacock rejected Speck's conclusions about origins. They argued that aboriginal resources were communally owned and that hunting territories appeared after European contact, primarily in response to the fur trade. Speck's critics emphasized the corrosive effects of merchant capitalism on native cultures. (8)

Definitional imprecision befogged much of this discussion. It is often not clear just who owned what, how ownership was established, or what rights ownership conveyed. Nor were contextual influences well explained. Nevertheless, Eleanor Leacock's ideas held sway and ended the debate for a while. Her study of the Montagnais and the fur trade convincingly argues for the postcontact origins of hunting territories.

Research became more subtle and less adversarial once the initial conflicts were settled. Apparently some Woodland Indians used a loose territorialism to regulate trade among themselves prior to European contact. Territorial systems of the sort described by Speck appeared only in the postcontact period, when they were used to manage and allocate critical resources such as wild rice and fur-bearing animals. Commercialization of resources by Europeans, notably the fur trade, encouraged the Indians to strengthen these systems.

As flexible adaptations to everyday situations, these territorial systems differed from one another, but at minimum they offered people a chance to control use of critical resources. Sometimes this involved allocations that reduced competition among locals; usually it also offered locals a means to limit access to resources by outsiders (a local being a continuous resident and, usually, a consistent resource user).

The present study looks at a somewhat different sort of territorialism that protected resources but that was also designed to defend Anishnabe sovereignty and the Indians' right to live in their homeland. In the 1840s, the Keweenaw Indians defined a geographically based Anishnabe state. The old subsistence-driven economic territorialism briefly merged with a new polity in a last-ditch effort to perpetuate Anishnabe autonomy.

TERRITORIALISM AT KEWEENAW BAY: RESOURGE PROTECTION

Subsistence-protecting territorialism appeared at Keweenaw Bay in 1836, when the American Fur Company began fishing commercially in the Bay. The local Indians refused to reveal the locations of the better fishing grounds to the Fur Company fishermen. The Company had hired mixed-bloods from outside the region to fish its nets. Ramsay Crooks, the president of the Company and a long-time fur trader, suspected that the Keweenaw fishermen were worried that commercialization would deplete supplies of fish as it had fur-bearing animals. It seems more likely that the Indians were upset about Metis outsiders fishing in Keweenaw waters without permission. In 1839, the Keweenaw Indians withdrew their permission for the Fur Company to fish in the Bay and to harvest wood and hay. Company officials recognized the Anishnabeg's right to withhold permission, altered their policies, and soon regained access rights. (9)

The Keweenaw fishermen enthusiastically participated in the Bay area commercial fishery of the 1840s and 1850s. They did the fishing, made the nets, and processed the fish. Their dissimulation in the 1830s reflected their worries about outsiders netting fish that were crucial to the survival of Bay area people. An important part of Anishnabeg diet, fish had now become a marketable good that could be exchanged for food and other necessities. Keweenaw fishermen bought salt pork and beef, flour, corn meal, dried fruit and vegetables, and other foodstuffs with their catch and fish-related labor. When Metis fishermen made nets and caught local fish, they took food out of the people's mouths. It is no wonder that Keweenaw fishermen withheld information as they did. (10)

We have no evidence indicating how this resource-protecting system worked. We do not even know what was owned and who owned it. It seems clear, though, that outsiders who wished to fish extensively, to cut many cords of wood, or to use other resources in quantity were required to get permission from some local person or group that had authority to grant approval. In the nearby Lake Superior Ojibway community of Fond du Lac, the village council controlled access. At Sault Ste. Marie, the influential headman, Shingwaukonse (Little Pine), seems to have held sway. He gained government (i.e., Upper Canada) recognition of Ojibway "ownership" of the timber and fisheries near the Sault on the Canadian side. Accordingly, white and Metis fishermen needed to get Little Pine's permission before setting up operations. In 1835 George Johnston, a Mackinac fisherman, asked Little Pine to let him fish in Batchewana Bay. When the American, Samuel Ashman, started fishing commercially in Goulais Bay, Shingwaukonse had Ashman's property seized and the fish distributed "to the Indians to whom they of right belonged." The Ojibway Methodist village of Credit, in lower Canada, established its legal rights to an exclusive fishery in the River Credit in 1829. The village council controlled access to the fishery. The Indians at Keweenaw would have known about these resource-protecting systems and would have understood how they worked. (11)

Territorial allocations evolved out of connections with place. The geographically rooted Ojibway well understood the land and the water, the plants and the animals. They knew where the reefs and banks were that could shelter the fish and which wind and water conditions brought the fish to one reef or another. They knew where and when the berries ripened and when the sap would rise in the sugar bush. Such ties to place were practical, deeply emotional, and spiritual. They defined the people's homes. Ojibways frequently spoke of their homeland in kinship terms, not as mother but as the place where ancestors had lived, died, and been buried. Keweenaw Indians feared that federal removal policies would break these intimate ties and drive them from their homes.

By the late 1830s the Keweenaw leaders had learned about federal policies for Indian removal and had recognized the threat to their community. Their Ojibway neighbors to the east--bands from Sault Ste. Marie and Mackinac, for example--had been pushed into accepting a removal treaty. In March 1836 Indian agent Henry R. Schoolcrafl had lured them and Odawa bands from lower Michigan into signing a major land cession treaty that took away most of their home territory but set up reservations and did not press for removal. However the U.S. Senate altered this already one-sided agreement by unilaterally limiting the reservations to five years unless the government permitted an extension. The Senate version provided that the Odawa and Ojibway should look for a place to live southwest of the Missouri River. When they were ready to move to their new western homes, the government would help them leave Michigan. Schoolcraft told the Odawa and Ojibway leaders that they had to accept the Senate's treaty if they wanted to receive benefits. The Indians grudgingly signed. (12)

The language of the treaty implied permissiveness. It included phrases such as "when the Indians desire it" and "when the Indians wish." The Ojibway and Odawa were not persuaded by this rhetoric. They anticipated trouble and began preparing to subvert efforts to relocate them. Some bought land and sought to become citizens. Others dissembled. They sent an exploratory delegation west to look for a new home as the treaty had suggested, but the delegation had no decision-making power. Several hundred people fled to Canada. Most went to Manitoulin Island. Some joined Shingwaukonse, who encouraged American Ojibways and Odawas to live with him in Sault Ste. Marie, Ontario.

Keweenaw Indians knew about these events. They had friends and relatives in the eastern Upper Peninsula. Regularly visiting Sault Ste. Marie and Mackinac, they had numerous opportunities to discuss government policy and strategies for resistance with people who were clearly experiencing the threat of removal. (13)

The Keweenaw leaders also learned about Indian removal through their church. Methodism provided institutions and networks that disseminated information: newspapers, reports, societies, conferences, camp meetings, and missionaries who traveled a great deal and corresponded with one another. In the Great Lakes area, many missionaries actively opposed removal. John Pitezel, long-time white missionary at Keweenaw, bought land for the Indians to help them avoid relocation. Canadians John Sunday and Peter Jones, both influential among the Keweenaw Methodists, had fought removal in Canada since 1836. They had lobbied with Queen Victoria, Colonial Secretary Lord Glenelg, and Augustus d'Este, a member of the Aborigine Protection Society and a long-time adversary of Andrew Jackson. Jones and Sir Augustus became close friends, and it is probably because of him that Jones became an advocate of an all-Indian state in the Upper Great Lakes region where Native people from the United States and Canada could escape removal and establish a homeland. In 1840 several hundred Indian leaders gathered at the Credit Village to discuss land ownership and the possibility of creating an Ojibway homeland. Probably Keweenaw headmen attended this meeting, but in any case they would have been told of these meetings and warned about Indian removal. (14)

The first evidence of Keweenaw worries about removal appeared in 184o when a group of Lac Vieux Desert Anishnabeg protested that a government survey party was trespassing on their land. The Indians knew that surveys were a harbinger of trouble to come: treaties, forced emigration, and white settlement. They extracted a tax for passage and resource use en route and told the surveyors that they owned all the land as far west as the Montreal River. Two years later, in 1842, the headman at Keweenaw wrote a letter to Robert Stuart, also signed by the headman at Ontonogan, claiming that the lands of the two bands extended west as far as the Montreal River. They told Stuart that they did "not wish to have anybody come from the west and take away any of our land." Keweenaw, Ontonogan, and Lac Vieux Desert had joined together in some sort of political union around this time. This letter clearly indicates their fear that Anishnabeg from the west, probably from Red Cliff and Bad River, would claim lands belonging to them (i.e., to the east of Montreal River). (15)

In early October 1842 Robert Stuart bullied the leaders of the Lake Superior Ojibway into signing a treaty with the United States. Penashe signed as headman from Keweenaw. Stuart had apparently promised that the Ojibways would not have to leave their homelands for many years, if ever. But he made clear that the Indians would have to vacate the Keweenaw peninsula to open the way for copper mining. Stuart's promises about removal did not allay Indian fears, however, and they began preparing to resist. (16)

In October 1841, shortly after they heard about the removal treaty signed earlier that month, the Keweenaw Methodists reorganized their community. They wrote a code of laws by which to govern themselves. Unfortunately, the code has been lost. Its contents would probably suggest the objectives of its authors. The timing of its enactment indicates that it was at least in part a response to the threat of removal, but in the absence of the code itself, we cannot be sure. We do, however, have some clues as to its likely contents. (17)

Mississauga Methodist communities had drawn up codes of laws in the early 1830s. The Mississauga influence was strong at Keweenaw, especially shaped by the ideas of John Sunday and Peter Jones, both of whom believed that Ojibways should form well-organized Native communities. Jones wrote a code of laws for the Village of Credit, which may well have provided a model for the one enacted at Keweenaw Bay. Jones's code provided that Credit was to be governed by a head chief, two second chiefs, and a general council. Elected for life, the chiefs had executive and judicial functions. They had wide coercive power, including banishment. The general council, which included all resident householders, acted as a legislature and controlled public property, including all lands, timber, and the fishery. (18)

Peter Jones admired the Cherokees and believed they had set a course for other Indians to follow: Become Christians; develop a modern economy; protect land and resources; restructure tribal government as a sovereign state; defend tribal rights. The actions of Jones at Credit and the Keweenaw leaders at L'Anse parallel these Cherokee initiatives. Jones encouraged his people to hold on to their lands and resources while selectively adapting to "white" culture. He worried about white aggressiveness, especially as he learned of the pressures leading up to Cherokee removal, so he urged Indians of the region to establish an Ojibwa), state in which they could perpetuate their sovereignty. This plan attracted many supporters, among them John Sunday and Peter Marksman, who became the headman at Keweenaw in 1843. Jones's dream scarcely moved beyond hopeful discussions, but his plan for communal reorganization spurred political and economic innovation at Keweenaw Bay. (19)

Keweenaw Methodists put their plans for political reorganization into effect in 1843, when the death of headman Penashe provoked a political crisis. In line with tradition, Penashe had tried to keep leadership within his family by naming his eldest son, James, to succeed him. But James had died in the fall of 1842. Then Penashe gave "his medal, together with all of his offices," to his ten-year-old son, Amos. When Penashe died in February 1843, his brother, War Club, took power on behalf of Amos and assumed the office of "Head Chief." Another brother became Amos's guardian. The Methodists found these procedures unacceptable and believed that the intemperate War Club lacked leadership skills. The Methodists protested to Robert Stuart that War Club had no legitimacy. He had not been properly elected by the general council but, rather, had been picked
   by 2 or 3 half breeds and a few men called "Benashie"'s band
   [Penashe's Band]. These [men] met at the house of one of the half
   breeds and arranged matters among themselves. They called a council
   of about 25 men.... One Indian and one half breed made speeches,
   and the two ... brothers signed a writing saying that they would
   faithfully discharge the duties imposed upon them.


David King refused to sign the paper. George W. Brown, the white Methodist missionary at Keweenaw, encouraged Robert Stuart to support David King. (20)

David King, the Methodists, Penashe's kin, and some Metis were contesting for power in a single political system, the Keweenaw Band. In a March 7, 1843, letter to Robert Stuart, the one in which he described the Penashe succession crisis and asked Stuart to support David King, George W. Brown several times refers to "the Band" as a single unit. Two weeks later, on March 20, in a letter to Stuart, King refers to himself as a chief of the "Keweenaw band of Indians." Stuart also saw the Keweenaw Ojibway as one band. In the fall of 1843, he informed Commissioner of Indian Affairs T. Hartley Crawford that more than half the band at Ance Quiwienon had embraced Christianity. Peter Marksman, soon to become headman, also refers to the Keweenaw Anishnabeg as members of one band. (21)

But if it is clear that the Indians at Keweenaw considered themselves to be members of a single political state, the nature of that state remains frustratingly obscure. David King refers to a general council and elections as the foundation of power but does not describe the council or the elections. Peter Marksman indicated that the Keweenaw council had chosen him to be principal chief and chief speaker. David King said that Marksman had been unanimously elected speaker and man of business. (22)

By early April 1843, Peter Marksman was firmly in place as the elected leader of the Keweenaw people. He was an unusual choice since he had no local kin ties or local claim to power. He was an outsider who belonged to a formerly important family from the Mackinac Straits area that had fallen on hard times. In a letter to Robert Stuart, Marksman emphasizes his distinguished lineage and his Christian commitments. (23) Nevertheless, election by the Keweenaw people legitimized Marksman's power; his major assets were his skills in the white world.

As soon as he was confirmed as speaker and man of business, Peter Marksman began advancing the interests of the Keweenaw Anishnabeg, all of them, regardless of their communal and kin affiliations. Often David King helped. In 1843 Marksman tried to increase the annuities paid to the Keweenaw Ojibway under the Treaty of 1842. He argued that the copper-bearing lands of the Keweenaw people were more valuable than those of the other Indians and that they should receive larger payments. A month later, Marksman and King sought a disproportionate share of the "half-breed" fund created by the same treaty. These efforts failed, but they show how Marksman was acting on behalf of a geographically defined Anishnabe community, even when his actions would take money away from Ojibways outside the area, some of whom were kin to his Keweenaw constituents. (24)

Marksman and other Keweenaw leaders also began taking steps to avoid removal. They pooled annuity monies and bought land near the bay. Marksman purchased some of the property. Individual Indians bought some. White religious officials bought most of it. Apparently the intent was to buy tracts that would later be divided into family plots. As property owners with fee simple titles, the Indians could not easily be dislodged. Some Indians sought citizenship so that they could use the law to protect themselves from unwanted government policies. David King even went through naturalization, as if he were an immigrant, and became a U.S. citizen in 1850. The Ojibways also sought help from non-Indians who lobbied and petitioned federal officials on their behalf. (25)

The Keweenaw leaders joined with headmen from other Lake Superior Indian bands to oppose removal. Together, the bands hired an attorney to lobby in Washington on their behalf. Together, they planned strategies for treaty negotiations so that they could not be pitted against one another as they had been in 1842. Organized resistance helped. Despite continuing pressure from government officials who wanted to clear the Indians from the shores of Lake Superior and relocate them to the northern part of Minnesota Territory, the Keweenaw Anishnabeg never left their homes, though some hid for a while among sympathetic copper miners. Still, the threat of removal continued, and forcible relocation became a real possibility during the removal crisis of 1850-1852. The Keweenaw leaders responded skillfully and with imagination.

Preoccupied with slavery, western expansion, and the threat of civil war, few people noticed as four Whig politicians schemed to grab control of patronage from Democrats in the Upper Midwest. These politicians hoped to force the Indians out of northern Michigan and Wisconsin into Minnesota Territory, where they would get the patronage benefits. The Whigs and their friends would have the jobs and the contracts. They would gain the money now falling to Democrats. They convinced President Zachary Taylor to cancel usufructuary rights in Michigan and Wisconsin and to invoke the removal clause in the Treaty of 1842. The Indians refused to budge, so Indian agent John S. Watrous and Minnesota Territorial Governor Alexander Ramsey tried to trick them into leaving. Watrous and Ramsey made the Lake Superior bands go to Sandy Lake in the interior for their annuity payments, where they hoped to trap the Indians for the winter. This vicious plan produced a death march when many Indians headed home in early winter without adequate supplies. Some four hundred of them died. (26)

The Keweenaw Ojibways refused to go to Sandy Lake, but they feared John Watrous. He had threatened to drive the Indians out with military force, and he had asked for command of a company of infantry in western Lake Superior. The leaders at Keweenaw moved to undercut Watrous. Showing political savvy, they went around him and Ramsey and appealed directly to Commissioner of Indian Affairs Luke Lea in Washington. They filed charges against Watrous: he lied to them, had improper money ties with the contractors (i.e., he was taking kickbacks), he seduced Indian women, he bribed Indian men who helped him, and he had sold liquor to them. The Keweenaw leaders asked to have Watrous removed from office and, in the meantime, that they be taken from his jurisdiction and attached to the Sault Ste. Marie Agency in Michigan. Commissioner Lea had temporarily suspended the removal order just prior to receiving the petition from L'Anse, and he wanted an inquiry into the charges against Watrous. He told Ramsey to investigate. The governor put up a good face and tried to pass off the charges as a result of interband jealousies, but he was worried enough to try to hush the accusations by recommending that the Bay Indians remain in their homeland. (27)

Other bands took up the complaint. The statement of the Chiefs and Headmen from La Pointe exactly duplicated the one from L'Anse, suggesting cooperation among the bands in their efforts to get rid of the agent and put an end to the threat of removal. Ramsey countered these accusations with several affidavits affirming Watrous's good character. Meanwhile, Ramsey and Watrous left the Keweenaw people alone. Commissioner Lea sent all of the materials relating to the Indians' complaints to President Millard Fillmore in May 1852. The president rescinded Taylor's Removal Order one month later, after meeting with a delegation of Lake Superior Ojibways. (28)

Ironically, Methodist successes resisting removal had added to the economic and social problems on the bay. The region became a haven against removal in the 1840s, and the L'Anse leaders gained recognition among nearby Anishnabeg who realized that the Methodists had made Keweenaw a place where they might find shelter. Many abandoned the hinterlands and settled near the bay. The population grew, straining an already inadequate subsistence base. In 1832, when he first began preaching at Keweenaw Bay, John Sunday had advised the people to get involved in agriculture and market-based activities. Christians had nice houses and prosperous farms with plenty of horses and cows, he said. Acting on Sunday's advice, Methodist converts pressed the church organization to help them develop an agricultural base. In 1836 they asked their white missionary for farm tools, axes, and grub hoes. The mission complied and a few years later even provided a yoke of oxen. By the early 1840s the Indians were producing "good crops" mostly potatoes. Not long afterwards, they grew a surplus of peas, beets, turnips, and potatoes, which they sold to white miners who lived nearby. Farms and gardens provided food to eat and perhaps to sell, but given the soil and climate, agriculture would never consistently support a family or, by itself, adequately supplement the older hunting, fishing, and gathering economy. Alternatives were needed. (29)

Economic development around Keweenaw Bay and in the copper region opened opportunities for Indian men to take wage work as guides, packers, and canoe-men or voyagers. They hewed timbers for the mines and found jobs in the lumber camps. Most men did not have a trade or a steady job but rather did whatever they could, often shifting from one activity to another seasonally as opportunities dictated. Working in the woods--timbering, for example--was a winter endeavor that petered out in late spring, so men fished when the spawning runs took place and woods' work was unavailable. (30)

The Anishnabeg commercialized their old economy. They prepared thousands of pounds of maple sugar for sale in eastern cities. The women sold a variety of berries to the miners. Men peddled fish. Many of them participated in a commercial fishery that began in the 1830s and continued during the ensuing years. Initially Indian fishermen acted as entrepreneurs as well as employees, but as the fishery became more capitalized in the late nineteenth century, they lost out and became deckhands. A few Anishnabeg became businessmen. Gregory Bedell (Shingwok) worked during the late 1840s for Portage Lake traders Reuben Sheldon and Company as a clerk and bookkeeper. He then opened his own small trading firm, doing business with Keweenaw Indians. By the 1850s he had became a "man of some means." William Bass (Ah she gannce) ran a similar operation. David King became an "occasional trader" and businessman who bought and sold goods, lent money, and performed a variety of services. He owned "quite a little property." (31)

The gains from these new economic activities were not enough to ensure the welfare of the people at Keweenaw Bay. The population continued to grow. In 1855 and 1856, David King and Peter Marksman again sought an extra share of treaty benefits for their people. King and Marksman acted on behalf of Methodists, Catholics, and traditionalists, even the mixed-bloods. The Treaty of 1854 had created a $90,000 fund to pay the Indians' debts. The Keweenaw people did not owe their traders much money and family members had been paying off the obligations of their kin, so the Bay Ojibways demanded a "just share" of the fund, regardless of what they owed. Marksman forcefully made his case to Commissioner of Indian Affairs George W. Manypenny and his associate Henry C. Gilbert, who had gathered the leaders of the Lake Superior Bands to help them decide how to divide the debt fund. Marksman boldly told Manypenny, Gilbert, and the Ojibway headmen that his people "ought not be taxed to pay the debts of the other bands." They deserved a separate allocation. Manypenny, Gilbert, and the Indian leaders wanted no part of the Keweenaw "just share" plan and rejected it. So King and Marksman shifted their tactics. (32)

A few months later several Anishnabeg and a few whites from the bay area filed claims against the debt fund for monies owed to them or for monies they had spent on behalf of the Bay Indians. The Keweenaw people supported each other's claims regardless of their religious or cultural persuasions. Peter Marksman, for example, witnessed claims filed by Peter Crebassa (a mixed-blood Catholic) and Frederick Baraga (a Catholic priest). Henry C. Gilbert, who was evaluating the claims, expressed dismay. He wrote Commissioner Manypenny that the Keweenaw Indians had filed questionable claims and that he believed the treaty did not contemplate paying debts owed to Indians. Eventually, though, King and Marksman prevailed. Money from the claims fund paid the debts and expenses of Keweenaw Ojibways and of whites who had helped them by lobbying, giving legal advice, and buying land. (33)

For about a dozen years now, the Keweenaw Indians had operated a government defined in a code of laws and legitimized by elections. This government reflected familiarity with Euro-American political and religious institutions and the help of the Mississauga missionaries. It rose in response to federal Indian policy and the Keweenaw people's needs to protect their lands and resources from outsiders--white, Indian, and Metis. This new government reconfigured aboriginal sovereignty in modern institutions that briefly gave substance to an Anishnabe state, just then taking shape.

One wonders how much Peter Marksman and the Mississaugas knew about the decisions of John Marshall in Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832). Undoubtedly, they knew what had taken place in Georgia. Samuel A. Worcester was affiliated with the American Board of Commissioners for Foreign Missions. The Board sponsored missions in the upper Great Lakes. Peter Jones claimed English and American friends who had actively opposed Cherokee removal. If Marksman and the others knew about Chief Justice Marshall's decisions--it seems likely that they did--then surely the Keweenaw leaders were institutionalizing their nationhood, just as the Cherokee had. Following the Cherokee's lead, they avoided Cherokee-like removal but in the end failed to hold on to their sovereign independence.

Peter Marksman had skillfully administered this fledgling Ojibway state. He and a few other leaders, especially David King, protected the interests of Indians who lived in the Keweenaw region, an area with geographic boundaries defined by rules of trespass. Marksman's constituents were all Ojibways but were otherwise a diverse group: Protestants, Catholics, and traditionalists who belonged to different kin bands and who had formerly lived in separate villages. Fear of removal subordinated these diversities to mutual interests based upon residency and ties to a common homeland. Marksman's successes led to population increases and heightened fears about claiming and protecting resources. For a few years, then, these Keweenaw Ojibways were moving toward the sort of Indian state envisioned by Peter Jones, Shingwaukonse, and the Cherokees.

In 1854 the Lake Superior Ojibways signed a treaty that ended the threat of removal. The treaty created a Keweenaw Bay reservation on which the Indians were to pick allotments. Cooperation and unity persisted among the Indians in the immediate aftermath of this treaty, but the 1854 agreement fundamentally altered the context that had led to state-building. It broke up the communal estate and eliminated the need for protection through sovereignty. And the Ojibways got along well with local whites so anti-Indian prejudice did not bind the people together. After 1854 many individuals began going their own way. Within a few years, factionalism reappeared: Protestants against Catholics, mixed-bloods against full-bloods, teetotalers against drinkers, kin band against kin band. (34)

Communal political institutions ceased functioning in the 1860s; at least no evidence of them is to be found. The areawide state-building of the 1840s and early 1850s stopped too, though the ideas and objectives that drove it continued on in the small well-organized Methodist and Catholic communities at L'Anse and Assinins. But no Ojibway state came into being during these years.

Keweenaw state-building was an important expression of Anishnabe sovereignty during a critical time in Ojibway history. All the significant state-builders were Ojibways who understood Euro-American culture and institutions. Standing in the middle ground, they combined this knowledge with their understanding of territorialism and Ojibway history to fashion an Indian-controlled Keweenaw state. Here, we have an independent Ojibway base for the treaty right claims and revitalized sovereignty that have surfaced in recent years. We can see how the Keweenaw Ojibways were thinking about their rights and resources during treaty-signing times. The Keweenaw experiment never flourished, but it shines forth as a one-hundred-fifty-year-old affirmation of aboriginal sovereignty that Keweenaw Bay Indians such as William Jondreau have quietly defended these many years.

SOVEREIGNTY AND THE GOURTS

A lifelong fisherman and chairman of the KBIC, William Jondreau well understood the far-reaching implications of his defiance of state law. In the late 1920s, when he was a teenager, he had seen another community member, James Chosa, struggle to reestablish Ojibway fishing rights. A few years later in 1936, Jondreau watched the Bay Area Indians organize themselves under the Wheeler-Howard Act and become a federally recognized, self-governing tribe. Now, Jondreau could establish a place for himself in the history of his people. (35)

The KBIC has progressed since those days. Today, it has about three thousand members. It underwrites a variety of social programs and operates several businesses, including two casinos. It supports a lucrative fishery in Keweenaw Bay which is enhanced by a tribally run whitefish hatchery. KBIC maintains government-to-government relations with state and federal agencies.

The KBIC Constitution of 1836 initially defined tribal authority, but the community has added powers well beyond the original ones. Take fishing rights, for example, or gaming. These expanded powers were mostly defined in several court cases that rested upon well-known and firmly established legal principles: aboriginal sovereignty; reserved rights; treaties where the tribes are grantors and in which they retain, affirm, qualify, and/or give up rights; methods of treaty interpretation that tilt the field toward the Indians to make up for their disadvantages in the original bargaining; and, most fundamentally, the supremacy clause of the U.S. Constitution that makes treaties the law of the land. These legal principles focus Indian cases on treaty negotiation and interpretation. They guarantee that litigation-sponsored historical research will define Native American rights. Defendants and plaintiffs typically employ academics to write historical reports and testify as experts about what happened in the past. The history these experts produce is shaped by the law and is unlike traditional scholarship. (36)

The Jondreau case created a minimal historical record because his attorney did not employ an expert witness. Nor did the attorney for Bay Mills Indian, Albert "Big Abe" LeBlanc, hire historical experts to testify in a fishing conflict between Indians and the state of Michigan. LeBlanc's situation resembled Jondreau's but his people had signed different treaties. However, the attorneys in federal district court cases involving Indian rights in Michigan and Wisconsin hired experts who created elaborate and lengthy histories of the Odawa and Ojibway peoples and their interaction with whites, especially with U.S. government officials during treaty times (roughly 1820-1860). The experts were generously paid for their reports and testimony. (37)

Histories written by paid experts present many potential problems. Some are rather obvious. Advocacy: liberal professors crafting histories designed to help Indians. Money: the temptation to shade interpretations so as not to offend well paying employers. Money: the meter is always running so research is limited by financial constraints. Simplicity: avoiding complicated or speculative arguments. Reports and testimony persuade best when they rely upon a few unambiguous, set-in-stone ideas. (38)

Subtle problems abound, too. Litigation-sponsored histories focus on information relevant to legal issues. The law determines what is explored and what is not. Assistant Attorney General for the State of Wisconsin Mary Bowman commented on this issue in her opening remarks in an important case involving Ojibway usufructuary rights and state versus tribal authority. "Someone" she said, "investigating a question for trial ... can't just say, gee, I would like to find out all there is to know about this ... subject.... The question is always what have you learned that tends to prove the issues that are at point in this case." Exactly. But this procedure warps our understanding of Native American history, especially when the history gets published as is and without explanation of its origin. (39)

In 1991 Charles F. Wilkinson, a legal scholar and expert on Indian law, published an article in the Wisconsin Law Review that examined this same case and others involving Ojibways and their struggles with the state of Wisconsin. The treaties at issue were the same as with Keweenaw Bay. The history overlaps. Wilkinson argued that the survival of American Indian people depended" on 19th century treaties [that recognize] a range of special prerogatives [including] the principle of tribal sovereignty; the right of tribal members to govern themselves." Wilkinson is right, of course, as far as the law is concerned. But that is only part of the story. (40)

This essay on the "Old-Time Origins of Modern Day Sovereignty" was not driven by the requirements of litigation. It draws upon traditional inefficient and time-consuming research dedicated to finding all there is to know--the "truth" if you will. That research points to political authority that originates with the Indians, a sovereignty that rose from the Ojibway people, not treaties. It reveals an old-time tribal government exercising sovereign powers not ordinarily recognized by modern day courts. (41)

NOTES

(1.) Trial Testimony. State of Michigan v. William Jondreau, Baraga Cir. 33. See also Mich. App. 3585 and 384 Mich. 538.

(2.) U.S. House of Representatives, Hearing Before the Subcommittee on Fisheries and Wildlife (Washington DC: U.S. Government Printing Office, 1978), 138-180, see esp. the testimony of Mort Neff and Richard Zehner; Ben East, "They're Taking Your Fish," Fishing the Midwest (Spring 1979), 66-67, 140-42.

(3.) "The Journal and Letters of James Allen," in Schoolcraft's Expedition to Lake Itasca, reprint, ed. Philip P. Mason, 163-241 (East Lansing Mr: Michigan State University Press, 1993).

(4.) John Holiday to Henry R. Schoolcraft, February 9, 1826. SAM M1 R. 18: 28-29. This abbreviation system is used throughout this paper. It refers to National Archives Microfilm, Series M1, Reel 18. When page numbers appear on the film, I have indicated them as above, i.e., R. 18: 28-29. See also Robert Doherty, "We Don't Want Them to Hold Their Hands Over Our Heads: The Economic Strategies of the L'Anse Chippewas," Michigan Historical Review 2o, no. 2 (Fall 1994): 47-70. John Holiday's woes can be followed in the correspondence of the American Fur Company (AFC). I used the microfilm copies in the Clark Historical Library in Mt. Pleasant, Michigan. Grace Lee Nute published a calendar of the correspondence in vols. 2 and 3 of The Annual Report of the American Historical Association for the Year 1944 (Washington DC: U.S. Government Printing Office, 1945).

(5.) James A. Clifton, "Pioneer Advocates of Methodism Among the Lake Superior Chippewa," in The Message in the Missionary: Local Interpretations of Religious Ideology and Missionary Personality, ed. Elizabeth Brusco and Laura F. Klein, 115-43 (Williamsburg VA: Department of Anthropology, College of William and Mary, 1992); Dorothy Reuter, Indian Missionaries in Michigan (Grand Rapids MI: United Methodist Historical Society, 1993); Donald B. Smith, Sacred Feathers, The Reverend Peter]ones (Kahkewaquonaby) and the Mississauga Indians (Lincoln: University of Nebraska Press, 1987).

(6.) Frank G. Speck, "Family Hunting Territories and the Social Life of Various Algonkian Bands in the Ottawa Valley, "Memoirs of the Canadian Geological Survey, Anthropological Series 8, 30:1-10 (Ottawa: Canada Department of Mines, 1915); and "The Family Hunting Band as the Basis for Algonkian Social Organization," American Anthropologist 17 (1915): 289-305. See also Speck's "Mistassini Hunting Territories in the Labrador Peninsula," American Anthropologist 25 (1923): 452-71; and Speck and Loren C. Eisely, "The Significance of Hunting Territory Systems of the Algonkian in Social Theory," American Anthropologist 41 (1939): 269-80.

(7.) Speck, "The Family Hunting Band" 289-90, 294-95.

(8.) The best place to follow the scholarly debate over woodland territoriality is "Who Owns the Beaver? Northern Algonquian Land Tenure Reconsidered" ed. Charles A. Bishop and Toby Morantz, special issue, Anthropologica 28, no. 1 & 2 (1986). See also Eleanor B. Leacock, "The Montagnais' 'Hunting Territory' and the Fur Trade" American Anthropological Association Memoir Number 78 (Menasha WI: American Anthropological Association, 1954). Adrian Tanner presents an insightful analysis of the debate over territoriality in the issue of Anthropologica cited immediately above.

(9.) Grace Lee Nute, "The American Fur Company's Fishing Enterprises on Lake Superior" Mississippi Valley Historical Review 79 (March 1926): 483-502. See also Nute's calendar of the American Fur Company correspondence. The Miscellaneous Papers of the American Company's Northern Outfit contain accounts for various traders and for many Ojibway individuals. Correspondence among the fur traders is also important. See, for example: Eustache Roussain to Ramsey Crooks, January 18, 1836; Ramsey Crooks to Eustache Roussain, April 30, 1836; Ambrose Davenport to Charles Borup, January 2, 1839; Lyman M. Warren to Gabriel Franchere, August 13, 1836; Lyman M. Warren to Ramsey Crooks, November 18, 1836; Lyman M. Warren to Gabriel Franchere, January 10, 1837; Ramsey Crooks to Lyman M. Warren, June 26, 1837. All these letters are in the American Fur Company correspondence.

(10.) The details of commercial fishing are revealed in the claims filed by traders who sought to collect debts under the 1854 Treaty of La Pointe. A list of these claims can be found in NAM M574, R. 24, frames 998-1002. See also Doherty, "We Don't Want Them to Hold Their Hands."

(11.) Rebecca Kugel, "To Go About This Earth: An Ethnohistory of the Minnesota Ojibwe" (PhD Diss., University of California, 1986), 62-103; Janet E. Chute, The Legacy of Shingwaukonse: A Century of Native Leadership (Toronto: University of Toronto Press, 1998), 46-75; Donald B. Smith, Sacred Feathers, 40-45, 52-61, 78-83, 92-93, 164-67, 283n48.

(12.) Helen Tanner, Report prepared for the United States in U.S. v. Michigan M 26-73 CA. See also Tanner's testimony in that trial; James M. McClurken, "Ottawa Adaptive Strategies to Indian Removal," Michigan Historical Review 12 (Spring 1986), 29-55.

(13.) The treaty is published in Charles J. Kappler, vol. 2 of Indian Affairs, Laws, and Treaties (Washington DC: U.S. Government Printing Office, 1904), 450-52. Also see Tanner, Report, and McClurken, "Adaptive Strategies."

(14.) John Pitezel, Lights and Shades of Missionary Life (Cincinnati: Western Book Concern, 1861), which is Pitezel's autography. Donald B. Smith, Sacred Feathers, 164-67.

(15.) Thomas J. Cram, "Report on the Survey of the Boundary between the State of Michigan and the Territory of Wisconsin" in Message from the President of the United States to the United States Senate (February 3, 1841). Penashe and Kenewais to R. Stuart Esq., July 20, 1842, NAM M1 R. 52.

(16.) Ronald N. Satz, Chippewa Treaty Rights (Madison: Wisconsin Academy of Sciences, Arts, and Letters, 1991), 33-49.

(17.) Robert Stuart to T. Hartley Crawford, October 28, 1842, NAM M1 R. 39: 9-11; and April 15,1843, NAM M234 R. 425: 371.

(18.) Elizabeth Graham, Medicine Man to Missionary: Missionaries as Agents of Change in Southern Ontario (Toronto: Peter Smith, 1975), appendix III.

(19.) Smith, Sacred Feathers, 66-83.

(20.) James A. Clifton, "Pioneer Methodists." George W. Brown to Robert Stuart, March 7, 1843, and March 20, 1843, NAM M1 R. 54:91-92 and 120-21; Peter Marksman to Robert Stuart, April 5,1843, NAM M1 R. 54: 166-67; David King and John Southwind to Robert Stuart, June 14,1843; and James Ord to Robert Stuart, July 15, 1843, in NAM M1 R. 55: 90-93; Robert Stuart to James Ord, July 27, 1843, NAM M1 R. 39: 97- David King to Robert Stuart, Esq., March 20, 1843, NAM M1 R. 54: 269-71.

(21.) See note 20. See also Robert Stuart to T. Hartley Crawford, October 13, 1843, NAM M234 R. 425.

(22.) See note 20.

(23.) Peter Marksman to Robert Stuart, April 5, 1843, NAM M1 R. 54: 166-67.

(24.) David King and Peter Marksman to Robert Stuart, October 21, 1843, NAM M1 R. 55.

(25.) James A. Clifton, "Wisconsin Death March: Explaining the Extremes in Old Northwest Indian Removal," Transactions of the Wisconsin Academy of Sciences, Arts, and Letters (75): 1-39. Charles Bineshi and Edward Assinins to William A. Richmond, May 11, 1848, NAM M1 R. 62: 58; William A. Richmond to P. B. Barbeau, July 4, 1848, NAM M1 R. 40: 66; Petition of Chiefs Osh-ka-ba-wis, Ka-she-aush, and others, January 1849, NAM M234 R. 390; Cyrus Mendenhall to Zachary Taylor, May 9, 1850, NAM M234 R. 390; David King, John Southwind, and others to David Aitkin, July 15, 1850, NAM M234 R. 771: 370-80.

(26.) James A. Clifton, "Death March."

(27.) For the correspondence surrounding removal and Keweenaw responses, see: NAM M234 R. 149: 4-6, 36, 65-69, 84-89, 106-23,144-46.

(28.) See note 25.

(29.) James Ord to William A. Richmond July 18, 1845, YAM M1 R. 59: 30-31; Annual Report of the Commissioner of Indian Affairs for 1848 (Washington PC: n.p., 1848), 552-54: John Clark, "Letter," Christian Advocate, July 23,1836; William Brockway to Robert Stuart, November 8, 1841, NAM M1 R. 54: 52-53; John Pitezel, Lights and Shades, 416-18.

(30.) Charles Cleland, Rites of Conquest: The History and Culture of Michigan's Native Americans (Ann Arbor MI: University of Michigan Press, 1992), 240-44.

(31.) The economic activities of the Keweenaw Indians are best followed in the claims they filed under the 1854 Treaty of La Pointe. See NAM M574 Reels 16, 21, 22, 24, 29, 53, 57, 58.

(32.) Henry C. Gilbert, Analysis of the May-yaw-wash Claim, NAM M574 R. 21: 1073-79; Henry C. Gilbert to George W. Manypenny, April 10, 1855, NAM M234 R. 404: 607-10.

(33.) Doherty, "We Don't Want them to Hold Their Hands."

(34.) See, for example, Awsineece and others to the Commissioner of Indian Affairs, October 1, 1858 SAM M234 R. 406: 3-6; Petition from Edward Awsineece, Posh-quay-gin and others to Commission of Indian Affairs, May 8, 1876. NAM M234 R. 411: 606, 671-72. George W. Lee to the Commissioner of Indian Affairs, November 16, 1876. NAM M234 R.411: 947-48.

(35.) Information about William Edward Jondreau appears on page 3 of The Genealogical Connections of Rose Edwards, which is on the internet: http://www. edwardsl.com.

(36.) Information about the Keweenaw Bay Indian Community, including its constitution, can be found on the internet. See the tribal Web site (http://www. kbic-nsn.gov) and CopperCountry.com. David E. Wilkins discusses Indian sovereignty and treaties in American Indian Sovereignty and the U.S. Supreme Court (Austin TX: University of Texas Press, 1997). He coauthored another book with K. Tsianina Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law (Norman OK: University of Oklahoma Press, 2001). See also the important article by Robert N. Clinton, "The Curse of Relevance: An Essay on the Relationship of Historical Research to Federal Indian Litigation" Arizona Law Review 28 (1986): 29-46.

(37.) People v. William Jondreau, 384 Mich. 539, 185 N. W. 2d 375 (1971). I talked with LeBlanc's attorney, William James, in April 1980. The expert historical arguments for these cases are set forth in the reports written by Helen Tanner, Charles Cleland, James Clifton, and Philip Mason, their depositions, and their testimony at trial.

(38.) My comments here and in the following paragraph are based on personal experience. I have observed and studied several trials involving Indian rights. I prepared testimony for three trials as a potential witness (twice for Indian communities and once for the state of Michigan.) In each of these cases I accepted money only for expenses.

(39.) Lac Courte Oreilles Band of Lake Superior Chippewa Indians and Others v. the State of Wisconsin and Others (December 1985), Trial Testimony, Case No. 74-C-313-D, 29.

(40.) Charles E Wilkinson, "To Feel the Summer in the Spring: The Treaty Fishing Rights of the Wisconsin Chippewa," Wisconsin Law Review (1991): 375-414, 378.

(41.) I began doing research on the Keweenaw Bay Indians in 1990 to prepare myself to testify in a legal dispute. I accepted expense money from the community. That case was dismissed in 1993, but I kept working on my own because I found the material so interesting. The arguments appearing here developed after 1993 in consequence of my ongoing research.
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Author:Doherty, Robert
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