LAND CLAIM FOR NORTH BASS ISLAND IN LAKE ERIE

BY THE OTTAWA TRIBE OF OKLAHOMA

By William Caughey, Perrysburg Law Office, Perrysburg, Ohio

and Patrick M. Tucker, French-Canadian Heritage Society of Michigan, Detroit

December 2004

INTRODUCTION

North Bass Island is located in Lake Erie approximately eighteen miles north of Port

Clinton, Ottawa County, Ohio (Figure). The island is part of Ottawa County, Ohio and is

approximately one mile square in size (677 acres) and less than two miles from the

international border with Canada. North Bass Island was known earlier as “Isle St.

George.”1 Ottawa County was formed in 1840 deriving its name from the Ottawa Indians

meaning “trader.”

The earliest native inhabitants of the Lake Erie islands dating to the arrival of Samuel

de Champlain in 1615 in the area are unknown. After the destruction of the Huron,

Neutral, and Erie Nations by the Five Nations Iroquois by 1650, the area was devoid of

aboriginal inhabitants. In 1677, the French explorer René-Robert Cavelier, Sieur de La

Salle aboard his ship the “Griffin” may have stopped at the Bass Islands in 1679. After

the founding of Fort Ponchartrain [Detroit] in 1701 by Antoine de la Mothe, Sieur de

Cadillac, Indians from the Mackinac area of the Great Lakes and from the east in

Pennsylvania made their way back to the Upper Ohio Valley. Ottawas, Wyandots,

Chippewa, Potawatomie crossed from Detroit during the winter months to hunt, trap and

fish. Delaware, Seneca, Caughnawaga Mohawk, Munsee, Mingo, and others drifted into

the upper Ohio Valley from the east. The area was the subject of “mixed use and

occupancy” by bands of many tribes until after their removal to Kansas Territory in the

1830s and 1840s.2

1 Henry Howe, “Ottawa County,” in Historical Collections of Ohio, 2 vols. (Cincinnati, OH: C. J.

Krehbiel & Co., Printers, originally printed 1888, 1900), v. 2; David Lindsey, Ohio’s Western Reserve: The

Story of Its Place Names (Cleveland, OH: The Press of the Western Reserve University, 1955), 36; G. R.

Dickerson, Isle St. George Viticultural Area, unpublished manuscript, Department of the Treasury, Bureau

of Alcohol, Tobacco and Firearms, Washington, DC, 1982. Meier’s Wine Cellars of Silverton, Ohio, had

been using the “Isle St. George” designation on its labels since 1943 to identify wines made from grapes

grown on the island. 2 William A. Fox, “The Ottawa,” in The Archaeology of Southwestern Ontario to A.D. 1650, Chris J. Ellis

and Neal Ferris, eds., Occasional Publications of the London Chapter, Ontario Archaeological Society, No.

5 (London, CA, 1990), 457, Paul Weer, “Ethnological Notes on the Ottawa,” Proceedings of the Indiana

2

Figure. Location of North Bass Island in Lake Erie

French inhabitants also lived on the Bass Islands prior to the War of 1812 intermingled

with the Indians pursuing the fur trade, but there is no accurate record of their numbers

and settlement.3

In the 1820s, the island was part of Huron County known as Bass Island No. 3. The

early history of this island after the War of 1812 is not very detailed. An agent for the

Connecticut Land Company, owner of the land, paid the yearly taxes. Title to the

property was transferred to a number of people. There wasn’t any permanent occupancy

of the island until 1844 when Rosswell Nichols, his wife, and two brothers-in-law named

Scott arrived. At first they were squatters. Then Nichols leased the land by paying the

annual taxes. He was given one fifty dollars by a Dr. Townsend who acted as agent for

the owner who name was Champion. Grapes were planted which grew well on the island.

Within a few years vineyards flourished. The fishing industry was a lucrative business

which along with the grapes brought settlers.4

Academy of Science, v. 49 (1939), 23-24; Walter J. Sherman, “Fort Industry – An Historical Mystery,”

Ohio Archaeological and Historical Society Publications, v. 38, no. 2 (1929), 233; Electa M. Sheldon, The

Early History of Michigan, from the First Settlement to 1815 (New York, NY: A.S. Barnes & Company,

1856), 41; Helen H. Tanner, “The Location of Indian Tribes in Southeastern Michigan and Northern Ohio

1700-1817,” in Indians of Northern Ohio and Southeastern Michigan, David A. Horr, comp. and ed.(New

York, NY: Garland Publishing, Inc., 1974), 324. 3 Thomas H. Langlois and Marina H. Langlois, “South Bass Island and Islanders’” The Ohio State

University, The Franz Theodore Stone Laboratory, Contribution No. 10 (Columbus, OH: Ohio State

University, 1948), 16 4 Jessie A. Martin, The Beginnings and Tales of the Lake Erie Islands (Detroit, MI: Harlo Press, 1990), 87.

Henry Champion was a director (along with Moses Cleaveland, Roger Newberry, and Samuel Mathers, Jr.)

3

In December of 2003, Governor Robert Taft of Ohio announced a plan by the state to

acquire 589 acres (87 percent of the island) for $17.4 million for preservation as a state

park. The population of the island consists of about two dozen year-round residents with

a one-room schoolhouse, a church, and twelve, privately-owned properties or parcels of

land that will not be acquired by the state.5

NATURE OF THE CLAIM AND CASE

The Ottawa Tribe of Oklahoma intends to bring in action in United States Federal

Court a claim of ownership of North Bass Island, Ottawa County, Ohio. This action

asserts that North Bass Island, Ottawa County, Ohio was never part of the lands ceded by

the Treaty of July 4, 1805 at Fort Industry, Ohio, on the Miami of Lake Erie. The lands

ceded by this treaty, of which the Ottawas of the Miami of Lake Erie were signatory to,

consisted of the Connecticut Western Reserve. The northern boundary of this cession was

the southern shoreline of Lake Erie, and therefore North Bass Island could not have been

a part of the cession as it was outside of this north boundary. Not only was North Bass

Island not a part of the Connecticut Western Reserve, but it is also asserted that it was not

part of the United States at the time of the treaty as it lay north of the international

boundary set between Canada and the United States at the Treaty of Paris in 1783 and the

Treaty of Ghent in 1814.

The Ottawas of the Miami of Lake Erie are the predecessors of The Ottawa Tribe of

Oklahoma, and therefore have jurisdictional rights to this claim. The Ottawa Tribe of

Oklahoma is a federally recognized tribe of Indians residing in Oklahoma organized

under a constitution and by-laws approved by the Assistant Secretary of the Interior on

October 10, 1938, and ratified by the Indians of the said tribe on November 30, 1938,

pursuant to section 3 of the Thomas-Rogers Oklahoma Indian Welfare Act of June 26,

of the Connecticut Land Company who was present at the Treaty of Fort Industry of July 4, 1805, and

signatory to the treaty where North Bass Island was acquired from the Ottawa, Wyandot, Chippewa,

Munsee, Delaware, Shawnee, and Potawatomi Indians (see United States Congress, Documents Legislative

and Executive of the Congress of the United States in Relation to Public Lands, from the First Session of

the First Congress to the First Session of the Twenty-Third Congress, March 4, 1789 to June 15, 1834

[hereafter American State Papers], sel. and ed. by Walter Lowrie, 38 vols. (Washington, DC: Printed by

Duff Green, 1832-1861), cl. 2, v. 1 (1832), 696, 702. 5 Ohio Department of Natural Resources, Division of Wildlife, “Taft announces plan to preserve North

Bass Island, state to purchase last major undeveloped island in Lake Erie,” unpublished manuscript,

Columbus, Ohio, 2003.

4

1936 (49 Stat. 1967).6 Federal supervision of the tribe over property and members was

terminated by the Act of August 3, 1956 [Public Law 84-943], but restored by Act of

May 15, 1978, to federally recognized status.7

HISTORICAL EVIDENCE FOR JURISDICTION

Early Historical Reports

Shortly after the arrival of the Ottawa, Chippewa, Potawatomie, and Wyandot at

Detroit in 1701, these groups began to use the area surrounding Detroit for hunting,

fishing, and trapping. By 1738, they were using northern Ohio for winter hunting grounds

each year based on a previous agreement in 1720 to establish hunting territories on the

lands surrounding Detroit. The Ottawa clearly established a hunting ground long the

Maumee river, and established villages as far east as the Cuyahoga river with hunting

camps on the Lake Erie islands.8 Ottawas were known to reside at Gichaga and Ottawa

Town along the lower Cuyahoga river until 1752.9 In, 1748, there were Ottawas at

Sandusky enticed away from Detroit by a pro-English band of Wyandots under Chief

Orontony.10

In 1750, eight families of Ottawas were living at Tuscarawas Town at the

junction of the Tuscarawas river and Sandy Creek near present-day Bolivar, Ohio.

Permanent Ottawa settlements of the Maumee and Auglaize river areas apparently

date after 1748 since there is no mention of them in historical records earlier than this

6 United States Department of the Interior, Office of Indian Affairs, Corporate Charter of the Ottawa

Tribe of Oklahoma, Ratified June 2, 1939 (Washington, DC: U.S. Government Printing Office, 1939), 1, 5-

6 and Constitution and By-Laws of the Ottawa Tribe of Oklahoma, Ratified November 30, 1938

(Washington, DC: U.S. Government Printing Office, 1939), 1-5. 7 The Confederation of American Indians, Indian Reservations: A State and Federal Hand Book

(Jefferson, NC: McFarland and Company, Inc., 1986), 234. 8 Helen Hornbeck Tanner, “The Location of Indian Tribes in Southeastern Michigan and Northern Ohio

1700-1817,” in Indians of Northern Ohio and Southeastern Michigan, ed. And comp. by David A. Horr,

(New York, NY: Garland Publishing, Inc., 1974), 332, 335-336, 350-351; Peter Dooyentate Clarke,

Original and Traditional History of the Wyandots, and Sketches of Other Tribes of North America

(Toronto, Canada: Hubter, Rose & Co., 1870), 17-18. 9 Charles A. Hanna, The Wilderness Trail (New York, NY: Knickerbocker Press, 1911), v. 1, 321, 333-

334; Johanna E. Feest and Christian F. Feest, “Ottawa,” in Handbook of North American Indians, gen. ed.

William C. Sturtevant (Northeast) (Washington, DC: Smithsonian Institution, 1978), v. 15 (Northeast),

773; Wisconsin Historical Society, Collections of the State Historical Society of Wisconsin (Madison, WI,

1854-1931), v. 16, 290 and v. 17, 367, 372; Edmun B. O’Callaghan, ed., Documents Relative to the

Colonial History of New York Procured in Holland, England, and France [hereafter NYCD](Albany, NY:

Weed, Parsons and Company, Printers, 1853-1887), v. 9, 1072, v. 10, 163, 608. 10

Anthony F.C. Wallace, “Six Nations, Wyandot, Shawnee, Delaware, and Ottawa Claims to Lands in

Ohio,” unpublished report prepared for the Six Nations claims to lands in Ohio, Indian Claims

Commission, November 30, 1953, 19-20.

5

date. The commandant of Fort Miamis [present-day Fort Wayne] in his report of 1750 to

the Governor of New France observed that an Ottawa band chief by the name of

Chikatoilien intended to make his village at the mouth of the Maumee river where

formerly Guillet [a trader?] had his cabins. Also, in March1750, Le Porc Epic, a pro-

French Miami chief reported to the French that some Ottawas of Detroit were noted as

wanting to settle at Roche de Boeuf [also “Roche de Bout”, present-day Waterville,

Ohio] to be nearer the English trade house on the Great Miami river [Pickawillany or

present-day Piqua, Ohio] and at the Grand Glaize [present-day Defiance, Ohio] where

English traders had brought some 50-60 horse loads of trade goods. 11

After 1755, Ottawas are noted as being scattered all along the south shore of Lake

Erie between the Cuyahoga and Maumee rivers. James Smith and Charles Stuart, Two

white captives taken in Pennsylvania and brought to Detroit, reported on Ottawa winter

hunting camps along the south shore of Lake Erie near Sandusky in the winter of 1755-

1756. They noted Ottawas on the Bass Islands from October to April hunting and

trapping raccoons, wild fowl, and fishing.12

11

Illinois State Historical Library, Collections of the Illinois State Historical Library (Springfield, IL,

1903-1947), v. 29, 166, 168, 170, 172; Howard H. Peckham, Pontiac and the Indian Uprising (Princeton,

NJ: Princeton University Press, 1947), 16-17, n. 2; NYCD (1853-1887), v. 10, 138, 162; Wallace, “Six

Nations, Wyandot, Shawnee, 19-20; Erminie Wheeler-Voegelin, “An Ethnohistorical Report on the

Wyandot, Potawatomi, Ottawa, and Chippewa of Northwest Ohio,” in Indians of Northwest Ohio, ed. and

comp. David A. Horr (New York, NY: Garland Publishing, Inc., 1974), 29. Kinousaki, a pro-French

Ottawa chief from Detroit, met these Ottawas in the spring of 1748 at the mouth of the Maumee, and

learned that several of them wished “to settle at the lower end of the Miamis [Maumee] River, where the

Huron [of Sandusky] had promised them the English would supply their wants.” Contrary to popular belief

“Maumee” is not a corruption of the Miami-Illinois term “/myaamia/”. The name “Maumee” was noted as

being on the tongue of non-French speakers as early as 1781 being derived from the Ottawa term

“/(o)maamii zib@/” which dates to Ottawa occupation of the Maumee river in 1748 (Michael McCafferty,

Native Names of Indiana, unpublished manuscript under review for publication by the University of Illinois

Press, 2004). 12

Beverly W. Bond, Jr., ed. The Captivity of Charles Stuart, 1755-57,” The Mississippi Valley Historical

Review, v. 13, no. 1, 58-81; John J. Barsotti, Scoouwa: James Smith’s Indian Captivity Narrative

(Columbus, OH: Ohio Historical Society, 1992). Wheeler-Voegelin compiled a list of winter hunting

locations for 1755-1756, based on these two narratives, showing the extent of Ottawa and other Indian

groups use and occupancy of the are from the Bass Islands south and east to the Cuyahoga river in her

report for the Indian Claims Commission consideration of treaty title to Royce Area 53 and 54 based on the

Treaty of Fort Industry, July 4, 1805 (see Erminie Wheeler-Voegelin, “An Ethnohistorical Report on the

Wyandot, Ottawa, Chippewa, Munsee, Delaware, Shawnee, and Potawatomi of Royce Areas 53 and 54,” in

Indians of Northern Ohio and Southeastern Michigan, ed. and comp. by David A. Horr (New York, NY:

Garland Publishing, Inc., 1974), 154-157.

6

Treaty of Paris 1783

The Continental Congress approved preliminary articles of peace between the

American colonies and Great Britain on September 3, 1783. The treaty was ratified by the

Congress on January 14, 1784, officially establishing the United States as an independent

and sovereign nation. The treaty granted the United States territory as far west as the

Mississippi river, but reserved Canada for Great Britain. Article 2 established the

boundaries between Canada and the United States as

…through the middle of said lake [Ontario] until it strikes the communication

by water between that lake and Lake Erie; thence along the middle of said

communication into Lake Erie; through the middle of said lake until it arrives

at the water communication between that lake and Lake Huron; …13

The middle of the Great Lakes was the decided boundary between the two nations in this

region. The article also provided for the resolution of disputes over boundaries

Treaty of Fort McIntosh 1785

The Treaty of Fort McIntosh concluded on January 21, 1785, clearly indicates that the

United States recognized the lands north of the boundary line established by Article 3 of

the treaty as being occupied and used by the Ottawas for hunting and fishing.14

This

boundary line began at the mouth of the Cuyahoga river south to the portage of the

Tuscarawas branch of the Muskingum river, then down to the crossing place of Fort

Lawrence [Fort Laurens], then westerly to the portage of the Big Miami river (that runs

into the Ohio river) where at the mouth stood a fort taken by the French in 1752

[Pickawillany], then along the Great Miami or Ome River [Maumee River] on the south-

east side to its mouth, then along the south shore of Lake Erie to the mouth of the

Cuyahoga river where it began. All lands north of the boundary line, including the islands

of Lake Erie between the Maumee and Cuyahoga rivers, were Indians lands. Article 4 of

the treaty specifically states:

13

Treaty of Paris, 1783; International Treaties and Related Records, 1778-1974; General Records of the

United States Government, Record Group 11, National Archives, College Park, Maryland. 14

The Public Statutes at Large, (1846), v. 7, 16-18.

7

The United States allot all the lands contained within the said lines to the Wiandot

[Wyandot] and Delaware nations, to live and hunt on, and to such of the Ottawa nation as

now live thereon; saving and reserving for the establishment of trading posts, six miles

square at the mouth of the Miami or Ome river [Maumee], and the same at the portage on

that branch of the Big Miami which runs into the Ohio, and the same on the lake of

Sanduske [Sandusky] where the fort formerly stood, and also two miles square on each

side of the lower rapids of the Sanduske river, which posts and the lands annexed to

them, shall be to the use and under the government of the United States.15

Treaty of Fort Harmar 1789

Article 2 of the Treaty of Fort Harmar concluded on January 9, 1789, confirmed the

boundary line and reservations made at the Treaty of Fort McIntosh four years earlier. All

the land east, south and west of the lines described in this article, and Article 3 of the

Treaty of Fort McIntosh, was ceded to the United States.16

The lands north of these lines

were Indian lands of which the Ottawas of Lake Erie occupied and used. The treaty was

signed by Wewiskia and Neagey [Negig, the Little Otter]. Neagey was an Ottawa war

chief who resided at the mouth of the Miami of Lake Erie [Maumee river].

Treaty of Greenville 1795

The Treaty of Greenville on August 3, 1795, concluded hostilities between the United

States and Native Americans of the Old Northwest Territory which began after the

American Revolutionary War. The boundary line of the Fort Harmar treaty was again

reaffirmed at the peace treaty of Greenville. Article 3 of the Greenville treaty reads

essentially the same as Article 2 of the Fort Harmar treaty. This article also granted to the

confederated tribes sixteen tracts of land known as “reserves”. Five of these tracts were

specifically reserved for occupancy and use by the Ottawas of the Maumee river and

consisted of six miles square at the head of the Auglaize river, six miles square at the

confluence of the Auglaize and Miami of Lake Erie [Maumee] rivers where Fort

Defiance stood, twelve miles square at the British fort on the Miami of the Lake at the

foot of the rapids, six miles square at the mouth of the Miami of the Lake, and six miles

15

Ibid., 17 16

Ibid., 28-29, 31.

8

square on Sandusky Bay, where a fort formerly stood. 17

These reserves constitute the

core or home territory of the Ottawas from 1795 until their final removal west of the

Mississippi river to Kansas Territory between 1832 and 1839.

Treaty of Fort Industry 1805

The Treaty of Fort Industry of July 4, 1805, at Swan Creek [present-day Toledo, Ohio]

ceded to the United States northcentral Ohio. Article 2 of this treaty defined the

boundaries as the Cuyahoga river on the east, the Greenville treaty line on the south, a

meridian line drawn north-and-south 120 miles west of the Pennsylvania boundary on the

west, and the Lake Erie shoreline on the north. The tracts ceded were known as Royce

Areas 53 and 54 during the Indian Claims Commission trials of the 1950s and 1960s. The

meridian line forming the western boundary of this cession to the United States would

extend north until it intersected the boundary line of the United States [420 2’ of north

latitude]. This would be the future north boundary for any future negotiations of

cessions.18

Three separate tracts of land were ceded at this treaty. The first was a tract sold by the

state of Connecticut to the proprietors of the Connecticut Land Company known as the

Western Reserve of Connecticut (also commonly called the “Connecticut Western

Reserve, New Connecticut, or the Western Reserve.” The second was tract given to “the

proprietors of the half million acres, lying south of Lake Erie, called Sufferers’ Land.”

This tract was a part of the Western Reserve lying at its western end, south of Lake Erie,

containing half a million acres (constituting the present-day Erie and Huron Counties of

Ohio). The third was a tract lying south of the two preceding tracts between the same and

the Greenville treaty line.

This treaty was unusual in that the Ottawas, and other native groups, concluded a

cession of land with the agent of the Connecticut Land Company and the agent of the

17

Ibid., 49. 18

Ibid., 87-88; United States Congress, Documents Legislative and Executive of the Congress of the

United States in Relation to Public Lands, from the First Session of the First Congress to the First Session

of the Twenty-Third Congress, March 4, 1789 to June 15, 1834 [hereafter American State Papers], sel. and

ed. by Walter Lowrie, 38 vols. (Washington, DC: Printed by Duff Green, 1832-1861), cl. 2, v. 1 (1832),

695-696; Charles A. Royce, comp., Indian Land Cessions in the United States, Eighteenth Annual Report of

the Bureau of American Ethnology to the Secretary of the Smithsonian Institution, 1896-1897, by J.W.

Powell (Washington, DC: Government Printing Office, 1899), v. 2, 666-67.

9

Sufferers’ Land, simultaneously with that cession to the United States.19

The treaty

negotiated by Charles Jouett, Commissioner for the United States, designated the

southern Lake Erie shoreline as the northern boundary of its cession. However, the

negotiations between the Ottawa, and other native groups, with the agent of the

Connecticut Land Company and the agent of the “Sufferers’ Land” designated the 420 2’

north latitude as the northern boundary for its cession. This was the boundary between

the United States and Great Britain in the middle of Lake Erie separating Ohio from

Canada.20

For this, the Ottawas received from the agents of both companies the sum of $4,000

dollars in hand, and the sum of $12,000 dollars secured to the President of the United

States, held in trust for the Ottawas, to be paid in six annual installments of $2,000

dollars each. Among those Ottawas who signed the treaty were Nekiek [Negig] or Little

Otter, Kawachewan [Eddy], and Tusquagan [McCarty] who resided at the mouth of the

Maumee river, Tondawganie [The Dog] who resided at Roche de Bout on the Maumee

river, and Ogonse who resided at Sandusky.

The 1805 treaty between the United States and the agents of the “Connecticut Land

Companies”, on one part, and the Ottawa, Wyandot, Chippewa, Munsee, Delaware,

Shawnee, and Potawatomi Nations was submitted to the Senate of the United States for

ratification on December 11, 1805. It was approved on January 17, 1806, for signature by

President Thomas Jefferson.21

Treaty of Ghent 1814

The Treaty of Ghent signed on December 24, 1814, ended the War of 1812 between

Great Britain and the United States. Relations between Great Britain and the United

States remained strained for two decades after the signing of the Treaty of Paris in 1783.

When war erupted in Europe in 1803, Britain imposed a blockade on neutral countries

like the United States, and impressed her sailors into the British Navy. The war produced

a series of American military disasters. By 1814, both nations were working to find a

19

American State Papers (1832), cl. 2, v. 1, 696. 20

Ibid., 696. 21

United States Senate, Journal of the Executive Proceedings of the Senate of the United States of

America (Washington City: Duff Green, 1828), v. 2, 3-4, 15-16.

10

resolution, and agreed to discuss terms of peace. A meting in Belgium by American and

British delegates ended with the signing of the Treaty of Ghent on December 24, 1814.

Article 6 of the Treaty of Ghent specified that the boundary through the middle of the

Great Lakes established by the Treaty of Paris in 1783 had caused doubts as to what the

middle of the lakes and watercourses actually were. Doubts of ownership of islands

within this boundary plagued both the United States and Great Britain. In order to resolve

these doubts, both countries agreed to appoint two commissioners, one from each

country, sworn and authorized to resolve such issues. The first commissioners were to

meet in Albany, New York, and prepare a report or declaration designating the boundary

through the lakes, rivers, and waters in conformity with the true intent of the Treaty of

Paris 1783.22

ANALYSIS OF THE OTTAWA CLAIM

The Ottawa claim is based on the assertion that North Bass Island was never subject to

any treaty with the tribe required under federal law, and therefore a violation of the Trade

and Non-Intercourse Act (also known as the Trade and Intercourse Act) of 1790.23

Ratification of the Trade and Non-Intercourse Act took place on July 22, 1790.

The Trade and Intercourse Act prohibits the sale of any lands by Indians to any person

or persons, tribe, or state (regardless of the right of pre-emption to such lands) unless the

same was made and duly executed at some public treaty, held under the authority of the

United States. The Act was reaffirmed on March 1, 1793, making purchases of Indian

lands invalid unless such purchases were made pursuant to the Constitution of the United

States. Section 8 of this act states:

And be it further enacted, That no purchase or grant of lands, or of any

title or claim thereto, from any Indians, within the bounds of the United

States, shall be of any validity in law or equity, unless the same be made

by a treaty or convention entered into pursuant to the constitution; and it

22

Treaty of Ghent, 1814; International Treaties and Related Records, 1778-1974; General Records of the

United States Government; Record Group 11, National Archives, College Park, Maryland. 23

“2 Statute 137-138 (1790), Chapter 33, Sections 1-7,” in United States Congress, The Public Statutes at

Large of the United States of America from the organization of the government in 1799, to March 3, 1845,

[hereafter The Public Statutes at Large], ed. By Richard Peters, Esq., Counsellor at Law, vol. 1 (Boston,

MS: Charles C. Little and James Brown, 1845)

11

shall be a misdemeanor, in any person not employed under the authority of

the United States, in negotiating such treaty or convention, punishable by

a fine not exceeding one thousand dollars, and imprisonment not

exceeding twelve months, directly or indirectly to treat with any such

Indians, nation or tribe of Indians, for the title or purchase of any lands by

them held, or claimed: Provided nevertheless, That it shall be lawful for

the agent or agents of any state, who may be present at any treaty, held

with the Indians under the authority of the United States, in the presence,

and with the approbation of the commissioner or commissioners of the

United States, appointed to hold the same, to propose to, and adjust with

the Indians, the compensation to be made for their claims to lands within

such state, which shall be extinguished by the treaty.24

The text of the 1790 and 1793 statutes reads the same as it does today in 25 U.S.C,

Chapter 5, and Section 177:

No purchase, grant, lease, or other conveyance of lands, or of any title or

claim thereto, from any Indian nation or tribe of Indians, shall be of any

validity in law or equity, unless the same be made by treaty or convention

entered into pursuant to the Constitution. Every person who, not being

employed under the authority of the United States, attempts to negotiate

such treaty or convention, directly or indirectly, or to treat with any such

nation or tribe of Indians for the title or purchase of any lands by them

held or claimed is liable to a penalty of $1,000.

Finding

North Bass Island was not part of the land ceded by the Ottawa, Wyandot, Chippewa,

Munsee, Delaware, Shawnee, and Potawatomi Indians to the United States held at Fort

Industry on the Miami of the Lake on July 4, 1805.

24

2 Statute 330-31(1793), Chapter 19, Section 8.

12

Fact No. 1

The northern boundary between the United States and the Indian Nations signatory to

the Treaty of July 4, 1805, at Fort Industry on the Miami of Lake Erie was the south

shore of Lake Erie in accordance with Article II of the said treaty. The cession of North

Bass Island was not valid since this island was north of the ceded lands of the treaty.

Discussion

The state of Connecticut claimed the lands west between the 410 and 42

0 2’ north

latitude to the Pacific Ocean by virtue of a charter granted by King Charles II to the late

colony, now the state of Connecticut, on April 23, 1662. Jonathan Trumbull, Governor of

the colony of Connecticut, issued a proclamation on November 15, 1783, making known

the determination of the colony to forbid all persons to enter or settle these lands without

special license and authority first obtained from the General Assembly of the colony. On

April 20, 1784, Congress adopted a resolution for a liberal surrender of a portion of all

western colonial lands for the harmony of the union, and to use these vacant lands for the

payment of the national debt.25

On September 14, 1786, the Legislature of the State of Connecticut executed a deed to

the Congress of the United States for a cession of western lands between the 410 and 42

0

2’ north latitude and west of a line that extended 120 miles west of the boundary of the

commonwealth of Pennsylvania. The lands 120 miles west of Pennsylvania between the

410 and 42

0 2’ north latitude became Connecticut’s “Western Reserve.”

In October 1786, Connecticut passed an act directing the survey of the western lands

not ceded to Congress lying west of Pennsylvania and east of the Cuyahoga river. On

June 6, 1788, Congress directed the Geographer of the United States to run the meridian

line north-and-south beginning 120 miles west of the State of Pennsylvania on the

southern shore of Lake Erie. In 1792, the Legislature of Connecticut granted 500,000

acres of land (present-day Erie and Huron counties of Ohio) of its “Western Reserve”

(not ceded to Congress) for the citizens of the state as compensation for property burned

and destroyed in the towns of New London, New Haven, Fairfield, and Norwalk by the

British during the American Revolution.

25

“Connecticut Western Reserve,” in American State Papers (1834), cl. 8, v. 1, 83-88.

13

The purchasers of the Connecticut Reserve quickly found themselves in a dilemma.

They held title to these lands under the State of Connecticut, but could not submit to the

government of the United States in the Northwest Territory without endangering the loss

of their title. The Western Reserve was sold by the State of Connecticut to the

Connecticut Land Company for $1,200,000 by thirty-five quitclaim deeds dated

September 2, 1795.26

In October 1797, the Legislature of Connecticut passed an act

authorizing its Senators in Congress to execute a deed of release to the United States for

the jurisdiction of its Western Reserve.27

On March 2, 1801, the United States of America, under President John Quincy

Adams, issued a U.S. patent for the Connecticut Western Reserve lands. This patent was

conveyed to Jonathan Trumbull, Governor of the State of Connecticut, and his

successors, as well as for the use of the persons holding and claiming Western Reserve

lands under deeds given by that state.28

The Indian title to the portion of the Connecticut Western Reserve lying east of the

Cuyahoga river to the Pennsylvania state line had been extinguished by the Treaty of

Greenville in 1795. The Indian title to the remaining portion west of the Cuyahoga river

was extinguished by the Treaty of July 4, 1805 at Fort Industry, Ohio. However, the land

that was extinguished at this treaty encompassed those bounded by the Cuyahoga river on

the east, the Greenville treaty line on the south, the meridian drawn north-and-south 120

miles west of the Pennsylvania boundary (western boundaries of Erie and Huron

counties), and the southern shoreline of Lake Erie on the north.

In relation to this, Charles C. Royce outlined the boundaries of all treaties held

between the United States and Indian Nations. The Indian Claims Commission used his

maps of treaty boundaries for its hearings on aboriginal and treaty title for monetary

compensation to Indian tribes. Royce determined base on the 1805 treaty that the

northern boundary of the cession to the United States was the shore of Lake Erie, and not

the 420 2’ north latitude. The office of the State Auditor of Ohio also confirmed this, and

26

Thomas E. Ferguson, Ohio Lands: A Short History (Columbus, OH: Ohio Auditor of State, 1994), 27

American State Papers (1834), cl. 8, v. 1, 88. 28

Op. Cit., 7.

14

its map of the Connecticut Western Reserve clearly shows the eastern and western

boundaries ending at the Lake Erie shoreline.29

Cartographic evidence also supports the finding that the northern boundary of the

Connecticut Western Reserve was the southern shoreline of Lake Erie. The maps by Seth

Pease 1797 and William Summer 1826 show the northern boundary to be the Lake Erie

shoreline.30

And finally, Robert A. Wheeler states that the Western Reserve or New Connecticut

was “… bounded by Lake Erie on the north and the forty-first parallel on the south, ran

west from Pennsylvania border for 120 miles, to a point just west of Sandusky. …”31

Fact No. 2

The international boundary line separating Canada and the United States in Lake Erie

at the time of the Treaty of July 4, 1805, at Fort Industry, Ohio, was the middle of said

lake in accordance with the Treaty of Paris on September 3, 1783. North Bass Island, or

its northern half, was north of the international boundary making the island part of

Canada, and subject to the laws of Great Britain. The Indian cession of North Bass Island

at the Treaty of July 4, 1805 at Fort Industry on the Miami of Lake Erie was not valid.

Discussion

The Treaty of Paris of September 3, 1783 between the United States and Great Britain

set the international boundary between Canada and the United States in Lake Erie. The

boundary was set as “… into Lake Erie; through the middle of said lake until it arrives at

the Water Communication between that lake and Lake Huron; …” The middle of Lake

Erie was the boundary for the cession of lands known as the Connecticut Western

Reserve, Western Reserve, or New Connecticut negotiated between the Indian Nations

and the United States at the Treaty of July 4, 1805 at Fort Industry on the Miami of Lake

Erie. At the time of the treaty, North Bass Island, also known as Isle St. George, was

29

Royce, Indian Land Cessions …, 666 and Ferguson, Ohio Lands …, 6, 9 (map); C. E. Sherman, Original

Ohio Land Subdivisions, 4 vols., Ohio Cooperative Topographic Survey (Columbus, OH: Press of The

Ohio State Reformatory, 1925), v. 3, 81 pl. 16. 30

Robert A. Wheeler, ed., Visions of the Western Reserve: Public and Private Documents of Northeastern

Ohio, 1750-1860 (Columbus, OH: Ohio State University Press, 2000), 1. 31

Ibid., 3 (Fig, 2), 5 (Fig. 3).

15

north of the international boundary either in whole or part, and therefore not subject to

the cession of lands of the treaty.

The Treaty of Ghent in 1814 between the United States and Great Britain expressed a

doubt as to just where the middle of the Great Lakes, rivers and waterways were falling

within the international boundary set between the two nations at the Treaty of Paris in

1783. Maps of the United States after the Treaty of Paris in 1783 such as John Cary’s

1783 map and William McMurray’s 1784 map reflect the uncertainty of the boundary

situation. The boundary through Lake Erie, as depicted on these maps, shows the island

within this boundary zone.32

The first official state map of Ohio published in 1804 also

reflects this uncertainty with reference to islands close to the international boundary in

Lake Erie.33

Consequently, the two nations provided for a commission to meet and determine the

exact boundary in keeping with the intent of the 1783 treaty. The commission reported on

June 18, 1822, that:

… a line southerly and westerly along the middle of Lake Erie, in a direction to enter

the passage immediately south of Middle Island, being one of the easternmost of the

group of islands lying in the western part of the lake; thence along the passage,

proceeding north of Cunningham’s Island [later called Kelley’s Island], of the three

Bass Islands and of the West Sister, and to the south of the islands called the Hen and

Chickens, and of the East and Middle Sisters; thence to the middle of the mouth of

the Detroit River.34

Middle Island in Lake Erie, belonging to the United States, was traded to Great Britain

for North Bass Island then belonging to Canada after the 1822 boundary determination.35

This means that North Bass Island, at the time of the Treaty of July 4, 1805 between the

United States and the Indian Nations signatory to that treaty, was definitely not part of the

32

John Cary, An accurate map of the United States of America, with part of the surrounding provinces

agreeable to the Treaty of Peace of 1783, map division, Library of Congress, Washington, DC.; William

McMurray, The United States according to the definitive treaty of peace signed at Paris Sept. 3d. 1783,

map division, Library of Congress, Washington, DC. 33

Rufus Putnam, Map of the State of Ohio, 1804 (first official state map), Ohio Archaeological and

Historical Publications (Columbus, OH: Ohio Historical Society), v. 5. 34

Charles E. Frohman, Put-in-Bay, its History (Columbus, OH: The Ohio Historical Society, 1971), 1. 35

Charles E. Frohman, Sandusky’s Yesterdays (Columbus, OH: Ohio Historical Society, 1968), 40.

16

cession of lands. Additionally, vouchers for payment to the Connecticut Land Company

for the Bass Islands are found in Tuscarawas County, Ohio. They indicate that only South

and Middle Bass Islands and Sugar Island were sold by the company to investors. North

Bass Island was not sold because it was known to be part of Canada. Because there was

no history of title transactions by the Connecticut Land Company for North Bass Island,

it was settled by squatters.

The international boundary between Canada and the United States after 1822 was still

not an entirely satisfactory situation. Disputes over boundaries arose that needed to be

reconciled through subsequent treaties.36

In 1908, the International Waterways

Commission fixed a series of straight lines determining precisely the turning points with

reference to fixed objects such as lighthouses in its report of August 15, 1913.37

This was

further revised in 1980 for the boundary in Lake Erie following the geodetic parallel of

latitude instead of connecting segments and terminal turning points.38

THE OTTAWA OF THE MIAMI OF LAKE ERIE

The Ottawa Tribe of Oklahoma are descendants of the Ottawa of the Miami of Lake

Erie that resided in the Maumee Valley of Ohio from 1763 to 1839. There were several

bands located in the Maumee Valley at different locations. However, these bands can be

traced, with few exceptions, to those who followed the great war chief Pontiac and

Atawang who withdrew from Detroit in October of 1763 to Missionary Island and Roche

de Bout along the Maumee River.39

A brief description of the bands and reserves in the

Maumee Valley is provided.

36

James White, “Ashburton Treaty and Prior Negotiations,” The Empire Club of Canada Speeches 1909-

1910, ed. By J. Castell Hopkins (Toronto, Canada: The Empire Club of Canada, 1910), 276-286; Sir

George C. Gibbons, “The International Waterways Treaty,” The Empire Club of Canada Speeches 1910-

1911,ed. By J. Castell Hopkins (Toronto, Canada: The Empire Club of Canada, 1912), 241-252; General

A.G.L. McNaughton, “Boundary Waters between Canada and the United States,” The Empire Club of

Canada Speeches 1951-1952, (Toronto, Canada: The Empire Club of Canada, 1952), 121-136. 37

C. E. Sherman, Ohio Cooperative Topographic Survey, 4 vols. (Columbus, OH: Press of the Ohio State

Reformatory, 1925-1933), v. 4, 36-40. 38

Alec McEwen, “The Value of International Boundary Commissions: The Canadian/American

Experience,” paper presented by the Canadian International Boundary Commissioner at a conference on

International Boundary Management, IBRU, University of Durham, UK, September 2001, 5. 39

Tanner, The Location of Indian Tribes …, 341-343; Peckham, Pontiac and the Indian Uprising, 236,

243, 252, 299, 308; Brian L. Dunnigan, Frontier Metropolis: Picturing Early Detroit, 1701-1838 (Detroit,

MI: Wayne State University Press, 2001), 50; Henry C. Shetrone, “The Indian in Ohio: With a Map of the

Ohio Country,” Ohio Archaeological and Historical Society Publications, v. 27, no. 3 (July, 1918), 321.

17

The Maumee Band

The Maumee band occupied the 4, 6, and 34 miles square reserves on Maumee Bay.

Meskeman40

and Waugah’s villages were on the 4 miles square reserve located on the

north side of the Ottawa river where it empties into Maumee Bay. Ushcush and Ketuckee,

and their sons, were located on the 6 miles square reserve which partially overlapped the

4 miles square reserve. The principal village of the 34 miles square reserve, located on

the south side of the Maumee river at the bay, was that of Presque Isle led by Tushquagan

(McCarty). McCarty was an Ottawa from the Niagara Falls area of New York (on the

Canadian side) who came to the Maumee river about 1800. He married into the Maumee

band, and was made chief based on his leadership abilities. McCarty died at Presque Isle

in 1830 at about the age of 70. This band was highly mixed through intermarriage with

French-Canadian traders of Frenchtown (present-day Monroe, Michigan) and Chippewa

(Ojibwa).41

The Maumee band emigrated to Kansas Territory in 1837 and 1839. Wausaonoquet

led one group consisting of 174 Ottawas to Kansas Territory on August 31, 1837, and his

brother, Ottokee, led the last group of 108 Ottawas in July of 1839.42

The Roche de Boeuf and Wolf Rapids Bands

The Roche de Boeuf (also Roche de Bout meaning “rock on end” “standing rock”)

occupied the 6 miles square located upriver of the Maumee band on the north bank of the

40

Meskeman (Meskema or Meskemau) was the son of Nodowance who was the brother of Pontiac (not

the great war chief Pontiac) and cousin to Otussa who lived on the 34 miles square reserve. He was a

devoted British subject critical of American encroachment in the Ohio Valley. When he died about 1820 he

was buried with the British flag placed over his grave (Lyman S. Draper, “Material in Draper “S” on 18th-

and Early 19th

-Century Indians of the Old Northwest,” transc. By Erminie Wheeler-Voegelin, Ethnohistory,

v. 8, no. 3 (1961), 285 and John E. Hunt, The John Hunt Memoirs: Early Years of the Maumee Basin,

1812-1835, ed. By Richard J. Wright (Maumee, OH: Maumee Valley Historical Society, n.d.), 62-63. 41

Peter Navarre and his family lived south of and adjoining Autokee’s tract. Other notable inhabitants of

this reserve were Petau, Ottokee (Autokee), Notino, Waubee, Shawano, Joseph and Albert Le Cavalier dit

Ranjard, Lewis King, and John B. King. The Kings were mixed-blood interpreters for this band. Lewis

King was of French-Canadian and Chippewa parentage. During the War of 1812, Lewis King left the

Chippewa and settled among the Ottawa of the Maumee Bay area. Joseph Badger King [Back Log) was the

son of Lewis King born on Maumee Island [Ewing Island] near Toledo, Ohio, on May 16, 1823, and was

made a chief of the Ottawa Tribe of Oklahoma. 42

“Colonel J. J. Abort to James B. Gardiner, December 3, 1832, Columbus, Ohio,” in Letters Received by

the Office of Indian Affairs, 1824-1881, microcopy 234, Ohio Agency Emigration, 1831-1839 and Ohio

Agency Reserves, 1834-1843 (Washington, DC: National Archives, 1959), roll 603, frame 96; Grant

Foreman, The Last Trek of the Indians (Chicago, IL: The University of Chicago Press, 1946), 74.

18

Maumee river at a prominent rocky island from which the band received its name.43

Tontaganie’s village was opposite Tontogany Creek, Nawash’s village was on Indian

Island in the Maumee river, and Petonaquet’s village was on Station Island just above

present-day Waterville, Ohio.

The Wolf Rapids band, named after its leader Thomas Wolfe, occupied the 3 miles

square reserve that joined the 6 miles square reserve. Kinjoino’s village was at the head

of the rapids near present-day Providence, Ohio. This village was known as

Anpatonajowin meaning “half way” since the village was half the distance between

Detroit, Michigan and Fort Wayne, Indiana. These bands were more closely allied with

the Ottawas at Blanchard’s Fork and Oquanoxa’s village. Intermarriage between

members of these bands was common, and served to strengthen socio-political relations

between the two.44

These bands were given 40,000 acres of land adjoining the Ottawas of Blanchard’s

Fork and Oquanoxa’s village on the Marais de Cygnes river near Ottawa, Kansas, when

they were removed in 1832.

Blanchard’s Fork and Oquanoxa’s Village Band

The Ottawas of Blanchard’s Fork and Oquanoxa’s village were located in the upper

Maumee Valley along the Auglaize and Blanchard rivers of Ohio. The 5 miles square

reserve located near present-day Ottawa, Ohio, contained two villages known as “Upper

Tawa Town” and “Lower Tawa Town”. Oquanoxa’s45

village was on the 3 miles square

reserve located downriver from the 5 miles square reserve south of present-day Defiance,

Ohio. Ottawas of these bands, numbering 72, were the first Ottawas to be removed to

Kansas Territory in 1832.

43

Henry R. Schoolcraft, Travels in the Central Portion of the Mississippi Valley, originally printed 1825

(Millwood, NY: Kraus Reprint Co., 1975). 44

Thomas Wolfe (Wawishqua), a mixed-blood, married Nawatch, old Chief Oquanoxa’s niece, who

became known as Eliza Wolfe. Thomas Wolfe was made chief with Oquanoxa after this marriage. See

“Walter King, Sr., Bristow, Oklahoma to Rouse’s Bookhouse, Eaton Rapids, Michigan, December 13,

1960,” manuscript collection PA box 20 40, Ohio Historical Society, Columbus, Ohio. 45

Oquanoxa was a village chief of the settlement known as “Charloe” on the Auglaize river. He was

suspected of causing the death of Otussa, son of the great war chief Pontiac, by witchcraft and was deposed

as council chief for this. Otussa, who lived on the 34 miles square reserve at Presque Isle, died from

poisoning at age 60 in 1828 (see Wheeler-Voegelin, “Material in Draper “S”…”, 283 and Wright, The

Memoirs of John E. Hunt …, 64.

19

THE OTTAWA IN KANSAS TERRITORY

The Ottawa bands were removed from Ohio between 1832 and 1839 to west of the

Mississippi river in Kansas Territory.46

In 1862, the Ottawas of Kansas were induced to

send a delegation to Washington City where on June 24 of that year they made a treaty

with William P. Dole, Commissioner of Indian Affairs, providing, among other things,

that at the end of five years their tribal organization should be dissolved, and the

members of the tribe become United States citizens. This treaty provided also for setting

aside 20,000 acres of their land in Kansas to endow a school ostensibly for the tribe, to be

called Ottawa University, and to be administered by two whites and three Ottawas. The

remaining land of the tribe was to be allotted to its members with heads of families to

receive 160 acres, and others 80 acres each.47

The Treaty of February 23, 1867 between the U.S. and the Ottawa of Blanchard’s

Fork and Roche de Boeuf extended for more than two years the period when they were to

become United States citizens, and provided that in the meantime they could be made

citizens by the United States Court. This treaty also provided for the sale to the Ottawa of

part of the Shawnee reservation in the Indian Territory of Oklahoma. The Ottawas of

Kansas were subject to the same pressure that removed other tribes from Kansas to the

Indian Territory in Oklahoma; and soon after the end of the five-year probationary period

(July 25, 1867), when their lands became alienable, they sold their individual allotments

and, in 1868-1869, removed to the Indian Territory in Oklahoma near the Peoria

Confederacy.48

46

“Muster Roll of a Company of Ottoway Indians Emigrants from Ocquinoxcy Village & Blanchard’s

Fork, Ohio, and turned over to my Agency on the 3rd day of December 1832 by Col. J. J. Abert, Agent &

Superintendent of Ohio, Indians,” Letters Received by the Office of Indian Affairs 1824-1881, Ohio

Agency Emigration 1831-1839 and Ohio Agency Reserves 1834-1843, microcopy 234, roll 603 (1831-

1843), frame 0240, National Archives and Records Service, Washington, DC,1959; [Journal of Ottawa

Removal, 1839, by D. C. Forsyth], Letters Received by the Office of Indian Affairs, Michigan

Superintrendency, Record Group 75, microcopy 234, roll 427 (Michigan Superintendency Emigration,

1830-48, and Michigan Superintendency Reserves, 1837-48, National Archives Microfilm Publications,

Washington, DC, 1959; Chief Lewis H. Barlow, and Second Chief Charles Dawes, The Ottawa Indian

Tribe of Oklahoma: Past - Present - Future, a Comprehensive Planning Document - 1981 (Miami,

Oklahoma: Ottawa Tribal Office, 1981), 18-19. 47

Foreman, The Last Trek of the Indians, 192; The Public Statutes at Large (1848), v. 12, 1237. 48

Foreman, The Last Trek of the Indians, 192.