Reply Brief — Minnesota v. Mille Lacs Band of Chippewa Indians

lu) 6) =)

2, —

No. 97-1337, 97-1356 and 97-1357 RITED

In The way 18 1998

Supreme Court of the United Stratemce of mE curt

October Term, 1997

+

STATE OF MINNESOTA, ET AL.,

Petitioners,

VS.

MILLE LACS BAND OF CHIPPEWA INDIANS, ET AL.,

Respondents.

+

COUNTY OF AITKEN, ET AL.,

Petitioners,

VS.

MILLE LACS BAND OF CHIPPEWA INDIANS, ET AL.,

Respondents.

+

JOHN W. THOMPSON, ET AL.,

Petitioners,

Vs.

MILLE LACS BAND OF CHIPPEWA INDIANS, ET AL.,

Respondents.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

+

COUNTIES’ REPLY TO BRIEFS IN OPPOSITION

SJ

James Martin JOHNSON

Counsel of Record

Attorney at Law

1110 S. Capitol Way

Suite 225

Olympia, WA 98501

(360) 357-3104

[Additional Counsel Listed on Inside Cover]

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 Oy

OR CALL COLLECT (402) 342-2831 '

Jerrrey EpsL_ap MICHAEL JESSE

Isanti County Attorney Benton County Attorney

555 18th Ave. S.W. 531 Dewey St., Box 129

Cambridge, MN 55008 Foley, MN 56329

(612) 689-2253 (320) 968-6254

JOHN CARLSON JENNIFER FAHEY

Pine County Attorney Mille Lacs County Attorney

315 Sixth St., Courthouse 635 2nd Street S.E.

Pine City, MN 55063 Milaca, MN 56353

(320) 629-6781 (320) 983-8305

Dona_p F. Ryan NorMAN LoREN

Crow Wing County Kanabec County Attorney

Attorney 18 Vine St. N., Courthouse

326 Laurel St., Courthouse Mora, MN 55051-1351

Brainerd, MN 56401 (320) 679-2870

(218) 828-3952

CONRAD FREEBERG

Morrison County Attorney

Morrison County

Government Ctr.

213 SE ist Avenue

Little Falls, MN 56345

(320) 632-0190

WALTER KAMINSKY

Sherburne County

Attorney

13880 Hwy. 10, P.O. Box 318

Elk River, MN 55330-1692

(612) 241-2565

BrapLey C. RHODES

Aitkin County Attorney

209 2nd Street N.W.

Aitkin, MN 56431

(218) 927-7347

TABLE OF CONTENTS

Page

Respondents’ Removal Act Arguments Fail to

Recognize the President's Constitutional and

SOUT GMIUNEEN bcc chacscocaststesaceseseses

These “Privileges” Admittedly Did Not Continue

on Private Lands; They are Temporary Like the

Rights in Repsis and Race Horse ................

The Eighth Circuit Conflicts with the Tenth Cir-

cuit which Had Faithfully Implemented this

SE PE sch nccuvddccuccscénestenensacs

The Eighth Circuit Court Approved Resource

Allocation While Refusing to Apply This Court's

Moderate Living Standard ..................45.

This Case is An Attack on the President's Author-

5

TABLE OF AUTHORITIES

Page

Cases

Crow Tribe v. Repsis, 73 F.3d 982 (10th Cir. 1995),

cert. denied, 116 U.S. 1851 (1996).............. 3, 4,7

Dalton v. Specter, 511 U.S. 462 (1994).............. 9, 10

Hagen v. Utah, 510 U.S. 399 (1994) ...... 2... 6. eee ees 5

Mille Lacs Band of Chippewa Indians v. Minnesota,

1236 RSG SOS GE Cae. TOTP Pe ccc cba vedcdwiecsicdces 8

Mille Lacs Band of Chippewa Indians v. Minnesota,

952 F. Supp. 1362 (D. Minn. 1997) ................. 3

South Dakota v. Yankton Sioux Tribe, 66 U.S.L.W.

GERD GION 6b iv ccbdanedccvks cdckacet dpeste band ingests 5

United States v. Curtiss-Wright Export Corp., 299

OS, FR Tee a avn sdeincdincscaedkbubetcaheneaes’ 2

United States v. Winans, 195 U.S. 371 (1905) .......... 4

Ward v. Race Horse, 163 U.S. 504 (1896)........ 3, 4, 6, 7

Washington v. Washington State Commercial Pas-

senger Fishing Vessel Assn., 443 U.S. 658 (1979) ..... 7

Statutes & REGULATIONS

2 UBL. B BiB Wis cnrcwcdenedisties vas vedadsunsevabeen 2

Removal Act of 1830, 4 Stat. 411...... 2... 666. e une 1

Orner AUTHORITIES

1837 Treaty Journal 149... . 2... 2.2... . cece cence ewes 6

Laurence H. Tribe, American Constitutional Law (2d

Oth, BEG s bbn cek bGde td bor ctsocevices ck cenceeoneet 1

— — ~

REPLY TO BRIEF IN OPPOSITION

1. Respondents’ Removal Act Arguments Fail to Rec-

ognize the President's Constitutional and Statutory

Authority.

The Respondents build a straw man arguing that the

Removal Act of 1830 (4 Stat. 411) did not provide the

President authority to revoke the treaty privilege.

The argument overlooks the constitutional and other

statutory sources of the President's power here, including

the Treaty to which the Chippewa had consented. This is

especially important since numerous other treaty provi-

sions and executive orders of this era are implemented

through this broader Presidential power.

Laurence H. Tribe in his American Constitutional Law

(2d ed. 1988) analyzes Article Il, the Executive power,

which includes inherent and “implied” power, in addi-

tion to authority delegated by Congress. (Tribe, supra,

§ 4-2 at 211). Though Professor Tribe discusses foreign

affairs, Article II provides the President power in the area

of Indian affairs which is analogous, especially during the

historical period in question.'

There are two constitutional bases. Major policy was

implemented through the President’s shared article II

“power, by and with the consent of the Senate, to make

treaties ... ” U.S. Const. art. Il, § 2. The President is also

made “commander-in-chief of the army . . . of the United

States” by Article II § 2. Indian affairs were administered

' Until Congress barred treaty-making with Indian tribes in

1871, Act of March 3, 1871, 16 Stat. 566.

through the Army in this historical period. Thus, Presi-

dent acted in a dual role, both explicitly authorized by

the Constitution, to negotiate and to administer treaties.

A constitutionally shared power may be delegated to

the President “more broadly than it could where its (Con-

gress’ delegated) power as enumerated in Article |

defines the totality of federal authority.” (Tribe, p. 212,

citing United States v. Curtiss-Wright Export Corp., 299 U.S.

304 (1936)). Congress did explicitly so delegate broad

power over Indians, e.g., 2 U.S.C. § 2, § 9; the latter of

which, first enacted in the 1830s, provides:

The President may prescribe such regulations as

he may think fit for carrying into effect the

various provisions of any act relating to Indian

affairs, and for the settlement of the accounts of

Indian affairs.

2 USC. § 9.

The President had power to totally extinguish the

Indians’ claims to the land. The President also had the

lesser-included power to allow any hunting or fishing

privileges and provide that such could be conditioned or

limited in duration.

Any question of presidential authority here is finally

resolved by the fact that Congress ratified the Treaty of

1837, including the explicit “at the pleasure of the Presi-

dent of the United States” limitation on the privilege.

Both Respondents repeat the claim that the Chip-

pewa consent was not obtained. However, the Chippewa

signed the 1837 Treaty (and accepted benefits) after

explanation that their use of the ceded lands would be

terminable - “temporary” as the President of the United

States called it, when revoking. (See Treaty Minutes,

_ - _ _

quoted below at p. 7.) Later treaties of 1854 and 1855

provided reservations for permanent homes and the

Indians consented to relocating to these reservations.

2. These “Privileges” Admittedly Did Not Continue on

Private Lands; They are Temporary Like the Rights

in Repsis and Race Horse.

A key weakness in Respondents’ argument is the

admission these treaty privileges have long lapsed at

least as to private lands. Trying to minimize the impor-

tance of this case, the Chippewa Respondents’ brief

claims that acreage figures for the 1837 Treaty area over-

state the affected lands since only a fraction of the land is

open for treaty use; “public lands and those private lands

that are open to public hunting and fishing by operation

of state law.” (Chippewa Resp. Br., p. 3 and n 4). Respon-

dents then provide a lowered acreage estimate of public

lands, in an effort to minimize the impact of this judg-

ment.

This reflects the Circuit rejection of the Bands’ cross-

appeal which had sought to extend the privilege to more

(most) private lands. App. 70-71. More importantly, this

shows that the treaty privilege no longer extends to all

lands. When lands became private, the treaty right of

access terminated. As to such lands, the privilege was

temporary.

The conservation impact on natural resources is

worsened, however, since the resources allocated include

all resources from all lands and waters in the Minnesota

treaty area. Indeed fish production from boundary

waters, such as Mille Lacs Lake, outside the ceded area

was even included in the allocation. (Mille Lacs Band of

Chippewa Indians v. Minnesota, 952 F. Supp. 1362 (D. Minn.

1997); App. 103-104.)

The Chippewa Respondents argue that the Eighth

Circuit distinguished the rights at issue in Crow Tribe v.

Repsis, 73 F.3d 982 (10th Cir. 1995), cert. denied, 116 U.S.

1851 (1996), and Ward v. Race Horse, 163 U.S. 504 (1896),

from those in the 1837 Chippewa Treaty because “the

latter are not limited to ‘unoccupied’ lands and not

dependent on the United States retaining title . . . [and

thus] temporary and precarious . . . but instead were

intended to be continuing rights.” Chippewa Resp. Br. at

p. 19.

The United States Respondent, more succinctly,

argues: “The court of appeals applied Race Horse’s con-

tinuing/temporary distinction.” (U.S. Resp. Br., p. 12.)

The United States paraphrases the conclusion “the Chip-

pewa’s treaty rights (sic) . . . were intended by the parties

to be continuing rights.” (U.S. Resp. Br., p. 12.) As to

private lands, this is just wrong.

The circuit court rejected the Bands’ cross-appeal and

concluded that the privilege has terminated as to private

land; there was no access right for treaty hunting, fishing

or ricing to such lands. App. 70-71. This holding is

unchallenged, as there was no cross-petition.

This conclusion there is no right on private land

contrasts remarkably with the one decision of this Court

on which both Respondents rely, United States v. Winans,

195 U.S. 371 (1905), cited U.S. Resp. Br. at pp. 10, 13, 14,

Chippewa Resp. Br. at 20. That Winans case expressly

held there was a continuing access right over private

lands.

Ironically, the exception under the decision below is

that a state law opening private lands to hunting and

fishing apparently may renew the privilege as to such

lands.

As to the majority of lands in Minnesota which were

ceded in 1837 (nearly 85% by the Chippewa Respondent

calculation), the privilege was temporary and does not

extend to those lands.

The contrary conclusion that the privilege was per-

manent or “continuing” as to public lands disregards not

only the express revocation but the conclusion and char-

acterization of the U.S. President. In the 1850 order -

President Taylor expressly referred to the privilege as

“temporary” while revoking it: “The privileges granted

temporarily to the Chippewa . . . are hereby revoked.”

App. 253, emphasis added. This Court recently held a

Presidential proclamation to reveal the contemporaneous

understanding:

This Court has described substantially similar

language as “an unambiguous, contemporane-

ous, statement by the Nation’s Chief Execu-

tive... .” Rosebud, 430 U.S. at 602-603.

South Dakota v. Yankton Sioux Tribe, 66 U.S.L.W. 4092, 4099

(1998). The language of the 1850 Order is surely persua-

sive as a nearly contemporaneous pronouncement by the

President. In Hagen v. Utah, 510 U.S. 399, 420 (1994), an

Order of President Roosevelt was “clear evidence of the

understanding at the time.”

The contradictory suggestion by both Respondents

that the Indians understood the privilege to be perma-

nent is also flatly contradicted by the express rejection of

Indian negotiators’ proposal to lease the land to the

United States and retain long-term use. As reflected in

the 1837 Treaty Journal, e.g., the U.S. negotiators

responded: “Your Great Father never buys land for a term

of years” but “it will probably be many years . . . Before

your great father will want all these lands for the use of

his white children.” 1837 Treaty Journal 149.

3. The Eighth Circuit Conflicts with the Tenth Circuit

which Had Faithfully Implemented this Court's

Decisions.

While claiming this decision may be reconciled with

the Tenth Circuit's Repsis and this Court’s Race Horse on

which that Circuit relied, the United States includes a

lengthy footnote questioning “the continued vitality of

Race Horse's rationale,” (U.S. Resp. Br., p. 13, n. 3) and

suggest this Court’s decision has been “modified by

implication” or “entirely discredited.” To the contrary,

this Court has cited to the Race Horse decision over 20

times, including recently.?

2 Oregon Dep't of Fish and Wildlife v. Klamath Indian Tribe, 473

U.S. 7£3, 773 n. 23 (1985); State of Washington v. Confederated

Tribes of the Colville Indian Reservation, 447 U.S. 134, 179 (1980)

(Rehnquist concurrence and dissent), reh'g denied, 448 U.S. 911

(1980); Washington v. Fishing Vessel Ass'n, 443 U.S. 658, 682 n. 25

(1979); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 149 (1973);

Menominee Tribe of Indians v. United States, 391 U.S. 404, 412, n. 12

(1968); Organized Village of Kake v. Egan, 369 U.S. 60, 75 (1962);

Tulee v. Washington, 315 U.S. 681, 683, n. 2 (1942); Board of County

Comm'n v. United States, 308 U.S. 343, 354 n. 5 (1939) (Black

concurrence); New York ex rel. Bryant v. Zimmerman, 278 U.S. 63,

70 n. 6 (1928); LaCoste v. Department of Conservation, 263 U.S. 545,

a a A i ai

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As the Tenth Circuit noted:

[W]e view Race Horse as compelling, well-rea-

soned, and persuasive. Also, contrary to the

Tribe’s views, there is nothing to indicate that

Race Horse has been “overruled, repudiated or

disclaimed.” Race Horse is alive and well.

Repsis, 73 F.3d at 994. The U.S. Respondent's argument to

the contrary actually reflects the Eighth Circuit Court’s

refusal to apply this Court’s ruling and conflicts with the

Tenth Circuit.

4. The Eighth Circuit Court Approved Resource

Allocation While Refusing to Apply This Court's

Moderate Living Standard.

Both Respondents would mislead this Court into

believing there is no allocation of resources here (U.S.

Resp. Br. at 26: “no need existed, as in Fishing Vessel

[Washington v. Washington State Commercial Passenger Fish-

ing Vessel Assn., 443 U.S. 658 (1979)], for a judicial alloca-

tion.” Chippewa Brief at 24: “There is no court order

allocating 50 percent of the resources to Bands.” How-

ever, the Eighth Circuit admitted an allocation has

occurred:

549 (1923); Brewer-Elliot Oil & Gas Co. v. United States, 260 U.S.

77, 83 (1922); Ruddy v. Rossi, 248 U.S. 104, 109 (1918) (Holmes

dissent); John Bund Brewing Co. v. Great N. Ry. Co., 246 U.S. 651 at

651 (1917); Virginia v. West Virginia, 246 U.S. 565, 593 (1917); New

York ex rel. Kennedy v. Becker, 241 U.S. 556, 562 (1915); McCabe v.

Atchison, T. & S.F. Ry. Co., 235 U.S. 151, 159-60 (1914); Ex Parte

Webb, 225 U.S. 663, 683, 690 (1911); Coyle v. Smith, 221 U.S. 559,

573 and 576 (1910); Lone Wolf v. Hitchcock, 187 U.S. 553, 566

(1903); Bollin v. Nebraska, 176 U.S. 83, 88 (1900).

The Conservation Code and Management Plan

they have drawn up is in effect an allocation of

resources between treaty and nontreaty harvesters. It

is understandable that the Counties and Land-

owners, neither of which was a party to the

stipulation agreeing to the Code and plan, dis-

pute the de facto allocation made therein.

Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d

904 (8th Cir. 1997), App. 65, emphasis added.

The district court even more also expressly acknowl-

edged the allocations approved in the Plan:

The Bands have further agreed that their quotas

lof big game] will not exceed 50% of the har-

vestable surplus in any permit unit. . .

. . . [as to fish] the treaty harvest is subject

to a 50% ceiling . . . [but the] Management

Plan . . . set the Band’s quotas well below 50%.°

952 F. Supp. at 1381-88, App. 116, 137.

Note the allocations are “phased in” and annually

increase. Also, the allocations deal with resource produc-

tion from the entire 1837 ceded area, though the Band

hunting is allowed — and concentrated - only on the

much smaller portion of public and some private lands.

Conservation of these natural resources may only be

assured by restriction of other citizens hunting and fish-

ing in an amount at least equal to the harvest of the

Bands. Since the Bands have become relatively wealthy

* This appears in the section of the opinion approving

Bands killing deer by “shining” over bait at night.

from casino gambling, the “moderate living” doctrine

should be considered before such draconian results.

The result, as the circuit court admitted is at least “de

facto” allocation (approved by court order), which may

be converted to de jure under continuing jurisdiction

whenever the State resists Bands’ demands.

5. This Case is An Attack on the President's Authority.

The U.S. Respondents object that “The Counties’

argument is predicated on a mischaracterization of this

case as involving a judicial challenge against a President”

and “The Counties cite no authority holding that federal

courts . . . cannot adjudicate the scope or validity of

Executive orders. ...” (U.S. Resp. Br., p. 21.)

Dalton v. Specter, 511 U.S. 462 (1994), is the most

recent such case (cited in Counties’ Petition, pp. 13-15).

Like this case, Dalton was ostensibly against other defen-

dants but ultimately sought to invalidate a Presidential

decision:

In this rather curious fashion, the case was

transmuted into one concerning the

reviewability of Presidential decisions.

511 U.S. at 471.

The court below necessarily curiously “transmuted”

this case into one considering the reviewability of the

Presidential Order of 1850, ultimately holding President

Taylor’s Order “unlawful.” In Dalton, this Court suc-

cinctly answered:

Te Se

10

But longstanding authority holds that such

review is not available when the statute in ques-

tion commits the decision to the discretion of

the President.

Dalton, 511 U.S. at 474.

* + *

The Petition for Writ of Certiorari should be granted.

Respectfully submitted,

James Martin JOHNSON

Counsel of Record

1110 S. Capitol Way

Suite 225

Olympia, WA 98501

(360) 357-3104

Counsel for Petitioners Counties