State v. Elliott

Annotate this Case
  NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
  as well as formal revision before publication in the Vermont Reports.
  Readers are requested to notify the Reporter of Decisions, Vermont Supreme
  Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
  that corrections may be made before this opinion goes to press.


                                  No. 90-512



  State of Vermont                             Supreme Court

       v.                                      On Appeal from
                                               District Court of Vermont,
  Raleigh Elliott, et al.                      Unit No. 2, Franklin Circuit

                                               October Term, 1991


  Joseph J. Wolchik, J.


  Jeffrey L. Amestoy, Attorney General, William E. Griffin, Chief Assistant
    Attorney General, and Susan R. Harritt, Assistant Attorney General,
    Montpelier, for plaintiff-appellant

  Gabor Rona of Rubin, Rona, Kidney & Myer, Barre, and Neil Mickenberg of
    Mickenberg, Dunn, Sirotkin & Dorsch, Burlington, for defendants-appellees



  PRESENT:  Allen, C.J., Gibson and Morse, JJ., and Barney, C.J. (Ret.) and
            Peck, J., (Ret.), Specially Assigned



       MORSE, J.   Defendants are individuals in a group of thirty-six people
  who were charged with fishing without a license under 10 V.S.A. {{ 4251(a),
  4266.  The cases arose primarily from an October 18, 1987 "fish-in"
  demonstration and were consolidated for trial.  Before trial, defendants
  moved to dismiss based on  the doctrine of "aboriginal rights."   They
  claimed the doctrine prohibited the prosecution of Native Americans if they
  were members of a currently viable Indian tribe which had from "time
  immemorial" continuously occupied the land where the offenses occurred.
  According to defendants, because they held "aboriginal title" to the land,
  they were not subject to state regulation for fishing without a 
  license. (FN1)
       The trial court agreed and dismissed the charges against most of the
  defendants because they were members of the Missisquoi Tribe, a subpart of
  the Western Abenaki Tribe whose aboriginal title had not been extinguished.
  The State took an interlocutory appeal, arguing that the Abenakis (as we
  shall refer to them for purposes of this opinion) are no longer a tribe,
  and, even if they are, any aboriginal title to the land was extinguished by
  governmental action long ago.  We agree that aboriginal rights were
  extinguished and, accordingly, reverse.
                                      I.
       "Aboriginal title" gives members of a viable Native American (FN2) tribe 
  a right of occupancy to lands that is protected against claims by anyone else
  unless the tribe abandons the lands or the sovereign extinguishes the right.
  United States v. Santa Fe Pacific R.R., 314 U.S. 339, 345-47 (1941).  The
  right arises from a tribe's occupation of a definable, ancestral homeland
  before the onset of European colonization.  The occupation must have been
  exclusive of the occupation by other tribes.  Santa Fe, 314 U.S.  at 345.
  The validity of aboriginal title is not dependent on treaty, statute, or
  other formal governmental recognition,  Cramer v. United States, 261 U.S. 219, 229 (1923), but a group making a claim under the doctrine must present
  sufficient proof that they have constituted a tribe throughout relevant
  history and have never voluntarily abandoned their tribal status.  Mashpee
  Tribe v. New Seabury Corp., 592 F.2d 575, 586-587 (1st Cir. 1979).
       This property concept flowed from the "doctrine of discovery," which in
  turn, derived from natural law.  See F. Cohen, Handbook of Federal Indian
  Law 486 n.128 (1982).  The discovery doctrine was recognized by European
  countries during the colonization of North America.  During the territorial
  expansion of the sixteenth, seventeenth, and eighteenth centuries, European
  governments reconciled their claims to newly acquired lands with claims of
  other European governments and the aboriginals who were already occupying
  the lands.  Id. at 486-87.  As a result of these compromises, it was
  generally understood that a discovering nation  -- the European government
  whose arrival was first in time -- held title to lands "subject to the
  Indians' right of occupancy and use."  Id.; County of Oneida v. Oneida
  Indian Nation of New York, 470 U.S. 226, 234 (1985) [Oneida II]; see also
  Norgren, Protection of What Rights They Have: Original Principles of Federal
  Indian Law, 64 N.D.L. Rev. 73, 75-87 (1988).  Hence, the phrase "aboriginal
  title" or "Indian title" describes the ownership interest retained by Native
  Americans in lands which European nations appropriated.  Id. at 75-78.
       The United States Supreme Court adopted the doctrine in Johnson v.
  McIntosh, 21 U.S. (8 Wheat) 543, 592 (1823).  In that case and later, the
  Court applied the doctrine by "assigning dual, or split, property rights to
  the discoverer nation on the one hand, and Indian nations on the other."
  Norgren, supra at 85.  As caselaw developed, it became clear that
  discovering nations did not hold fee simple absolute because their interest
  was encumbered by the occupancy rights held by Native Americans.  Mitchel v.
  United States, 34 U.S. (9 Pet.) 711, 758 (1835).  The interest that the
  discovering nation did hold, however, significantly impaired the rights of
  the original inhabitants because the discoverer had the "'exclusive right .
  . . to appropriate the lands occupied by the Indians,'" Norgren, supra, at
  90 (quoting Johnson, 21 U.S. at 584), and could terminate aboriginal rights
  at any time.  Santa Fe, 314 U.S.  at 347.
       Although the doctrine of aboriginal rights is long standing, Oneida II,
  470 U.S.  at 234, the nature of the various interests in aboriginal lands
  has not been easily defined or applied.  A sovereign's transfer of such land
  is subject to continuing Indian rights of occupancy and use, until those
  underlying rights are extinguished.  Cohen, supra, at 489.  The interest
  transferred is termed the "naked fee."  Id.  Absolute ownership does not
  vest until Indian title is extinguished, a phenomenon that cannot occur
  without the act or consent of the sovereign.  Id. at 487.  Therefore, where
  the terms of a land grant do not rise to the level of extinguishment, or
  where there has been no action by the sovereign demonstrating an intent to
  extinguish, the grant of land conveys only an inchoate interest in the
  land.  United States v. Cook, 86 U.S. (19 Wall) 591, 594 (1873)
  (analogizing Indian title to the interest held by a tenant for life, stating
  that "[w]hat a tenant for life may do upon the lands of a remainderman the
  Indians may do upon their reservations, but no more").


                                      II.
       Indian title may be abolished, or "extinguished," causing the Native
  Americans to lose their right of occupancy and use, and vesting fee simple
  absolute in either the sovereign or a third party.  Johnson, 21 U.S.  at 592.
  Extinguishment differs from a transfer of the naked fee, because when the
  former occurs, no rights are left in the Indians.  Extinguishment may be
  accomplished "by treaty, by the sword, by purchase, by the exercise of
  complete dominion adverse to the right of occupancy, or otherwise."  Santa
  Fe, 314 U.S.  at 347.
       Even though aboriginal title has been deemed "as sacred as the fee
  simple of the whites," Mitchel, 34 U.S. (9 Pet.) 711, 746 (1835), it may
  nevertheless be taken without compensation.  Tee-Hit-Ton Indians v. United
  States, 348 U.S. 272, 279 (1955).  The federal policy is that
  extinguishment occur through negotiation rather than by force, but an
  extinguishment by force is valid.  See United Sates v. Gemmill, 535 F.2d 1145, 1148 (9th Cir. 1976) (extinguishment need not be accomplished by
  treaty or voluntary cession because the "relevant question is whether the
  governmental action was intended to be a revocation of Indian occupancy
  rights, not whether the revocation was effected by permissible means").  The
  manner, time, and conditions of extinguishment are determined by the
  sovereign.   Buttz v. Northern Pacific R.R., 119 U.S. 55, 66 (1886).
  Extinguishment is irrevocable; once it takes place, Indian title cannot be
  revived. (FN3)
       Before the American Revolution, Great Britain held the power to
  extinguish aboriginal rights in in the colonies.  Oneida Indian Nation of
  New York v. State of New York, 860 F.2d 1145, 1150 (2nd Cir. 1988) [Oneida
  III].  The right to extinguish may pass to succeeding sovereigns, and with
  the adoption of the federal constitution, the right to extinguish became the
  exclusive right of the federal government.  Santa Fe, 314 U.S.  at 347.
  Sovereign intent to extinguish need not be express, but there must be
  evidence that demonstrates a "plain and unambiguous" intent to extinguish
  exclusive aboriginal rights.  Oneida II, 470 U.S.  at 248.  Because of the
  federal policy to respect Indian rights of occupancy, the intent to
  extinguish Indian title will not be "'lightly implied.'"  Id. at 247-48
  (quoting Santa Fe, 314 U.S. at 346).
       A historical event, although insufficient by itself to establish an
  extinguishment, may contribute to a finding of extinguishment when analyzed
  together with other events.  Gemmill, 535 F.2d  at 1148 (ambiguity in single
  act of federal government is not fatal to claim of extinguishment when
  series of subsequent acts resolves ambiguity to demonstrate extinguishment);
  United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1391-92 (Ct. Cl.
  1975) (inclusion of aboriginal lands in forest reserve and federal grazing
  district, as well as conveyances made to various grantees at different
  times, was evidence supporting a finding of extinguishment of Indian title).
       Moreover, a century-long course of conduct may demonstrate
  extinguishment, even though the exact date on which Indian title is
  extinguished is difficult to determine.  Gemmill, 535 F.2d  at 1149; see
  also Ildefonso, 513 F.2d  at 1390 ("there are no fine spun or precise
  formulas for determining the end of aboriginal ownership").
       As seen from our discussion so far, the doctrine of Indian title and
  its extinguishment lacks precision in delineating between competing
  interests.  See Norgren, supra, at 85, 90 (describing the Supreme Court's
  "lexicon of tribal property rights" both as political "brilliant
  compromise" and as "judicial mythology" which rationalized the origin of
  land titles in the United States).  Although the doctrine has not been
  applied in a cohesive manner, "every court considering the doctrine of
  discovery reaffirmed its basic tenets."  Newton, At the Whim of the
  Sovereign: Aboriginal Title Reconsidered, Hastings L. J. 1215, 1226 (1980).
  The essential test requiring sovereign consent to extinguish aboriginal
  rights has remained intact since its adoption in Johnson.  In our analysis,
  we endeavor to apply these principles.
                                     III.
       During lengthy hearings at the trial level, defendants offered expert
  testimony on the origins, duration, and quality of Abenaki presence in the
  "Missisquoi" area, and on the nature and continuity of tribal status from
  the beginning of Abenaki presence to date.  The State countered that the
  defendants offered insufficient proof of uninterrupted tribal existence and
  that, if tribal status did trigger aboriginal rights to the land, those
  rights had been extinguished.
       The court was presented with voluminous evidence on the contested
  issues, and although we disagree with it on the points of law, the court's
  findings and conclusions are indicative of an exhaustive effort to reach
  just results in this case.  In extensive and meticulous findings, the court
  described the settlement of Abenakis in northwest Vermont in 9,300 B.C. and
  occupation of the area as an intact tribe from that date to the present.
  The court based its findings of tribalness on evidence of Abenaki culture,
  governance, and familial tradition.  According to the court, genealogical,
  ethnological, and archeological evidence proved uninterrupted tribal
  presence and ethnic continuity.  The court also concluded that the State
            failed to prove by the preponderance of the evidence
            that the Missisquoi abandoned or ceded their Missisquoi
            homeland or that their aboriginal rights were extin-
            guished by either an express act or an act clearly and
            unambiguously implying any sovereign's intent to extin-
            guish those rights.  Accordingly, the Missisquoi's
            aboriginal right to fish in their Missisquoi homeland
            continues to exist today.

         We do not decide whether the trial court ruled correctly on the issue
  of tribal status and assume for the purposes of this case that defendants
  are members of a bona fide tribe of Native Americans.  We conclude, however,
  that a series of historical events, beginning with the Wentworth Grants of
  1763, and ending with Vermont's admission to the Union in 1791, extinguished
  the aboriginal rights claimed here.
                                      IV.
       In deciding the issue of extinguishment, we first place the pertinent
  historical facts in context.  Although historical scholarship may be based
  on conflicting interpretations of recorded history, we briefly recite the
  political backdrop against which European settlement was set, in order to
  put into perspective the events leading to the extinguishment of the
  Abenakis' aboriginal rights to the land at issue.
                                      A.
       The area covering what is now the states of New York, New Hampshire,
  and Vermont was colonized in the seventeenth century by European settlers.
  The English had full control of the New York area by 1669.   New Hampshire
  was also colonized by the English, and was officially under British rule as
  a royal province by 1679.  After the American Revolution, the New York and
  New Hampshire colonies (also known as provinces) were admitted as two of the
  thirteen original states in 1788.
       The Abenaki occupied what is now northwestern Vermont long before
  white presence began in the area in 1609 with the arrival of Samuel de
  Champlain.  See 1 W. Crockett, Vermont: the Green Mountain State 31-32
  (1921);  see also generally, S. Morison, Samuel de Champlain, Father of New
  France 89-122 (1972). In 1724, Dutch settlers established a community in
  southern Vermont.  After the British won the French and Indian War (1754-
  63), the land was opened for further European settlement.  When the
  American Revolution began in 1775, approximately 20,000 people lived in
  what is now the State of Vermont.
                                      B.
       As provinces, New York and New Hampshire were administered on behalf of
  the Crown by royal governors authorized to grant, "for and in the name of
  the King, any unchartered lands in [their] province."  H. Hall, Early
  History of Vermont 8 (1868).  The Crown, however, retained full control
  over boundaries, and could enlarge or contract them at will.  Id.  The first
  significant historical event relevant to extinguishment of Abenaki abor-
  iginal title was the royal grant of lands to European settlers in the area
  claimed by the Abenakis in this case.  On August 17, 1763, Royal Governor
  Benning Wentworth of New Hampshire made land grants in the areas now known
  as St. Albans, Highgate and Swanton.  Continued ownership was conditional:
  without actual settlement and cultivation of the lands, title would revert
  to the British Crown. (FN4)
       During this period, the Crown attempted to maintain peaceful relations
  with the Indians by issuing a number of orders in the early 1760's designed
  to avoid conflicts over land between Indians and Europeans.  For example, in
  1761, the Crown released a "Royal Instruction" to the colonial governors
  prohibiting them from making grants of land occupied by Indians without
  specific authority from the Crown, and requiring European settlers to remove
  themselves from territories not properly obtained. (FN5) In 1763, the Crown
  issued a "Royal Proclamation," once again forbidding colonial settlement on
  Indian-occupied lands and ordering settlers occupying Indian lands to
  abandon the properties. (FN6)
       The Crown was also faced with conflicting land claims among the
  settlers.  New York Governor Cadwallader Colden attempted to grant land that
  had already been granted by the New Hampshire Governor, claiming that
  Governor Wentworth had no authority to grant lands in the Province of New
  York. (FN7) In 1764, the Crown responded to these disputes between the New
  Hampshire and New York governors by issuing a "Privy Council Order."  This
  order stated that the Connecticut River was the mutual boundary between New
  York and New Hampshire, thereby clarifying each authority's respective
  jurisdiction and putting the Wentworth grants in the territory of New York.
  Ownership quarrels continued, however, and in 1767 the Wentworth grantees
  petitioned the Crown to halt the regranting of their lands by the New York
  Governor so that their patents could be "ratified and confirmed."  4
  Documentary History of the State of New York 375-76 (E.B. O'Callaghan ed.
  1851).  In response, the Crown forbade New York to issue grants "whatever of
  any Part of the Lands described in the said Report, until his Majesty's
  further Pleasure shall be known concerning the same."  Id. at 376.  The
  Crown, however, stayed out of the dispute after issuing this order.
        Conflict between New Hampshire claimants and New York authorities
  persisted.  In 1769, the royal government of New York initiated the first in
  a series of ejectment suits in an attempt to remove the New Hampshire
  grantees from the land granted by New York.  V. Orton, Personal Observations
  on the Republic of Vermont 45 (1977).  The New Hampshire grantees
  subsequently revolted against the New York authorities, and in the years
  between 1770 and 1775 settlers formed a militia called the "Green Mountain
  Boys."  Led by Ethan Allen, this group of claimants repulsed the "Yorkers"
  who tried to attain lands in Vermont.  The rebellion prompted the decision
  to establish an independent government for the New Hampshire Grantees.  C.
  Williamson, Vermont in Quandary: 1763-1825 7-23 (1949);  see also Vermont v.
  New Hampshire, 289 U.S. 593, 607 (1933) (finding of special master that
  attempts by New York authorities to interfere with holdings of New Hampshire
  grantees "led to protest and forcible resistance which assumed the
  proportions of a revolutionary movement").
       Consequently, in January 1777, Vermont declared its independence as a
  "Republic."  By this declaration, Vermont rejected all governing authority
  except its own.  The preamble to the document in which Vermont announced its
  autonomy from New York and British rule, as well as that of the rest of the
  world, asserted Vermont's dominion over the lands granted by Governor
  Wentworth:
            And whereas, the territory which now comprehends the
            State of Vermont, did antecedently, of right, belong to
            the government of New Hampshire; and the former Governor
            thereof, viz. his excellency Benning Wentworth, Esq.,
            granted many charters of lands and corporations, within
            this State, to the present inhabitants and others.
  Vt. Const., preamble.  (1777).
       The New Hampshire grantees, now Vermonters, defied any authority that
  threatened their ownership rights to land in the Republic of Vermont.
  Ethan Allen's statement to invaders holding "re-granted" New York title to
  land claimed by the New Hampshire grantees expressed absolute and
  unyielding defiance.  After expelling intruders from New York with the
  assistance of 300 members of the Green Mountain Boys, Allen challenged the
  intruders to "[g]o . . . and complain to that damned scoundrel your
  Governor.  God damn your Governor, Laws, King, Council, and Assembly."  C.
  Morrissey, Vermont: a Bicentennial History 83 (1981).
       Before Vermont's admission to the union as the fourteenth state,
  statements made on behalf of the self-proclaimed "Republic" and the federal
  Congress shed light on the understanding held by both Vermont and Congress
  as to who had rights to the territory of Vermont.  In 1781, during
  negotiations for admission to the union, Vermont was called upon to clarify
  in writing the status of the Wentworth Grants in order to confirm fulfill-
  ment of the settlement conditions.  A committee of Congress submitted
  questions to the Vermont delegates, who explained that none of the grants
  had been forfeited due to nonsettlement, and that, although settlement had
  not been completed, they intended to fulfill all the conditions. (FN8) Hence,
  the early Vermonters took steps to confirm their entitlement by ensuring
  fulfillment of the Wentworth conditions.
       Vermont's constitution established a single governing body called the
  "General Assembly" with "exclusive and supreme legislative powers."  P.
  Merrill, Vermont Under Four Flags: A History of the Green Mountain State
  1635-1975, 21 (1975).  In 1783, pursuant to this legislative authority,
  Vermont set a timetable for settlement previously hindered by the American
  Revolution.  The Legislature provided that May 1, 1784, would be the "lawful
  Time to begin settlement of New Lands."  Act Declaring Time When to Begin
  Settlement (1783).
       Finally, during the admission negotiations, Congress obliged the
  Vermont authorities to relinquish only those claims covering territory that
  is now New Hampshire, as opposed to any lands granted by Wentworth in what
  is now Vermont.  Congressional Res. (Aug. 20-21, 1781) ("it [shall] be an
  indispensable preliminary to the recognition of the independence of the
  people inhabiting the territory called Vermont, and their admission into the
  federal union, that they explicitly relinquish all demands of lands or
  jurisdiction on the east side of the west bank of the Connecticut River").
  Congressional resolutions recognized that Vermont's northern boundary
  extended to the forty-fifth degree of northern latitude.  Vermont v. New
  Hampshire, 289 U.S.  at 610-11.  During the last decade of the 1700's, as an
  additional requirement to federal admission, Vermont paid New York $30,000
  "for the relinquishment of all claims of sovereignty by New York, and for
  the confirmation of the New Hampshire township grants."  Id. at 611.  In
  1791, Congress admitted Vermont to the Union on the basis of these boundary
  delineations.  Act Admitting Vermont into the Union (1791);  see also
  Vermont v. New Hampshire, 289 U.S.  at 613 (delineation of boundary between
  Vermont and New Hampshire clarified by construing resolution of Congress
  under which Vermont was admitted to statehood).
                                      V.
        The trial court examined the events leading to Vermont's statehood and
  concluded that no single event constituted express or implied termination of
  aboriginal rights.  The court declined to decide whether the grants were
  within Wentworth's geographical jurisdiction, but stated that the New
  Hampshire Grants were beyond Governor Wentworth's authority as delimited by
  the Crown's policy to protect the rights of Native Americans.  The court
  cited the Royal Instructions, Proclamations, and other historical evidence
  in finding that the Grants, being inconsistent with the aboriginal right of
  occupancy, were either invalid, or, in the alternative, conveyed only the
  "naked fee". The court also stated that Vermont's 1777 Constitution and
  subsequent admission to the Union did not accomplish an extinguishment of
  aboriginal rights.  As a result, according to the trial court, the State
  failed to satisfy its burden of showing, by a preponderance of the evidence,
  a "clear and unambiguous intent to extinguish" aboriginal rights.  For the
  reasons that follow, we disagree.
                                      A.
       We differ with the trial court principally in its application of the
  test for extinguishment to discrete events in Vermont's history, rather than
  to the cumulative effect of many historical events.  The legal standard does
  not require that extinguishment spring full blown from a single telling
  event.  Extinguishment may be established by the increasing weight of
  history.
       Governor Wentworth's grants of the lands at issue may not have been
  authorized by the Crown, but any ultra vires exercise of power by him does
  not detract from the vast political changes it inspired.  These grants
  triggered the emergence of Vermont for a short time in history as an entity
  separate from the authority of Great Britain and its provinces of New
  Hampshire and New York, or any other government.  A drastic realignment of
  jurisdictional boundaries was induced by Wentworth's Grants.  Appreciation
  of the various authorities' conduct toward the area that is now the State of
  Vermont is critical to our determination that intent to extinguish became
  unquestionable.  The Crown's sanctioning of European dominion over the area,
  the zeal with which the founders of the "Republic" of Vermont protected the
  New Hampshire Grants, and the negotiations with Congress in anticipation of
  Vermont joining the Union remove any doubt that extinguishment of Abenaki
  aboriginal title was complete by 1791, when Vermont became the fourteenth
  state.
                                     1.
       Defendants rely on the court's finding that the grants were invalid
  because they violated the Crown's Native American policy, and contend that
  the New Hampshire Governor had no jurisdiction to grant lands in what was
  then the Province of New York.  While the Crown may have declared the grants
  invalid based on a lack of jurisdictional authority in this particular
  governor, the sovereign's intent to allow British appropriation of the area
  was not in question.  Despite earlier royal statements, the Crown's conduct
  sanctioned European appropriation.  Indeed, the Crown was given opportuni-
  ties to prevent European settlement to preserve aboriginal rights during
  disputes between New York and New Hampshire over the Wentworth Grants.
  Instead, the Crown maintained the status quo, advancing the interests of
  European settlement in contravention of its earlier policy statements about
  preserving Indian occupation.
       The Crown's Privy Council Order of 1764 stated that the boundary
  between New York and New Hampshire was the eastern bank of the Connecticut
  River.  Vermont v. New Hampshire, 289 U.S.  at 596.  Historians interpret
  this as reflecting the Crown's intent to protect the interest of the New
  York authorities in the land.  H. Hall, Geography and History of Vermont 106
  (1871). The Crown's mandate giving New York jurisdiction over the grants
  prompted New York to require the inhabitants to repurchase the land, or
  risk the prospect of removal by New York authorities.  Id.  Ironically,
  when the Wentworth grantees complained that New York authorities were
  wrongly attempting to remove them, the Crown responded in 1767 by ordering
  New York to halt making grants.
       Both the 1764 and the 1767 Royal Orders manifest an intention to pacify
  the two British jurisdictions, not protect Native Americans.  The Royal
  Instruction of 1761 and the Royal Proclamation of 1763 proved to be paper
  tigers.  New Hampshire Grantees were not dispossessed of the land or removed
  at the Crown's direction because Wentworth may have exceeded his
  prerogatives in conveying land occupied by Native Americans.  After 1763,
  the Crown did not retract any authority to make grants in order to protect
  the aboriginal occupants in this area, but instead merely attempted, as the
  trial court stated, to end the two provinces' dispute over who had
  jurisdiction.  See The New Hampshire Grants vii (A. Batchellor ed. 1895).
       The question was whether New York or the New Hampshire Grantees had
  the right to assert dominion over the lands, not whether dominion over the
  land could be asserted at all by any European settlers.  The necessary and
  inevitable outcome of the Crown's position would still be that Europeans
  would appropriate the area, especially since settlement of the lands was a
  British goal during this time.  Orton, supra, at 35.  These events are
  evidence of increasing European dominion adverse to the use and occupation
  of the Indians, to which the Crown impliedly consented.
       We agree with defendants that non-Indian, or "white," encroachment
  causing Indian withdrawal is not, in itself, effective to extinguish
  aboriginal rights.  See Ildefonso, 513 F.2d  at 1389 ("bare expectation" of
  white settlement does not amount to an intent to extinguish).  We do,
  however, include the phenomenon of white settlement in our analysis as
  evidence of an intent to extinguish by the assertion of dominion over the
  area.  This is because "[m]aking lands available for white settlement . . .
  in an appropriate factual context, constitute[s] termination of aboriginal
  ownership." Id.; see also Gila River Pima-Maricopa Indian Community v.
  United States, 494 F.2d 1386, 1391 (Ct. Cl. 1974) (authorized white
  settlement is one factor in determining when Indian title ceased and "'in an
  appropriate factual context' the opening up of an area for settlement can be
  tantamount to the ending of aboriginal title over the whole region").  Here,
  there was much more than "expectation."  There was actual settlement and
  appropriation to the exclusion of other competing claims, and ratification
  by Congress when it admitted Vermont to the Union.  Defendant's claims that
  the Abenakis never voluntarily abandoned the area and that they were never
  completely removed have no effect on a finding of an intent to assert
  complete control over the area in a manner adverse to the Abenakis. (FN9)


                                      2.
        We also disagree with the trial court's assessment of Vermont's 1777
  Constitution and the events that led to it.  The court did not analyze the
  period of Vermont's independence as a part of the continuum leading to
  extinguishment.   Instead, the court discarded this history as merely an
  expression of the "naked fee" doctrine, stating that even if the Wentworth
  Grants were valid, they were made subject to Native American occupancy
  rights:
            Although it is true that the Vermont Constitution
            recognizes the Wentworth Grants as a valid basis for
            land claims in Vermont, this in itself, does not
            accomplish extinguishment.  The Wentworth Grants were
            made subject to aboriginal title and . .  .  there is
            nothing to indicate that Vermont's reaffirmation of
            these grants abrogated [Indian] rights.  (Emphasis
            added.)

       Without deciding whether Vermont legitimately achieved sovereignty, see
  J. Sweeney, C. Oliver and N. Leech, The International Legal System 851-929
  (1988), we believe that the period from 1777 to 1791 provides continuity in
  the long standing appropriation of the area that had been granted by
  Wentworth.  See Vt. Const., preamble (1777).  More importantly, the New
  Hampshire grantees' representations to Congress characterized the Wentworth
  Grants as though they had been granted by legitimate means by Wentworth in
  1763.  See Records of the Governor and Council, supra, at 318-19.
       Appellees also argue that the area in dispute was not within Vermont's
  boundaries, even if the state was a sovereign entity.  They claim that the
  northern boundary of the Vermont Republic extended only as far as "what is
  now central Vermont."  Vermont's boundary extended to the latitude of forty-
  five degrees north -- the current northern boundary.  Vermont v. New
  Hampshire, 289 U.S.  at 610.  Congress therefore understood and intended the
  cession of Missisquoi territory, the final event resulting in the
  extinguishment of aboriginal rights.
        We are cognizant of the federal decisions holding that a grant not
  rising to the level of an extinguishment conveys the naked fee only, thereby
  preserving aboriginal occupancy rights.  See, e.g., Fletcher v. Peck, 10
  U.S. (6 Cranch) 87, 142-43 (1810).  Nevertheless, the trial court's
  conclusion that the Grants were insufficient to convey more than the naked
  fee, and that therefore, later events could not produce an extinguishment,
  is contrary to our view of the law as it applies to these facts.  See, e.g.,
  Santa Fe, 314 U.S.  at 357-58 (grant made to Atlantic &  Pacific Railroad
  Company conveyed the naked fee only, but later events clearly brought about
  an extinguishment because in this "historical setting," it could not be
  fairly implied that tribal rights were preserved).
       The trial court failed to appreciate adequately the import of these
  particular land grants.  More than mere ownership of the lands was at stake;
  these conveyances expressly required an assertion of dominion.  The
  requirement that settlement and cultivation commence and continue in order
  to avoid forfeiture directly undermined competing aboriginal rights to the
  land.    The land grants' contingencies were inimical to the right of use by
  anyone else.  The New Hampshire grantees ardently relied upon their rights
  to the land by virtue of the grants, and their assertion of dominion over
  the area inspired Vermont's revolt against New York and its stance as an
  independent republic.  See State v. Kirchoff, 156 Vt. 1, 17, 587 A.2d 988,
  998 (1991) (Springer, D.J., Specially Assigned, concurring) (purpose of
  1777 Vermont Constitution was to make clear that the claims of New York were
  invalid, therefore "[p]rotection of citizens' rights to security in their
  land was a key motivating force in creating" that document).  In short, the
  relevant focus is on what Vermonters intended to do with the land, not what
  hindsight discloses Governor Wentworth was authorized to do with it.
       An examination of what transpired when Vermont was admitted to the
  union further contradicts the notion that merely the naked fee was at stake.
  The 1791 Congress' understanding of the land disputes is clear from the
  preadmission negotiations and other legislation by which Vermont was
  admitted to the Union.  See Vermont v. New Hampshire, 289 U.S.  at 608-13
  (describing the extensive pre-admission negotiations between Vermont and
  Congress).  Upon Vermont's admission, Congress recognized the land claims
  based on the representations of the grantees, which cannot be harmonized
  with the contention that the grantees possessed only the "naked fee." This
  limited property right "merely constitutes a reversionary interest that
  becomes possessory" upon extinguishment.  Cohen, supra, at 489 (emphasis
  added).  There is no doubt that Congress considered and intended the New
  Hampshire Grants, in 1791, to be possessory. See Missouri, Kansas & Texas
  Railway v. Roberts, 152 U.S. 114, 117 (1894) (even though grant of Indian
  lands to the State of Kansas did not expressly extinguish aboriginal
  rights, extinguishment could be implied because grant necessarily involved
  possession and "was absolute in terms, covering both the fee and posses-
  sion, and left no rights on the part of the Indians to be the subject of
  future consideration").
       Therefore, even if the grantees initially held only the "naked fee,"
  their reversionary interest vested in 1791, and any question of ambiguity
  was resolved by the act of Congress admitting Vermont as the fourteenth
  state.  See Gemmill, 535 F.2d  at 1149 ("any ambiguity about extinguishment
  that may have remained after the establishment of the forest reserves has
  been decisively resolved by congressional payment of compensation to the Pit
  River Indians"); Gila, 494 F.2d  at 1392-93 (in determining date of taking in
  order to compute compensation to Indians for loss of land, congressional
  act which authorized and ratified previous events may suffice as evidence
  of extinguishment); Turtle Mountain Band of Chippewa Indians v. United
  States, 490 F.2d 935, 947 (Ct. Cl. 1974) (establishment of reservation did
  not extinguish aboriginal title because there was no showing of proper
  congressional authorization).
       We concede that the period preceding Vermont's statehood was a
  confusing era, and that valid questions remain as to the legitimacy of the
  opposing governing entities.  Nevertheless, the tumultuous political context
  does not preclude a finding of extinguishment.  See Ildefonso, 513 F.2d  at
  1387 (occurrence of extinguishment analyzed in light of "the particular
  facts, circumstances and history" of the case (citing Santa Fe, 314 U.S. at
  357-58)).  Vermont's admission to the union provided closure to a long
  period of authority transferred from one body politic to another, giving
  final, official sanction to the previous events, and eliminating any
  remaining ambiguity about who had dominion over lands once controlled by the
  Abenakis.  Short of an express statement declaring an intent to extinguish,
  it is difficult to imagine a demonstration of intent that could be more
  unequivocal than these cumulative events leading to statehood.  We conclude
  that, by the year 1791, aboriginal rights to the area now known as St.
  Albans, Highgate and Swanton had been extinguished.



       Reversed and remanded for further proceedings.

                                          FOR THE COURT:



                                          ______________________________
                                          Associate Justice






FN1.     Defendants' position might have been based on the exception to
 state fishing licensing requirements under 10 V.S.A. { 4253(a), allowing a
 person to fish without a license on land owned by the person.  The court
 ruled, however, on a broader basis that the state's regulation of fishing
 impermissibly infringed on aboriginal rights.  The State did not challenge
 the court's holding in this respect except on the ground that aboriginal
 rights did not exist.  We therefore express no opinion on whether the state
 may regulate lands subject to aboriginal title.

FN2.     We recognize the controversy surrounding terminology used to
 identify the original occupants of this country.  With all due respect to
 this issue, we refer to these individuals as Native Americans throughout
 much of this opinion, but because many of the cases with which we deal use
 the term "Indians," we will, for the sake of clarity, occasionally use that
 term to denote "Native Americans."

FN3.   Observers have regarded the rule of law permitting extinguishment of
 aboriginal rights with skepticism.  In legal discourse the act of extin-
 guishment requires no standard to justify it, and methods used to extinguish
 aboriginal rights are not justiciable.  Santa Fe, 314 U.S.  at 347 ("justness
 [of extinguishment] is not open to inquiry in the courts"); Buttz v. North-
 ern Pacific Railroad, 119 U.S.  at 66 (1886) (same).  See Norgren, supra, at
 90-91 (criticizing early caselaw for "[u]sing legal concepts alien to tribal
 law" to build "a theory of land title sympathetic to the interest of the
 Republic" and for creating "a muddle of possessory rights versus ultimate
 property rights").
 
FN4.   For example, the Highgate grant, in language common to all three
 grants, stated
  [t]hat every Grantee, his heirs or Assigns shall plant
 and cultivate five Acres of Land within the Term of five
 Years for every fifty Acres contained in his or their
 Share or Proportion of Land in said Township, and con-
 tinue to improve and settle the same by additional
 Cultivations, on Penalty of the Forfeiture of his Grant
 or Share in the said Township, and of its reverting to
 Us, our Heirs and Successors, to be by Us or them Re-
 granted to such of our Subjects as shall effectually
 settle and cultivate the same.
 The New Hampshire Grants 221 (A. Batchellor ed. 1895).

FN5.    The Crown directed royal governors to prosecute settlers who had
 obtained "any lands within our said province upon pretense of purchases made
 of the said Indians without a proper license first had and obtained either
 from us or any or our royal predecessors or any person acting under our
 authority."  Royal Instructions to British Colonial Governors 1760 - 1776,
 477-78 (L. Labaree ed. 1935).

FN6.    The Royal Proclamation of 1763 provided in relevant part:
 . . . Tribes of Indians . . . should not be . . . disturbed in the
 Possession of such Parts of our . . . Territories as, not having
 been ceded to or purchased by Us, are reserved to them, or any of
 them, as their Hunting Grounds.  We do therefore, . . . declare it
 to be our Royal Will and Pleasure . . . that no Governor . . . in
 America . . . grant Warrants of Survey, or pass Patents for any
 Lands . . . or upon any lands whatever, which, not having been
 ceded to or purchased by Us as aforesaid, are reserved to the said
 Indians, . . . .
  And, We . . . strictly forbid . . . all our loving Subjects from
 making any Purchases or Settlements whatever, or taking Possession
 of any of the Lands above reserved, without our especial leave and
 Licence for that Purpose first obtained.
  And, We do further strictly enjoin and require all Persons
 whatever who have either wilfully or inadvertently seated
 themselves upon any Lands, which not having been ceded to or
 purchased by Us, are still reserved to the said Indians as
 aforesaid, forthwith to remove themselves from such Settlements.

FN7.     New York based its jurisdiction over the disputed area on a 1674
 grant by King Charles II to the Duke of York, who later became King James
 II.  Vermont v. New Hampshire, 289 U.S. 593, 598 (1933).

FN8.    2 Records of the Governor and Council of the State of Vermont, 318-
 19 (1874) read as follows:
     Query 3d.  What are the ideas of the people of Vermont relative
     to the claim of private property, under grants or patents from
     New-Hampshire, or New-York, previous to the present revolution?
     Answer.  Altho' the State of Vermont hath not, hitherto,
     authorized any court to take cognizance of such causes, as respect
     titles of lands, nevertheless, they have had, and still have it in
     contemplation to adopt such modes, as the circumstances, arising
     out of each case, may justify, without adhering to the strict
     rules of law.
     Query 4th.  What are the intentions of your constituents, in
     regard to the patents that were granted on conditions of
     settlement within a given time, and which have been prevented by
     the claims of the people of Vermont, and the present revolution?
     Answer.  No forfeitures have been taken by the State of Vermont,
     on any such grant, for non-performance of conditions of
     settlement, and we conceive it to be the intention of our
     constituents to grant a further reasonable time for fulfilling
     such conditions.

FN9.    The actions of the sovereign, as opposed to the Indian response to
 it, determine whether or not there was the requisite "intent" to
 extinguish, but we view Indian conduct during this time as relevant because
 it shows the effect of the assertion of dominion by the Europeans on the
 Abenakis.  Although, in general, Abenakis continued to occupy Vermont during
 this period, the changing nature of their presence reflects the tribe's
 response to the various events that occurred in the years leading to
 Vermont's admission to the Union.  Until the first European contact in the
 early seventeenth century, no other tribe inhabited the Missisquoi homeland.
 There is evidence, however, of Abenaki resistance to European settlement.
 In 1766, at a meeting in Isle La Motte, attended by the Governor of Quebec
  and the Governor of New York, the Missisquoi Tribe complained of settlers
 in the area and that during the years 1775 to 1785, the Missisquoi had lost
 control of choice farmland.  There is also evidence that in 1786 the tribe,
 although for the most part peaceful, threatened the use of force against the
 European settlers.  Despite this evidence, it appears that the Abenaki
 response was predominantly passive -- evidenced by retreat and withdrawal.
 Tribal presence continued through to the 1790's, but the tribe no longer
 controlled the area.