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

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No. 97-1337

In The

Supreme Court of the United

October Term, 1997

STATE OF MINNESOTA; Minnesota Department of

Natural Resources; RODNEY SANDO, Commissioner

of Natural Resources; ARNE CARLSON, Governor

of Minnesota; RAYMOND B. HITCHCOCK,

Assistant Commissioner of Operations,

Minnesota Department of Natural Resources,

Petitioners,

MILLE LACS BAND OF CHIPPEWA INDIANS, et al.,

Respondents.

On Writ Of Certiorari

To The United States Court Of ee BE el

For The Eighth Circuit ECE]

VED

BRIEF FOR THE PETITIONERS

e ae) / 1999 '

: Ottis

Husert H. Humpnrey | Ur thy

Attorney General SUPREME COupp Terk

State of Minnesota - US.

JouHn L. Kirwin

Assistant Attorney General

Counsel of Record

Peter L. Tester

MicuHette E. BeeMAN

Assistant Attorneys General

445 Minnesota Street, Suite 900

St. Paul, Minnesota 55101-2127

(651) 296-3044

Counsel for Petitioners

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

On July 29, 1837, the United States and thirteen

bands of Chippewa Indians executed the Treaty with the

Chippewa of 1837, 7 Stat. 536. Article 5 of the 1837 Treaty

guarantees the bands the privilege of hunting and fishing

on the lands ceded by them to the United States “during

the pleasure of the President of the United States.”

1. Was an 1850 Presidential Order revoking the Indians’

special hunting, fishing and gathering privilege effective,

where the 1837 Treaty reserved that privilege to the

Indians only “during the pleasure of the President”?

2. Was a hunting, fishing and gathering privilege,

reserved only “during the pleasure of the President,”

“temporary and precarious” and therefore extinguished

under Ward v. Race Horse, 163 U.S. 504 (1896) when Min-

nesota was admitted to the Union on an equal footing

with the original thirteen states?

3. Is language in an 1855 treaty “fully and entirely relin-

quish[ing] . . . any and all right, title, and interest, of

whatsoever nature .. . in and to any other lands in the

Territory of Minnesota” sufficient to extinguish a previ-

ously reserved hunting, fishing and gathering privilege

in an area of Minnesota?

PARTIES TO THE PROCEEDINGS

Petitioners, defendants-appellants below, are the

State of Minnesota, its Governor, Arne Carlson, and sev-

eral officials of the Minnesota Department of Natural

Resources. Other defendants-appellants below are nine

Minnesota counties and eight private landowners who

were allowed to intervene at various stages of the litiga-

tion: County of Aitkin; County of Benton; County of

Sherburne; County of Crow Wing; County of Isanti;

County of Kanabec; County of Mille Lacs; County of

Morrison; County of Pine; John W. Thompson; Jenny

Thompson; Joseph Karpen; Leroy Burling; Glenn

Thompson; Gary Kiedrowski; Robert J. Edmonds; and

Michael Sheff.

Respondents, plaintiffs-respondents below, are eight

Chippewa Bands located in Minnesota and Wisconsin, a

number of individual band members, and the United

States Government: Mille Lacs Band of Chippewa Indians

and four of its members, Arthur Gahbow, Walter Sutton,

Carleen Benjamin and Joseph Dunkley; United States of

America; St. Croix Chippewa Indians of Wisconsin; Lac

du Flambeau Band of Lake Superior Chippewas; Bad

River Band of Lake Superior Chippewa Indians; Lac

Courte Oreilles Band of Lake Superior Chippewa Indians

of Wisconsin; Sokaogan Chippewa Community; Red Cliff

Band of Lake Superior Chippewa; Fond du Lac Band of

Chippewa Indians and five of its members, Robert Pea-

cock, Peter Defoe, Clifton Rabideaux, Herman Wise and

George Dupuis.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......cccccscccccccscces i

PARTIES TO THE PROCEEDINGS ................. ii

OPINIONS AND DECISIONS BELOW ............. 1

PUNO v0 sco edcncnsensebacessavessaeenacees 1

STATUTES, TREATIES AND ORDERS INVOLVED... 1

STATEMENT OF THE CASE..........cccccccseseees 1

eee 2

PUR GEE boc cctcdedcasscceccsenckénesss 8

SUMMARY OF ARGUMENT................0000005 12

REANGE ha kewtecdcoboeectneecscusetcctuctent ci 16

I. THE 1850 PRESIDENTIAL ORDER TERMI-

NATED ANY SPECIAL PRIVILEGE TO HUNT,

Fee COPE GURNOEEES secs raceces qesecdcvvenvc 16

A. The Treaty Gave The President Sole Discre-

tion To Revoke The Privilege ............. 16

B. The Provision Of The President’s Order

Revoking The Privilege Of Hunting, Fishing

And Gathering Is Severable From The

SRUGROUEE TOOUEIEIE. 2 cc ccrsccccccsceceesces 23

C. The 1850 Order Did Not Violate A Duty Of

Good Faith, And Was Not Revoked By

Tee ee 26

D. There Is No Reason Here To Depart From

The Plain Language Of The Treaty And The

PUNE GHEE sc 0 cuctacunvenvannaaneane 28

TABLE OF CONTENTS — Continued

Page

THE TEMPORARY HUNTING, FISHING AND

GATHERING PRIVILEGE WAS EXTIN-

GUISHED WHEN MINNESOTA WAS ADMIT-

TED INTO THE UNION................-0055:

A. Under Ward, A Treaty-based Right Does

Not Survive Statehood Where That Right Is

Temporary Or Precarious .................

B. The Privilege Reserved By Article 5 Of The

1837 Treaty Was Temporary and Precarious. .

1. The Eighth Circuit erred in holding that

Ward was distinguishable..............

2. The act admitting Minnesota into the

Union did not reserve treaty rights....

The Bands’ Privilege Is Incompatible With

Minnesota’s Ability To Manage Its Natural

SDSRGOD oki vescncvowectsvic canes vaaduass

THE 1855 TREATY, IN WHICH THE MILLE

LACS BAND RELINQUISHED “ANY AND ALL

RIGHT, TITLE AND INTEREST” TO ALL

LANDS WITHIN THE MINNESOTA TERRI-

TORY, EXPRESSLY EXTINGUISHED ANY

REMAINING HUNTING, FISHING AND

GATHERING PRIVILEGE ........cccccccccsees

A. This Court Previously Has Found Essen-

tially The Same Treaty Language To Extin-

guish Hunting And Fishing Rights

Reserved In An Earlier Treaty ............

B. Available “Historical Context” Is Insuffi-

cient To Overcome The 1855 Treaty’s Plain

RAI: 6 cv cesscsvadescvdvcoccvceccccces

GOS, 05.060 cdenods vedndesetcardebsaneesuas

TABLE OF AUTHORITIES

Page

Cases

Alaska Airlines v. Brock, 480 U.S. 678 (1987).......... 24

Arnett v. Kennedy, 416 U.S. 134 (1974) ............... 17

Baldwin v. Fish & Game Comm'n, 436 U.S. 371

PG tedabidelehWudeseWeeaeisak acess sGdue0ecsd sass 29

Bishop v. Wood, 426 U.S. 341 (1976).................. 17

Carpenter v. Shaw, 280 U.S. 363 (1930) ............... 18

Champlin Refining Co. v. Corporation Comm'n of

Oklahoma, 286 U.S. 210 (1932).................. 14, 23

Choctaw Nation of Indians v. United States, 318 U.S.

See aia chews Weeb eehebdeeaecodeccucabuceveccs 18

Crow Tribe v. Repsis, 73 F.3d 982 (10th Cir. 1995)..... 33

Dames & Moore v. Regan, 453 U.S. 654 (1981)........ 21

Department of Game of Washington v. Puyallup Tribe,

Se Se inenetcusddues bi cadabnanveccece 40

Fond du Lac Band of Chippewa Indians v. Carlson,

unreported, No. 5-92-159 (D. Minn. Mar. 18,

POE ae bb bsen bebsesbhernscecdetuasusscdonsessccces 1

Hughes v. Oklahoma, 441 U.S. 322 (1979)............. 37

Hynes v. Grimes Packing Co., 337 U.S. 86 (1949)...... 17

Idaho v. Coeur d'Alene Tribe, 117 S. Ct. 2028 (1997) .... 37

In re Reyes, 910 F.2d 611 (9th Cir. 1990)............. 24

Kleppe v. New Mexico, 426 U.S. 529 (1976) ........... 37

TABLE OF AUTHORITIES - Continued

Page

Lac Courte Oreilles Band of Lake Superior Chippewa

Indians v. Voigt, 700 F.2d 341 (7th Cir.), cert.

denied, 464 U.S. 805 (1983)... 2.2... 6.6 e eens 17

Mille Lacs Band of Chippewa Indians v. Minnesota,

853 F. Supp. 1118 (D. Minn. 1994) (Mille Lacs I) ..... 1

Mille Lacs Band of Chippewa Indians v. Minnesota,

861 F. Supp. 784 (D. Minn. 1994) (Mille Lacs II) ..... l

Mille Lacs Band of Chippewa Indians v. Minnesota,

unreported, No. 3-94-1226 (D. Minn. Mar. 29,

See. Ge OD BI, dre rock etse bade cebKd deevecccens l

Mille Lacs Band of Chippewa Indians v. Minnesota,

952 F. Supp. 1362 (D. Minn. 1997) (Mille Lacs IV) ..... |

Mole Lake Band v. United States, 139 F. Supp. 938

(U.S. Ct. Cl.), cert. denied, 352 U.S. 892 (1956)..... 17

Montana v. United States, 450 U.S. 544 (1981) ........ 29

Oregon Dep't of Fish & Wildlife v. Klamath, 473 U.S.

eee Gs ec condus coabpaniedatsesctcbendstaves passim

Puyallup Tribe v. Department of Game of Washington,

Be WA Fee Se oc dnc acts satiad cosadevbeves 40, 43

Puyallup Tribe v. Department of Game of Washington,

Se Gs BD COPED 6 vac cess cccvivovsidentvsaccesys 40

Radzanower v. Touche Ross & Co., 426 U.S. 148

CRP OR se Kinetic cosh ereessnsnedsseseewhedshssrtaidcus 27

Reagan v. United States, 182 U.S. 419 (1901).......... 17

Shively v. Bowlby, 152 U.S. 1 (1894)..............44.. 37

South Carolina v. Catawba Indian Tribe, 476 U.S. 498

SID ao ida los iweunetn adds sskebenkesccanwee tant 18, 21

vii

TABLE OF AUTHORITIES - Continued

Page

South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789

ned nahh Cnweneds 56s Snateke t4sbhseecins 14, 20, 49

State v. Keezer, 292 N.W.2d 714 (Minn. 1980)......... 41

Tulee v. Washington, 315 U.S. 681 (1942) .......... 37, 40

United States v. Choctaw Nation, 179 U.S. 494

SGA i dude cheheed Rbadeed bbaued cab eowédeeda 14, 18

United States v. Mille Lac Band, 229 U.S. 498 (1913). .15, 28

United States v. Minnesota, 270 U.S. 181 (1926)....... 49

United States v. Winans, 198 U.S. 371 (1905) ..33, 40, 43

Utah Div. of State Lands v. United States, 482 U.S.

RS ile oo Oe siete shih be vi nps wad oe 29, 37

Ward v. Race Horse, 163 U.S. 504 (1896).......... passim

Worcester v. Georgia, 31 U.S. 515 (1832).............. 18

Statutes, Laws AND TREATIES

sit ai olan bcadheseuWepccedecae ees xe 1

Rev. Stat. § 465, 4 Stat. 738 (recodified as 25 U.S.C.

Ds Anwnhadiubdivendsyhsaed Seed) edbevgeses vecsedt 21

at GE Tee SB, BEST, B BORE BOD 2. cc cccccccccccscess 3

Ast of Wac. 99, 0656, 10 Ghat. SUB... cc cccccccess 6, 47

Act of May 11, 1858, 11 Stat. 285.............. 1, 7, 36

Northwest Ordinance, 1 Stat. 51, art. 3 (1787)....... 26

1858 Minn. Laws, chs. XIX, XLIV................. 8, 47

1805 Treaty with the Cherokee, art. 1, 7 Stat. 95..... 22

1805 Treaty with the Wyandot, 7 Stat. 87............ 22

Viii

TABLE OF AUTHORITIES - Continued

1818 Treaty with the Quapaws, 7 Stat. 176.......... 22

1819 Treaty with the Cherokee, art. 3, 7 Stat. 195 .... 22

1832 Treaty with the Sauk and Foxes, art. 7......... 22

1833 Treaty with the Pawnee, art. 2.............6565: 22

1833 Treaty with the Quapaw, art. 6................ 22

Treaty with the Chippewa, July 29, 1837, art. 5, 7 .

DR GE os cee veccecchcctescsuassdbecashedenss passim

Treaty with the Chippewas, Feb. 22, 1855, art. I, 10 |

DOR. BEEP victors cts saertactKésiswosuvassncecets passim

1856 Treaty with the Creek, 11 Stat. 699 ............ 22

1857 Treaty with the Pawnee, 11 Stat. 729........... 22

1858 Treaty with the Ponca, 12 Stat. 997 ............ 22

1858 Treaty with the Yankton Sioux, 11 Stat. 743... . 22

1862 Treaty with the Ottawa of Blanchard’s Fork

and Roche de Boeuf, art. 11, 12 Stat. 1287........ 22

MISCELLANEOUS

Executive Order, President Zachary Taylor, Feb. 6, |

DOOD cccccconvvvconsctocsdestasonongebevetess s passim

PED uckwrcesekeseasadccvannsbesieulssecducesebi 4

1849 Report of the Commissioner of Indian Affairs

GE bonctenadbnekeccdasasiuensntethebbaseces és 5

OPINIONS AND DECISIONS BELOW

The Eighth Circuit opinion is reported at 124 F.3d 904

(1997) and reprinted in the appendix to the Petition for

Certiorari (“PA”) at 1. That opinion affirmed the follow-

ing orders and rulings of the District Court, which also

are reprinted in the petition appendix: Mille Lacs Band of

Chippewa Indians v. Minnesota, 853 F. Supp. 1118 (D. Minn.

1994) (Mille Lacs I) (PA 351); Mille Lacs Band of Chippewa

Indians v. Minnesota, 861 F. Supp. 784 (D. Minn. 1994)

(Mille Lacs II) (PA 212); Mille Lacs Band of Chippewa Indians

v. Minnesota, unreported, No. 3-94-1226 (D. Minn. Mar.

29, 1996) (Mille Lacs III) (PA 164); Mille Lacs Band of

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

1997) (Mille Lacs IV) (PA 74); Fond du Lac Band of Chippewa

Indians v. Carlson, unreported, No. 5-92-159 (D. Minn.

Mar. 18, 1996) (PA 419).

JURISDICTION

The court of appeals entered its judgment on August

26, 1997. PA 1. A timely petition for rehearing with sug-

gestion for rehearing en banc was denied on November

17, 1997. PA 482. The petition for certiorari was filed

February 17, 1998, and granted on June 8, 1998. fhe

jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1).

STATUTES, TREATIES AND ORDERS INVOLVED

Treaty with the Chippewa, July 29, 1837, art. 5, 7 Stat.

536 (PA 484); Treaty with the Chippewas, Feb. 22, 1855,

art. I, 10 Stat. 1165 (PA 502); Act of May 11, 1858, 11 Stat.

285 (PA 515); Executive Order, President Zachary Taylor,

Feb. 6, 1850 (PA 565).

STATEMENT OF THE CASE

This case involves a dispute between the State of

Minnesota and eight Chippewa Bands (collectively the

“Bands”) located in Minnesota and Wisconsin over the

State’s authority to regulate the harvest of fish and game

in a uniform, nondiscriminatory manner for all citizens

within the territory ceded by the Bands to the United

States in a nineteenth century treaty. The dispute arises

from the Bands’ assertion that the hunting and fishing

privilege the Bands reserved in Article 5 of the Treaty of

1837 continues to exist and that, as a result, the State’s

authority to regulate those activities by Band members

within the ceded territory is severely limited, and that the

State is obligated to modify its regulations of non-Indians _

and its management of those natural resources to accom-

modate a defined “treaty harvest.”

Historical Background

In the 1700s, the Chippewa Indians occupied a large

area of the Northwest Territory, including much of pre-

sent-day Michigan, Wisconsin and Minnesota. Different

tribal subgroups, called “bands,” moved into separate

areas that provided resources for subsistence living. The

Chippewa bands’ locations in the Wisconsin and Minne-

sota territories became fairly permanent homelands in the

nineteenth century. However, the advance of white settle-

ment that began at the turn of that century brought

tremendous changes to the area historically occupied by

the Indians, changes that would required adaptation and

compromise.

The Chippewas’ history is similar to that reflected in

other cases considered by this Court. With the continued

presence of traders in the early 1800s, and the advance of

lumbermen, agricultural settlers, missionaries and com-

mercial activity along the river and lake routes, the

Indians’ land became the focus of competition for

resources. The federal government was committed to

facilitating the rapid settlement of the area and access to

the substantial mineral and timber wealth.

From the time the Northwest Ordinance was adopted

in 1787, the policy of the United States government was

to enter into treaties with the Indians in the Northwest

Territory, providing compensation in exchange for the

cession of their aboriginal title to the land they occupied.

PA 226. Sometimes this cession was subject to continued

occupancy and exercise of hunting and fishing privileges

on the ceded lands. Id. By 1830, however, because of the

continuing pressure of expansion through white settle-

ment and resource development, the federal policy was to

remove the remaining Indians west of the Mississippi. PA

225-26. On May 28, 1830, Congress authorized the Presi-

dent to set up land districts west of the Mississippi for

the Indians’ removal. 4 Stat. 411 (JA 20). Congress also

appropriated $500,000 to carry out that removal program.

Id.

In 1837, Congress provided additional express

authority to the Indian Department “for holding treaties

with the various tribes of Indians east of the Mississippi

river, for the cession of lands held by them respectively,

and for their removal west of the Mississippi.” Act of

March 3, 1837, 5 Stat. 158 (JA 27). Following the enact-

ment of this law, Wisconsin Territorial Governor Henry

Dodge entered treaty negotiations with representatives of

twelve different Chippewa bands at Fort Snelling (located

in what is now Minneapolis, Minnesota). PA 229.

On July 29, the United States and the Bands executed

the Treaty with the Chippewa of 1837 (“the 1837 Treaty”).

PA 484. Article 5 of the Treaty, which is the sole basis for

the Bands’ claims in this case, contains the following key

provision:

Article 5. The privilege of hunting, fishing, and

gathering the wild rice, upon the lands, the

rivers and the lakes included in the territory

ceded, is guarantied [sic] to the Indians, during

the pleasure of the President of the United States.

PA 486 (emphasis added). The federal government's pri-

mary goal was to extinguish Indian title so that the lands

could be opened to lumbering, while also allowing white

settlement whenever the government might desire it. PA

227-31. While the number of white settlers in the 1837

Ceded Territory was not yet large, the pressure for white

expansion into the area was growing. PA 223-24.

The Journal of the 1837 Treaty Negotiations describes

how Chippewa spokesmen requested that the govern-

ment use the Chippewa lands only for a period of years,

and that the Indians retain the lands that the government

was requesting on a permanent basis for hunting, fishing

and other purposes. JA 70-76. In response to the Indians’

negotiation inquiries, Governor Dodge explained that the

government was not interested in “leasing” the land, and

twice said the hunting and fishing privilege the Indians

were reserving was temporary in nature. Dodge stated:

It is proper for me to explain to you that your

Great Father [the President] never buys land for

a term of years. I will agree on the part of the

President, that you shall have the free use of the

rivers, and the privilege of hunting upon the

lands you are to sell to the United States, during

his pleasure. If you sell these lands, you must

sell them as all the other nations of Indians have

done ....

JA 73-74. The next day, Governor Dodge told the Indians:

I will make known to your Great Father, your

request to be permitted to make sugar on the

lands; and you will be alowed, during his plea-

sure, to hunt and fish on them. It will probably

be many years before your Great Father will

want all these lands for the use of his white

Children.

JA 78.

White settlement and expansion of commerce contin-

ued to increase. In response to this pressure, and despite

the opposition of many Indians, the federal government

remained committed to the policy of removing Indians

westward throughout the 1840s. The 1848 report of the

Commissioner of Indian Affairs (COIA) included Com-

missioner Medill’s statement that

the Chippewas, as heretofore stated, are remain-

ing by sufferance on lands which have been

ceded to the United States, and from which,

looking only to their own benefit, they should

soon be required to move.

JA 138-39. The 1849 COIA report echoed that theme,

stating that the Chippewa

are permitted to live in the ceded country until

required to remove by the President, and are

allowed to hunt and fish therein until notice is

given that the privilege must cease and as it is

anticipated this requisition will soon be made

and the notice speedily given... .

JA 145. The 1849 COIA Report also stated:

The time has arrived when the interests of the

Indians, as well as the interests of the citizens of

Minnesota Territory, require that the privilege

granted the Chippewas to occupy, for a limited

period, the country purchased of them in the

treaty of 1837, should terminate.

JA 147.

On October 11, 1849, in one of its first acts, the

Legislative Assembly of the new Territory of Minnesota

passed a resolution to Congress urging the removal of the

Chippewas living on ceded lands east of the Mississippi

to unceded lands west of the river. PA 566-68. That reso-

lution received the endorsement of the Territorial Gover-

nor, the Commissioner of Indian Affairs. JA 673-75,

878-79, 976-77. Congress, in turn, sent the resolution on to

the President. JA 674-75.

On February 6, 1850, President Zachary Taylor

responded to these calls for the Chippewas’ removal and

for a resolution to Indian-white conflict in the region by

issuing an Executive Order to accomplish two distinct

objectives: (1) it expressly terminated any special hunt-

ing, fishing, and gathering privilege and (2) it ordered the

removal of the Chippewas from the ceded territories. The

Order provided:

The privileges granted temporarily to the Chip-

pewa Indians of the Mississippi, by the Fifth

Article of the Treaty made with them on the 29th

of July 1837, “of hunting, fishing and gathering

the wild rice, upon the lands, the rivers and the

lakes included in the territory ceded” by that

treaty to the United States . . . are hereby revoked;

and all of the said Indians remaining on the

lands ceded as aforesaid, are required to remove

to the unceded lands.

PA 565 (emphasis added).

The Chippewa opposed removal to such an extent

that, by June 1851, the new Commissioner of Indian

Affairs concluded that removal was not in the interests of

the United States, and recommended that the Executive

Order be modified to allow those Chippewa who so

desired to remain in the ceded territories. PA 259-60. In

August 1851, the removal efforts wer temporarily sus-

pended by direction of the Acting Secretary of the Inte-

rior “until the final determination of the President.” JA

225. While active removal efforts were effectively ended,

the 1850 Executive Order was never revoked, and no

federal official even recommended revoking or modifying

the portion of the Order terminating the Indians’ hunting

and fishing privilege.

By 1854, a new Indian policy emerged, focusing on

reservations rather than removal. PA 264, 275. On Decem-

ber 19, 1854, Congress passed a law authorizing the Presi-

dent to negotiate with the Chippewa “for the

extinguishment of their title to all the lands owned and

claimed by them in the Territory of Minnesota and State

of Wisconsin.” Act of Dec. 19, 1854, 10 Stat. 598 (PA 532).

The Act further directed that any new treaties must con-

tain provisions “[g]ranting to each head of a family, in fee

simple, a reservation of eighty acres of land.” Id. This

new “allotment” requirement showed that the new fed-

eral policy was to place the Indians on established reser-

vations, and encourage them to become farmers.

Moreover, the Act in the fourth provision of section one

provided that “[t]he laws of the United States and the

Territory of Minnesota shall be extended over the Chip-

pewa territory in Minnesota whenever the same may be

ceded, and the same shall cease to be ‘Indian Coun-

try’. ...” PA S33.

On February 22, 1855, the Mille Lacs (along with

other bands not parties here) agreed to the 1855 Treaty.

PA 502. Article 9 contains the Bands’ agreement “that

they will settle down,” begin farming, build homes, and

educate their children. PA 512-13. The “land” provisions

of the 1855 Treaty are most important here. Article 2

established the boundaries of the new reservations. PA

503-05. Article 1 then completed the exchange:

The Mississippi, Pillager, and Lake Win-

nibigoshish bands of Chippewa Indians hereby

cede, sell, and convey to the United States all

their right, title, and interest in, and to, the

lands now owned and claimed by them, in the

Territory of Minnesota, and included within the

following boundaries . ... And-the said Indians do

further fully and entirely relinquish and convey to

the United States, any and all right, title, and inter-

est, of whatsoever nature the same may be, which

they may now have in, and to any other lands in the

Territory of Minnesota or elsewhere.

PA 502-03 (emphasis added). Unlike the 1837 Treaty, the

1855 Treaty did not reserve any special hunting, fishing,

and gathering privilege on ceded lands for the Indians.

Id.

In May 1858, Minnesota was admitted to the Union

as a State “on an equal footing with the original states.”

Act of May 11, 1858, 11 Stat. 285 (PA 515). At its first

session, the new state Legislature enacted laws regulating

hunting. The Legislature expressly extended the reach of

those laws to Indians off their reservations. 1858 Minn.

Laws, chs. XIX, XLIV (PA 569). Since that time, Minnesota

has always applied its game and fish laws to Indians off

the reservation just as it has applied them to other citi-

zens. PA 298-300.

Almost a century later, beginning in 1940, the Minne-

sota and Wisconsin Chippewa Bands brought various

claims against the federal government for, among other

things, alleged fraud, misrepresentation, and inadequate

compensation in the negotiation of the treaties. The

Bands sought compensation for the range of rights and

interests that were ceded in the treaties. The claims were

first brought before the Court of Claims, PA 39, and then,

after Congress created the Indian Claims Commission

(“ICC”) in 1946, the Bands refiled complaints with the

ICC. PA 45. The ICC ultimately awarded the Bands $9

million collectively to resolve all claims under the 1837

Treaty. The ICC determined that this amount was neces-

sary to compensate the Bands for the full value of the

ceded lands, determined according to their “highest and

most valuable uses.” PA 47.

Procedural History

Beginning in 1990, the Bands sued the State of Min-

nesota and its officials challenging their authority to

enforce state hunting and fishing laws against Band

members within the 1837 Ceded Territory. PA 9-10. In

1993, nine counties and six private landowners inter-

vened as defendants, and the United States intervened as

a plaintiff. PA 10.

The district court divided the Mille Lacs case into two

phases ~ the first to address whether the 1837 privilege

still existed, and its general nature, and the second to

address the allocation of fish and game resources as well

as the validity of particular State regulation of any con-

tinuing treaty right. PA 11. Following a Phase | trial, the

court ruled that the Mille Lacs Band had a continuing

privilege under the 1837 Treaty to hunt, fish and gather.

PA 350. It also ruled that the privilege applies only on

public lands or those private lands that are open to the

general public for hunting. PA 337-38.

In ruling for the Bands, the court rejected all of the

State’s defenses. First, the court held that President Tay-

lor’s express revocation of the Bands’ treaty privilege in

his 1850 Executive Order (PA 565) was invalid because

the Order was primarily a “removal” order and the Presi-

dent did not have authority to order removal. The court

held that the revocation portion of the Order was not

severable, and so also must be held invalid. PA 306-12.

Alternatively, even if the revocation provision was sever-

able, the court held that the provision of the Executive

Order was still invalid on the grounds that it was incon-

sistent with the Indians’ claimed understanding that the

privilege could be revoked only if they misbehaved, that

the Order violated the good faith requirement of the

Northwest Ordinance, and that the Order had been

repealed by implication. PA 313, 321.

The district court also rejected the State’s contention

that the 1855 Treaty extinguished the Mille Lacs Band’s

privilege in the 1837 Ceded Territory. PA 331. The court

ruled that there was no explicit language within the 1855

Treaty terminating the Band’s hunting and fishing privi-

lege, and that the historical context surrounding the 1855

Treaty, and the Band’s understanding of the Treaty,

showed that the privilege was not extinguished. PA

322-31.

On March 29, 1996, the court ruled that six Wisconsin

Chippewa Bands, who had intervened several months

earlier, also had continuing rights to hunt and fish in the

Minnesota portion of the 1837 Ceded Territory. PA 210.

The decision was largely predicated on the district court's

earlier decision in Phase I of Mille Lacs. But the court also

addressed the State’s new contention that the Bands’

privilege was extinguished when Minnesota was admit-

ted into the Union on equal footing with the original

thirteen states.' It ruled that the Bands’ 1837 Treaty privi-

lege was continuing in nature, not temporary, and there-

fore the equal footing doctrine established in Ward v. Race

Horse, 163 U.S. 504 (1896), did not apply to extinguish the

privilege upon the State’s admission into the Union. PA

187-89.

At the same time the Mille Lacs case was proceeding,

the State was also involved in a similar lawsuit involving

the 1837 Treaty with the Fond du Lac Band. PA 14. On

March 18, 1996, the district court ruled that the Fond du

Lac Band also retains a hunting, fishing and gathering

privilege under the 1837 Treaty; the decision was also

largely predicated on the 1994 district court ruling in the

Mille Lacs case. PA 457-64.

In June 1996, the district court consolidated the Phase

II portions of the Mille Lacs and Fond du Lac cases. PA

14-15. Phase II addressed the allocation of game and fish

resources between Band hunters and fishers and others,

and also the validity of particular state regulations as

applied to Band harvest. PA 15. On January 29, 1997, the

district court issued an Order resolving all pending

motions in Phase II of the consolidated cases. PA 74. The

January 29 Order directed the entry of final judgment in

the Mille Lacs case and with respect to the 1837 Treaty

claim in the Fond du Lac case. PA 162.

The court's January 1997 Order resolved several dis-

putes regarding management of the resources within the

Ceded Territory. It held that state biologists may no

longer unilaterally set the level of harvest (“harvestable

surplus”) for particular species, but rather must share

that regulatory authority, permanently, with the Bands. If

the parties cannot agree, the federal court will resolve the

' This defense had not been raised previously with respect

to the Mille Lacs Band.

resource management issues. PA 87-101. Although the

State and Bands had reached agreement on many

resource regulation matters through a stipulation, the

court also addressed unresolved disputes over prohibit-

ing the “shining” of deer over bait in December, and the

taking of fish in small lakes by gillnet. The Court rejected

the State’s arguments that these two activities should be

prohibited because of specific conservation concerns over

the impact on the deer and fish, holding that the “State’s

power to regulate Indian treaty rights is very narrow,”

and that the State must demonstrate that its regulation is

necessary “to forestall the imminence of extinction.” PA

119. The court held that the State’s measures must be the

“least restrictive alternatives,” and the State could not

even act to prevent the complete eradication of deer in a

local area, if the area would be naturally repopulated

from other areas. PA 119-20. Upon the Bands’ adoption of

their “Model Conservation Code,” State officials were

permanently enjoined from any action that would pre-

vent or interfere with the exercise of the Bands’ privilege

to hunt, fish and gather under the 1837 Treaty except as

authorized in the opinions and orders of the court. PA

158-59.

A panel of the Eighth Circuit affirmed the decisions

of the district court on all grounds. A 1. The circuit court

rejected the contention that President Taylor’s 1850 Order

terminated the Bands’ privilege, holding that the Presi-

dent was not authorized to issue the order, and the

revocation portion of the two-part order was not sever-

able from the remainder. The court did not address the

additional grounds in the district court decision for

rejecting the President's revocation of the hunting and

fishing privilege. PA 29-31. The circuit court also rejected

the contention that the equal footing doctrine, in this

factual context, extinguished the 1837 Treaty privilege.

PA 55. Finally, the Eighth Circuit agreed with the district

court that the language of the 1855 Treaty was not explicit

enough to extinguish the privilege reserved in the earlier

treaty. PA 36-37. In doing so, it deferred to the lower

court's factual findings regarding the Indians’ under-

standing of the treaty language. Id.2

The State sought rehearing and suggested rehearing

en banc, but the court of appeals denied both motions on

November 17, 1997. PA 482. This Court granted certiorari

on June 8, 1998.

SUMMARY OF ARGUMENT

The Eighth Circuit decision here substantially and,

more important, unnecessarily encroaches on Minnesota’s

core sovereign function of safeguarding and regulating

the use and taking of the State’s game and fish resources.

The lower courts here misused the rules of treaty con-

struction to turn the key treaty provisions on their heads,

interpreting “during the pleasure of” to mean “for

cause,” “any and all interest” to mean “only some inter-

ests,” and “any other lands in Minnesota” to mean “only

some other lands in Minnesota.”

The Bands’ hunting, fishing and gathering privilege

under the 1837 Treaty was effectively terminated by any

of three different events - President Taylor’s 1850 Order,

the 1855 Treaty (applicable here only to the Mille Lacs

Band) and Minnesota's admission into the Union in 1858.

However, contrary to the plain language of the two

treaties and this Court’s pronouncement about the effect

of statehood, the district court and the Eighth Circuit

held that each of these bases for extinguishment of the

privilege under the 1837 Treaty was inapplicable, and

that the special privilege to hunt, fish and gather, free of

most state regulation, continues to this day and prevents

2 The lower courts also addressed numerous other issues

that were not raised in the State’s petition for certiorari, and so

are not at issue here.

(EEE eee Se ee Oa

Minnesota from exercising full sovereignty over its natu-

ral resources in three million acres of the State’s prime

hunting and fishing area.

Under the Treaty, the privilege of hunting, fishing

and gathering iri the 1837 Ceded Territory was guaran-

teed only “during the pleasure of the President.” In 1850,

President Taylor issued an Executive Order expressly

revoking the temporary treaty privilege. However, the

district court held that the Treaty did not actually autho-

rize the President to revoke the privilege. Contrary to the

obvious import of the Treaty’s “during the pleasure of”

language, the district court interpreted the Treaty provi-

sion to have an unwritten condition that the privilege

could be revoked only if the Indians misbehaved. While

the court purported to apply the special, liberal rules of

treaty construction, in fact the court ignored the Treaty’s

plain language, and added the misbehavior condition

even though there was not a single bit of evidence that, at

the time of the Treaty, the federal negotiators or Congress

understood such a condition to apply. The interpretation

was based only on speculation as to what the Indians

might have understood.

The Mille Lacs Band also relinquished any remaining

hunting, fishing and gathering privilege in the 1837

Ceded Territory when it signed the 1855 Treaty “fully and

entirely relinquish{ing] and conveyling] to the United

States, any and all right, title, or interest, of whatsoever

nature the same may be, which they now have in, and to,

any other lands in the territory of Minnesota or else-

where.” While this language would obviously appear to

extinguish any remaining hunting, fishing and gathering

privilege in Minnesota based upon the 1837 Treaty, the

lower courts applied the rules of treaty construction to

reach conclusions wholly at odds with the plain treaty

language. Instead of “any and all right, title, and interest,

of whatsoever nature the same may be,” the courts found

that the key language in the 1855 Treaty did not apply to

some rights and interests, specifically the 1837 hunting,

fishing and gathering privilege. And despite the fact that

the all-encompassing relinquishment applied to rights

and interests in and to “any other lands in the territory of

Minnesota or elsewhere,” the district court found that the

provision applied to some Minnesota lands, but not those

ceded in 1837. The lower courts based their interpreta-

tions on supposed historical context, even though there

was no evidence that any of the parties, at the time of the

1855 Treaty, understood the relinquishment provision to

be limited.

In making these interpretations, the lower courts

ignored this Court's oft-repeated admonitions that, even

in the context of Indian treaties, courts may not ignore

the agreements’ plain language and, in effect, amend the

treaties. See, e.g., United States v. Choctaw Nation, 179 U.S.

494, 535 (1900). Historical evidence must be virtually

conclusive to overcome “the ‘almost insurmountable pre-

sumption’ that arises from the statute’s plain terms.”

South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789, 802

(1998). The historical evidence here, even if it could be

interpreted to favor the Bands, was not so overwhelming

as to overcome the plain treaty language.

Regarding the 1850 Presidential Order, the circuit

court did not reach the interpretation issue, but instead

held that the order was invalid because another provision

(for the removal of the Indians) was unauthorized. The

court then held that the revocation of privileges was also

invalid because it was not severable. But the court’s

decision shows that it reversed the presumption in this

Court’s caselaw that a separate valid provision should be

upheld unless it is evident that it would not have been

enacted without the invalid provision. See Champlin Refin-

ing Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210,

234 (1932). Despite its conclusion that there was an

obvious reason why the President may have adopted the

revocation provision on its own, the court erroneously

held the provision invalid because it was not shown that

the President would have adopted that provision sep-

arately.

Finally, the circuit court failed to recognize the

importance of Minnesota’s sovereign interest as a state.

Because the treaty privilege was guaranteed only “during

the pleasure of the President,” it was certainly “tempor-

ary and precarious” within the contemplation of this

Court's decision in Ward v. Race Horse, 163 U.S. 504 (1896),

and was therefore extinguished when Minnesota was

admitted into the Union on an “equal footing” with the

Original states in 1858. The circuit court incorrectly distin-

guished Ward, holding that the treaty privilege here was

not temporary, precarious, or perishable, and that the

limitations imposed here on the State’s ability to manage

its natural resources are not “irreconcilable” with Minne-

sota’s sovereignty.

There may be some basis for the lower courts’ con-

cerns that the federal government did not treat the

Indians fairly in making the 1837 Treaty. But this Court

has rejected the notion that perceived injustice in the

negotiation of Indian treaties should be corrected by judi-

cially recrafting the treaty provisions. See Linited States v.

Mille Lac Band, 229 U.S. 498, 500-01 (1913). Rather, the

forum to recompense overreaching in these old treaties

was the Indian Claims Commission and, as explained

above, the Bands made such claims and were compen-

sated for the entire value of the lands ceded in the 1837

Treaty. Consequently, there is no reason for the courts to

struggle to avoid the obvious effect of the treaty language

at issue here, or to fail to acknowledge the full scope of

Minnesota's sovereignty upon admission to the Union.

ARGUMENT

I. THE 1850 PRESIDENTIAL ORDER TERMINATED

ANY SPECIAL PRIVILEGE TO HUNT, FISH AND

GATHER.

Article 5 of the 1837 Treaty provides: “The privilege

of hunting, fishing, and gathering wild rice, upon the

lands, the rivers and the lakes included in the territory

ceded, is guarantied [sic] to the Indians, during the plea-

sure of the President of the United States.” PA 486 (emphasis

added). Pursuant to this authority, on February 6, 1850,

President Zachary Taylor responded to calls for a resolu-

tion to Indian-white conflict in the Minnesota Territory by

issuing an executive order expressly terminating the priv-

ilege. The Executive Order provided:

The privileges granted temporarily to the Chip-

pewa Indians of the Mississippi, by the Fifth

Article of the Treaty made with them on the 29th

of July 1837 “of hunting, fishing and gathering

the wild rice, upon the lands, the rivers, and the

lakes included in the territory ceded” by that

treaty to the United States . . . are hereby revoked;

and all of the said Indians remaining on the

lands ceded as aforesaid, are required to remove

to their unceded lands.

PA 565 (emphasis added). Thus, the temporary hunting

and fishing privilege reserved under the 1837 Treaty,

upon which the Bands’ claims in this case are solely

based, was expressly terminated by federal action.

A. The Treaty Gave The President Sole Discretion

To Revoke The Privilege.

The district court erroneously determined that the

treaty did not authorize the President's order revoking

the treaty privilege. The Bands’ hunting, fishing and

gathering privilege was guaranteed only “during the

pleasure of” the President. Nothing else in the treaty

restricts the President’s discretion. There can be no

serious dispute that the ordinary meaning of the phrase

“during the pleasure of” in legal documents such as

treaties is that the designated person or entity has the

sole discretion to decide to take the contemplated action.*

There can be no doubt that Congress, in approving the

treaty, would have understood the phrase to have this

meaning.

Nonetheless, the district court interpreted Article 5 to

contain an additional, implicit, limitation on the Presi-

dent’s authority — that he could revoke the privilege only

due to Indian misbehavior. PA 313-14.4 Thus, the district

court interpreted the key treaty phrase to mean the oppo-

site of its normal meaning. The court essentially inter-

preted “during the pleasure of” to mean “terminable for

cause.”°

3 See, e.g., Hynes v. Grimes Packing Co., 337 U.S. 86, 103

(1949) (reservation created by executive order “conveys no right

of use or occupancy . . . beyond the pleasure of Congress or the

President. Such rights may be terminated by the unilateral

action of the United States ....”); Bishop v. Wood, 426 U.S. 341,

345-46 n.9 (1976) (“at pleasure of” means “terminable at

will . . . irrespective of the quality of performance by the other

party”).

4 The Seventh Circuit had previously made the same

holding in Lac Courte Oreilles Band of Lake Superior Chippewa

Indians v. Voigt, 700 F.2d 341, 356-57 (7th Cir.), cert. denied, 464

U.S. 805 (1983). Years earlier, however, the Court of Claims had

concluded that the parties’ intention was that “the Indians were

to have only a revocable license to use the land until the

President required them to vacate it.” Mole Lake Band v. United

States, 139 F. Supp. 938, 940 (U.S. Ct. Cl.), cert. denied, 352 U.S.

892 (1956).

5 See Arnett v. Kennedy, 416 U.S. 134, 181 (1974) (White, J.,

concurring and dissenting) (action “for cause” distinguished

from “at pleasure”; “at pleasure” means “total discretion,”

quoting Reagan v. United States, 182 U.S. 419, 425 (1901)).

In reaching this conclusion, the district court applied

the well-known special rules of construction for Indian

treaties.© But the district court violated the first rule of

treaty construction, that courts in Indian cases are

without authority to determine the rights of parties

upon the ground of mere justice or fairness, much

less, under the guise of interpretation, to depart from

the plain import of the words of the treaty. Its duty

was to ascertain the intent of the parties accord-

ing to established rules for interpretation of

treaties. Those rules, it is true, permit the rela-

tions between the Indians and the United States

to be taken into consideration. But if the words

used in the treaty of 1866, reasonably interpreted,

import beyond question an absolute, unconditional

cession of the lands in question to the United States

free from any trust, then a court cannot amend the

treaty or refuse to carry out the intent of the parties,

as gathered from the words used, merely

because one party to it held the relation of an

inferior and was politically dependent on the

other, or because in the judgment of the court

the Indians may have been overreached.

United States v. Choctaw Nation, 179 U.S. 494, 535 (1900)

(emphasis added). And the Court has more recently

reemphasized that the plain meaning of a treaty provi-

sion is the overriding element of treaty construction. See,

e.g., South Carolina v. Catawba Indian Tribe, 476 U.S. 498,

6 These canons of construction generally require (1) that

treaties be liberally construed in favor of the Indians, see, e.g.,

Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32

(1943); (2) that ambiguous expressions in treaties must be

resolved in favor of the Indians, see, e.g., Carpenter v. Shaw, 280

U.S. 363, 367 (1930); and (3) that treaties should be construed as

the Indians would have understood them, see, e.g., Worcester v.

Georgia, 31 U.S. 515, 551-54 (1832).

506 (1986); Oregon Dep't of Fish & Wildlife v. Klamath, 473

U.S. 753, 774 (1985).

The district court’s conclusion that the treaty con-

tained an unwritten misbehavior standard rests on the

slenderest of reeds. The Indians did not speak English,

and some observers described the government translators

as incompetent. PA 229. The Bands produced expert testi-

mony indicating that treaty concepts would have been

difficult to translate into the Chippewa language, and the

experts speculated that the Indians would not have

understood the concept of “at the pleasure of the Presi-

dent.” PA 230, 235, 315. The court emphasized the impor-

tance of hunting, fishing and gathering to the Indians. PA

231.

Despite the speculation of the Bands’ experts and the

district court, there was not an iota of evidence from the

treaty negotiations that the Indians did not understand

the meaning of “during the pleasure of the President.”

Since the Indians did not understand English, their

understanding of any of the treaty provisions would have

necessarily derived entirely from what someone told

them. However, when the State asserted that English-

speaking persons at the negotiations who were friendly

to the Indians may have explained the treaty provisions

to them, the court dismissed it as “speculation rather than

hard evidence of actual translations.” PA 315.

The treaty journal, the best evidence of what

occurred at the negotiations, contains no evidence that

the Indians did not understand the key treaty term or

that anyone at the negotiations discussed a misbehavior

standard. But the journal does indicate that the Indians

were told that the privilege was temporary. Indeed, the

government negotiator told the Indians: “[Y]Jou will be

allowed, during his pleasure, to hunt and fish on [the

lands]. It will probably be many years, before your Great

Father [the President] will want all these lands for the use

of his white Children.” PA 233. In the years between the

adoption of the treaty and the President's order, the fed-

eral government asserted that the Indians’ reserved hunt-

ing, fishing and gathering privilege was subject to the

President's discretion, as indicated by annual reports of

the Commissioner of Indian Affairs. JA 138-39, 145; PA

244, 253.7

Even viewing the historical evidence most favorably

to the Bands, it was at best equivocal as to whether the

Indians understood, or would have understood, the 1837

Treaty language to mean anything other than its normal

meaning. And the Bands’ evidence consisted of the spec-

ulation of their expert linguist and historians who had no

actual knowledge of what the Indians understood or

what was explained to them at the time they agreed to

the Treaty. There was no evidence that the federal treaty

negotiators, or Congress in approving the treaty, under-

stood the treaty provision other than in its normal sense.

Thus, the situation here is similar to that in Klamath,

where the Court observed: “The historical record of the

lengthy negotiations between the Tribe and the United

States provides no reason to reject the presumption that the

1901 Agreement fairly describes the entire understanding

between the parties.” 473 U.S. at 772 (emphasis added). See

also South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789, 802

(1998) (equivocal evidence of historical context of Indian

reservation statute insufficient to rebut the “ ‘almost

insurmountable presumption’ that arises from the stat-

ute’s plain terms”).

It is also significant that the President, who was

authorized by the Treaty to revoke the hunting, fishing

and gathering privilege, interpreted the Treaty to autho-

rize him to do so at his sole discretion. An executive

7 And in the century after the President's 1850 Order, many

federal officials, including President Franklin Roosevelt, took

the position that the Order had terminated the Indians’ hunting,

fishing and gathering rights under the treaty. PA 298-300.

action, when executed by the President pursuant to an

Act of Congress, is “supported by the strongest presump-

tion and the widest latitude of judicial interpretation, and

the burden of persuasion would rest heavily upon any

who might attack it.” Dames & Moore v. Regan, 453 U.S.

654, 668 (1981) (citation omitted). The district court's

decision here was contrary to the express language of the

treaty, and the historical evidence was plainly insufficient

to overcome the strong presumption of validity of the

President’s action and his interpretation of the Treaty.

“The canon of construction regarding the resolution

of ambiguities . . . does not permit reliance on ambi-

guities that do not exist; nor does it permit disregard of

the clearly expressed intent of Congress.” Catawba, 476

U.S. at 506. The language of Article 5 is plain. The only

plausible meaning to ascribe to the phrase “pleasure of

the President” is that the President was authorized to

revoke the privilege at his discretion.

There can be no question that this is how Congress

would have understood the treaty. During the mid-1800s,

it was not unusual for Congress to delegate broad author-

ity regarding Indian affairs to the President. In 1834, for

example, Congress enacted Rev. Stat. § 465, 4 Stat. 738

(recodified as 25 U.S.C. § 9), which states: “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.” Moreover, Congress ratified

many Indian treaties providing that the President was

responsible for implementing the specific conditions and

agreements in Indian treaties. Such treaties used the

phrases “during the pleasure of the President,” “during

the pleasure of the Secretary of Indian Affairs,” or “dur-

ing the pleasure of the Government” to describe when

and how the federal government would satisfy its

responsibilities under Indian treaties.* The common

* Several other treaties negotiated during the 1830s

contained the phrase “during the pleasure of the President.” See

usage of these phrases and similar ones is evidence that

Congress relied upon the president and the executive

branch to unilaterally determine how best to satisfy

treaty obligations.

Indeed, when Congress wanted to limit or condition

the president’s discretion in a treaty, it did so expressly.

By the time of the 1837 Treaty, Congress and the executive

were well acquainted with treaties that expressly condi-

tioned or limited Indian hunting and fishing privileges

depending on, for example, the Indians’ behavior.? No

such language exists in the 1837 Treaty.

Even in Indian treaties, if the meaning of language to

Congress is evident, the courts should require conclusive

1833 Treaty with the Pawnee, art. 2 (JA 1946); 1833 Treaty with

the Quapaw, art. 6 (JA 1933); 1832 Treaty with the Sauk and

Foxes, art. 7 (JA 1938). Like the 1837 Treaty, the 1833 Pawnee

Treaty used the phrase with regard to temporary hunting and

fishing rights. Similarly, after 1850, Indian treaties continued to

use the phrase “pleasure of the President,” providing the

President with discretion over a wide ranging set of

responsibilities. See 1858 Treaty with the Yankton Sioux, 11 Stat.

743; 1856 Treaty with the Creek, 11 Stat. 699; 1858 Treaty with

the Ponca, 12 Stat. 997; 1857 Treaty with the Pawnee, 11 Stat.

729.

See also 1862 Treaty with the Ottawa of Blanchard’s Fork

and Roche de Boeuf, art. 11, 12 Stat. 1287 (pleasure of the

Secretary of Interior); 1805 Treaty with the Cherokee, art. 1, 7

Stat. 95 (pleasure of the government); 1819 Treaty with the

Cherokee, art. 3, 7 Stat. 195 (same).

* For example, Article VI of the 1805 Treaty with the

Wyandot, 7 Stat. 87, provides that the Indians “shall be at liberty

to fish and hunt . . . as long as they shall demean themselves

peaceably.” Similarly, Article III of the 1818 Treaty with the

Quapaws, 7 Stat. 176, states that “the said tribe or nation shall

be at liberty to hunt within the territory by them ceded to the

United States, without hindrance or molestation, so long as they

demean themselves peaceably, and offer no injury or annoyance

to any of the citizens of the United States... . ”

evidence to overcome the “almost insurmountable pre-

sumption” created by the treaty’s plain meaning. The

historical evidence on this point did not favor the Bands.

But even given its most generous assessment, the evi-

dence was not nearly so powerful as to overcome the

plain language of the Treaty.

B. The Provision Of The President’s Order Revok-

ing The Privilege of Hunting, Fishing and

Gathering Is Severable From The Removal Pro-

vision.

The circuit court did aot resolve the interpretation

issue just discussed. Rather, it addressed the presidential

order argument by holding that the provision requiring

that the Indians be removed from the Ceded Territory

was invalid, because the President was not authorized to

order the Indians’ removal without their consent. PA 27.

The court then held that the revocation provision was not

severable from the removal provision, so that the revoca-

tion could not stand alone. PA 31. That holding was

erroneous. The appellate court reversed the presumption

of severability, and held that the revocation provision

could not be severed from the removal provision, even

though there was no evidence that the President would

not have issued the revocation portion of the order by

itself.

The severability standard, for legislative acts, was

established in Champlin Refining Co. v. Corporation Comm'n

of Oklahoma, 286 U.S. 210, 234 (1932):

The unconstitutionality of a part of an Act does

not necessarily defeat or affect the validity of its

remaining provisions. Unless it is evident that

the Legislature would not have enacted those pro-

visions which are within its power, indepen-

dently of that which is not, the invalid part may

be dropped if what is left is fully operative as a

law.

(Emphasis added.) The court “should refrain from

invalidating more of the statute than is necessary“; rather,

“it is the duty of this court to . . . maintain the act in so far

as it is valid.” Alaska Airlines v. Brock, 480 U.S. 678, 684

(1987). The court of appeals here, like other circuit courts,

assumed that this same standard for severability would

also apply to presidential orders. PA 27; citing In re Reyes,

910 F.2d 611, 613 (9th Cir. 1990).

However, after correctly reciting the standard, the

appellate court then reversed the presumption, saying,

“The task before us, therefore, is to determine whether

President Taylor would have issued an executive order

revoking the Bands’ treaty rights without also ordering

removal.” PA 28-29 (emphasis added). The court agreed

with the district court that the overriding purpose of the

order was to effect the Indians’ removal from the Ceded

Territory, and that the provision revoking the hunting,

fishing and gathering privilege was included “to encour-

age removal.” PA 29. And the court acknowledged that, if

the goal was to obtain the Indians’ removal, there was a

“strong argument” that the president would have

revoked the treaty privilege, even without the removal

provision, in order to encourage the Indians to move to

their remaining unceded lands. Id. (Indeed, one of the

Bands’ experts testified that the revocation provision was

likely included to encourage the Indians to remove, say-

ing the government understood there was no direct

authority for removal in the treaty. JA 1098-99.) However,

the appellate court asserted that “there is no evidence in

the record that revocation of usufructuary rights would

have been made independently of the removal mandate”

(emphasis added), and then concluded: “Without evi-

dence that the scenario we have outlined had even been

contemplated, we cannot sever the revocation portion of

the order ....” PA 29-31.

Thus, the appellate court acknowledged the obvious

reason why the President would have issued the revoca-

tion order alone, even assuming the correctness of the

district court’s finding that the overall purpose of the

order was removal. But rather than trying to preserve as

much of the order as possible, and requiring a showing

that the President would not have adopted the revocation

provision by itself, the lower court invalidated the

revocation order because there was not sufficient evi-

dence that it would have been adopted on its own.

Moreover, even if the question had been whether the

President would have adopted the revocation provision

independent of the removal provision, the origins of the

presidential order show that the privilege to hunt, fish

and gather under the 1837 Treaty was raised as a separate

concern. In September 1849, the new governor of the

Minnesota Territory argued for the Chippewas’ removal,

saying:

Much complaint is made by the settlers about

Sauk Rapids, Swan River &c as to the demor-

alizing effects of the privilege given the Chippe-

ways, in the Treaty of 1837, to hunt and fish

upon the lands ceded by said Treaty. It might be

well for the Legislative Assembly, to memorial-

ize the President of the United States, requesting

him to notify the Chippeways that these privi-

leges must cease and requiring them to move

into their proper territory.

JA 878. The following month, the territorial legislature

approved such a resolution. PA 252. The resolution was

endorsed by the territorial governor and the Commis-

sioner of Indian Affairs. JA 673-75, 878-79, 976-77. Con-

gress in turn, sent the resolution to the President, who

issued the order in February 1850. JA 674-75; PA 253.

Therefore, there was evidence to support the conclusion

that the President would have issued the order revoking

the temporary treaty privilege, even without the removal

provision.

The Eighth Circuit erred in holding that the revoca-

tion provision of the 1850 Order was not severable. It

could undoubtedly operate independently of the removal

provision,’® and the record did not show that the Presi-

dent would not have issued it independent of the

removal provision.

C. The 1850 Order Did Not Violate A Duty Of

Good Faith, And Was Not Revoked By Implica-

tion.

The district court rejected the argument that the 1850

Order effectively revoked the Indians’ hunting, fishing

and gathering privilege for t.vo additional reasons. It

held that the revocation violated an obligation of “good

faith” imposed by the Northwest Ordinance. PA 313, 316.

And it held that the Order was repealed by implication.

PA 321." Each of these rulings was erroneous.

The Northwest Ordinance required that “utmost

good faith shall always be observed towards the Indians;

their lands and property shall never be taken from them

without their consent ....” 1 Stat. 51, art. 3 (1787) (JA

16). The district court held that the President's order

revoking the temporary treaty privilege violated this

good faith requirement. But the Indians had conveyed

operate separately, and were intended to do so, is best

illustrated by the situation of the Fond du Lac Band, which did

not live in the Ceded Territory, but nonetheless claimed

hunting, fishing and gathering rights there under the 1837

Treaty. JA 1492-1507. Since only the revocation provision of the

1850 Order applied to the Fond du Lac Band (as well as other

bands, not parties here, who were parties to the 7 seaty but did

not live in the ceded territory), that provision hed significance

independent of the removal provision.

"! Because of its ruling that the removal provision was

invalid and the revocation provision was not severable, the

circuit court did not reach these issues. PA 31 n.25.

si : |

their land, for compensation, in the 1837 Treaty. While the

Treaty reserved the privilege of hunting, fishing and

gathering, this privilege was guaranteed only “during the

pleasure of President.” Thus, it was the Treaty, itself an

act of Congress, which resulted in the diminishment of

the Indians’ rights; the President simply exercised the

authority clearly granted in the Treaty. Where an act of

Congress subsequent to the Northwest Ordinance autho-

rized the President's action, that action cannot be found

invalid on the basis that it was inconsistent with the

earlier Ordinance. See Ward v. Race Horse, 163 U.S. 504,

513 (1896). Accordingly, if the Treaty is interpreted as the

State has argued above, there was no violation of any

requirement of good faith.

Nor was the President's order repealed by implica-

tion. The district court cited evidence that the federal

government's removal effort met resistance from the

Indians, that federal officials recommended abandonment

of the removal effort, that they recommended modifica-

tion of the removal requirement of the order, and that the

removal effort was finally abandoned. PA 255-64, 320-21.

From this, the district court found that “the executive

branch” intended to repeal the President’s order. PA 321.

But while there was evidence that federal officials

intended to suspend the removal effort, there was no evi-

dence that the President ever revoked or modified, or

even considered revoking or modifying, his order. And

there was no evidence that any federal official recom-

mended reversal of the portion of the order revoking the

hunting, fishing and gathering privilege; all the discus-

sion concerned the removal portion of the order.

It is a “cardinal rule” that repeals by implication are

not favored. Radzanower v. Touche Ross & Co., 426 U.S. 148,

154 (1976) (rejecting implied repeal of statute). There was

no basis for the district court to conclude that the provi-

sion revoking the hunting, fishing and gathering privi-

lege was repealed.

D. There Is No Reason Here To Depart From The

Plain Language Of The Treaty And The Presi-

dential Order.

There can be little doubt here as to the result that

must follow from the clear language of the 1837 Treaty

and the 1850 Presidential Order. The lower courts none-

theless determined that the Indians’ treaty privilege to

hunt, fish and gather continues to exist, largely free of

state regulation, based primarily on the liberal rules of

treaty construction and, apparently, on the belief that the

federal government did not deal fairly with the Indians in

the making of the treaty. While concern over past injus-

tices is wholly understandable, this Court, in another

treaty case involving the Mille Lacs Band, cautioned

against viewing the law to allow reformation of treaties

because of perceived exploitation of the Indians:

Nor does it contemplate that recovery may be

founded upon any merely moral obligation, not

expressed in pertinent treaties or statutes, or

upon any interpretation of either that fails to

give effect to their plain import, because of sup-

posed injustice to the Indians.

United States v. Mille Lac Band, 229 U.S. 498, 500-01 (1913).

As explained above, the Bands here filed claims with

the Indian Claims Commission in the late 1940s, and

ultimately received an award to compensate them for the

full value of the lands ceded in the 1837 and other

treaties, less amounts previously received. The value of

the land, and the amount of compensation paid to the

Bands, was based on the land’s “highest and most valu-

able uses,” without any deduction for a reserved hunting,

fishing and gathering privilege. PA 47. On its face, such

compensation was adequate to compensate the Indians

for all uses of the land, including hunting, fishing and

gathering. See Klamath, 473 U.S. at 773-74 (compensation

for full value of land, without reduction for value of

hunting and fishing rights, presumably includes those

rights). Thus, to the extent that the Bands were inade-

quately compensated under the 1837 Treaty for relin-

quishing all their rights to the Ceded Territory, including

the hunting, fishing and gathering privilege, the federal

government appropriately made recompense through the

ICC procedure. But after receiving fair compensation for

the entire value of the land, the Indians should not bene-

fit from strained application of the canons of treaty con-

struction and perversion of the treaty’s plain language to

recognize continued special rights relating to the land.

Much doubt will be cast on many statutes, treaties

and other important documents if the courts hold that the

ubiquitous phrase “during the pleasure of” may mean

“for cause.” There is no ground to make such a startling

holding here. Under the clear language of the 1837 Treaty

and the 1850 Order, the Indians’ hunting, fishing and

gathering privilege temporarily reserved in the treaty

was subsequently extinguished.

Il. THE TEMPORARY HUNTING, FISHING AND

GATHERING PRIVILEGE WAS EXTINGUISHED

WHEN MINNESOTA WAS ADMITTED INTO THE

UNION

The equal footing doctrine requires that all states admit-

ted into the Union after the original thirteen states have the

same rights and sovereignty at the time of admission as the

original states. See Ward v. Race Horse, 163 US. 504, 515

(1896); Utah Div. of State Lands v. United States, 482 U.S. 193,

196-98 (1987); Montana v. United States, 450 U.S. 544, 551

(1981). Included in that bundle of rights are the states’

sovereign trust and police powers over the taking of game

and fish within their borders, the “power to preserve and

regulate the exploitation of an important resource.” Baldwin

v. Fish & Game Comm'n, 436 U.S. 371, 386 (1978). As this

Court stated in Ward, the right of a state to completely

regulate hunting and fishing within its borders is an essential

attribute of its governmental existence. 163 U.S. at 510. Like

the presumption against federal preemption of state law, the

equal footing doctrine creates a strong presumption against

finding that federal actions supersede the exercise of a state’s

trust responsibility to manage natural resources for all its

citizens.

In this case, the Bands’ privilege to hunt and fish

under the 1837 Treaty was extinguished through applica-

tion of this doctrine when Minnesota entered the Union

because the privilege was, pursuant to the holding of

Ward, temporary and perishable by the express terms of

the Treaty.

A. Under Ward, A Treaty-based Right Does Not

Survive Statehood Where That Right Is Tempo-

rary Or Precarious.

Ward established the framework for determining

whether Congress intended a pre-statehood treaty-based

right to survive a state’s admission into the Union. The

relevant treaty provision there secured to the Bannock

Indians “the right to hunt upon the unoccupied land of

the United States, so long as game may be found thereon,

and so long as peace subsists among the whites and

Indians on the borders of the hunting districts.” 163 U.S.

at 507. In determining whether this right to hunt had

been extinguished when Wyoming was admitted into the

Union, the Court began its analysis by recognizing that

the full power of the state to regulate killing of game

within its borders was an “essential attribute” and a

“necessary incident” of state sovereignty. Id. at 510, 516.

Next, the Court analyzed whether Congress intended

the right to continue when it admitted Wyoming into the

Union in 1890. The Court emphasized that there is a

presumption that states are admitted into the Union with

the fullest set of rights and attributes of sovereignty.

The Court observed that the “equal footing” language in

Wyoming’s enabling act was “simply an expression of the

general rule that presupposes that states, when admitted,

aie

are endowed with the powers and attributes equal

in scope to those enjoyed by the states already admitted

.... ” Id. at 514-15. The Court said that Wyoming's

enabling act contained no expression of an intention to

continue the treaty right in the state. Id. at 515. Rather, the

Act expressed Congress’s intention not to continue the

treaty right. Id.

The Court explained that the equal footing doctrine

does not prevent the United States from creating a treaty

right which would be binding upon the state on its

admission into the Union:

Indeed, it may be further, for the sake of the

argument, conceded that, where there are rights

created by congress, during the existence of a

territory, which are of such a nature as to imply

their perpetuity, and the consequent purpose of

congress to continue them in the state, after its

admission, such continuation will, as a matter of

construction, be upheld, although the enabling

act does not expressly so direct. Here the nature

of the right created gives rise to no such impli-

cation of continuance, since by its terms, it

shows that the burden imposed on the territory

was essentially perishable, and intended to be of a

limited duration. Indeed, the whole argument of

the defendant in error rests on the assumption

that there was a perpetual right conveyed by the

treaty, when, in fact, the privilege given was tem-

porary and precarious.

Id. (emphasis added). The “temporary and precarious”

versus “continuing and perpetual” distinction was based

on the Court’s balancing of two competing interests —

honoring the commitments made in Indian treaties, while

at the same time limiting encroachment on core areas of

state sovereignty to the extent possible. The Court said:

Doubtless the rule that treaties should be so

construed as to uphold the sanctity of the public

faith ought not to be departed from. But that

salutary rule should not be made an instrument

for violating the public faith by distorting the

words of a treaty, in order to imply that it con-

veyed rights wholly inconsistent with its lan-

guage, and in conflict with an act of congress,

and also destructive of the rights of one of the

states.

Id. at 516. Where hunting rights were temporary, precar-

ious and perishable, such that the treaty contemplated

that the federal government could negate those rights,

then the Court held that there would be a presumption

that Congress intended to grant full sovereignty in that

area to the newly created state and to terminate the

Indians’ special hunting privilege when the state was

created. The presumption was that Congress intended to

give new states the fullest measure of sovereignty possi-

ble, consistent with binding obligations of previous

treaties.

The Court in Ward held that the Bannock Indians’

rights were precarious and perishable because the treaty

clearly contemplated the disappearance of the right to

hunt:

Indeed, it made the right depend on whether the

land in the hunting districts was unoccupied

public land of the United States. This, as we

have said, left the whole question subject

entirely to the will of the United States, since it

provided, in effect, that the right to hunt should

cease the moment the United States parted with

the title to its land in the hunting districts.

Id. at 509-10. The lands in question could become unavail-

able for treaty exercise, either when the United States

transferred title to a private party or occupied the land

itself by the creation of a national reserve (such as the

creation of Yellowstone Park). Id. at 510. Thus, because

the ability of the Bannock Indians to exercise the rights

was perishable from the very inception of the treaty, it

was a temporary right that did not survive Wyoming’s

admission into the Union. !?

United States v. Winans, 198 U.S. 371 (1905), decided

just nine years after Ward, illustrates the flip side of the

Ward distinction. In Winans, the Court rejected the equal

footing argument under the facts of that case, holding

that a treaty right “of taking fish at all usual and accus-

tomed places, in common with the citizens of the terri-

tory,” 198 U.S. at 378, “was intended to be continuing

against the United States and its grantees as well as

against the state and its grantees.” Id. at 381-82.

B. The Privilege Reserved By Article 5 Of The

1837 Treaty Was Temporary And Precarious.

The 1837 Treaty at issue here reserves the Bands’

privilege to hunt, fish and gather only “during the plea-

sure of the President.” As discussed in the previous sec-

tion, this privilege is temporary and precarious by its

express terms. The phrase “at the pleasure of the Presi-

dent” provides for the potential extinguishment or

revocation of the Bands’ privilege at any time. The Presi-

dent’s authority to terminate the privilege under Article 5

is not conditioned or limited in Article 5 or elsewhere in

the Treaty. Nowhere in the Treaty or in any other congres-

sional act or authorization is the President required to

seek the approval of Congress or the Bands before revok-

ing the Bands’ 1837 Treaty privilege.

Indeed, the precariousness of the Treaty privilege

here is even more immediately apparent than was the

case in Ward. The phrase “during the pleasure of” clearly

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

Tenth Circuit applied Ward to a treaty having nearly identical

language to the treaty at issue in Ward, and rejected the

argument that Ward had become outdated. The conflict between

Repsis and the lower court's decision here is one of the bases for

the State’s Petition for Certiorari.

communicates that the privilege is perishable on its face.

Moreover, the federal negotiator told the Indians that the

retained privilege was of limited duration, and that the

President would eventually need the land for white set-

tlers.!%

1. The Eighth Circuit erred in holding that

Ward was distinguishable.

In this case, the Eighth Circuit distinguished Ward for

two reasons. First, the court ruled that the holding in

Ward applied only to rights that were tied to the United

States’ ownership of the land. The court of appeals then

went on to conclude that, because in this case the privi-

lege of hunting and fishing was not tied to federal owner-

ship of the land, the principle in Ward did not appty. PA

55.

While it is true the treaty-based rights in Ward were

tied to United States ownership of the land, that was

merely the particular circumstance that, in Ward, made

the right temporary. The focus was the temporary, rather

than permanent, nature of the right. The Court stated in

Ward, “Indeed, the whole argument of the [Indians] rests

on the assumption that there was a perpetual right con-

veyed by the treaty, when in fact the privilege given was

temporary and precarious.” 163 U.S. at 515 (emphasis

added). But the Court in Ward did not suggest that the

right’s dependence on federal ownership was the only

circumstance that could make a treaty right temporary

and precarious. Moreover, even apart from the “pleasure

of the President” treaty language, the Bands’ privilege to

hunt, fish and gather here was temporary and perishable

13 Even if this Court were to rule that the President could

revoke the privilege only if the Bands misbehaved, as ruled by

the district court, the privilege would still be temporary and

precarious for purposes of the equal footing doctrine. But the

Court need not go that far here.

for essentially the same reason that such rights were

determined temporary in Ward — that the privilege would

be frustrated by the conveyance of the land to private

parties.

In the trial court, the Bands here conceded that the

treaty provided them no right of access to private lands

to exercise their hunting, fishing and gathering privilege,

and therefore that they could exercise their privilege only

on public lands and certain private lands open to the

public by operation of state law. PA 215 n.2. The trial

court so held. PA 337-38, 104-05.'4 Thus, while the trial

court did not hold, and the Bands do not concede, that

their hunting, fishing and gathering privilege was extin-

guished when the United States sold land in the ceded

territory to private parties, PA 335-36, it is clear that such

lands became unavailable to the Indians for hunting, fish-

ing and gathering when the lands were conveyed to

private parties who do not make the lands generally open

to the public.

The Bands’ privilege here was therefore precarious

and perishable from the inception of the Treaty, for the

very reason identified by this Court in Ward: the lands

may become unavailable for Indian hunting, fishing and

gathering simply because the United States transfers title

to a private party. In Ward, this occurred because the

treaty right applied only on lands “of the United States”;

here, it occurred because the Treaty provided no right of

access onto private land. Nonetheless, the practical result

- that the land would become unavailable for Indian

hunting, fishing and gathering by the unilateral and

4 While the Bands appealed one aspect of the district

court’s order determining which private lands would be

available for treaty hunting, fishing and gathering, they did not

seek review of the circuit court’s adverse ruling in this Court,

PA 70-72, and they have never asserted that they may exercise

their claimed rights on private lands absent consent of the

landowner.

unrestrained act of the United States in transferring title

to the land — is the same in each case. Moreover, the lower

court’s determination presents the same irony identified

in Ward - that the Bands are prevented from exercising

the special privilege to hunt, fish and gather by the mere

conveyance of the land to private parties, who lack

authority to regulate the taking of game and fish, but not

by the creation of a new sovereign state that has the

authority and responsibility to regulate such activities.

163 U.S. at 510.

The court of appeals’ second reason for distinguish-

ing Ward was its opinion that, even though the Bands’

1837 hunting and fishing privilege could be revoked by

the President, or abrogated by Congress like any other

treaty right, this did not deprive the privilege of its

continuing nature. PA 55-56 n.42. Certainly Congress

always has the ability to abrogate any treaty right, and

this underlying possibility does not make every treaty

right temporary or precarious within the contemplation

of Ward. But, absent authority in the treaty, the President

would not have authority to revoke a right preserved by

treaty. The specific provision here allowing the President

to terminate the privilege at his discretion clearly made

the privilege perishable from its inception. The 1837

Treaty expressly contemplated the future disappearance

of the Bands’ privilege.

2. The act admitting Minnesota into the Union

did not reserve treaty rights.

In 1858, Congress passed an act admitting Minnesota

into the Union on “equal footing with the original States

in all respects whatever.” 11 Stat. 285 (PA 515). The Act is

silent as to the Indians’ 1837 Treaty privilege. As Ward

held, the silence of an act is, in and of itself, an expression

of Congress’ intention to terminate treaty-based rights

which were not by their very terms meant to be perma-

nent. 163 U.S. at 515. In addition, Minnesota’s Act of

Admission did not contain a savings clause for treaty

rights, as did some state admission acts. See Ward, 163

U.S. at 506, 515-16, 519; Tulee v. Washington, 315 U.S. 681,

683 (1942).

C. The Bands’ Privilege Is Incompatible With

Minnesota’s Ability To Manage Its Natural

Resources.

This Court has long recognized that a state has the

authority to hold and manage its natural resources in

trust for the benefit of all citizens in common. See Hughes

v. Oklahoma, 441 U.S. 322, 338-39 (1979); Kleppe v. New

Mexico, 426 U.S. 529, 545 (1976) (“unquestionably, the

States have broad trustee and police powers over wild

animals within their jurisdiction”); Shively v. Bowlby, 152

U.S. 1, 26 (1894) (each state has authority and respon-

sibility for applying the public trust doctrine to trust

lands and waters “within its border according to its own

views of justice and policy”). The Bands’ 1837 Treaty

privilege to hunt and fish off-reservation outside of state

law is irreconcilable with the State's ability to enforce its

laws uniformly as to all persons within its jurisdiction.

Minnesota’s interest in natural resource management

is as important to its sovereignty as is its interest in

owning and controlling the use of the beds of lakes and

rivers.'5 Under the lower courts’ decisions, however,

Minnesota’s policymaking discretion over the natural

resources in almost three million acres of east-central

Minnesota is sharply curtailed. The State will operate

under perpetual federal court supervision to determine

whether Minnesota’s rules and policies must be altered to

accommodate tribal treaty harvest, subject to different

tribal rules and policies. Minnesota no longer will have

the authority to unilaterally make management decisions

15 Cf. Idaho v. Coeur d'Alene Tribe, 117 S. Ct. 2028, 2041

(1997); Utah Div. of State Lands, 482 U.S. at 195.

regarding a wide variety of natural resource issues within

the ceded territory.

Under these rulings, whenever the Bands and the

State cannot agree on how to manage a particular

resource, the federal court will be the final arbiter of how

that resource is managed. In essence, the federal court

will operate as an appellate biologist, asked to evaluate

highly scientific and technical considerations related to

species and land use. The court will rule in favor of the

State only if the State proves that its position is based on

narrowly proscribed conservation, public safety or health

considerations, where conservation is defined as those

restrictions necessary to “forestall the imminence of

extinction.” PA 119.

The district court held that, upon request of the

Bands, the court will review and, if necessary, overrule,

the State’s determination of the harvestable surplus for a

given species. PA 87-101. Some examples of the highly

scientific and technical decision-making issues that

already have been decided by the federal court in this

case include determining if the use of gillnets in lakes

under 1000 acres will result in overharvest given the

intensive nature of this type of harvest in small water-

bodies, PA 121-27, and determining if the shining of deer,

over bait, in December, will lead to overharvest because

of deer concentration in winter, thereby thwarting the

State’s integrated deer management plans, PA 112-21. The

lower court acknowledged that, “although the State may

have commendable and sound reasons for its proposed

regulations [on such issues], it is nonetheless constrained

by the . . . Bands’ treaty rights.” PA 119.

In addition to the scientific and biological decisions

already made by the federal court in this case, there are

many other natural resource management decisions the

federal court may have to resolve in the future if a

dispute arises between the Bands and the State. These

decisions cover a wide variety of issues, including, but

not limited to:

e which lands in the ceded territory may be

protected as scientific and natural areas;

e which lands in the ceded territory may be

acquired for an expanded state park;

e what recreational uses for specific tracts of

land in the ceded territory may be deemed

compatible with other resource goals for an

area;

e what aquatic species in a waterbody within

the ceded territory may be introduced or

eradicated;

¢ how many animals of a given species in the

ceded territory, or subpart of the ceded terri-

tory, are appropriate for the carrying capac-

ity of the ecosystem; and

e what species to promote in a given area or

waterbody within the ceded territory by nat-

ural and artificial means.

To comply with the lower courts’ rulings, the State will

have to ensure that its decisions on these issues, and

many others, do not adversely affect the Bands’ treaty-

based privilege. If a decision will adversely affect the

Bands’ Treaty privilege, the State will have to modify its

decision to eliminate the effect, or risk the prospect that

the Bands or United States will invoke the federal court's

continuing jurisdiction. If the Bands or the United States

challenge the State’s decision, then (as has already

occurred) the federal court will have the ultimate author-

ity to determine how Minnesota’s natural resources in the

ceded territory will be managed.

In addition to the grounds described above, the cir-

cuit court distinguished Ward by saying that the Bands’

hunting, fishing and gathering privilege here is not irrec-

oncilable with the State’s sovereignty, as the Court in

Ward concluded. PA 56-58. The circuit court cites other

decisions of this Court in which the treaty rights were

found to be continuing, so that the State was required to

adjust its game management to accommodate those

rights. See, e.g., United States v. Winans, 198 U.S. 371

(1905); Tulee. But the Court need only look at the trilogy

of Puyallup cases’® to appreciate the extent to which con-

tinuing Indian hunting, fishing and gathering privileges

encroach on the State’s sovereign interest in managing

fish and game in a non-discriminatory manner. There can

be no doubt that, as observed in Ward, the continuation of

special Indian hunting, fishing and gathering privileges

carves out a significant slice of the State’s core sovereign

interests, and requires the State to share that area of

sovereignty with the Bands under the ultimate supervi-

sion of the federal court. What Ward holds is that it is

presumed that Congress intended to avoid this intrusion

on state interests when a new state is created, unless the

federal government previously made permanent commit-

ments to the Indians. Because the treaty here made no

such binding commitment, the temporary treaty privilege

was extinguished upon Minnesota’s statehood.

Ill. THE 1855 TREATY, IN WHICH THE MILLE LACS

BAND RELINQUISHED “ANY AND ALL RIGHT,

TITLE AND INTEREST” TO ALL LANDS

WITHIN THE MINNESOTA TERRITORY,

EXPRESSLY EXTINGUISHED ANY REMAINING

HUNTING, FISHING AND GATHERING PRIVI-

LEGE.

Finally, if the hunting, fishing and gathering privi-

lege reserved in the 1837 Treaty was not extinguished

earlier, the Mille Lacs Band’s privilege under that treaty

U.S. 392 (1968); Department of Game of Washington v. Puyallup

Tribe, 414 U.S. 44 (1973); Puyallup Tribe v. Department of Game of

Washington, 433 U.S. 165 (1977).

was relinquished when several Chippewa bands, includ-

ing the Mille L«.. Band, signed the 1855 Treaty.'” The

applicable language of the 1855 Treaty is simple and all-

encompassing. The Chippewa ceded a large area of the

northwest portion of the Minnesota Territory. In addition

to this cession, the treaty provided:

And the said Indians do further fully and

entirely relinquish and convey to the United

States, any and all right, title, and interest, of

whatsoever nature the same may be, which they

may now have in, and to, any other lands in the

Territory of Minnesota or elsewhere.

PA 503. The import of this language for this case is self-

evident: the signatory bands relinquished all right and

interest in any Minnesota lands, including any remaining

hunting, fishing and gathering privilege in the 1837

Treaty area. The lower courts, however, applied “inter-

pretation” principles to conclude that the language did

not mean what it said — that the parties had not meant to

extinguish “any right or interest of whatsoever nature,”

and that contrary to the phrase “any other lands in Min-

nesota or elsewhere,” the parties intended to impose a

geographic limitation on the treaty provision.’®

17 The Mille Lacs Band is the only plaintiff band in this case

that was a party to the 1855 Treaty. Therefore, if the State were to

prevail on this issue alone, the Mille Lacs Band would not have

a special hunting, fishing and gathering privilege in the

Minnesota portion of the 1837 Ceded Territory, but the other

plaintiff bands, including the Wisconsin Bands, would.

18 Contrary to the lower court decisions here, the

Minnesota Supreme Court, in State v. Keezer, 292 N.W.2d 714,

721 (Minn. 1980), held that the 1855 Treaty extinguished the

hunting, fishing and gathering privilege reserved under the

1837 Treaty.

A. This Court Previously Has Found Essentially

The Same Treaty Language To Extinguish Hunt-

ing And Fishing Rights Reserved In An Earlier

Treaty.

This Court has previously held that treaty language

containing such an all-encompassing relinquishment of

rights is effective to extinguish previously reserved hunt-

ing and fishing rights. In Oregon Dep't of Fish & Wildlife v.

Klamath, 473 U.S. 753 (1985), the Klamath Indians had

executed an 1864 Treaty ceding “all their right, title and

claim to all the country claimed by them,” and received a

1.9 million-acre reservation and the exclusive right of

fishing and gathering within the reservation. Id. at 755.

Then, in a 1901 agreement, the Klamaths agreed to “cede,

surrender, grant, and convey to the United States all their

claim, right, title and interest in and to” approximately a

third of the 1864 reservation in exchange for monetary

compensation. Id. at 760. The 1901 Agreement contained

no language expressly referring to hunting and fishing

rights, and further provided in a savings clause that

“nothing in this agreement shall be construed to deprive

[the Tribe] of any benefits to which they are entitled

under existing treaties not inconsistent with the provi-

sions of this agreement.” Id. at 760-61. In 1982, the

Klamaths sued the State of Oregon, claiming a continued

right to hunt and fish on the land ceded in the 1901

Agreement and arguing that the 1901 Agreement did not

extinguish those rights.

Reversing the lower courts, this Court held that lan-

guage ceding “all claim, right, title, and interest in and

to” land also extinguished any special hunting and fish-

ing rights reserved on those lands, and should not be

ignored in the face of purported ambiguity surrounding

the Indians’ understanding of the cession. 473 U.S. at

765-66. Rejecting the tribe’s argument that express refer-

ence to hunting and fishing is necessary to extinguish

such rights, this Court said that silence with regard to the

preservation of off-reservation hunting and fishing rights

does not show an intent to preserve the previously

reserved rights. Rather, the silence “is consistent only

with an intent to end any special rights of the Tribe

outside the reservation.” Id. at 773 n.23. This conclusion is

particularly noteworthy given the presence of the “sav-

ings clause” in the 1901 Agreement, which provided a

basis for the Tribe’s argument that it had intended to

preserve hunting and fishing rights separate from the

land cession. There is no similar “savings clause” in the

1855 Treaty here.

In this case, the Eighth Circuit distinguished

Klamath’s strong extinguishment mandate almost entirely

on the single assertion that the rights in Klamath were

exclusive and on-reservation rights, whereas the privilege

at issue in this case was a non-exclusive and off-reserva-

tion privilege. PA 39. Contrary to the Eighth Circuit's

conclusion, however, this Court in Klamath directly

addressed the impact of the “all right, title and interest”

language to off-reservation hunting and fishing rights. The

Court explained that, because the land ceded by the

Klamath Tribe was no longer part of the reservation, the

off-reservation rights claimed by the Tribe were some-

what comparable to the off-reservation rights reserved in

the Treaty construed in Puyallup Tribe v. Department of

Game of Washington, 391 U.S. 392 (1968), and United States

v. Winans, 198 U.S. 371 (1905). See Klamath, 473 U.S. at

764-65 n.15. This Court then added, “Our inquiry, there-

fore, is whether a special right, nonexclusive but free of

state regulation, was intended to survive in the face of

language of the 1901 Agreement ceding ‘all . . . right

... in and to’ the ceded lands.” Id. at 764-65 (omission in

original). The Court concluded that no such special right

survived such language. The Court later reiterated that

its decision applied to off-reservation rights: “The present

case, however, involves the necessarily precedent ques-

tion whether any off-reservation rights were intended to

be preserved at all.” Klamath, 473 U.S. at 769 n.20.'9

The Court’s analysis and conclusion in Klamath is

extremely compelling for the analysis of the 1855 Treaty

language here. Both agreements have similar phrases

conveying “all right, title and interest” of the Indians.

Both agreements surrender the Indians’ rights “in and to”

the land. But the 1855 Treaty at issue here contains sev-

eral phrases, beyond those in the Klamath agreement,

demonstrating the sweeping nature of the relinquishment

of rights. The treaty includes the words (1) “fully and

entirely,” (2) “relinquish and convey,” (3) “any and all”

right, title or interest, (4) “any other lands,” and (5) “in

the Territory of Minnesota or elsewhere.” PA 503. If the

language in Klamath was sufficient to extinguish previ-

ously reserved hunting and fishing rights (even in the

face of a savings clause), then even more clearly the

words of the 1855 Treaty (and the lack of a savings clause)

are sufficient to extinguish such rights here.

B. Available “Historical Context” Is Insufficient

To Overcome The 1855 Treaty’s Plain Language.

The Eighth Circuit primarily based its conclusion that

the 1855 Treaty did not extinguish the Chippewas’ privi-

lege in the 1837 Ceded Territory on limited historical

19 In Klamath, the land ceded under the 1901 Agreement

was no longer reservation land. Therefore, any exercise of

hunting and fishing rights on that land in the modern era would

have changed from exclusive, on-reservation harvest, to shared,

off-reservation harvest. The Court started its analysis with the

cession language in the 1864 Treaty, where the Tribe ceded “all

their right, title, and claim” to a described 22 million acre area.

As the Court put it, “that general conveyance unquestionably

carried with it whatever special hunting and fishing rights the

Indians had previously possessed in over 20 million acres

outside the reservation.” Id. at 766 (emphasis added).

evidence that suggested the Indians understood the 1855

Treaty as only involving a sale of land to the government

and did not intend to surrender the special hunting,

fishing and gathering privilege. The court noted that

“Chippewa representatives also indicated during negotia-

tions that they would continue to hunt, fish, and gather

after the Treaty was negotiated,” and that the “Chippewa

complained to federal officials that state enforcement of

game regulations violated their rights under the 1837

Treaty.” PA 36. The district court also concluded that the

key provision of the 1855 Treaty quoted above was

intended only to convey any rights the Bands may have

had in other lands, not described in the treaty, to the

north and west of the ceded lands. PA 285-88.

This abbreviated discussion of the evidence regard-

ing the signatories’ intent in 1855 is an insufficient basis

to disregard the clear, all-encompassing treaty language.

While some evidence might be interpreted to support the

Bands’ views, there is abundant evidence that the Treaty’s

actual language fit the historical context of the time. The

Treaty’s negotiation was part of an overall shift in federal

policy from removing the Indians from eastern lands to

consolidating Indians on reservations. The reservations

were defined geographic areas where the Indians were

expected to establish, and would be guaranteed, perma-

nent homes. The objective of these treaties, which the

Indians understood, was to permit faster white settlement

but, at the same time, to preserve for the Indians a

traditional homeland where they could permanently res-

ide and presumably acquire the habits and skills of

farmers.

The context of extinguishment was reflected in the

goals of the Chippewa leaders. During the 1855 Treaty

negotiations, Chippewa Chief Hole-in-the-Day, one of the

main treaty negotiators, stated that the Indians’ survival

lay in trying to accommodate the Euro-American civiliza-

tion that had engulfed them. He advocated for the money

and tools to allow the Indians a chance to stay on their

land by adopting the agricultural ways of the whites,

rather than continuing the Indians’ past subsistence exis-

tence. During the treaty negotiations, Hole-in-the-Day

made numerous statements about abandoning the old

ways and moving forward as white citizens.?°

_ The other 1855 Treaty articles amplify this broader

context for the cession. In exchange for complete relin-

quishment of rights by the signatory bands, the Indians

were secured permanent reservations in the Minnesota

Territory. PA 503-06. In recognition of the Bands’ antici-

pated shift to “living like the whites,” Article 9 contains

the Bands’ agreement

that they will settle down in the peaceful pur-

suits of life, commence the cultivation of the

soil, and appropriate their means to the erection

of houses, opening farms, the education of their

children, and such other objects of improvement

20 Hole-in-the-Day told Commissioner of Indian Affairs

Manypenny, “We do not know we will be alive tomorrow; but

my great wish and desire is to improve the conditions of the

Chippewa nation, and make them live like the whites.” JA 302.

Later in the negotiations, Hole-in-the-Day complained that the

proposed payments by the United States were insufficient “to

give us a start, and enable us to support ourselves while

preparing to live like the whites.” JA 335. He explained that the

Chippewa “do not live outside, but within your nation. We are

your friends . . . . We want to give ourselves up to your

government. We want to cease to be Indians, and become

Americans. We want to be citizens, and to have the right to vote.

All we desire is to imitate the whites, and to follow their

example.” JA 338-39. The chief stated that “the Country is

getting scarce of game, and we cannot get along without

changing our habits. We have tried the old system, and found it

wanting. We should therefore try a new one.” JA 348.

Additionally, he stated that he had studied the Treaty’s

provisions and concluded that “the Indians have given away all,

and leave themselves no alternative but to work.” JA 349.

and convenience, as are incident to well-regu-

lated society ....

PA 513. Article 3 included payments of money to the

Bands for goods, payments of debts, road construction

and “improvement and welfare of [the] Indians,” as well

as a quantity of land “to be ploughed and prepared for

cultivation in suitable fields.” PA 507-08. Article 4 permit-

ted the Bands to “employ their own farmers, mechanics,

and teachers.” PA 510.

As a natural extension of the government's reserva-

tion policy and the Indians’ cession of all other interests,

Congress’s intent was clearly to subject all of the Chip-

pewa’s off-reservation activities to plenary state regula-

tion. As explained earlier, the Act authorizing the

negotiations for the 1855 Treaty provided that the “laws

of the United States and the Territory of Minnesota shall

be extended over the Chippewa territory in Minnesota

whenever the same may be ceded, and the same shall

cease to be ‘Indian Country.’ ” 10 Stat. 598 (PA 533). The

fact that the 1855 Treaty did not reserve a hunting, fishing

and gathering privilege in the lands ceded in that Treaty

is also consistent with the view that the federal govern-

ment intended the Chippewas to have that privilege on

the reservations established in the Treaty, but not outside

them. Minnesota’s Legislature understood and agreed

with this goal; one of the first Acts passed in 1858, the

first year of statehood, was to set hunting seasons; that

Act expressly applied those seasons to Indians hunting

off their reservations. 1858 Minn. Laws, chs. XIX, XLIV

(PA 569-72).?}

21 Again, the extinguishment of the reserved rights did not

mean the Indians could not fish and hunt off the reservations,

but that such activity must be done pursuant to territorial and,

later, state law.

In rejecting the argument that the 1855 Treaty extin-

guished all prior interests in the 1837 Ceded Territory, the

district court cited the 1855 Treaty transmittal letter from

Commissioner Manypenny stating that, in addition to the

described tract of land ceded by the three signatory

bands, the cession included some rights or interests in

other lands held by two of the bands “in common with

other Indians in Minnesota.” PA 285-86. The transmittal

letter largely recites the treaty language, and does not

provide any further limitation as to the geographic area

in which those additional rights were surrendered. The

district court concluded, however, that Manypenny must

have been indicating that the additional interests relin-

quished were only those held in lands in the northwest

portion of the Territory. PA 287. This is not supported by

any statement of Manypenny or any other government

official. While Manypenny correctly reported that the

treaty cession would include any lands to which the three

bands might make claim of title, there is absolutely noth-

ing in Manypenny’s statements or elsewhere to contradict

the plain language of the treaty — that the bands were

relinquishing all interests and claims to any land in Min-

nesota, except for the reservation. By imposing the geo-

graphic limitation on the Treaty language, the lower court

implied an additional treaty provision that was not only

found nowhere in the agreement, but simply contradicted

the actual terms of the Treaty.

The court of appeals also observed that, in several

other treaties, the United States specifically included lan-

guage revoking hunting, fishing and gathering rights

reserved in earlier treaties, so that the omission of an

express reference to such rights in the 1855 Treaty indi-

cates that the government did not intend to revoke such

rights. PA 36-37. The simple response, of course, is that

the 1855 Treaty did not need such a specific provision,

because it contained the all-encompassing relinquishment

language described above.

As explained above, this Court has held repeatedly

that historical context evidence must be essentially con-

clusive in order to overcome clear treaty language. If

anything, the historical context evidence here supports

the State’s position, that the treaty language extinguished

the previously reserved privilege to hunt, fish and gather

free of most state regulation. But, in any event, consistent

with this Court’s observation in Klamath, “[t]he historical

record of the lengthy negotiations between the [Indians]

and the United States provides no reason to reject the

presumption that the . . . Agreement fairly describes the

entire understanding between the parties.” Klamath, 473

U.S. at 772. See also South Dakota v. Yankton Sioux Tribe, 118

S. Ct. 789, 802 (1998) (historical evidence must “rebut the

‘almost insurmountable presumption’ that arises from the

statute’s plain terms”); United States v. Minnesota, 270 U.S.

181, 201 (1926) (examining language of instant 1855

Treaty ceding described tract of land: “courts can no more

go behind it for the purpose of annulling it in whole or in

part than they can go behind an act of Congress”).

The language of the 1855 Treaty could not be more

clear in extinguishing all rights and interests, including

the reserved hunting, fishing and gathering privilege, in

all lands in Minnesota including the 1837 Territory. This

result is compelled not only by the Treaty’s plain lan-

guage and this Court’s many plain language decisions,

but also by Klamath.

CONCLUSION

For the foregoing reasons, the decision of the Eighth

Circuit Court of Appeals should be reversed.

August 1998 Respectfully submitted,

Husert H. Humpnrey III

Attorney General

State of Minnesota

Joun L. Kirwin

Assistant Attorney General

Counsel of Record

Peter L. Tester

Micuette E. Beeman

Assistant Attorneys General

445 Minnesota Street, Suite 900

St. Paul, Minnesota 55101-2127

(651) 296-3044

Counsel for Petitioners

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