Motion to Dismiss — Besadny v. Lac Courte Oreilles Band of Lake Superior Chippewa Indians

No. 83-6 ALEXAND RL reVac

In The

Supreme Court of the United States

October Term, 1983

7

a

CARROLL D. BESADNY, ET AL.,

Appellants,

Vv.

LAC COURTE OREILLES BAND OF LAKE

SUPERIOR CHIPPEWA INDIANS, ET AL.,

Appellees

ON APPEAL FROM THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MOTION TO DISMISS OR AFFIRM

Kathryn L. Tierney

Lac Courte Oreilles

Tribal Office Building

Route 2, Box 421

Hayward, Wisconsin 54843

(715) 634-8934

August 1983

QUESTIONS PRESENTED

1. Were the usufructuary rights reserved by the Lake

Superior Chippewa in their treaties with the United States of

1837 and 1842 abrogated by the 1850 order of President

Zachary Taylor directing that the Chippewa remove from

their ceded lands?

2. Were the usufructuary rights reserved by the Lake

Superior Chippewa in their 1837 and 1842 treaties with the

United States released or extinguished by the Treaty of

1854?

i

PARTIES

Supplementing the parties named by the appellants in their

Jurisdictional Statement, appellees, in addition to the named

party, are Frederick Tribble and Michael Tribble. who

appear in the case individually and as class representatives of

all members of the Lac Courte Oreilles Band of Lake Superior

Chippewa Indians who are unable to exercise claimed

off-reservation usufructuary treaty rights due to prospective

prosecution by appellants or their successors in office for

alleged violations of State law.

TABLE OF CONTENTS

ere eer re rte eee

EY WIS oo nis asics oes h90ch asia ses WRN es

errr er eee rey

A.The Court Of Appeals Proper-

ly Applied The Canons Of

Treaty Construction To The

TI oo ins ca vic axeus yack ccuns

B. The Court Of Appeals Proper-

ly Based Its Holdings In This

Case Upon The Standard Of

Review Applicable To Mo-

tions For Summary Judgment..................

C. The Court Of Appeals Was

Correct In Holding That The

Removal Order Of 1850 Did

Not Terminate The Tribe's

Hunting And Fishing Rights...................

1.The Order Was Not

Authorized By The

Earlier Treaties

2. The Removal Order

Was Revoked By Later

Executive And Con-

gressional Action

iii

3. The Removal Order Did

Not Apply To The

Tribe’s Rights Under

Pee TOUT BE ea vet y tos estevaven es 12

4. Mole Lake Band v. Un-

ited States,Has No Res

Judicata Or Collateral

Estoppel Effect On This

oe AAS aaa ts, ee ear 12

D. The Court Of Appeals Cor-

rectly Held That The 1854

Treaty Did Not Release Or

Extinquish The Usufructuary

ee as ater kW ode Vale ave 13

ern edd ian shh cas ok na MR ROL 16

iv

TABLE OF AUTHORITIES

Cases:

Alaska Pacific Fisheries v. United States, 248 U.S. 78

eh oak an ist eee W hE NSE Uo Kink ok Uw S's 6,12

Antoine v. Washington, 420 U.S. 194

oy re ote cena Gke coe rate kb eae ah aes is 14

Arizona v. California, 373 U.S. 546

en ae te Ce diae aida dX OS 4 wk OK ny

Asbury Hospital v. Cass County, 326

TE SO OS i ae AN ge dca yt We wad Admin Ed 5

Bryan v. Itasca County, 426 U.S. 373

es ee et ian 6a 6 ahh Oe eae Biers 12

Choctaw Nation v. Oklahoma, 397 U.S.

I Re ee es Oe A a he dag Fee Mia oe 6

Choctaw Nation v. United States,

SN Nie nh SW IE a a Oy > Em 6

Cole v. Young, 351 U.S. 536

al tte ee a Ew aid ah wie neck, el 10

Confederated Tribes v. Alexander,

ee ee I, OP, A POD oo aide a cabot wad toes ees 14

Cross v. Bruning, 385 U.S. 14

ETAT SESE GROSS lips Ag ys a hn Og ng na Ri Pg earl tate oe 3

Doran v. Salem Inn Inc., 472 U.S.

ee eae es rat cies ass. Vale 6p he KORRES 5

El! Paso v. Simmons, 379 U.S. 497

a a ela eMac UG ae ars We es b cae se Circe E OT 5

Helvering v. Gowran, 302 U.S. 238,

Ee ae oe Le a ads gy 6 aed bd ee ETO 10

Independent Meat Packers Ass'n v. Butz,

526 F.2d 228 (8th Cir. 1975), cert denied

I UIE ee Re Aa or 10

Jones v. Meehan, 175 U.S. 1

Le ee abewa 6,7

Kimball v. Callahan, 493 F.2d 564

(9th Cir. 1974) cert. denied, 419 U.S.

Aaa ae ce IRE a 14

Lac Courte Oreilles Band v. Voigt,

700 F.2d 341 (7th Cir. 1983).............. . 3,4,6,8,9,10,11

Lower Brule Sioux [rib- v. South Dakota.

__ F.2d__ , Case No. 82-1635 (8th Cir.

ei Be ss 6k ke Kew kandeeueecsee ser eeiseueee 14,15

Marks v. CIA, 590 F.2d 997

A Se, SN, vrs ne cade nied dens eod wena tees 10

Menominee Tribe v. United States,

2 2 ee FRR rere eee ey 13,14

Mole Lake Band v. United States, 139

F. Supp. 938 (Ct. Cl. 1956), cert. denied,

Be Ses SR co nan vw aed Sakae hae shee cea ee 12,13

Northern Cheyenne Tribe v. Hollowbreast,

Se CE Us 5 iss nrvneada see ys enaetaeeaens 12

Parklane Hosiery Co. v. Shore, 439

OE Freee rT errr rere reer 13

People v. Jondreau, 348 Mich. 539,

Se Oe ie Se PE 04 cc wedne ke xu cb esandaes ei 14

People v. LeBlanc, 399 Mich. 31,

Stk & 2 8. Breer reer a 14,15

Pharo v. Smith, 621 F.2d 656

(5th Cir. 1980) reh. granted in part and case

remanded, 625 F.2d 1226 (5th Cir. 1980)................. 8

Sohappy v. Smith, 302 F. Supp. 899

Ee Ms ss 0 080s va panea Uc dteer eye ac aera eee 14

Tulee v. Washington, 315 U.S. 681

SN ikacsd vr adeks sane cereudaeaetandremerrinee ses 6

United States v. Baker, 524 F. Supp.

Fe Se Fs ica ca dae a eee se heaene sebesawase 3

United States v. Ben Ruby, W.D. Wis.

72-C-366, reported sub. nom. United States

v. Bouchard, 464 F. Supp. 1316

RS ee eet oe ea cie'p a an eal aaa 2

United States v. Bob Chrislaw, 341

ft gg ff err rarer 8

United States v. Bouchard, 464 F. Supp.

I ee 2,9,12

United States v. Michigan, 471 F. Supp.

192 (W.D. Mich. 1979) aff'd in relevant part

653 F.2d 277 (6th Cir. 1981) cert. denied

i CE renee 14,15

United States v. Shoshone Tribe, 304

§ SPS Serer 6

United States v. Washington, 520 F.2d 676

(9th Cir. 1975), cert. denied 423 U.S. 1086

vi

Nee TS tts ees peesesecececees 15

United States v. White 508 F.2d 453

ces ccecncccccccsceces 14

United States v. Winans, 198 U.S. 371

ES IS 14

Van Camp v. Menominee Enterprises, 68

Wis. 2d 332, 228 N.W. 2d 664 (1975)................... 15

Washington v. Fishing Vessel Ass’n

Teen pec cbescceseseces 6,14

Williams v. La Vallee, 362 U.S.

ee Es seb bhb 400 rece eee 3

Winters v. United States, 207 u.s. 564

ios fob eceescccccececscccecs 6

Wisconsin v. Gurnoe, 53

Wis. 2d 390, 192 N.W. 2d 892 (1972)................0.. 11

Worcester v. Georgia, 31 U.S.

Ne. ats epescvesesesecs 6

Youngstown Sheet & Tube Co. v. Sawyer,

Nee ce cence tsevcesoscees 10

Treaties, statute, regulations, and rules:

on cscs cece cccccscscscecccee 15

Ne casos ce ccc cececescces passim

I EM occ acceccesccvcccceces passim

Treaty of September 30, 1854, 10

ee io cadibcedecvecrscces 2,7,8,11,13,14

ee nae secs ccccscsccsccvvccees 3,4

Nes ccc c ese nccccessccscccess 2

EEE SE 2

Nees sed sc esccscccecscscccseces 2

EEE 2

secs cc resccseccccccccsccccces 4,5

EES 1

Rule 16(1) (d), Rules of Supreme Court

TTT cere tebe eeneeeees 1

vii

Miscellaneous:

10 C. Wright & A. Miller, Federal

Practice and Procedure, Civil § 2716

(1973)

ROPERS A RARE OOPS COD OCE CRSA SSAC OVER ED6EE DS

No. 83-6

In The

Supreme Court of the United States

October Term, 1983

le

Ww

CARROLL D. BESADNY, ET AL.,

Appellants,

U

LAC COURTE OREILLES BAND OF LAKE

SUPERIOR CHIPPEWA INDIANS, ET AL.,

Appellees

ON APPEAL FROM THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MOTION TO DISMISS OR AFFIRM

Appellees Lac Courte Oreilles Band of Lake Superior

Chippewa Indians, et al., respectfully move to dismiss or

affirm the judgment of the United States Court of Appeals for

the Seventh Circuit in this case, pursuant to Rule 16.1 (a) and

(d), Rules of the United States Supreme Court.

STATEMENT OF THE CASE

This action was commenced in the United States District

Court for the Western District of Wiscorisin in 1974 by the Lac

Courte Oreilles Band of Lake Superior Chippewa Indians, a

2

federally recognized Indian Tribe, (hereinafter referred to as

the Tribe) and two of its members, Frederick and Michael

Tribble. Declaratory and injunctive relief was sought against

the defendants, who are State and local officials whose

duties include the enforcement of Wisconsin's fish and game

laws. The suit was based upon the Tribe's right to hunt, fish,

and gather, without regulation by the State of Wisconsin, on

the lands ceded to the United States by the Lake Superior

Chippewa, which was reserved by the Indians in the Treaty

of 1837, 7 Stat. 536, and the Treaty of 1842, 7 Stat. 591.

Federal court jurisdiction was invoked under 28 U.S.C. 8§

1331(a), 1343(3), 1362, and 2201. Cross-motions for summary

judgment were filed by the parties in 1975, which were not

ruled upon by the Honorable Judge James E. Doyle until

1978, when he issued an opinion which combined three cases

then pending in his court. The decision is reported as United

States v. Bouchard,, 464 F.Supp. 1316 (W.D. Wis. 1978).

Summary judgment was granted to the State and local

officials and the complaint was dismissed. This decision was

based on the trial court's construction of the effect of a later

treaty with the Lake Superior Chippewa, the Treaty of

September 30, 1854, 10 St. 1109. Through that treaty, the

Lake Superior Chippewa obtained permanent reservations

within the area ceded by the 1837 and 1842 treaties; the

trial court interpreted this agreement to have thereby

resulted in relinquishment by the Chippewa of the

usufructuary rights that they had reserved throughout the

lands ceded in earlier treaties. United States v. Bouchard,

464 F. Supp. at 1352: App. 126a.

The Tribe appealed this decision to the Court of Appeals

for the Seventh Circuit in 1978 (No. 78-2398); the State and

local officials cross-appealed (No. 78-2443) the district

court's separate holding that the order issued by President

Zachary Taylor in 1850, requiring that the Chippewa remove

from their ceded lands, was invalid and therefore did not

terminate the usufructuary rights secured by the earlier

treaties. Bouchard, 464 F. Supp. at 1350; App. 12la. The

State of Wisconsin appealed this holding as rendered in

United States v. Wisconsin, (No. 79-1014), reported in

United States v. Bouchard, supra, as United States v. Ben

3

Ruby, W.D. Wis. 72-¢ - 366

With the consent of all parties, the court of appeals

ordered that briefing be suspended until resolution by the

district court of another case then pending before it in which

many of the documents of record would be utilized. Upon the

issuance of the district court’s decision in United States v.

Baker, 524 F. Supp. 726 (W.D. Wis. 1981), the record was

transmitted to the court of appeals and briefing was held in

the pending appeals. The appeals were consolidated for

purposes of oral argument and the January 25, 1983,

decision of the court of appeals combines them.

The circuit court reversed the trial court's holding that the

1854 treaty effected a relinquishment of the usufructuary

rights secured to the Chippewa by earlier treaties, and

reversed that court's summary judgment in favor of the State

and local officials. Lac Courte Oreilles Band v. Voigt, 700

F.2d 341, 365 (7th Cir. 1983); App. 5la-52a. The case was

remanded to the district court with instructions to enter

judgment for the Tribe on this issue. J@. Further proceedings

were also ordered, for ‘‘consideration as to the permissible

scope of State regulation over the LCO’s exercise of their

usufructuary rights.’’ 700 F.2d 341, 365; App. 52a. The court

of appeals also affirmed the trial court's holding that the

removal order was invalid. 700 F.2d 341, 362; App. 44a.

Incorporated in this statement of the case is the concise

recitation of all the facts material to consideration of the

questions presented which is contained in the opinion of the

court below. 700 F.2d at 344-349; App. 3a-15a.

MOTION TO DISMISS

Appellees hereby move to dismiss the appeal on the

ground that jurisdiction in this Court is wanting due to the

absence of a declaration by the court of appeals that a State

statute is invalid as repugnant to the Corstitution, treaties or

laws of the United States. 28 U S.C. § 1254 (2). See; Cross v.

Bruning, 385 U.S. 14 (1966). res. denied. 385 US 964

(1966): Wiliams v. La Vallee, 362 US. 637 (1960). red,

denied, 363 U.S. 832 (1960)

4

No law of the State of Wisconsin was determined to be

invalid by the court of appeals in this case; that court did not

even cite a Wisconsin statute or regulation in its opinion.

Nor was such a determination arguably necessary for the

court of appeals to resolve the issues presented to it by the

parties in their cross-appeals. Those issues were: (1) the

nature of the usufructuary rights retained by the Chippewa

under the treaties of 1837 and 1842; (2) the existence of any

subsequent act of the United States or the Chippewa which

modified or extinguished the usufructuary rights. Lac Courte

Oreidlles Band v. Voigt, 700 F.2d 341, 343-344; App. 3a. The

issue of state regulatory authority over the, exercise of

treaty-guaranteed usufructuary rights was expressly reman-

ded to the district court for further proceedings, with no

explication of the manner in which the issue was to be

resolved in the trial court.

To base this appeal on the supposed determination that

Wis. Stat §29.09(1) is inapplicable to the off-reservation

usufructuary activities of the Tribe’s members is therefore

an incomprehensible error. It should be noted that

appellants do not cite any language in the court of appeals’

opinion which holds that statute to be invalid; instead

appellants cite portions of the Tribe’s amended complaint

which allege the statute to be invalid as applied to

off-reservation hunting, fishing, and gathering activities of

its members. No authority exists for the unique interpreta-

tion of 28 U.S.C. § 1254(2), that allegations in a complaint of

a statute's invalidity are sufficient to constitute a holding of

a Court of Appeals when it enters judgment in favor of the

party challenging it application.

Another barrier to consideration of this appeal is that the

decision below is not final. As is obvious from the nature of

the court of appeals disposition of this case and its directions

to the district court, further proceedings will be necessary in

order to determine which, if any, Wisconsin hunting and

fishing laws and regulations cannot be applied to off-reser-

vation treaty hunting and fishing by the Tribe's members.

Prior to such a determination, there exists no final holding

concerning the invalidity of any Wisconsin fish and game

5

statute including Wis. Stat. §29.09(1). Doran v. Salem Inn,

Inc., 472 U.S. 92 (1975); E/ Paso v. Simmons, 379 U.S. 497

(1965). An appeal based on the expectation that this statute

will be held inapplicable to Tribal members in later

proceedings is therefore premature. 1

In the absence of a holding of invalidity of the proffered

statute by the court of appeals, the appeal necessarily

becomes a request of this Court to render an advisory

opinion concerning the application of the statute to an

undetermined set of circumstances. This Court has never

construed its appellate jurisdiction to allow it to render

advisory opinions. See, e.g., Ashbury Hospital v. Cass

County, 326 U.S. 207, 213-214 (1945).

MOTION TO AFFIRM

Alternatively, appellees Lac Courte Oreilles Band of Lake

Superior Chippewa Indians, et al., move to affirm the

judgment of the Court of Appeals for the Seventh Circuit that

the right to hunt, fish, and gather reserved by the Chippewa

on the lands ceded to the United States in the 1837 and 1842

treaties have not been extinguished, abrogated or relin-

quished. It is manifest that the questions presented by

appellants are so insubstantial as to make further arguments

unnecessary.

A. The Court Of Appeals Properly

Applied The Canons Of Treaty Con-

struction To The Treaties At Issue.

2

1.) Appellants recognize the existence of the finality

requirement as a potential barrier to this appeal, but

apparently fail to recognize that the cases cited in support of

their claim that this case if final (App. 2) are inapposite; all

three cases were decided on a writ of certiorari to the court

of appeals.

6

This Court has formulated several related rules of

construction in interpreting treaties between the United

States and Indian Tribes, These rules have become the

standard introductory discussion in cases involving an Indian

treaty, and the court of appeals likewise began with a

recitation of the canons of construction. 700 F.2d at 350;

App. 17a-18a. The first rule is that Indian treaties are to be

construed as the Indians would have understood them. This

rule of construction has been utilized by this Court since its

decision in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 528

(1832) (McLean, J. concurring), and has been restated in the

exact same words in numerous decisions of this Court.

Choctaw Nation v. Oklahoma, 397 U.S. 620, 630-631 (1970):

Tulee v. Washington, 315 U.S. 681, 684-685 (1942); United

States v. Shoshone Tribe, 304 U.S. 111, 116 (1938); Jones v.

Meehan, 175 U.S. 1, 10-11 (1899).

No departure from this rule of construction was made by

this Court in Washington v. Fishing Vessel Ass'n, 443 U.S.

658, 675-676 (1979), as appellants suggest. The opinion in

that case explicitly invokes this rule of construction in

determining the scope of the off-reservation fishing rights

secured to the tribes in Washington by their treaties with the

United States. The court of appeals was clearly correct in

applying this hallowed and viable rule of treaty conctruction

to the treaties at issue here.

Two other well-recognized canons of Indian treaty

constuction also apply to this case: (1) that doubtful

expressions and ambiguities in the treaty are to be resolved

in favor of the Indian parties, Arizona v. California, 373 US

546, 599-601 (1963), Alaska Pacific Fisheries v. United

States; 248 U.S. 78, 89 (1918); Winters v. United States, 207

U.S. 564, 576-577 (1908); and (2) that treaties should be

construed liberally in favor of the Indians, with a view

toward the practical construction adopted by the parties

Choctaw Nation v. United States, 318 U.S. 423, 432 (1943):

United States v. Shoshone Tribe, supra.

The rationale for the development of these interpretive

canons, which direct a court's inquiry well beyond the four

corners of the agreement at issue, is the recognition of the

disparity between the parties:

‘‘In construing any treaty between the United States

and an Indian tribe, it must always...be borne in mind

that the negotiations for the treaty are conducted, on the

part of the United States, an enlightened and powerful

nation, by representatives skilled in diplomacy, masters

of a written language, understanding the modes and

forms of creating the various technical estates known to

their law, and assisted by an interpreter employed by

themselves; that the treaty is drawn up by them in their

own language; that the Indians, on the other hand, are a

weak and dependent people, who have no written

language and are wholly unfamiliar with all the forms of

legal expression, and whose only knowledge of the terms

in which the treaty is framed is that imparted to them by

the interpreter employed by the United States; and that

the treaty must therefore be construed, not according to

the technical meaning of its words to learned lawyers,

but in the sense in which they would naturally be

understood by the Indians.’’

Jones v. Meehan, supra, at 10-11. The record in this case

clearly demonstates the above considerations apply to the

circumstances surrounding the treaties of 1837, 1842, and

1854.

The court of appeals utilized all the appropriate rules of

construction in interpreting the provisions of the treaties at

issue. The court took into consideration the history of the

times, the circumstances surrounding the treaties, and the

parties’ practical construction of the terms, in reviewing the

two matters of factual dispute raised in the appellate court:

the first being the conditions under which the Chippewa

would be removed from their lands ceded in the treaties of

1837 and 1842, and the second being the impact on the

rights to hunt, fish, and gather reserved in those treaties by

the signing of the treaty of 1854. It is on those two issues

that appellants base their appeal Rather than engage in

treaty revision or rewriting, however, the court of appeals

carefully applied to those issues the requisite interpretive

8

canons. Its conclusions concerning the rights reserved by the

treaties of 1837 and 1842 and the effect of the treaty of 1854

upon them is independently supported by the standard of

appellate review applicable to this case. To that matter

appellees now turn.

B. The Court Of Appeals Properly Based

Its Holdings In This Case Upon The

Standard Of Review Applicable To

Motions For Summary Judgment.

The posture of this case in the court below was

cross-appeals from a grant of summary judgment in favor of

the State and local officials. In such a case, the court adopted

the traditional standard for appellate review of a grant of

summary judgment: that summary judgment will not lie

unless, construing all inferences in favor of the party against

whom the motion is made, no genuine issue of material fact

exists. 700 F.2d at 349; App. l6a. This standard is as

applicable to cross-motions as it is to cases in which only one

party is the movant. Pharo v. Smith, 621 F.2d 656 (5th Cir.

1980), reh, granted in part and remanded on other grounds,

625 F.2d 1226 (5th Cir. 1980); United States v. Bob Chrislaw,

341 F.2d 887 (7th Cir. 1965).

As the State and local officials were granted summary

judgment by tne district court, all inferences of fact

concerning the intent of the parties to the Treaty of 1854

were made in favor of the Tribe. 700 F.2d at 364; App.

48a-49a. And as the district court held that the 1850 order of

removal was invalid, all inferences of fact concerning that

matter were made in favor of the State and local officials.

The role of the appellate court in a summary judgement

appeal is to review the trial court’s conclusions that no

genuine issue of material fact existed. The court of appeals

is not required to reverse the trial court if any evidence

exists which supports appellants position, but only if that

evidence makes erroneous the trial court’s determination

that no genuine issue of material fact exists. The court of

appeals properly concluded that no genuine issue of material

fact existed which preciuded the trial court from finding that

9

the removal order of 1850 was invalid. 700 F.2d at 362: App.

33a-34a.

C. The Removal Order Of 1850 Did Not

Terminate The Tribe’s Hunting And

Fishing Rights.

1. The Order Was Not Au-

thorized By The Earlier

Treaties.

The order of President Zachary Taylor to the Chippewa in

1850 required them to remove from their lands ceded in 1837

and 1842 and to move to their unceded land in Minnesota

Territory. Appellants argue that this action was clearly

authorized by the 1837 and 1842 treaties themselves. Both

the trial court and the court of appeals disagreed, after

construing the purported grants of authority in the treaties in

light of the surrounding negotiations and the express

representations of the federal treaty negotiators to the

Chippewa that they would not be required to remove unless

they ‘‘misbehaved.’’ Bouchard, 464 F. Supp. at 1349, App.

118a-119a; Voigt, 700 F.2d at 361, App. 42a-43a. Appellants

first challenge this interpretation of the treaty clauses as

requiring either misbehavior or the passage of a significant

number of years as the necessary predicate to an order of

removal. In doing so, appellants challenge the treaty

interpretation canons of construction which were discussed

in Part A of this Motion. Appellants’ arguments concerning

the scope of the Executive Branch’s authority to order

removal were made to both the district court and the court of

appeals, and present no substantial matters which require

plenary consideration of this question.

Appellants next challenge the rule of law employed to

determine the validity of an Executive Order issued outside

the scope of the authorization contained in the treaties.

Executive Orders which exceed their authorization from

10

Congress are invalid. Cole v. Young, 351 U.S. 536 (1956);

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(3952): Marks v. CIA, 590 F.2d 997 (D.C. Cir. 1978);

Independent Meai Packers Ass'n v. Butz, 526 F.2d 228 (8th

Cir. 1975), cert. denied, 424 U.S. 966 (1976). In this case, the

presumption of validity which is accorded to executive orders

promulgated in supposed accordance with an act of

Congress, is clearly overcome by the evidence in the record

that such an order would not be issued without cause.

The holding of the Court of Appeals that the 1850 order

was invalid as an unauthorized act of the Executive Branch is

not in error.

Additional grounds for holding that the 1850 removal order

did not effectuate a termination of the Chippewas’ hunting,

fishing, and gathering rights were presented to the court of

appeals, but were not reached by that court in light of its

holding that the removal order was invalid. They are

presented here as an alternative basis for upholding the

summary judgment granted to the Tribe concerning the

effect of the 1850 order on the existence of the right to hunt,

fish, and gather in the ceded lands. Helvering v. Gowran,

302 U.S. 238 (1937); 10 C. Wright & A. Miller, Federa/

Practice and Procedure § 2716, at 440 (1973).

2. The Removal Order Was

Revoked By Later Exec-

utive And Congressional

Action,

The implementation of the 1850 removal order was

suspended on August 25, 1851, through a telegram directive

from the Commissioner of Indian Affairs to the Indian

Agent. The removal efforts were reported to Washington as

11

suspended. The following year a delegation of Chippewa

leaders traveled to Washington to request that then -

President Millard Fillmore explicitly terminate the removal

efforts. No document signed by President Fillmore exists

which explicitly contravenes the removal effort, but his

promise to the Chippewa to return the annutiy payment

location to LaPointe in Wisconsin was carried out. Annuity

payments were made there in 1853 and 1854, as well. 700

F.2d 347-348; App. 1la-13a.

The removal policy was formally abandoned by the

negotiation with the Lake Superior Chippewa of a new treaty

in 1854, which established permanent homes for the

Chippewa in Wisconsin. Art. 2, 10 Stat. 1109, App. 163a.

As the sequence of events makes clear, the removal order

of 1850 had no effect on the Chippewa’s usufructuary rights.

It was suspended in little more than a year by the succeeding

administration, and had no further operative effect. The idea

of removal was completely abandoned in the Treaty of 1854,

which included therein a prohibition against any further

removal efforts by any future President. Art. 11, 10 Stat.

1109, App. 167a-168a.

The only other court which has directly considered the

effect of the 1850 removal order on the usufructuary rights of

the Chippewa reserved in earlier treaties is the Wisconsin

Supreme Court. In State of Wisconsin v. Gurnoe, 53 Wis. 2d

390; 192 N.W.2d 892 (1972), that court rejected the State of

Wisconsin’s argument that the 1850 removal order abroga-

ted the right to fish in the Wisconsin waters of Lake

Superior. The court reasoned that the removal order was

never implemented, and was therefore ineffective to

terminate any usufructuary rights. The court further noted

that the removal order was impliedly revoked through the

Treaty of 1854. 53 Wis. 2d at 406-407.

3. The Removal Order Did

Not Apply To The Tribe's

Rights Under the Treaty

Of 1837.

12

The language of the removal order does not apply to the

area ceded pursuant to the 1837 treaty by the Lake Superior

Chippewa. The order explicitly omits any reference to the

usufructuary rights in the 1837 cession area held by the

Chippewa of Lake Superior, of which the Tribe is a part:

The privileges granted temporarily to the

Chippewa Indians of the Mississippi, by ... the

treaty ... of July 1837 .. and the rights granted

to the Chippewa Indians of the Mississippi and

Lake Superior by ... the treaty .. of October

4th, 1842 ... are hereby revoked ... (emphasis

added)

Bouchard, 464 F. Supp. at 1326-1327; App. 67a.

Executive orders are subject to the same rules of

construction as are applied to statutes dealing with Indian

affairs, i.e., that they are to be liberally construed in favor of

the Indians. Bryan v. Itasca County, 426 U.S. 373, 392

(1976): Northern Cheyenne Tribe v. Hollowbreast, 425 U.S.

649. 655 n.7 (1976): Alaska Pacific Fisheries v. United

States, supra. The omission of the usufructuary rights of the

Lake Superior Chippewa in the area ceded by them in 1837 is

an ambiguity which must be resolved in favor of the Indians.

The general rule of construction, expressio unius est exclusio

alterius, as applied to the executive order here, requires that

the order be construed as having no effect on the Tribe’s

right to hunt, fish, and gather in the 1837 cession area.

4. Mole Lake Band v. United

States Has No Res Judi-

cata Or Collateral Estop-

pel Effect On This Case.

13

Appellants’ claim of error by the court of appeals in

declining to accord res judicata effect to the Court of Claims

decision in Mole Lake Band v. United States, 139 F.Supp.

938 (Ct. Cl. 1956), cert. dented, 352 U.S. 892 (1956) is

without merit. As the court of appeals pointed out, the State

of Wisconsin was not formally a party to those proceedings,

which is a fundamental prerequisite to application of the

doctrine to any subsequent case involving the Tribe.

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979). Equally

a fundamental prerequisite is the identical nature of the

issues in both cases. The court of appeals correctly noted

that the issues presented to the Court of Claims in Mo/e

Lake Band did not include the validity or effect of the

removal order and its effect on the 1837 and 1842 treaty

usufructuary rights, and that the court’s discussion on the

effect of the order was in the context of the recitation of the

historical events. That court was presented with the question

of title to swamp lands included within the reservations

established by the 1854 treaty. The court of appeals properly

declined therefore to accord res judicata effect to the Mole

Lake Band decision.

Due to the compete disparity in the issues presented in

Mole Lake Band and in this case, the doctrine of collateral

estoppel is equally inapplicable. Park/ane Hosiery Co. v.

Shore, supra, at 326 n.5.

D. The Court Of Appeals Correctly Held

That The 1854 Treaty Did Not Release

Or Extinguish The Usufructuary

Rights.

The rule of law that treaty-reserved usufructuary rights

cannot be abrogated by implication, Menominee Tribe v.

14

United States; 391 U.S. 404 (1968) has always been followed

by this Court. Later actions of Congress which could be

construed to have limited or abrogated a treaty reserved

right have been consistently held not to have such an effect

without clear and express evidence that such a result was

intended. See, United States v. Michigan, 471 F. Supp. 192

(W.D. Micti. 1979), aff'd in relevant part; 653 F.2d 277 (6th

Cir. 1981), cert. denied, 454 U.S. 1124 (1981); United States

v. White, 508 F.2d 453, 456 (8th Cir. 1974): Kimball v.

Catlahan, 493 F.2d 564 (9th Cir. 1974), cert. denied, 419

U.S. 1019 (1974); Confederated Tribes v. Alexander, 440

F.Supp. 553 (D. Or. 1977); People v. LeBlanc, 399 Mich. 31:

248 N.W. 2d 199 (1976). There exists no clear and express

evidence that the treaty of 1854 was intended by the parties

to effect a relinquishment of the usufructuary rights reserved

in earlier treaties. The court below properly declined to

imply such an intent.

Appellants’ claim of error by the court below in finding no

relinquishment by the Chippewa of their treaty-reserved

usufructuary rights though operation of the 1854 treaty is

based upon several erroneous assumptions. The first

assumption is that there exists a body of caselaw which holds

that treaty-reserved, as distinguished from aboriginal

usufructuary rights can be extinguished without express

language to that effect in a subsequent act of Congress. See,

é.g., Lower Brule Sioux Tribe v. South Dakota,

F.2d , Case No. 82-1635 (8th Cir. June 27, 1983), and cases

discussed therein.

The second assumption made by appellants is that use of

the land is,and must be, tied directly with the right to occupy

the land. Reservations in treaties are not limited to real

estate, but can be of any aspect of aboriginal or recognized

title; tribes often reserved hunting and fishing rights in

areas outside their reservation boundaries. See, e.g.,

Washington v. Fishing Vessel Ass'n, supra, Antoine v.

Washington, 420 U.S. 194 (1975); United States v. Winans,

198 U.S. 371 (1905); Sohappy v. Smith, 302 F. Supp. 899 (D.

Or 1969); People v. Jondreau, 348 Mich 539, 185 N.W. 2d

375 (1971). Accord, Lower Brule Sioux Tribe v. South

15

Dakota, supra, at 24-25. This division between the right to

occupy and the right to use land is well recognized in treaty

cases; the treaty-reserved usufructuary rights reserved in

lands not owned, or later ceded, by Indian tribes has been

characterized as a form of tribal communal property

comparable to a profit a prendre. United States v.

Washington, 520 F. 2d 676 (9th Cir. 1975), cert. denied, 423

U.S. 1086 (1976); Van Camp v. Menominee Enterprises, 68

Wis. 2d 332, 228 N.W. 2d 664 (1975).

The third assumption of appellants’ claim of error is the

unfounded distinction between usufructuary rights which

have no implied limitation as to duration, and usufructuary

rights which could be terminated upon the satisfaction of the

stated condition. There is no support in the case law for such

a distinction, when the issue is whether or not such rights

can be extinguished by implication. Conditional treaty

usufructuary rights are not unique to the Treaties of 1837

and 1842; the treaties with the Ottawa and Chippewa of

Michigan also contained limiting language. The reservation

of the usufructuary rights ‘‘until the land is required for

settlement’’, Art. 13, Treaty of March 28, 1836, 7 Stat. 491,

was not considered by the courts ascertaining its meaning to

authorize relinquishment by implication in the 1855 Treaty

with the Indians. United States v. Michigan, supra; People

v. LeBlanc, supra.

There exists no disparity between existing caselaw

concerning treaty interpretation and abrogation and the

result reached by the court below in this case.

16

CONCLUSION

For the reasons stated herein, this appeal should be either

dismissed or affirmed.

Respectfully submitted,

KATHRYN L. TIERNEY

Lac Courte Oreilles

Tribal Office Building

Route 2, Box 421

Hayward, Wisconsin 54843

(715) 634-8924

August, 1983