Respondents Brief — Minnesota v. Mille Lacs Band of Chippewa Indians
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vou Supreme Court, U.S.
ie) FILED
No. 97-1337 ap 2S OMe
a CLERK
In The
Supreme Court of the United States
aa
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,
vs.
MILLE LACS BAND OF CHIPPEWA INDIANS, et ai.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals for the Eighth Circuit
BRIEF FOR RESPONDENTS MILLE LACS BAND OF
CHIPPEWA INDIANS, ARTHUR GAHBOW, WALTER
SUTTON, CARLEEN BENJAMIN AND JOSEPH DUNKLEY
CHARLES J. COOPER MARC D. SLONIM
ALAN K. PALMER Counsel of Record
COOPER, CARVIN JOHN B. ARUM
& ROSENTHAL ZIONTZ, CHESTNUT, VARNELL,
200 K Street, N.W. BERLEY & SLONIM
Suite 401 2101 Fourth Avenue, Suite 1230
Washington, D.C. 20006 Seattle, WA 98121-2331
(202) 822-8960 (206) 448-1230
(Continued)
148477 @ Counse! Press LLC
FORMERLY LUTZ APPELLATE SERVICES
(800) 274-3321 * (800) 359-6859
JAMES M. GENIA
SOLICITOR GENERAL
MILLE LACS BAND OF
CHIPPEWA INDIANS
HCR 67, Box 194
Onamia, MN 56359
(320) 532-4181
Attorneys for Respondents
Mille Lacs Band of Chippewa Indians,
Arthur Gahbow, Walter Sutton, Carleen Benjamin
and Joseph Dunkley
i
QUESTION PRESENTED
Did the 1855 treaty cession of “all right, title and interest
... in, and to ... lands” abrogate the Mille Lacs Band's
guaranteed privilege to hunt, fish and gather within the territory
ceded in the 1837 treaty, where, after a careful examination of
the historical record, the district court found that neither party
to the 1855 treaty intended the treaty to extinguish usufructuary
rights guaranteed by earlier treaties?
**
TABLE OF CONTENTS
Statement of the Case .......... 0: eee ee ee eeeeeee
1. Historical Background. .............-+5++:
Il. Procedural Background. ...............++>-
Summary of Argument ....... 6... - 66sec essere
1. The 1855 Treaty Did Not Expressly Abrogate The
Mille Lacs Band’s 1837 Hunting And Fishing
Privilege. ......cccccseccccccscsscecceess
A. The Petitioners Disregard the Chippewa’s
Natural Understanding of the Treaty
Lamguage. .... 2... ccc eee ccc ceeeneees
B. The 1855 Treaty Language Does Not Clearly
Extinguish the 1837 Treaty Privilege. ...
C. The Petitioners’ Argument Is Not Supported
by Klamath. .... 0.02250 cccceeeeeeees
Page
18
20
25
Table of Cited Authorities
Page
Il. The District Court’s Careful Examination Of The
Historical Record Shows That The Parties Did Not
Intend To Extinguish The Mille Lacs Band’s 1837
We SUE Sec sikce eo Sscceusececctbins 28
A. There is No Evidence the United States
Intended to Abrogate the Mille Lacs Band's
1837 Hunting and Fishing Rights. ...... 29
B. There Is No Evidence that the Chippewa
Intended to Relinquish their 1837 Hunting
and Fishing Rights. .................. 38
ND Cate et sutacadalbabObdvecddiéedhase 41
TABLE OF CITED AUTHORITIES
Cases:
Air France v. Saks, 470 U.S. 392 (1985) ........... 18, 28
Alaska v. Native Village of Venetie,522 U.S. __, 140 L.
EE oid dak Ciba addin si cveusew 32
Antoine v. Washington, 420 U.S. 194 (1975) ... 22, 23, 26, 37
Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) .. 19,21
Douglas v. Seacoast Products, 431 U.S. 265 (1977)
iv
Table of Cited Authorities
Page
Eastern Airlines v. Floyd, 499 U.S. 530 (1991) .... 18, 27, 36
Geer v. Connecticut, 161 U.S. 519 (1896) .......... 23
Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824) ..... 22
Hagen v. Utah, 510 U.S. 399 (1994) ..........6.45. 21
Johnson v. Gearids, 234 U.S. 422 (1914) ........... 33
Jones v. Meehan, 175 U.S. 1 (1899) ...........555. 19
Kennedy v. Becker, 241 U.S. 556 (1916), ........... 27
Lac Courte Oreilles Band v. Voigt, 700 F.2d 341 (7th
Cir.), cert. denied, 464 U.S. 805 (1983) .......... 34
Lac Courte Oreilles Band v. Wisconsin, 775 F. Supp. 321
CT HE GED vnccncccndvcvedtesecscvescees 22
McKee v. Gratz, 260 U.S. 127 (1922) ............5. 23
Menominee Tribe v. United States, 391 U.S. 404 (1968)
pbdecedbnnns Vasduadenndstabakdoneesevehhes 28, 40
Morton v. Mancari, 417 U.S. 535 (1974) ........... 30
Oregon Dep 't of Fish & Wildlife v. Klamath Indian Tribe,
Be Ee 17-19, 23-28
Pullman Standard vy. Swint, 456 U.S. 273 (1982) .... 29
Table of Cited Authorities
Page
Puyallup Tribe v. Department of Game, 391 U.S. 392
ST 4b oeGhGse baionded bul bbddkeskiwanenes 27
Seufert Bros. Co. v. United States, 249 U.S. 194 (1919)
pibwabebhswwahs cedéénssrhdsetardinedueinaye 40
South Dakota v. Yankton Sioux Tribe, 522 U.S. __, 139
Pc POE. Kile cobeecusensedsces 20, 28, 30, 40
United States v. Dion, 476 U.S. 734 (1986) ......... 28, 40
United States v. Minnesota, 466 F. Supp. 1382 (D. Minn.
1979), aff'd sub nom., Red Lake Band v. Minnesota,
614 F.2d 1161 (8th Cir.), cert. denied, 449 U.S. 905
Tt ctnatinnsteh «dukes savin dada tehere teens 27
United States v. Winans, 198 U.S. 371 (1905) ....... 23, 27
Warren Trading Post v. Arizona State Tax Comm'n, 380
es ED caso v de bUCEN ethics oc cicenndéeo's 24
Washington v. Washington Commercial Passenger
Fishing Vessel Ass'n, 443 U.S. 658 (1979)
idie tdhehbberivkeniaeeaneatat 19, 23, 24, 27, 28, 33, 38
Yakima County v. Yakima Indian Nation, 502 U.S. 251
RES ade ak Cates nektanbsbbintesddes cones 24, 25
Zicherman v. Korean Air Lines, 516 U.S. 217, 133 L.
ED che cuds cituntsedaddasaidabe 36
vi
Table of Cited Authorities
Page
Statutes:
PB BEB FOG voc kcc dc cbt yp edsidvscssawesces 22
SS CABG. 6 OBOE on cvnceccvdavdvvcesiveesessccss 23
RIE Vo SF ff GRTOrT TT iT TTT eer 24
Rule:
ad; RGus FP. BR ae sve tek Soot accondicevcceds 29
Treaties:
1825 Treaty of Prairie du Chien, 7 Stat.272 ........ 1, 35
1830 Sauk and Fox Treaty, 7 Stat. 328 ............. 20
1837 Sauk and Fox Treaty, 7 Stat. 543 ............. 20, 21
1837 Treaty with the Chippewa, 7 Stat. 536 ........ passim
1842 Treaty with the Chippewa, 7 Stat. 591 ...... 2, 4, 6, 14
1846 Winnebago Treaty, 9 Stat. 878 ............... 20
1854 Treaty with the Chippewa, 10 Stat. 1109
devedvehes nesdeb eeu 5-7, 10, 14, 17, 29, 30, 35, 37, 40
1854 Treaty with the Nisqually, Puyallup, etc., 10 Stat.
SEE Shidec sve enSOee Pad tran doesn ee etesaee 6
vii
Table of Cited Authorities
; Page
1855 Treaty with the Chippewa, 10 Stat. 1165 ...... passim
1855 Treaty with the Chippewa of Sault Ste. Marie, 11
ME hss oud deh Biplintedeaceeke pans enddp gee 6, 20
1855 Treaty with the Dwamish, Suquamish, etc., 12 Stat.
PL ta kah ith bd cube bh dadekhbdane bene hesseee 6
1855 Treaty with the S’Klallam, 12 Stat.933 ....... 6
1855 Treaty with the Yakimas, 12 Stat.951 ........ 24
1865 Middle Oregon Treaty, 14 Stat. 751. .......... 20
Other Authority:
23 Cong. Globe, 33rd Cong., Ist Sess. (June 15, 1854)
rediuebecbebeuawndeuhaueeaseshdesdeseser 4, 31, 32, 33
APPENDIX
Appendix A — Chippewa Land Cessions, 1837-1855
(Defs. Exh. 1, Page 13; Joint Appendix Page 956) . la
Appendix B — 1847 War Department Map Showing
Chippewa Land Claims (Pls. Exh. 179; Joint Appendix
TEEN 456-04 OEE 6 vba 9s UE eb edbebedbieccees 2a
STATEMENT OF THE CASE
Respondent Mille Lacs Band of Chippewa Indians submits
this brief to address the petitioners’ argument that the 1855
treaty abrogated the Mille Lacs Band’s 1837 treaty hunting,
fishing and gathering privilege.’ Pet. Br. at 40-49. As
petitioners’ brief acknowledges (at 41, n.17), this argument
affects only the rights of the Mille Lacs Band because the other
respondent bands were not parties to the 1855 treaty. We show
that the 1855 treaty was intended and understood by the parties
to extinguish all of the Chippewa’s remaining /and claims, but
was not intended or understood to affect the 1837 treaty hunting
and fishing privilege, which existed independently of any nght
to or interest in the lands ceded in that treaty.
I. Historical Background.
A. In 1837, the United States and the Chippewa entered
into a treaty involving the cession of Chippewa lands in present-
day Wisconsin and Minnesota lying north of the boundary
between Chippewa and Sioux territory established in the 1825
Treaty of Prairie du Chien.’ 1837 Treaty with the Chippewa,
1. The Band refers the Court to the briefs of respondents St. Croix
Band et al. and Fond du Lac Band et al. for responses to petitioners’
other arguments.
2. The 1825 Treaty of Prairie du Chien established boundaries
among indigenous groups occupying territory west of Lake Michigan.
7 Stat. 272 (Aug. 19, 1825). The boundary line dividing Chippewa from
Sioux territory to the south started at the Chippewa River in present-day
Wisconsin, extended generally northwest through Minnesota to the Red
River of the North along the present-day border between Minnesota and
North Dakota, and then proceeded north along the Red River to its
confluence with the Goose River (between Fargo and Grand Forks). See
map at Joint Appendix (“JA”) 621. No boundary was established north
or west of this point, although it was later learned that the Pillager and
Red Lake Chippewa had claims to these northwestern areas. See Petition
Appendix (“PA”) 287.
2
7 Stat. 536 (PA 484); see App. JA 956 (App. A attached) for
boundaries of 1837 cession. The Chippewa survived in this
territory by hunting, fishing and gathering, and by planting crops
such as corn and squash. PA 221. Fish and game were abundant
and there was no shortage of land open to hunting and fishing
by the Chippewa or to the handful of pioneering American
settlers who had entered the territory. PA 221-23, 334.
The 1837 treaty negotiations are described in great detail
in the district court’s findings. PA 229-34. The Chippewa agreed
to sell the lands desired by the United States, but insisted on
reserving “the privilege of making sugar from the trees, and
getting their living from the Lakes and Rivers, as they have
done heretofore.” PA 233; JA at 75. Governor Dodge responded
that he would “make known to your Great Father, your request
to be permitted to make sugar, on the lands; and you will be
allowed, during his pleasure, to hunt and fish on them.”
PA 233; JA 78. Accordingly, in Article 1 of the 1837 treaty,
the Chippewa bands “cede[d] to the United States all that tract
of country encompassed within [defined] boundaries” (see App.
A attached), while Article 5 provides:
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 to the
Indians, during the pleasure of the President of the
United States.’
PA 484, 486.
3. In an 1842 treaty, the Chippewa ceded additional lands in
Wisconsin and the upper peninsula of Michigan while again reserving
hunting and fishing rights on the ceded lands. 1842 Treaty with the
Chippewa, 7 Stat. 591, see App. A attached.
3
In 1847, the Commissioner of Indian Affairs proposed a new
treaty with the Chippewa to acquire two tracts of land immediately
west of the 1837 cession for resettlement of the Winnebego and
Menominee Indians, and to obtain a cession of the Chippewa’s
remaining lands east of the Mississippi. PA 244; see App. A
attached. The Commissioner also hoped to maintain the fiction
that all remaining Chippewa lands belonged equally to all
Chippewa bands, despite the fact “that different bands claim the
exclusive title to different portions of it.” PA 245-46. The
Commissioner’s instructions were accompanied by a memorandum
and map describing the lands ceded by the Chippewa in 1837 and
1842 and those to be acquired from them in the proposed treaty.
JA 131-33. The memorandum describes a line on the map, JA 133
(App. B attached), running from the headwaters of the Mississippi
north to the Canadian border, which was “the Eastern line of the
country represented to be claimed by certain bands of Chippewa
termed ‘Pillagers.’” JA 131-32 (emphasis added). The map
designates land in northern Minnesota as “Chippewa Country”
but shows no western boundary on the “Chippewa Country” or
the lands claimed by the Pillagers. App. B attached. The district
court found that continued uncertainty about the nature and full
extent of Chippewa land claims in this area led to the broad cession
language in the 1855 treaty. PA 285-88; see pp. 10-11 below.
The 1847 treaty negotiations were conducted by Isaac
Verplank and Henry Rice, a major fur trader.‘ PA 246. The
negotiations were largely a failure because no lands east of the
Mississippi were obtained and the negotiators were unable to
maintain the fiction of a single Chippewa nation, as the Chippewa
insisted that the consideration for the cession must go
disproportionately to the bands who had actually used the ceded
lands. PA 246-47; App. A attached.
4. By 1855, Rice was the Minnesota Territory's delegate to the
House of Representatives and he played a major role in the planning
and negotiation of the 1855 treaty. PA 276, 281-82.
4
As noted by the district court, the Commissioner’s 1848
and 1849 annual reports continued to advocate the purchase of
Chippewa lands east of the Mississippi and explained that the
Chippewa owned or possessed lands that included the
headwaters of the Mississippi River and extended north to the
border with Canada and west to the Red River. PA 286-87; see
also JBA 105, 118-19 and App. A attached.’ The
Commissioner's 1850 report added that “the Red lake bands
and the Pillagers claim, by title of conquest and actual
possession, a large tract of country lying west of [the] Red
River.” PA 287; JA 187 (emphasis added).
B. On May 1, 1854, the House of Representatives debated
a bill “to provide for the extinguishment of the title of the
Chippewa Indians to the lands owned and claimed by them in
the Territory of Minnesota and the State of Wisconsin.”
PA 272: JA 248. The bill’s House sponsor explained that it
would authorize a new treaty to extinguish the Indians’ title
“to the lands which they own in the Territory of Minnesota and
to a small portion in the State of Wisconsin.”* JA 249. During
the subsequent Senate debate, the Chairman of the Senate
Committee on Indian Affairs explained that the bill prescribed
that “the Indians shall not be removed from the territory, but
shall be placed upon individual reservations,” and “reserve(d]
to them those rights which are secured by former treaties.”
23 Cong. Globe, 33rd Cong., Ist Sess. 1403-04 (June 15, 1854)
5. JBA refers to the Joint Band Appendix filed by the Mille Lacs
and Wisconsin Bands in the court of appeals.
6. The “small portion” refers to strip of land along the Minnesota-
Wisconsin border that had been excluded from the 1842 treaty cession
as a result of a surveying error. Earlier in 1854, the Wisconsin legislature
had memorialized the President and Congress to extinguish the Indians’
title to “a tract of land about three-fourths of mile in width .. . lying
along the boundary line between the state cf Wisconsin and the territory
of Minnesota, within said state of Wisconsin.” JA 246-47.
5
(emphasis added). The bill passed the House but was tabled by
the Senate until December 1854. PA 272, 275.
Although the bill had not passed the Senate, on August 11,
1854, Commissioner of Indian Affairs George Manypenny wrote
to Indian Agent Henry Gilbert instructing him to initiate treaty
negotiations with representatives from the Chippewa bands
residing between the Mississippi River and Lake Superior in order
to acquire “all the country [the Chippewa] now own or claim in
the territory of Minnesota, the State of Wisconsin or elsewhere,”
except for land that would be used to establish reservations. PA
273; JA 264. Manypenny enclosed the 1847 treaty instructions
and the map (App. B attached), which showed the extent of
Chippewa country and the Pillager land claims extending west to
the Red River and beyond. JA 265, 267. On August 12, 1854,
Manypenny supplemented these instructions, instructing Gilbert
that if the location of the Chippewa reservations made the
provisions for farmers, blacksmiths and other services in former
treaties of no use, he should insert in the new treaty a provision
“cancelling ... these provisions.”’ PA 273; JA 269. Manypenny
did not suggest the cancellation of hunting and fishing rights
reserved in earlier treaties. PA 273.
The 1854 treaty was signed in September by those Chippewa
bands residing in the vicinity of Lake Superior and along the
Mississippi River. 1854 Treaty with the Chippewa, 10 Stat. 1109
(PA 490). For unexplained reasons, the Mille Lacs Band was not
a party to the 1854 treaty despite its use of a portion of the territory
ceded by that treaty as a hunting ground. PA 273. On October 17,
1854, Agent Gilbert transmitted the treaty to Commissioner
Manypenny with an explanatory letter. PA 273; JA 270. According
to Gilbert, the Mississippi Chippewa bands refused to sell their
remaining lands “on any terms,” and there was “much jealousy
7. For example, Article 2 of the 1837 treaty provided for the
payment of non-Indian farmers and establishment of three blacksmith
shops at points to be designated by the government. PA 485.
6
and ill-feeling” between the Mississippi and Lake Superior
bands. PA 273; JA 271. Gilbert solved these problems by
persuading the Chippewa to establish a boundary line between
the Lake Superior and Mississippi bands, convincing the
Mississippi bands to relinquish their claims to the lands
occupied by the Lake Superior bands, and then inducing the
Lake Superior bands to cede their title to the United States. PA
273; JA 271-72; see App. A attached (for boundaries of 1854
cession). Payment for the cession included “two hundred guns,
one hundred rifles, five hundred beaver traps, [and] three
hundred dollars worth of ammunition.” PA 494. Article 2
established reservations for the signatory bands within the 1837,
1842 and 1854 cessions. PA 491-92. The 1854 treaty does not
contain a provision abrogating hunting and fishing rights
secured by earlier treaties, but instead, in Article 11, establishes
new treaty hunting and fishing rights in the territory ceded in
the treaty. PA 495.
The district court found that preservation of off-reservation
hunting and fishing rights was not inconsistent with
Commissioner Manypenny’s policy of establishing reservations.
PA 289. Many of the more than 40 treaties negotiated during
Manypenny’s tenure expressly reserve the Indians’ right to hunt
and fish off-reservation,* and only one, the 1855 Treaty with
the Chippewa of Sault Ste. Marie, 11 Stat. 631, expressly
extinguished an off-reservation hunting, fishing, or gathering
right, and that followed destruction of a fishery by a government
canal project. PA 289. The Chippewa were told by treaty
negotiator Henry Gilbert in 1854 that the reservations “were
not to confine us all together to live upon them — that we should
have the privilege of going out of [them] whenever we had a
mind for hunting purposes.” PA 274; JA 381.
8. See, e.g., Treaty with the Nisqually, Puyallup, etc., 10 Stat. 1132
(1854); Treaty with the Dwamish, Suquamish, etc., 12 Stat. 927 (1855);
Treaty with the S’Klallam, 12 Stat. 933 (1855).
5
On December 8, 1854, Manypenny forwarded the 1854
treaty, along with Gilbert's October 17 letter, to Secretary of
the Interior McClelland. PA 275; JA 283. He recommended
that the Secretary delete two objectionable provisions, relating
to payments to be made to certain chiefs, but expressed no
concern about the 1854 treaty’s reservation of hunting and
fishing rights on ceded lands.’ PA 275; JA 283. The Senate
passed the bill regarding extinguishment of Chippewa title to
their remaining lands on December 17, 1854, and the President
signed it on December 19. PA 275, 532. On December 20 the
President forwarded the 1854 treaty to the Senate without
change, and the Senate ratified it on January 10, 1855. PA 275;
JA 282.
C. On December 17, 1854, the day the Senate passed the
authorizing legislation discussed above, Henry Rice, then
Minnesota's territorial delegate to Congress, notified
Commissioner Manypenny of the bill’s passage and
recommended that a treaty be negotiated in Washington with
the Mississippi, Pillager and Lake Winnibigoshish bands.'°
PA 276. According to Rice, those bands
own(ed] all the lands drained by the waters of the
Mississippi, a part of the lands on the Red river of
the north (from its source on down) and also the lands
9. Commissioner Manypenny never indicated that the hunting and
fishing provision conflicted in any way with the “extinguishment of Indian
title,” which was the primary object of the 1854 and 1855 treaties. JA 1361-
62 (Newell Cross Examination)
10. The “Mississippi” bands occupied lands along the Mississippi
River near the Crow Wing agency, while the “Pillager and Lake
Winnibigoshish bands” resided in the vicinity of Leech Lake at the
headwaters of the Mississippi. See App. A attached (for location of
geographical references).
situate[d] north of the Mississippi and to the British
possessions."'
PA 276; JA 286-87 (emphasis added); see App. A attached.
On January 4, 1855, Commissioner Manypenny wrote to
Territorial Governor Willis Gorman, directi a | him to have a
ippewa delegation brought to Washington for negotiations
a RS ” PA 276; JA 288.
Following Rice’s advice, Manypenny asked Gorman to send
“ “Hole in the Day’ and six other principal chiefs of the Chippewa
Indians of the Mississippi” and, if possible, “ ‘Flat Mouth’ and
two other chiefs of the Pillagers and the principal and two other
chiefs of the bands near Lake [Winnibigoshish].” PA 276; JA 288.
Manypenny did not ask Gorman to inform the Chippewa that the
negotiations would involve the extinguishment of the 1837 treaty
hunting and fishing privilege or ask him to send the other Chippewa
bands who hunted and fished in the 1837 ceded territory. PA 277.
The 1855 treaty was negotiated between February 12 and 22,
1855. PA 277. Hole-in-the-Day served as spokesman for the
Mississippi bands and Flat Mouth was the principal spokesman
for the Pillager and Lake Winnibigoshish bands. PA 277-78.
Commissioner Manypenny represented the United States. PA 278.
The Mille Lacs delegation arrived at some point after the start of
the proceedings, but no statement is attributed to them until after
the treaty was signed. PA 277-78. All discussions were conducted
through interpreters. PA 278. Commissioner Manypenny observed
that
one great impediment to a good understanding between
the government and the Indians arose from the fact
11. Rice’s description reflects the information and the map
provided to him with the 1847 treaty instructions. JA 131-33 and App.
B attached. See p. 3 above.
9
that the latter cannot read or understand the contracts
which they make.
PA 278; JA 305 (1855 Treaty Journal).
The district court found that the Chippewa understood that
the purpose of the treaty was the sale of their remaining lands
in northern Minnesota and repeated this understanding during
the negotiations. PA 279. For example, at one point the Pillager
representative, Flat Mouth, remarked: “It appears to me that |
understand what you want, and your views from the few words
I have heard you speak. You want land.” PA 279; JA 309
Commissioner Manypenny’s response did nothing to alter this
understanding:
He appears to understand the object of this
interview. His people had more land than they
wanted or could use, and stood in need of money;
and I have more money than | need, but want more
land.
PA 279; JA 309. At another point, Hole-in-the-Day said to
Commissioner Manypenny: “Your words strike us in this way.
They are very short. ‘I want to buy your land.’ These words are
very expressive — very curt.” PA 279; JA 304. The district
found that the negotiations focused largely on the estimated
number of acres and the price per acre. PA 279. Although there
were discussions about the desirability of the Chippewa settling
down as farmers, the district court found that a cession of the
Chippewa’s 1837 treaty hunting and fishing privilege was never
proposed. JA 284. The district court also found that in 1855
the Chippewa depended on hunting, fishing and gathering for
their survival and would not knowingly have relinquished their
special hunting and fishing privilege without discussion.
PA 298, 325.
10
The treaty was signed on February 22, 1855. Article |
contains two sentences. The first cedes a defined tract of land:
The Mississippi, Pillager, and Lake Winnibigoshish
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, and included within the following
boundaries... .
1855 Treaty with the Chippewa, 10 Stat. 1165 (PA 502-03).
The defined tract is north and northwest of the 1837 cession,
but does not include all of the unceded lands in Minnesota north
to the Canadian border, or west to the Red River and beyond.
See App. A attached (showing two remaining tracts of unceded
land to the north and west of 1855 cession). Thus, it does not
include a significant portion of the lands that Manypenny
understood were claimed by the Lake Winnibigoshish and
Pillager bands, in light of the 1847 map he forwarded to Gilbert
in preparation for the 1854 treaty negotiations (JA 267 and App.
B attached), the 1848, 1849 and 1850 annual reports, and Rice's
December 17, 1854, letter. PA 286-88. The district court found
that the following second sentence of Article 1 was included to
extinguish these additional, ill-defined land claims:
And the said Indians do further fully and entirely
relinquish and convey to the United States, any and
all nght, 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].
See PA 286-88.
In support of its finding, the district court cited
Commissioner Manypenny’s February 23, 1855, transmittal
letter to Secretary of the Interior McClelland, which states:
I have the honor to transmit ... articles of
agreement and convention, concluded upon
yesterday, with the Mississippi, Pillager and Lake
Winnibigoshish bands of Chippewa Indians, in
Minnesota, by which they cede and convey to the
United States all the lands owned and claimed by
them in that Territory, and whatever right or interest
they may have in other lands in common with other
Indians there or eisewhere.
The quantity of land ceded, according to the
boundaries defined in the first article, is estimated
at from eleven million to fourteen millions of acres,
besides which, those Indians (and especially the
Pillager and Lake Winnibigoshish bands) have some
right [or] interest in a large extent of other lands in
common with other Indians in Minnesota, which
right or interest, as above stated, is also ceded to
the United States.
PA 285-86; JA 291-92 (emphasis supplied by district court).
The district court found that the emphasized passage refers to
the second sentence of Article 1, which was added to the treaty
to ensure that the Pillager and Lake Winnibigoshish Chippewa
did not have any remaining claims to unceded lands located
north and west of the territory ceded in the first sentence of
Article 1. PA 286; see App. A attached (for location of these
unceded lands). Manypenny’s transmittal letter makes no
mention of the 1837 treaty privilege. PA 288; JA 291-94.
The district court found that the Chippewa would have
understood the treaty language to extinguish their remaining
12
land claims, not their treaty hunting and fishing rights. PA 324.
The words “relinquish and convey to the United States, any
and all right, title, and interest, of whatsoever nature the same
may be,” have no Chippewa equivalent, and any attempt to
translate them literally would have had no meaning in
Chippewa. PA 284; JA 857-62 (Report of Dr. Nichols). The
most likely translation of this language would have indicated
that the Chippewa were ceding all of their remaining lands in
the same way that they had ceded portions of their lands in
1837, 1842 and 1854, but “would not have been understood to
affect the hunting, fishing, and gathering provision in the 1837
treaty.” PA 284; JA 861-62.
Article 2 of the 1855 treaty reserved lands for the
“permanent homes” of the Indians. PA 503-04. The Mille Lacs
Reservation was established on the southern shore of Mille Lacs
Lake, within the 1837 ceded territory, and in close proximity
to the Band’s traditional fishing grounds and wild ricing areas.
PA 283; see also JA 749-750 (Report of Dr. Cleland); JA 1368-
69 (Newell Cross) and App. A attached (for location of Mille
Lacs Lake). Article 3 provides the consideration for the land
cession, including “guns, traps &c.” as well as gunpowder, lead
and gilling twine. PA 283, 509. Article 9 provided that the
Chippewa would
settle down in the peaceful pursuits of life,
commence the cultivation of the soil ... and
[undertake] such other objects of improvement and
convenience, as are incident to well regulated
society,
but did not confine the Chippewa to their reservations or
prohibit them from continuing to hunt and fish off-reservation.
PA 283-84, 512-13.
13
D. While the 1855 negotiations were underway in
Washington, a controversy was brewing in Minnesota over a
lumbering dam on the Rum River, just south of Mille Lacs Lake
and within the 1837 ceded territory. PA 269; see App. A (for
location of Rum River). The Mille Lacs Chippewa threatened
to tear out the dam because it was flooding their wild rice crops.
PA 269. On February 16, 1855, Governor Gorman wrote to
Commissioner Manypenny to notify him about the conflict and
explained that the Mille Lacs Band had “no other treaty interests
[in the pertinent area] except hunting and fishing.”"? PA 270;
JA 295-96 (emphasis added). Although the correspondence
reached Commissioner Manypenny after the 1855 treaty was
signed, the Commissioner never wrote back to suggest that the
1855 treaty extinguished the Band's hunting and fishing right.
Instead, a compromise was brokered in July 1855 in which the
lumbermen agreed to compensate the Band for the loss of its
rice crop. PA 271 and n.13.
About two weeks after the treaty negotiations concluded,
the Chippewa again met with Commissioner Manypenny in
Washington. The parties agreed that the annual payments
required under the treaty would be made in early September,
to avoid disruption of fall fisheries. PA 289-90; JA 751-52
(Report of Dr. Cleland). Commissioner Manypenny encouraged
the Chippewa to continue trapping and selling furs, and gave
no indication that these vocations would be affected by the 1855
treaty. PA 290, JA 751.
| Although Minnesota first enacted fish and game regulations
in the year of its admission, the district court found that it did
not begin to enforce such laws systematically unti] 1892. PA
298. The court found that Chippewa repeatedly protested,
| 12. Gorman reiterated this point in a letter to the Chippewa, but
insisted that they had no right to remove the dam because it was on
ceded lands. PA 271.
14
claiming these enforcement efforts violated their rights under
the 1837, 1842 and 1854 treaties. PA 326; see also JA 1804.
Notwithstanding complaints from non-Indians about Chippewa
off-reservation hunting and fishing, there is only a single
instance, in 1926, approximately 70 years after the treaty was
signed, in which federal officials even arguably suggested that
the 1855 treaty affected the Chippewa’s right to hunt and fish
under the 1837 treaty." PA 299-300; JA 543-44.
The district court also found that throughout the latter half
of the 19th and the early part of the 20th century, the Mille
Lacs Chippewa continued to hunt and fish in the 1837 ceded
territory, despite the efforts of some in state government to
either confine them to their reservation or have them removed
to the White Earth Reservation in northwestern Minnesota. PA
292-98. Moreover, the United States affirmatively supported
Chippewa off-reservation hunting, fishing and gathering, by
supplying guns, traps, fish nets and other gear, and agreeing to
make annuity payments at times that would not interfere with
these activities. PA 293. Although Mille Lacs Chippewa have
long since “settle[d] down in the peaceful pursuits of life,” the
trial testimony of three Band members demonstrated that they
continue to hunt, fish and gather for subsistence and to sustain
their cultural and religious life. PA 220, 326.
Il. Procedural Background.
In August 1990, the Mille Lacs Band and four of its
members filed a complaint against the petitioners alleging that
enforcement of State fish and game laws violated the Band's
rights under the 1837 treaty. PA 214-15. The petitioners’ answer
raised the 1850 executive order and 1855 treaty as affirmative
13. The 1926 letter suggested that Article 5 of the 1837 treaty was
“modified” by the 1855 treaty to the extent that the lands in question
were “within any of the land ceded” in 1855. JA 543-44.
15
defenses, but did not raise the Minnesota Admission Act or the
equal footing doctrine. PA 216. The district court divided the
litigation into phases: the first to determine the existence, nature
and scope of the right, and the second to address implementation
of the right. PA 217-18. In 1993, following the Minnesota state
legislature’s rejection of a settlement agreement signed by the
Band and State executive officials, nine counties and six private
landowners intervened as defendants and the United States
intervened as a plaintiff. PA 72, 217.
The Phase I trial occurred over three weeks in June and
July 1994, during which the district court heard extensive live
testimony and received into evidence hundreds of exhibits. PA
218. Upon review of this extensive evidentiary record, the
district court made detailed findings regarding the historical
circumstances surrounding the negotiation of the 1837 and 1855
treaties as well as the issuance and subsequent repeal of the
1850 executive order. PA 220-301. Based on comprehensive
findings of fact (PA 272-301), the district court concluded that
“[njeither the United States nor the Chippewa intended to
extinguish in the 1855 treaty the usufructuary privilege
guaranteed by the 1837 treaty.”"* PA 331. The district court
ruled that the Mille Lacs Band’s 1837 treaty hunting and fishing
rights continued to exist, but also held that these rights could
only be exercised on land open to public hunting and fishing
because the 1837 treaty did not provide the Chippewa with any
rights of access.'* PA 334, 337-38. After Phase II proceedings,
the district court entered final judgment in 1997. PA 158-64.
14. The petitioners disingenuously characterize the district court's
discussion of the evidence as “abbreviated.” Pet. Br. at 45. Ironically,
their petition for certiorari took the district court to task for its “elaborate
recital of evidence” regarding the 1855 treaty. Cert. Pet. at 19.
15. The district court also rejected, on three separate grounds, the
petitioners’ 1850 executive order defense. PA 304-21.
16
The Eighth Circuit affirmed the district court’s Phase |
decision in its entirety. PA 72. With respect to the petitioners’
1855 treaty defense, the court of appea’s concluded “that the
district court’s factual findings regarding the intentions of the
parties to the 1855 Treaty are well supported” and not “clearly
erroneous.” PA 37. The court of appeals’ conclusion was based
on
the absence of any mention of the 1837 Treaty or
its usufructuary rights in the 1855 Treaty or its
negotiation process, and the lack of evidence that
the parties intended to extinguish these rights.
PA 37-38.
SUMMARY OF ARGUMENT
In the first sentence of Article 1 of the 1855 treaty, the
Chippewa ceded lands within a defined boundary, and in the
second sentence they ceded “any and all right, title and interest
... In, and to any other lands” in Minnesota or elsewhere. PA
503. This language does not extinguish the Mille Lacs Band’s
1837 treaty privilege for the following reasons. First, because
the 1837 treaty privilege provides no right of access to land, it
is not a “right to” or “interest in” land. Rather, like a modern-
day hunting or fishing license, it guarantees the Chippewa a
non-exclusive privilege to engage in the specific activities of
hunting and fishing on lands and waters otherwise open to the
public. No one would contend that a modern hunting or fishing
license conveys an interest in land, and the 1837 privilege did
not do so either.
Second, even if the 1837 privilege technically might be
characterized as a right to or interest in land, the 1855 treaty
cannot be construed based on the technical meaning of its words
to learned lawyers, but must be interpreted according to the
17
sense in which the language would have naturally been
understood by the Indians. Based on repeated statements of
government officials before, during, and after the treaty
negotiations, the Chippewa understood that the treaty
extinguished all of their remaining land claims, but not the
special hunting and fishing privilege guaranteed by the 1837
treaty. Any ambiguities in the treaty language should, moreover,
be resolved in the Indians’ favor.
Third, the district court found that there was no evidence
that either party to the 1855 treaty intended to extinguish the
Chippewa’s 1837 treaty hunting and fishing rights. Instead, the
parties intended that the 1855 treaty would extinguish all of
the Chippewa’s remaining /and claims. The evidence
considered by the district court included: (1) the 1854 treaty
which preserved the 1837 treaty privilege of the other bands
party to this case and established new hunting and fishing rights
across millions of acres of northeastern Minnesota; (2) the 1854
authorizing legislation which mandated the extinguishment of
all Chippewa land claims, but was expressly intended to reserve
rights secured by former treaties; (3) the record of the 1855
treaty negotiations which contains extensive reference to the
cession of Chippewa lands but no mention of treaty hunting
and fishing rights; (4) Commissioner Manypenny’s treaty
transmittal letter which identifies the specific land claims the
government intended to extinguish by the second sentence of
Article 1 but which contains no hint that this language was
intended to abrogate the 1837 treaty privilege; and (5) the
Chippewa’s dependence on hunting and fishing which makes
it inconceivable that the Mille Lacs Band would have consented
to a cession of a special treaty hunting and fishing privilege
without any discussion.
The facts of this case thus diverge sharply from those in
Oregon Dep't of Fish & Wildlife v. Klamath Indian Tribe, 473
U.S. 753 (1985), where the Court held that an exclusive, on-
18
reservation hunting and fishing right was ceded when a tribe
relinquished all of its rights and interests in and to reservation
land. Here, by contrast, the broad land cession language in the
1855 treaty does not encompass, and was not intended to
encompass, the non-exclusive 1837 treaty privilege of hunting,
fishing and gathering on the lands and waters of the 1837 ceded
territory — a privilege which exists independently of any
interest in the lands themselves.
ARGUMENT
I.
THE 1855 TREATY DID NOT EXPRESSLY
ABROGATE THE MILLE LACS BAND’S 1837
HUNTING AND FISHING PRIVILEGE.
Relying on Klamath, the petitioners assert that the language
of the second sentence of Article I of the 1855 treaty would
“obviously appear to extinguish” the Mille Lacs Band’s hunting
and fishing rights under the 1837 treaty. Pet. Br. at 13. With no
analysis, they ask the Court to accept their interpretation of the
treaty language as “self-evident.” Jd. at 41. We show that the
petitioners’ interpretation is not self-evident, and that under
this Court’s prior cases, including Klamath, the 1855 treaty
language does not constitute an express abrogation of the Mille
Lacs Band’s 1837 treaty privilege.
A. The Petitioners Disregard the Chippewa’s Natural
Understanding of the Treaty Language.
Determining how treaty language was understood by the
treaty parties is a fundamental part of the interpretation of any
treaty. Eastern Airlines v. Floyd, 499 U.S. 530, 536 (1991);
Air France v. Saks, 470 U.S. 392, 399 (1985). But it is especially
19
important here given the Chippewa’s inability to read and
converse in ordinary English, much less the legal jargon
employed in Article 1 of the 1855 treaty.'* PA 278. The Court,
for this reason, has repeatedly cautioned that Indian treaties
“are not to be considered as exercises in ordinary
conveyancing,” Choctaw Nation v. Oklahoma, 397 U.S. 620,
630-31 (1970), and must “ ‘be construed, not according to the
technical meaning of [their] words to learned lawyers, but in
the sense in which they would naturally be understood by the
Indians.’ ” Washington v. Washington Commercial Passenger
Fishing Vessel Ass'n, 443 U.S. 658, 675-76 (1979) (emphasis
added), quoting Jones v. Meehan, 175 U.S. 1, 11 (1899).
The district court’s findings respecting the “sense” in which
the words of the 1855 treaty “would naturally be understood
by the Indians,” do not support the proposition that the
interpretation of the treaty language advanced by the petitioners
would have been “self-evident” to the Chippewa. Pet. Br. at
41. Expert testimony established that the pertinent treaty
language does not have a Chippewa equivalent and could not
have been translated literally into Chippewa. PA 284, 324; JA
857-62 (Report of Dr. Nichols). The most likely translation of
the language would have been the Chippewa equivalent of
“relinquish and transfer to the United States the lands.” PA
284. This translation would not have conveyed any “sense” that
the treaty relinquished of the 1837 treaty privilege, but instead
would have “convey([ed] only that the Chippewa were giving
up their remaining lands.”'’ PA 284, 325. Because the
16. The facts of this case are unlike Klamath, 473 U.S. at 772,
where the Indians could speak and understand English and were
represented by attorneys.
17. Notably, the petitioners offered no evidence at trial about the
Chippewa understanding of the second sentence of Article |. Moreover,
the petitioners’ historian conceded that the second sentence of Article |
was never specifically discussed in the treaty negotiations. JA 1369
(Newell Cross-Examination).
20
petitioners’ interpretation of the 1855 treaty language ignores
the Chippewa's natural understanding of the language, 1t was
properly rejected.
B. The 1855 Treaty Language Does Not Clearly Extinguish
the 1837 Treaty Privilege.
Even when read according to its technical legal meaning,
the second sentence of Article 1 does not unambiguously
extinguish the Mille Lacs Band's 1837 treaty privilege. The
1855 treaty neither mentions the 1837 treaty privilege nor
provides a fixed sum payment for an alleged cession of the
privilege. Cf. South Dakota v. Yankton Sioux Tribe, 522 U.S.
, 139 L. Ed. 2d 773, 787 (1998). This is in sharp contrast to
language drafted by Commissioner Manypenny a few months
later in the Treaty with the Chippewa of Sault Ste. Marie, which
expressly revokes fishing rights reserved in an earlier treaty
and provides compensation for the cession. 11 Stat. 631 (Aug.
2, 1855) (“The said Chippewa Indians surrender to the United
States the right of fishing at the falls of St. Mary’s and of
encampment, convenient to the fishing ground, secured to them
by the treaty of June 16, 1820”).'* Commissioner Manypenny’s
18. The court of appeals noted that similar express language has
been used to revoke other usufructuary rights. PA 36-37. The 1830 Sauk
and Fox treaty provided for the use of ceded lands for hunting and other
purposes by “such ... Tribes as the President may locate thereon.” 7
Stat. 328. To extinguish that right, the 1837 Sauk and Fox treaty contains
a specific “cession{ } . . . [o)}f all the right to locate, for hunting or other
purposes, on the land ceded 1n the first article of the treaty of July | Sth,
1830,” in addition to a general cession of “all interest or claim by virtue
of the provisions of any treaties.” 7 Stat. 543. The 1846 Winnebego
treaty pays “forty thousand dollars for release of hunting privileges, on
lands adjacent to their present home,” in addition to a payment of
$150,000 for “the land.” 9 Stat. 878. The 1865 Middle Oregon treaty
provides that “the right to take fish, erect houses, hunt game, gather
roots and bernes, and pasture animals upon lands without the reservation
set apart by the treaty aforesaid — [is] hereby relinquished,” and provides
compensation “for the relinquishment™ of these rights. 14 Stat. 751.
21
failure to use here the kind of unambiguous language of cession
used in the 1855 Sault Ste. Marie and other treaties strongly
suggests that the government did not intend to abrogate the
1837 treaty privilege and by itself justifies a careful examination
of all the historical circumstances to determine the intent of
the parties. Choctaw Nation, 397 U.S. at 631 (rejecting a similar
“plain meaning” argument where “the United States was
competent to say the ‘north side’ or ‘bank’ of the Arkansas
River when that was what it meant, as it had in [an earlier]
grant to the Cherokees”); see also Hagen v. Utah, 510 U.S.
399, 412 (1994) (absence of language providing definite
payment for alleged reservation diminishment “requires us to
examine all the circumstances surrounding the opening of a
reservation”).
The petitioners argue that the kind of unambiguous
language contained in the Sault Ste. Marie treaty was
unnecessary here because the 1855 Chippewa treaty contains
“all-encompassing relinquishment language.” Pet. Br. at 48-
49; but see n.18 above (discussing 1837 Sauk and Fox treaty).
However, the 1855 treaty cession of all “right, title and interest
...Inand to. . . lands” does not “encompass” the 1837 hunting
and fishing privilege unless the 1837 privilege is a “right to”
or “interest in” lands. The petitioners provide no analysis to
show that it is such a right or interest, and a review of the
essential attributes of the privilege shows that it is not.
The lower courts held — and petitioners agree — that the
1837 treaty privilege secures no right of access or entry to
lands.” PA 70, 337-38; see Pet. Br. at 35. Instead, the 1837
19. The district court reasoned that since Wisconsin territorial law
allowed the public to hunt, fish and gather on all unenclosed, unposted
and undeveloped lands and an abundant amount of land was open for
these purposes, it was unnecessary to provide the Chippewa with a treaty
right of access to land. PA 334. This is consistent with the parties’
contemporaneous understanding of treaty hunting and fishing nghts.
(Cont'd)
22
treaty guarantees that the Chippewa can engage in the protected
activities of hunting and fishing in areas otherwise open to
public hunting and fishing. PA 71, 337-38; see also Lac Courte
Oreilles Band v. Wisconsin, 775 F. Supp. 321, 323-24 (W.D.
Wis. 1991). The rights secured by the 1837 treaty are thus akin
to those secured by a federal hunting and fishing permit, see.
e.g., 16 U.S.C. § 704 (permits allowing the taking of migratory
birds), or the federal fishing privileges granted pursuant to the
long-standing vessel licensing statutes analyzed in Douglas v.
Seacoast Products, 431 U.S. 265 (1977). Such federal licenses
have been held to provide “the ‘authority . . . to carry on’ the
licensed activity,” and therefore preempt certain discriminatory
state regulations. /d. at 280-81, quoting Gibbons v. Ogden,
22 U.S. (9 Wheat) 1, 212 (1824).”
(Cont'd)
See PA 271 (Gorman’s understanding that the 1837 treaty gave the
Chippewa an interest in harvesting wild rice but no right to interfere
with the erection of a dam on ceded land); JA 381 (Chippewa
understanding that hunting rights meant that “an Indian should not be
permitted to trespass on a white man’s or anybody else's property,” but
should be able “to go on government lands ... whenever a man wants
to go out and hunt and kill game”). A contrary holding would greatly
expand the rights of the other Chippewa bands and have serious
consequences for rights adjudicated in previous cases. See, e.g., Antoine
v. Washington, 420 U.S. 194, 207 n.1 1 (1975) (“claim of entitlement to
hunt on fenced or posted land without permission of the owner would
raise serious questions”).
20. The Enrollment and Licensing Act of 1793 provided for
registration and licensing of vessels to be employed in trading. whaling
and fishing in United States waters. Douglas, 431 U.S. at 273. The Court
has held that under the Act, States may impose upon federal licensees
only those “reasonable, nondiscriminatory conservation and
environmental protection measures otherwise within their police power,”
Douglas, 431 U.S. at 277, a restriction somewhat analogous to the
standards for state regulation of treaty hunting rights set out in Antoine,
420 US. at 207 (state may impose reasonabie and necessary conservation
measures that do not discriminate against the Indians).
23
Federal rights to take wild fish and game, whether secured
by a federal permit or license or by a treaty guarantee, are not
“rights to” or “interests in” land. Under the common law, wild
fish and game are not considered part of the realty and are not
subject to private ownership until reduced to possession. McKee
v. Gratz, 260 U.S. 127, 137 (1922) (shellfish not “part of the
realty” within the meaning of a state statute giving treble
damages for interference with real property); Geer v.
Connecticut, 161 U.S. 519, 526-30 (1896); see also Douglas,
431 U.S. at 290 (Rehnquist J. concurring and dissenting in part)
(federal grant of “title” and “ownership” to land in Submerged
Lands Act, 16 U.S.C. § 1311(a), “could not reasonably refer to
free-swimming fish which are incapable of such ownership”).
The prior holdings of this Court confirm that Indian treaties
may secure important hunting and fishing rights, which are
independent of any interests in land and which, by virtue of the
Supremacy Clause, preempt inconsistent state regulations. See
Klamath, 473 U.S. at 765-66 (“Indians may enjoy specia
hunting and fishing rights that are independent of any ownership
of land”); Antoine, 420 U.S. at 207 & n.11 (upholding Indians’
challenge to State fish and game regulations even though the
Indians disclaimed any “entitlement to hunt on fenced or posted
private land without prior permission of the owner”).”' Thus,
while the 1837 treaty hunting and fishing privilege must be
exercised in a particular locale, it is not a “right to” or “interest
in” land. Had the treaty secured an analogous right, such as
21. Relying on United States v. Winans, 198 U.S. 371, 381 (1905),
Thompson et al. argue that the 1837 treaty privilege is an “interest related
to land.” Th. Br. at 34. However, the treaty at issue in Winans, unlike
the 1837 treaty, preserved the Indians’ right of access to specific “usual
and accustomed” fishing places. Moreover, the Court held in Fishing
Vessel, 443 U.S. at 675, that the “specific provision for access in that
treaty was intended to secure a greater right” to harvest the runs of
anadromous fish. This “greater right,” which protects the activity of
fishing itself, is not a real property interest.
24
“the right, in common with the citizens of the United States, to
travel upon all public highways,” 1855 Treaty with the Yakimas,
Art. III, 12 Stat. 951, no one would suggest that it was a “right
to” or “interest in” lands.”
It is a “principle deeply rooted in this Court’s Indian
jurisprudence” that treaties must be “construed liberally in favor
of the Indians, with ambiguous provisions interpreted to their
benefit.” Yakima County v. Yakima Indian Nation, 502 U.S.
251, 269 (1992), see also Klamath, 473 U.S. at 774. In Yakima,
502 U.S. at 268-69, the Court applied this rule to hold that
statutory language authorizing state “taxation of land” did not
encompass “ ‘taxation with respect to land,” ‘taxation of
transactions involving land,’ or ‘taxation based on the value of
land,’ ” and hence did not authorize a county excise tax on sales
of tribally owned fee lands. Similarly here, the 1855 treaty
explicitly extinguishes “right[s] . . . and interest[s] . . . in, and
to... lands,” but does not extinguish “interests related to lands”
or “rights which may be exercised within a particular
geographic area.” As in Yakima, while the petitioners’
interpretation of the 1855 treaty language perhaps does “not
exceed the bounds of permissible construction,” the Band's
interpretation of the 1855 treaty language is not only “quite
reasonable,” 502 U.S. at 268, but also accords with the
Chippewa’s “natural understanding” of the language. Fishing
Vessel, 443 U.S. at 675-76. Under these circumstances, the
district court properly undertook a “careful examination” of
the circumstances surrounding the 1855 treaty, and resolved
22. Likewise, the holder of a federal license to trade on an Indian
reservation under 25 U.S.C. § 261 ef seg. does not possess a “right to”
or an “interest in” reservation lands; instead the license provides federal
authority to engage in the activity of trade and commerce within a
designated area, and limits the state's power to regulate that activity.
See Warren Trading Post v. Arizona State Tax Comm'n, 380 U.S. 685,
691 (1965).
25
any ambiguities in the treaty language “for the benefit of the
Tribe.” Yakima, 502 U.S. at 269; Klamath, 473 U.S. at 774.
C. The Petitioners’ Argument Is Not Supported by Klamath.
Notwithstanding the ambiguities in the treaty language and
the evidence that the Indians would not have understood the
language to affect their 1837 hunting and fishing privilege, the
petitioners insist that under Klamath, the 1855 treaty
nevertheless must be construed as “effective to extinguish
previously reserved hunting and fishing rights.” Pet. Br. at 42.
Klamath involved rights provided in an 1864 treaty which
created a 1.9 million-acre reservation and secured “the exclusive
right of taking fish in the streams and lakes, included in said
reservation, and of gathering edible roots, seeds and berries
within its limits.” 473 U.S. at 755 (emphasis added). The treaty
required the Indians to “remove to said reservation and remain
thereon” and provided for no off-reservation usufructuary
rights. Jd. at 767. Due to a surveying error, approximately
600,000 acres of land was erroneously excluded from the
reservation.” /d. at 757. In 1901, the Tribe agreed to “cede,
surrender, grant and convey to the United States all their claim,
right, title and interest in and to” the lands excluded from the
reservation by the survey. /d. at 760.
The Court acknowledged that “Indians may enjoy special
hunting and fishing rights that are independent of any ownership
23. The petitioners mistakenly contend that the rights at issue in
Klamath were non-exclusive, off-reservation rights. Pet. Br. at 43. While
the United States had erroneously allowed entry to reservation land, the
Klamath Tribe still legally held exclusive hunting and fishing nghts on
these lands under the terms of the 1864 treaty. The Court rejected the
Tribe's claim that these exclusive, on-reservation rights were somehow
converted to non-exclusive, off-reservation rights by the cession of
reservation land. Klamath, 473 U.S. at 769-70 & n. 20.
26
of land,” id. at 765-66, but held that the exclusive hunting and
fishing rights secured under the 1864 Treaty were appurtenant
to the reservation and ceded when the reservation was
diminished in 1901. Jd. at 768. “More important[ }” than the
broad language of cession was the fact that the 1864 treaty
“plainly describe[d] rights intended to be exercised within the
limits of the reservation.” Jd. at 766. The Court reasoned:
The fact that the rights were characterized as
exclusive forecloses the possibility that they were
intended to have existence outside of the reservation,
no exclusivity would be possible on lands open to
non-Indians. Moreover, in view of the fact that
Article I restricted members of the Tribe to the
reservation .. . , it is manifest that the rights secured
to the Indians by that same Article did not exist
independently of the reservation itself.
Id. at 767-68. The Tribe’s later claim of a special, non-
exclusive, off-reservation right was inconsistent with the terms
of the 1864 treaty. Jd. at 770.
In contrast to the Klamath Tribe’s exclusive, on-reservation
hunting and fishing right, which was relinquished when the
boundaries of its reservation were diminished, the Mille Lacs
Band’s 1837 treaty privilege was always a non-exclusive right
that could be exercised on ceded lands. It is the very type of
“special hunting and fishing right” recognized by the Court in
Klamath to exist “independent of any ownership of land.”™ 473
24. The five cases cited by the Court for this proposition all
involved non-exclusive hunting, fishing or gathering rights reserved by
treaties or agreements on ceded lands. In Antoine, the Indians ceded “all
their right, title, claim and interest in” the land, while reserving “the
right to hunt and fish in common with all other persons on lands not
(Cont'd)
27
U.S. at 765-66 & nn. 16-17 (emphasis added). Given the
rationale of Klamath, a non-exclusive hunting and fishing right
which is expressly secured by treaty on ceded lands (but which
secures no right of access to such lands) can survive a later
cession of all “right, title and interest... in, andto. . . lands.””
Furthermore, the holding in Klamath did not rest solely on
the bare language of the 1901 Agreement, but instead turned
on the Court’s “careful examination of the entire record,” which
showed that the Tribe’s exclusive hunting and fishing right “was
not intended to survive as a special right to be free of state
regulation” after the lands were ceded. 473 U.S. at 774. Indeed,
even outside the Indian context, such a careful review of the
historical circumstances is an essential aspect of treaty
interpretation. Eastern Airlines v. Floyd, 499 U.S. at 535
(because “treaties are construed more liberally than private
(Cont'd)
allotted to said Indians.” 420 U.S. at 196, 208 asis add
Similarly, Fishing Vessel; Puyallup Tribe v. da of Game, nn
U.S. 392 (1968), and Winans, involved the Stevens treaties where the
Indians ceded “their interest in most of the Territory,” while reserving a
“right of taking fish at all usual and accustomed places, in common with
citizens of the Territory.” See Fishing Vessel, 443 U.S. at 662 (emphasis
added). Finally, in Kennedy v. Becker, 241 U.S. 556, 562 (1916), the
Tribe ceded a tract of land while reserving what the Court found to be a
non-exclusive “privilege of fishing and hunting” on that tract.
25. By contrast, aboriginal hunting and fishing rights, unsecured
by treaty, are merely incidents of original Indian title which, unless
specially reserved, are extinguished when the lands are ceded. Klamath
473 U.S. at 766; United States v. Minnesota, 466 F. Supp. 1382, 1385
(D. Minn. 1979), aff'd sub nom., Red Lake Band v. Minnesota, 614 F.2d
1161 (8th Cir.), cert. denied, 449 U.S. 905 (1980). Thus, a holding that
the Mille Lacs Band's 1837 treaty privilege survived the 1855 cession
of all interests in land would not resurrect the aboriginal hunting and
fishing mghts extinguished in numerous other land cession treaties.
28
agreements,” courts may “look beyond the written words to
the history of the treaty, the negotiations, and the practical
construction adopted by the parties”); Saks, 470 U.S. at 396.
The district court’s careful, fact-based review of the
circumstances surrounding the 1855 treaty, and its
determination based on that review that the 1855 treaty did not
extinguish the Mille Lacs Band’s 1837 treaty privilege, is thus
entirely consistent with Klamath and the Court’s other treaty
interpretation precedents.
THE DISTRICT COURT’S CAREFUL EXAMINATION
OF THE HISTORICAL RECORD SHOWS THAT THE
PARTIES DID NOT INTEND TO EXTINGUISH THE
MILLE LACS BAND’S 1837 TREATY PRIVILEGE.
“In the absence of an explicit statement, ‘the intention to
abrogate or modify a treaty is not to be lightly imputed to the
Congress.’ ” United States v. Dion, 476 U.S. 734, 739 (1986),
quoting Menominee Tribe v. United States, 391 U.S. 404, 413
(1968); Fishing Vessel, 443 U.S. at 690. Because the Court
will not construe statutes as abrogating treaty rights in “a
backhanded way,” treaty abrogation will be found only if
Congress’ intention to abrogate Indian treaty rights is “clear
and plain.” Yankton Sioux, 139 L. Ed. 2d at 786; Dion, 476
U.S. at 738-39. Because the language of the 1855 treaty did
not unambiguously extinguish the Mille Lacs Band’s 1837
hunting and fishing privilege, the petitioners were required to
demonstrate through evidence in the historical record that the
parties to the treaty clearly intended to extinguish the treaty
privilege. The petitioners failed to meet these exacting
standards.”
26. Instead, the petitioners try to turn these standards on their head
by asserting that the historical evidence “must essentially be conclusive in
(Cont'd)
29
A. There is No Evidence the United States Intended to
Abrogate the Mille Lacs Band’s 1837 Hunting and Fishing
Rights.
The district court found no evidence that the United States
intended to abrogate the Mille Lacs Band’s 1837 treaty hunting
and fishing privilege, and substantial evidence, particularly
Commissioner Manypenny’s treaty transmittal letter, showing that
the government's intent in drafting the second sentence of Article
1 was to ensure that all of the Chippewa’s various and overlapping
land claims were extinguished.”’ PA 327-28. The first, and perhaps
clearest, manifestation that the United States did not intend to
abrogate the Band’s 1837 treaty privilege is the 1854 treaty, which
preserved the 1837 treaty rights of the Wisconsin and Fond du
Lac Bands, and expressly established new hunting and fishing
rights for the Fond du Lac and other Chippewa residing in the
territory ceded by that treaty.” PA 31-34, 191-201. As the district
court reasoned,
(Cont'd)
order to overcome clear treaty language.” Pet. Br. at 49. As shown in the
previous section, however, the treaty language contains no explicit statement
abrogating the 1837 treaty privilege.
27. The Eighth Circuit properly reviewed the district court's findings
regarding the intent of the parties on the basis of the clearly erroneous
standard. PA 37; see Pullman Standard v. Swint, 456 U.S. 273, 287-88
(1982) (intent is “a pure question of fact subject to Rule 52(a)’s clearly
erroneous standard ..., not a question of law and not mixed question of
law and fact”). The petitioners do not take issue with the standard of review
applied by the court of appeals.
28. The lower courts’ holding that the 1854 treaty did not abrogate
the Chippewa’s 1837 treaty privilege was not challenged in any of the
petitions for certiorari or in any of the briefs filed on the merits in this
Court. Only the Landowners pursued this issue in the court of appeals, which
found the evidence “overwhelming that neither party intended the 1854
treaty to disturb usufructuary rights.” PA 31-34 and n. 27.
30
[i]f the government had intended to extinguish the
1837 privilege, it would have included a provision
abrogating that privilege in the 1854 treaty because
most of the bands that signed the 1837 treaty
attended that treaty negotiation and were not invited
in 1855.
PA 328-29.
Moreover, if Congress had sought to extinguish off-
reservation hunting and fishing rights throughout the Minnesota
territory, as petitioners suggest, it would not have ratified a
treaty establishing new off-reservation treaty rights across the
millions of acres of the 1854 ceded territory. See Morton v.
Mancari, 417 U.S. 535, 548-49 (1974) (absent “any
manifestation of supportive intent,” where Congress had
enacted two new Indian preferences, “we are loathe to imply
[the] improbable result” that Congress intended to repeal Indian
preferences in government employment). The petitioners fail
to explain why Congress would have intended to abrogate the
treaty hunting and fishing rights of the Mille Lacs Band, while
leaving intact the reserved rights of all other Bands using the
1837 ceded territory and establishing new treaty rights in the
1854 ceded territory.”
The next manifestation of treaty intent, the legislation
authorizing the 1855 treaty negotiations, 10 Stat. 598 (PA 532),
29. The petitioners’ brief correctly points out that if the State were to
prevail on its 1855 treaty defense, “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.” Pet. Br. at 41, n.17. The petitioners make no
effort to explain the logic of this odd result. See Yankton Sioux, 139
L. Ed. 2d at 788 (court should apply “sensible construction” which avoids
“absurd conclusion”).
31
likewise “does not support the interpretation [of the 1855 treaty]
presented by the [petitioners].” PA 328. The legislation makes
no mention of treaty hunting and fishing rights on lands
previously ceded, but instead authorizes negotiations for “the
extinguishment of (the Chippewa’s] tit/e to all the lands owned
and claimed by them.”” PA 532 (emphasis added). Moreover,
the legislation not only authorized the 1855 treaty negotiations
but provided retroactive authority for the 1854 negotiations,
which preserved existing treaty hunting and fishing rights and
established new treaty hunting and fishing rights over a vast
area in northeastern Minnesota. PA 275. The lack of intent to
extinguish treaty hunting and fishing rights is confirmed by
the legislative history which expressly states that the treaties
authorized by the legislation would “reserve[]” to the Indians
“those rights which are secured by former treaties.” 23 Cong.
Globe, 33rd Cong., Ist Sess. 1403-04 (June 15, 1854) (emphasis
added)
| The petitioners cite language from the authorizing
legislation directing that the new treaty provide 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.”
30. Commissioner Manypenny executed the congressional mandate
by summoning the Chippewa to Washington for treaty negotiations
respecting their claims to lands in Minnesota,” but made no suggestion
that the negotiations would involve a cession of treaty hunting and fishing
rights. PA 276-77. Furthermore, Manypenny did not summon to the
negotiations all of the Bands who used and occupied the 1837 ceded
territory, as would have been logical if he had sought to negotiate a
cession of 1837 treaty rights. /d.
32
Pet. Br. at 47 (citing PA 533). However, the issue before the
Court is not whether the 1837 ceded territory is still “Indian
country,” see Alaska v. Native Village of Venetie, 522 U.S. __,
140 L. Ed. 2d 30 (1998), but whether Congress intended to
abrogate the Mille Lacs Band’s 1837 treaty hunting and fishing
privilege. The authorizing legislation is silent on the latter issue
and its legislative history strongly indicates that prior treaty
rights were to be preserved. 23 Cong. Globe, 33rd Cong., Ist
Sess. 1403-04 (June 15, 1854). Furthermore, no language
requiring the application of territorial law appears in the text
of 1855 treaty itself, which provides simply that the Chippewa
must “respect and observe the laws of the United States, so far
as the same are to them applicable.” PA 328, 512-13 (emphasis
added).
The record of the 1855 treaty negotiations further confirms
that the government intended to extinguish Chippewa land
claims, not treaty hunting and fishing rights. The district court
found that 1855 treaty journal contains no discussion of the
1837 treaty privilege, or hunting and fishing rights in general.
PA 284, 325. The treaty negotiations instead focused on the
obtaining a cession of Indian lands, as reflected by very first
page of the treaty journal which indicates the negotiations were
“required for the purpose of making a treaty for the purchase
of a tract of land lying in Minnesota.” JA 297; see also JA 304,
307, 309; JA 869 (Report of Dr. Tanner). The petitioners do
not suggest that a cession of the 1837 treaty hunting and fishing
privilege was ever proposed by government officials during
the 1855 treaty negotiations.
The petitioners argue instead, without any citation to the
record, that the shift in government policy away from removal
and toward the establishment of reservations provides the
“historical context” for an intent to extinguish treaty hunting
and fishing rights. Pet. Br. at 45. However, the district court
rejected this factual contention, finding instead that the
a ee Nee Le
33
preservation of treaty hunting and fishing rights was “not
inconsistent with Manypenny’s reservation policy.”®' PA 289.
Indeed, the legislative history for the 1854 authorizing act
contains extensive discussion about the shift from the removal
to the reservation policy, but makes clear Congress’s intent
that “rights which are secured by former treaties” would be
unaffected by the establishment of reservations. 23 Cong.
Globe, 33rd Cong., Ist Sess. 1403-04 (June 15, 1854). The
petitioners’ historian testified that Manypenny’s reservation
policy allowed for off-reservation hunting, fishing and
gathering, that the policy did not confine the Indians to their
reservations, and that the Mille Lacs Reservation was
established because it provided access to off-reservation
fisheries and wild rice fields. JA 1359, 1368-69 (Newell Cross);
see also Johnson v. Gearlds, 234 U.S. 422, 438 (1914) (1855
treaty drafters contemplated that the Chippewa “while making
their permanent homes within the reservations would be at
liberty to roam and to hunt throughout the entire country, as
before”).
The petitioners also argue that 1855 treaty provisions
stipulating that the Chippewa would “settle down in the peaceful
pursuits of life” and promising governmental assistance with
agriculture demonstrate an intent to abrogate treaty hunting and
fishing rights.” Pet. Br. at 46-47. However, many other treaties
31. In support of this finding, the district court noted that the 1854
Chippewa treaty and many other treaties negotiated in the mid-1850s
expressly secured off-reservation hunting and fishing rights while at
the same time establishing reservations, and that only one treaty, the
1855 Sault Ste. Marie treaty, expressly abrogated treaty hunting or fishing
nghts and that followed the destruction of the fishery by a government
canal project. PA 289; see also Fishing Vessel, 443 U.S. at 666 n.9.
32. The petitioners’ expert testified that this provision “doesn’t
mean ... that the chiefs agreed their people would stop hunting, fishing,
trapping and gathering.” JA 1388 (Driben Cross).
34
of this era encouraged the Indians to settle down on reservations
and provided agricultural assistance while at the same time
preserving off-reservation hunting and fishing rights. E.g. PA
493 (1854 treaty stipulations providing for allotment of land in
severalty and agricultural assistance). The 1855 treaty itself,
while not establishing new special hunting and fishing rights,
nevertheless promised the Chippewa gunpowder, shot, lead and
gilling twine to enhance their hunting and fishing activities.
PA 509; see also Lac Courte Oreilles Band v. Voigt, 700 F.2d
341, 364-65 (7th Cir.) (“government's provision of guns and
ammunition to the Indians pursuant to the 1854 treaty” is
evidence that the government did not intend that treaty to
abrogate the Chippewa’s usufructuary rights), cert. denied, 464
U.S. 805 (1983).
Commissioner Manypenny’s February 23, 1855, transmittal
letter, which was presented to the Senate during the treaty
ratification process, demonstrates clearly that the government
intended that the second sentence of Article 1 would extinguish
the Chippewa’s remaining /and claims, not their previously
reserved treaty hunting and fishing rights. JA 291-94.
Manypenny’s letter explains that the second sentence of Article
1 was included in the treaty because the “Indians (and especially
the Pillager and Lake Winnibigoshish bands) have some right
or interest in a large extent of other lands in common with
other Indians in Minnesota.” PA 286; JA 291-92 (emphasis
added). There is no reference to the 1837 privilege in
Manypenny’s transmittal letter and the explanation Manypenny
provided for the cession language bears no relation to the 1837
privilege.” That privilege was not held “especially” by the
Pillager and Lake Winnibigoshish bands, who occupied lands
33. Indeed, Manypenny’s letter asserted (erroneously) that the
bands party to the 1855 treaty “have not been parties to or participants
in the benefits of any treaty with the United States,” other than an
“unimportant” 1847 treaty. PA 288; JA 292.
ee ee ee ee
35
far to the north and west of the 1837 cession (see App. A
attached), and had disclaimed any interest in the 1837 territory
during the 1837 treaty negotiations. PA 287; JA 47. The 1837
privilege was not “some [indefinite] right or interest” but a
specific privilege secured by treaty. And, the 1837 privilege
was not held in common with “other Indians in Minnesota,”
but largely with other Chippewa bands in Wisconsin. PA 287.
Manypenny’s transmittal letter strongly supports the
district court's finding that
Manypenny intended fer the second sentence of
Article | oi the 1855 treaty to extinguish Chippewa
land claims, especially those of the Pillager and
Lake Winnibigoshish bands, to unceded lands in
northwestern Minnesota.
PA 327-28 (emphasis added). Based on the 1847 map he had
forwarded to Gilbert in preparation for the 1854 treaty (App. B
attached), the 1848, 1849 and 1850 annual reports (JBA 105,
118-19; JA 187), and Rice’s December 17, 1854, letter (JA
287), Manypenny understood that the Pillager bands claimed
lands to the north and west of the tract defined in the first
sentence of Article 1. The district court quite reasonably found
that Manypenny’s uncertainty about the precise nature of the
Pillagers’ interest in these lands (“some right or interest”)™
and the Pillagers’ refusal to define the full extent of their land
claims during the negotiations,” led to the drafting of the broad
34. The Commissioner's 1850 annual report explained that the
Pillager claims went beyond the 1825 Prairie du Chein lines, see note 2
above, arose in some manner from “conquest and actual possession,”
and overlapped those of the Red Lake bands. PA 287; JA 187.
35. Because the Mississippi and Pillager bands claimed different
lands, Manypenny insisted that the chiefs define their respective
(Cont'd)
36
language of cession in the second sentence of Article 1. PA
286-88.
The petitioners apparently concede that the passage quoted
above refers to the second sentence of Article 1, but argue that
Manypenny’s reference to lands in northwestern Minnesota
does not support a “geographic limitation” on the treaty
language of cession. Pet. Br. at 48. This misses the point. The
issue is not whether the cession language is limited
geographically, but whether the language was intended to
extend beyond a cession of the Chippewa’s remaining /and
claims and also abrogate their 1837 treaty hunting and fishing
privilege. Manypenny’s transmittal letter, which omits any
reference to treaty hunting and fishing rights while explaining
that the second sentence of Article 1 would extinguish the ill-
defined land claims of the Pillager and Lake Winnibigoshish
bands to the north and west of the demarcated cession
boundaries (see App. A attached), is compelling evidence that
the government's intent in drafting the broad language of
cession in the 1855 treaty was to extinguish Chippewa land
claims, not their 1837 hunting and fishing rights. As the district
court reasoned, that interpretation does not rewrite the treaty
or render the second sentence of Article 1 superfluous, “it
merely limits the language to its intended effect.” PA 328.
Finally, the government's “post-ratification conduct”
provides no probative evidence that the treaty was intended to
abrogate the Mille Lacs Band’s 1837 treaty rights. Zicherman
v. Korean Air Lines, 516 U.S. 217, 133 L. Ed. 2d 596, 607
(1996); Floyd, 499 U.S. at 546. After the 1855 treaty, Manypenny
(Cont'd)
boundaries before he could make a proposition to them. JA 313. The
Pillager representative, Flat Mouth, demurred, stating that the Pillager
and Lake Winnibigoshish bands would identify only those lands they
wished to sell and would not “state precisely what our bands claim as a
right.” JA 317-18.
37
did nothing to correct the statement in Governor Gorman’s
February 1855 letter that the Mille Lacs Band still retained hunting
and fishing nights under the 1837 treaty, and Gorman repeated his
statement in a June 1855 letter to the Band. PA 269-71; JA 295-
96. Notwithstanding complaints from non-Indians about Chippewa
off-reservation hunting and fishing, and calls by the State to confine
the Mille Lacs Band to its reservation, federal officials continued
to support off-reservation hunting and fishing, never suggesting
that the 1855 treaty had any effect on the Chippewa’s 1837 treaty
privilege until approximately 70 years after the treaty. PA 293,
299-300. The petitioners’ interpretation of the 1855 treaty is thus
36. The petitioners contend that state statutes adopted in 1858 set
seasons and “expressly applied those seasons to Indians hunting off their
reservations.” Pet. Br. at 47, citing PA 569-72. In fact, two of the cited
statutes (chs. XIX, XLV) make no mention of Indians, while the third (ch.
XLIV) purports to assert overall criminal junsdiction over Indians when
found off-reservation, and require Indians to obtain a pass from federal
officials before leaving their reservations. There is no evidence that these
statutes had any relation to the 1855 treaty, or that the Federal Government
sirhneer mgt wie wy tamu sp ums tonerdeeren
apply to 4 ceded terntory where the Chippewa unquestionab!
retained off-reservation hunting and fishing nghts. ‘
Thompson er a/. point to Henry Rice’s statements during the Nelson
Act negotiations as evidence of an understanding that the Mille Lacs Band's
rights had been abrogated. Th. Br. at 9-10, 32. However, Rice never stated
that the Band’s 1837 treaty nghts had been abrogated; he simply suggested
that the State had the power to set deer hunting seasons. PA 297;
JA 471-72. It is well established that the State does have the power to set
seasons for Indian hunting, provided that the seasons are non-discnminatory
and necessary for conservation. Antoine, 420 U.S. at 207. The district court
also found that Rice’s comments were “not persuasive evidence” that the
1837 privilege had been abrogated, because the United States negotiators
made simmlar comments in discussions with the Grand Portage Band, which
a retained usufructuary rights under the 1854 treaty. PA 297-98;
38
B. There Is No Evidence that the Chippewa Intended to
Relinquish their 1837 Hunting and Fishing Rights.
The district court also found that the Mille Lacs Band did not
intend to relinquish its 1837 treaty rights when it signed the 1855
treaty, and did not understand the 1855 treaty to have that effect.
PA 292, 324. The evidence strongly supports this finding. The
Chippewa were told and understood that the treaty would involve
a cession of their unceded lands,”’ and were never asked to cede
their guaranteed privilege of hunting, fishing and gathering in the
1837 ceded territory. PA 284. The Mille Lacs Chippewa would
have starved if they had been unable to hunt and fish outside of
the small reservation established by the 1855 treaty and “would
not have knowingly given up the guaranteed [1837] privilege
without any discussion.” PA 292, 325. The lack of ary mention of
these important treaty nghts in the 1855 treaty journal is thus strong
evidence that the Mille Lacs Band did not understand the 1855
treaty to have this effect. See Fishing Vessel, 443 U.S. at 676 (given
importance of fishing to Indians, it was “inconceivable that either
party deliberately agreed to authorize future settlers to crowd the
Indians out of any meaningful use of their accustomed places to
fish”).
The petitioners argue that “the context of extinguishment was
reflected in the goals of the Chippewa leaders” because Hole-in-
the Day, a Chippewa spokesman, sought money and tools to enable
the Indians to adopt agricultural ways and “live like the whites.”
Pet. Br. at 45-46 & n.20. While there is no dispute that Hole-in-
the-Day at times espoused assimilation, the district court found
that his views were not shared by the Mille Lacs Chippewa, who
were at this time fighting to protect their wild nce fields from the
37. Flat Mouth remarked: “It appears to me | sat | understand what
you want, and your views from the few words | hav: heard you speak. You
want land.” JA 309. Hole-in-the-Day likewise stated: “Your words strike
us in this way. They are very short. ‘I want to buy your land.” These words
are very expressive, very curt.” JA 304.
{
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f
:
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‘
39
Rum River dam. PA 291-92. The district court also found that the
Chippewa representatives understood that their people would need
to hunt, fish and gather off the small reservations created by the
1855 treaty in order to survive and would not have acquiesced
without discussion to any restrictions on their legal rights to engage
in these activities in the 1837 ceded territory." PA 325; see also
JA 598-607 (first-hand, contemporaneous account showing the
extent of Chippewa dependency on hunting, fishing and gathering
in the late 1850s), 1386-87 (testimony of State’s expert that
Chippewa representatives did not intend the 1855 treaty to restrict
their people from using natural resources). Indeed, after the 1855
treaty was signed, the Chippewa representatives, including Hole-
in-the-Day, expressed great concern that annuity payments under
the treaty would not interfere with the Chippewa’s fall fisheries.
PA 289-90; see also JA 1090-91 (Testimony of Dr. Cleland).
Finally, notwithstanding repeated calls by State officials to
confine the Mille Lacs Chippewa to their reservation and, after
1892, active efforts to regulate off-reservation hunting, fishing
and gathering, the district court found that the Chippewa
“continued to hunt, fish and gather off-reservation after the 1855
treaty” and “complained to federal officials that state enforcement
of game regulations violated their rights under the 1837 treaty.”
PA 325-26. This “post-ratification conduct” further supports the
district court’s finding that the Chippewa did not intend to
38. The petitioners also cite a passage from the treaty journal in which
Hole-in-the-Day asserts that he studied the treaty and concluded that “the
Indians have given away all, and leave themselves no alternative but to
work.” JA 348-49. Read in context, this passage has nothing to do with
that prior treaties which paid farmers and blacksmiths to work for the
Chippewa had encouraged dependency. /d He understood that, because
they were ceding all of their remaining lands, the Chippewa would not be
able to cede lands in the future in return for annuity payments, and therefore
would have to work for themselves. Notably, the treaty journal indicates
that this “work” would include fishing, hunting and trapping, as well as
farming and other trades. See JA 1089-92 (Testimony of Dr. Cleland).
40
relinquish their hunting and fishing nights under the 1837 treaty.
See Seufert Bros. Co. v. United States, 249 U.S. 194, 198-99 (1919)
(continued in common use of fishing places “shows clearly that
[the Indians’}] understanding of the treaty was that they had the
right to resort to these fishing grounds and make use of them in
common with other citizens of the United States”).
To sum up, this Court has held repeatedly that the intent to
abrogate Indian treaty rights must be “clear and plain.” Yankton
Sioux, 139 L. Ed. 2d at 786. In this case, the relevant language
from the 1855 treaty is ambiguous at best, and the evidence from
the surrounding circumstances provides no indication tha: either
party intended to extinguish the Mille Lacs Band’s 1837 treaty
privilege. The historical record shows that the purpose of the broad
treaty language in the second sentence of Article | was to ensure
that all of the Chippewa’s ill-defined /and claims were fully
extinguished. Not a single document in the historical record
surrounding the negotiation and ratification of the 1855 treaty even
mentions the Chippewa’s hunting and fishing rights under the 1837
treaty. Petitioners suggest no reason why the United States would
have sought to extinguish the nghts of the Mille Lacs Band, after
preserving the rights of the Wisconsin and Fond du Lac Bands
and creating mew hunting and fishing rights in the 1854 treaty.
Nor do the petitioners offer any reason why the Mille Lacs
Chippewa, who remained vitally dependent on hunting, fishing
and gathering, would have knowingly .elinquished the 1837
privilege without discussion. To construe the 1855 treaty to
extinguish the Mille Lacs Band’s 1837 treaty privilege, without
any “clear and plain” manifestation of congressional or tribal
intent to extinguish the privilege, would run afoul of this Court’s
admonition that treaty rights may not be “easily cast aside” in
a “backhanded” manner. Dion, 476 U.S. at 738-39; Menominee,
391 U.S. at 412.
41
CONCLUSION
For all of the foregoing reasons, the Eighth Circuit's ruling
that the Mille Lacs Band’s hunting and fishing rights were
unaffected by the 1855 treaty should be affirmed.
Respectfully submitted,
MARC D. SLONIM
Counsel of Record
JOHN B. ARUM
ZIONTZ, CHESTNUT, VARNELL,
BERLEY & SLONIM
2101 Fourth Avenue, Suite 1230
Seattle, WA 98121-2331
(206) 448-1230
CHARLES J. COOPER
ALAN K. PALMER
COOPER, CARVIN
& ROSENTHAL
200 K Street, N.W.
Suite 401
Washington, D.C. 20006
(202) 822-8960
JAMES M. GENIA
SOLICITOR GENERAL
MILLE LACS BAND OF
CHIPPEWA INDIANS
HCR 67, Box 194
Onamia, MN 56359
(320) 532-4181
Attorneys for Respondents Mille
Lacs Band of Chippewa Indians,
Arthur Gahbow, Walter Sutton,
Carleen Benjamin and Joseph
Dunkley
APPENDIX
la
APPENDIX A — CHIPPEWA LAND CESSIONS, 1837-
1855 (DEFS. EXH. 1, PAGE 13; JOINT APPENDIX
PAGE 956)
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CHIPPEWA LAND CESSIONS, 1837-1855
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APPENDIX B — 1847 WAR DEPARTMENT MAP
SHOWING CHIPPEWA LAND CLAIMS (PLS. EXH. 179;
JOINT APPENDIX PAGE 133)
BEST AVAILABLE COPYS
a ce ee
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