Wondering ‘61

 

In 1972-3 I was privileged to serve as one of two law clerks to the late Honorable Philip Neville, Judge of U.S. District Court. During that time, he decided Izaak Walton League v. Saint Clair, et al, 3 ELR 20196, 1973, 497 F. 2nd 849 (8th Cir. 1974), 353 F.Supp. 698 (D. Minn. 1973). [The citations here are typical for legal briefs, but anyone may search for them and can read the decisions themselves.]

After failing to get the federal government to buy them out, the St. Clair defendants moved drilling and testing equipment to their claimed areas in the Boundary Waters Canoe Area (“BWCA”). “Mr. St. Clair has all the appearance of a poker player dabbling with the pot to see how large the payoff can be coaxed,” wrote columnist Jim Klobuchar, Ely native and father of now-Senator Amy Klobuchar. “It could well be that the government will have to make some out-of-court settlement.” Fearing desecration of that wilderness, the League sued to prevent the drilling and mining. The State of Minnesota joined the suit as an additional plaintiff and later sought to add claims of fraud by the St. Clair defendants’ predecessors in title.

 

The state argued that the land titles were obtained by defrauding the federal government as entrymen under the Homestead and Timber and Stone (1878) Acts. Most folks know about the Homestead Act of 1862. Describing the Timber & Stone Act, Wikipedia says, “Land that was deemed “unfit for farming” was sold to those who might want to log {‘timber’) and mine (‘stone’) the land. The act was used by speculators who were able to get great expanses declared «unfit for farming» allowing them to increase their land holdings at minimal expense.”

While denying the state’s motion to amend because of delay, 55 F.R.D. 139, Judge Neville recounted the history of what was essentially unrefuted evidence of fraudulent obtaining of homestead and timber and stone act land by people selling immediately to mining and timber interests. He wrote, in part,

“The facts are essentially as follows: The lands in the BWCA were originally removed from the public domain in the latter part of the 19th Century under provisions of various Federal statutes which were intended for the most part to put settlers on the land. All of those statutes … required residence for a period of time upon and improvement to the land, limited the number of entries any one individual could make and/or contained other restrictions aimed at preventing land speculation.”

“The lands now in the BWCA were under the jurisdiction of the Federal Land Office in Duluth, Minnesota and apparently were the subject of repeated mineral speculation ‘booms’ in the last quarter of the 19th Century…. [A] system involving land brokers and false entries by hired or ‘dummy’ entrymen pervaded the acquisition of public lands in the Duluth district in the period from the year 1885 through at least 1900. The exhibits include reports by various officials of the General Land Office in Washington, D.C. which contain statements concerning wholesale fraud in and on the Duluth office (which include the whole Arrowhead). … “

“Although occasional … attempts by the United States to annul fraudulently obtained patents were successful, most patents have gone unchallenged to the present day. [Note: some of the court opinions said that some possible remedies for the fraud, besides annulment, had not been sought or decided.] Eventually and perhaps as a result of the widespread fraud, hundreds of thousands of acres were withdrawn from entry by the United States and later formed the nucleus of the Superior National Forest, within which lies the BWCA.”

The judge further said, ”… Receiver Presnell in the Duluth land office acted as attorney for others in procuring fraudulent land entries; that in 1894, special agent LeSuer, on an eight-day trip in the Ely area saw no man in 150 miles of travel despite seeing many shanties; that in his opinion only one entry in 1,000 was good; that Segog Brothers, land dealers in Duluth, ultimately held a large number of titles to or mortgages on land and were incorporators in 1914 of Michigaumi Iron Company, one of the defendants in the case at bar; that United States Census figures for the year 1890 show far less population than the number of land office entries; that alleged homestead entries were transferred on an average within 1.2 months of date of proof.”

Based upon state records, in 2019 Sheila McCoy wrote in the Morrison County Record, “It was common knowledge in Duluth in the 1890s, … that persons would take an ordinary wooden dry-goods box and make it resemble a small house with doors, windows and a shingled roof. …. Some took advantage of the fact that the Homestead Act didn’t specify a minimum size of the house that needed to be built. Some even hired dummies to play the role of a real settler. …. ‘Instead of improving a homestead claim by putting up a full-size house, such a man might build a miniature cabin measuring 12-by-14-inches,’ the records state.”

It has been reliably reported that many of the nominal, “dummy,” entrymen were poor men and/ or drunks from Duluth bars. From the map with this column, it appears that most of the mineral rights titles involved in the suit were in Cook and Lake Counties. I know nothing about the entrymen for the historic families in Cook County.

If this interests anyone more, I may be able to add some colorful detail in another column. Or you can search for Flashback: A New Yorker tried to mine copper inside the Boundary Waters | Quetico Superior Wilderness News for a 2020/21 article relating that case to today’s mining issues. It notes that another of my former bosses, the late Congressman Donald Fraser, carried the 1978 bill that protected the BWCA. That advocacy probably cost him a Senate seat that year, but we are grateful for his work.

Or you can read the cited full court opinions if you are a touch masochistic. I would have to send you the Federal Rules Decision that recounts the fraud. I could not get it to come up by searching the citation. Or you can try Lexus at the County law library computer in the hallway at Cook County Courthouse.

It appears that the Ojibwe were defrauded by Uncle Sam who was then defrauded by some of his citizens. Who knows? Maybe this piece of our history will have some useful impact on the present controversies over mining projects in the BWCA or the Lake Superior watersheds.

Steve Aldrich is a retired Hennepin County lawyer, mediator, and Judge, serving from 1997-2010. He and his wife moved here in 2016. He likes to remember that he was a Minnesota Super Lawyer before being elected to the bench. Now he is among the most vulnerable to viruses. Steve really enjoys doing weddings, the one thing a retired judge can do without appointment by the Chief Justice. He writes this column to learn more about his new home area and to share his learnings with others—and to indulge his curiosities.

Copyright Stephen C. Aldrich and News Herald, 2022