Amicus Curiae Brief — Minnesota v. Mille Lacs Band of Chippewa Indians

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

LoRK

In the = -

Supreme Court of the United States

October Term, 1997

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STATE OF MINNESOTA, et al.,

Petitioners,

Vv

MILLE LACS BAND OF CHIPPEWA INDIANS, et al.,

Respondents.

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COUNTY OF AITKIN, et al.,

Petitioners,

v.

MILLE LACS BAND OF CHIPPEWA INDIANS, et al.,

Respondents.

JOHN W. THOMPSON, et al.,

Petitioners,

v.

MILLE LACS BAND OF CHIPPEWA INDIANS, et al.,

Respondents.

+.

~ 4

On Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

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MOTION AND BRIEF AMICUS CURIAE

OF PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

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ROBIN L. RIVETT *BRENT D. BOGER

Pacific Legal Foundation *COUNSEL OF RECORD

2151 River Plaza Drive, Suite 305 Pacific Legal Foundation

Sacramento, California 95833 10800 NE 8th Street, Suite 325

Telephone: (916) 641-8888 Bellevue, Washington 98004

Facsimile: (916) 920-3444 Telephone: (425) 635-0970

Facsimile: (425) 635-0196

Attorneys for Amicus Curiae

l

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF

PETITIONERS, LANDOWNERS

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully moves to file the attached brief

amicus curiae.’ Consent to file this brief has been granted

orally by counsel for the United States, the State of Minnesota,

the landowners, the Minnesota Counties, and the Mille Lacs

Band of Indians. The letters of consent received have been

lodged with the Clerk of this Court. Requests for consent to file

the amicus curiae brief were made to the other parties, but as of

the date of filing this brief, no responses have been received.

IDENTITY AND INTEREST

OF AMICUS CURIAE

Pacific Legal Foundation has participated in numerous

cases before the United States Supreme Court involving the

protection of private property rights. PLF attorneys were

counsel of record in Nollan v. California Coastal Commission,

483 U.S. 825 (1987), and Suitum v. Tahoe Regional Planning

Agency, 117 S. Ct. 1659 (1997), and PLF participated as amicus

curiae in Keystone Bituminous Coal Association vy.

DeBenedictis, 480 U.S. 470 (1987); First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles,

482 U.S. 304 (1987); Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992); and Dolan v. City of Tigard, 512 U.S.

374 (1994), to name but a few.

' Pursuant to Supreme Court Rule 37.6, amicus curiae affirms that

no counsel for any party in this case authored this brief in whole or

in part; and furthermore, that no person or entity made a monetary

contribution specifically for the preparation or submission of this

brief.

2

Amicus seeks to augment the argument in the parties’

briefs by arguing that if there are any remaining Chippewa

usufructuary nights, the federal government has taken them and

the only appropriate remedy for the taking is just compensation.

No injunction should issue where such a remedy at law exists,

specifically where the equities between the parties weigh

heavily in favor of innocent private landowners. In particular,

PLF is concered that the Eighth Circuit’s decision ignores the

serious harm an injunction will work on innocent property

owners.

For the foregoing reasons, PLF requests this Court to

grant its motion to file the attached amicus curiae brief.

DATED: August, 1998.

Respectfully submitted,

ROBIN L, RIVET! *BRENT D. BOGER

Pacific Legal Foundation *COUNSEL OF RECORD

2151 River Plaza Drive, Suite 305 Pacific Legal Foundation

Sacramento, California 95833 10800 NE 8th. Street, Suite 325

Telephone: (916) 641-8888 Bellevue, Washington 98004

Facsimile: (916) 920-3444 Telepnone: (425) 635-0970

Facsimile: (425) 635-0196

Attorneys for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED ................ ill

INTEREST OF AMICUS CURIAE ..........ccccees: I

iis xc ool seen ad eve cunkseeeeihe |

EE Fee Bate ke so ds a ew ee erha dubeeae |

DUAR meereE CW BRU CAGE on. cc ccc ccccccccsccecs 2

SUMMARY OF ARGUMENT ..............-ceeees 5

DE idan sé sc prude dductitedotabciaadadee 6

I. INJUNCTIVE RELIEF IS

IMPROPER BECAUSE THE BAND

HAS AN ADEQUATE REMEDY

Dn Wings bukoxkcabek aye dee us eee ¢ 6

A. Ifthe Mille Lacs Band’s Usufructuary

Rights Survived the 1850 Executive

Order and the 1855 Treaty, Then the

Wrong the Band Seeks to Remedy by

This Action Is the United States

Government's Taking of Those Rights ........ 7

B. The Band Has a Legal Remedy for the

Taking It Claims to Have Suffered:

DL Ce dukdce chuetees 6anebse che 7)

C. Compensation Is Not Only an Available

Legal Remedy, It Is the Proper Remedy ...... 10

TABLE OF AUTHORITIES CITED

1. This Court Has Approved a

) Page

Compensation Remedy Rather Than

Injunctive Relief to Enforce an Cases

et PE GEL a's ced see wecantne 10

Board of Commissioners of Jackson County

2. Congress Has Recognized That a v. United States, 308 U.S. 343 (1939) .............. 23

Compensation Remedy Is More

Appropriate to Enforce Indian Treaty Burford v. Sun Oil Company, 319 U.S. 315

Rights Than Injunctive Relief .......... 14 SE nidiida aoe had Aaeees anew ted ineened aeres 17

ll. BALANCING THE EQUITIES COUNSELS Covelo Indian Community v. Watt, 551 F.

AGAINST AN INJUNCTION ................. 17 Supp. 366 (19BZ) .. 2. cece ccc eee ee cececees 16

A. The Landowners Are Innocent Because Creswill v. Grand Lodge Knights of Pythias,

the United States Government ee ee ein cea chk wens 8 21

Represented that the Treaty Rights Are |

WEE cud drctewcudns vedsdae teak ees 18 First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles,

B. The Innocent Landowners Reasonably Se aa SED aon tiees tnavatacs cee eeeereres )

Relied on the Representations of the

United States Government and Will Grand Traverse Band of Chippewa and

Suffer Senous Injury if an Injunction Is Ottawa Indians v. Director, Michigan

SED is 054k eels Siteaas Uh ed oo G ieee +i 19 Department of Natural Resources, 97\ F. :

rr errrr Terr TT err reer iere 10

lll. THE BAND SHOULD BE BARRED

UNDER THE EQUITABLE DOCTRINE OF Hurley v. Kincaid, 285 U.S. 95 (1932) .... 2.6.26. eee 10

LACHES FROM ENFORCING ITS

SP CREE DUDE bc uso cece bhevduce 21 Kaiser Aetna v. United States, 444 U.S. 164

SED din banda Wald an ckakahseraas cbkesnrass 7-8

EE MEG: csc Kine kul oneatt hivekcuiedeedse ae

Loretto v. Teleprompter Manhattan CATV

Corporation, 458 U.S. 419 (1982)... 6. ee eee eee 8

IV

Mille Lacs Band of Chippewa Indians v. State

of Minnesota, 124 F.3d 904 (8th Cir. Sh Cais 1-5

Mille Lacs Band of Chippewa Indians v. State

of Minnesota, 861 F. Supp. 784 (D. Minn.

WOW | abcd: Mancunian Si iudli or tat See (3 oy 3

National Farmers Union Insurance

Companies v. Crow Tribe of Indians.

WP NE Se ee eo 6-7

Olson v. United States, 292 U.S. 246 eee 1]

Oregon Department of Fish and Wildlife v.

Alamath Indian Tribe, 473 U.S. 753 De dz oo 14-15

Preseault v. Interstate Commerce

Commission, 494 U.S. 1(1990) .................. 14

Savage Industries, Inc. v. Savage Arms, Inc..

45 F.3d 714 (190 Cie. 1994) .................... 17

Shoshone Tribe of Indians of the Wind River

Reservation in Wyoming v. United States,

SP ND eas tet mr 9,13

Southside Fair Housing Committee y. City of

New York, 928 F.2d 1336 (2d Cir. as bear" 21

State of Minnesota v. Keezer, 292 N.W.2d 714

COME. Sov intd sev tedab® chee ie ccce kc 19

State of Washington vy. Washington State

Commercial Passenger F. ishing Vessel

Association, 443 U.S. 658 (1979) ......... 17

Tri-Star Pictures, Inc. v. Leisure Time

Productions, 17 F.3d 38 (2d Cir. SE bo ha du dah es 21

United States v. 131.68 Acres of Land,

695 F.2d 872 (Sth Cir.), cert. denied,

ey Oe POE tne ee ae ok ics 1]

United States v. 564.54 Acres of Land,

ee NEE Bird iuelti coke 1

United States v. Imperial Irrigation District,

799 F. Supp. 1052 (S.D. Cal. 1992) ............... 13

United States v. Sioux Nation of Indians,

CE WA PUREUUUED ii cdeckc aes xe occ ias 9, 12-13

United States v. State of Minnesota, 270 US.

PPE Sa yiadee tees racisae cette 11-12, 19, 23

United States v. State of Washington, 135 F.3d

SEE POU Cea oes bakdeino 17, 23

Ward v. Race Horse, 163 U.S. 504 EE og te ee 5

Whitney Benefits, Inc. v. United States,

926 F.2d 1169 (Fed. Cir. 1991), cert.

Ged, Se US, CHRD. no ook cc &

Yankton Sioux Tribe of Indians v. United

ee Pik! BL ee eS 9,11

Statutes

Se ev PAPUED. odesh eves biaedobes eee a 9

vi

PL ED wa ewe Chak ewes ec utbeatene 9-10

ge | Oe A Pe re eee ry re nee 8

Se, CPT IEING Ait G nieve Chew ote nk Gon chee baeee ens 15

Se ee, PE uth h 6 ba eb seus Oks Vereen dee 4,15

Minnesota Statute § 270.31, et seg. 2.0.0... eee eee 20

DIL Ces banlan cede ok Came wibieweces 20-2]

DG Oss bas dakerek bad boas or hedeeerees 21

Miscellaneous

Cornelius J. Moynihan, /ntroduction to the

LT EE TOTP TAIN 0 bak iks pbeceuk oud 7

INTEREST OF AMICUS CURIAE

The interest of Amicus Curiae, Pacific Legal

Foundation (Amicus), is set forth in the preceding motion.

o

OPINION BELOW

The Eighth Circuit opinion below is Mille Lacs Band

of Chippewa Indians v. State of Minnesota, and is set forth at

124 F.3d 904 (8th Cir. 1997).

5 ee

INTRODUCTION

In this case, the Mille Lacs Band of Chippewa Indians

(Band) has won an injunction from the district court and

Eighth Circuit that prohibits the State of Minnesota from

enforcing its hunting and fishing regulations against the Band.

The court granted the ‘injunction based on an 1837 Treaty

which gave the Band a temporary right to hunt and fish on

lands the Band had ceded to the federal government. Even

though the injunction technically applies only to the State of

Minnesota, it significantly interferes with the rights and

reasonable expectations of third parties, especially private

landowners. The lower courts did not take this impact into

account. Had they done so, the lower court would have

recognized that the appropriate remedy to enforce any

remaining usufructuary rights is compensation for the

Chippewa Indians and not injunctive relief.

For more than 150 years, the private landowners in the

Mille Lacs area and their successors have put their lands to use

based on their reasonable belief that the Mille Lacs Band of

Chippewa Indians’ claims of hunting, fishing, and gathering

2

rights no longer existed. These rights, temporarily granted

under an 1837 Treaty, were terminated in 1850 by an Executive

Order of the President of the United States. Mille Lacs Band of

Chippewa Indians v. State of Minnesota, 124 F.3d at 914. The

United States government promoted this belief when it asserted

over and over again that the 1837 Treaty nghts had been

terminated. Despite the United States government now

recanting its position, its past actions created and promoted the

wide-held understanding that the Indians no longer had unique

hunting, fishing, and gathering nghts. The government held the

land open for the public to settle, transferred land it represented

as having clear title, and encouraged settlers to invest their

sweat and income to make the land productive and valuable.

Not until 1990 did the Band belatedly bring this action

to enforce their dormant hunting and fishing rights under the

1837 Treaty. The Band argues that its treaty mghts never

actually terminated, and contrary to years of expressing a

contrary position, the United States sided with the Band in

complete disregard for the impact its position had on the private

landowners. As presented more fully below, the Band, the

United States, and now the lower courts have placed all the

burden of resurrected treaty rights on the innocent landowners.

This is inappropriate under the facts of this case.

STATEMENT OF THE CASE

In 1837, the United States government and

representatives of 12 bands of Chippewa Indians negotiated a

treaty which ceded Indian ownership of certain lands in the

Upper Midwest to the United States in exchange for money,

goods, and supplies. Mille Lacs Band of Chippewa Indians v.

State of Minnesota, 124 F.3d at 909-10. The treaty granted the

Band the temporary privilege of hunting, fishing, and

3

gathering’ in the ceded territory “during the pleasure of the

President of the United States.” 124 F.3d at 910.

In 1850, President Zachary Taylor issued an Executive

Order which revoked the temporary privileges allowed in the

1837 Treaty. 124 F.3d at 914. Nothing more was said until

five years later, when the United States signed a new treaty with

the Chippewa.

This 1855 treaty gave to the Chippewa certain

reservation land and provided that the Chippewa

fully and entirely relinquish and convey to the

United States, any and all right, title or interest,

of whatsoever nature the same may be, which

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

the Territory of Minnesota.

Mille Lacs Band of Chippewa Indians v. State of Minnesota,

861 F. Supp. 784, 815 (D. Minn. 1994).

The 1855 Treaty was a confirmation of President

Taylor’s 1850 order revoking the Chippewa hunting, fishing,

and gathering rights to further the United States government's

policy to promote settlement of Minnesota and the West. Act

of Congress, March 3, 1837; State Appellate Appendix to the

Eighth Circuit Court of Appeals at 312. To further this policy,

the government issued land patents conveying clear title to

settlers reserving no Chippewa usufructuary rights. See, e.g.,

patent issued to landowner’s predecessor in interest, John

Colson, Landowner’s Trial Exhibit 13, A. Vol. 10 at 2911.

Development and use of the lands ceded under the 1837

and 1855 Treaties have gone forward ever since the President's

1850 Executive Order. See Landowner’s Appendix to the

Eighth Circuit at 10955. Much of that development relied on

' This brief will collectively refer to these rights as “usufructuary

rights.”

4

the fish and game resources on the ceded lands which fostered

the investment and construction of many hunting lodges in the

Mille Lacs area. These businesses have long been important

recreational resources for the general public. In fact, annual

tourism spending directly related to hunting and fishing in the

ceded area is estimated at $34,620,000. Landowner’s Appendix

to the Eighth Circuit at 10948.

After approximately a 100-year dormancy, the issue of

what remained of the Chippewa’s “usufructuary” mnghts

surfaced in a 1960 adjudication of rights before the Indian

Claims Commission. A purpose of the Indian Claims

Commission was to give Indians compensation if their property

had been taken without just compensation. 60 Stat. 1049 § 2.

The Act also gave the Commission authority to consider all

equitable claims an Indian tribe or band may have against

the United States. /d. Yet any remedy was limited to

compensation. /d. The Chippewa filed a claim with the Indian

Claims Commission which awarded the tribe $9,000,000 more

than originally received for the ceded lands. The award was

calculated to pay them for the highest and best use of the land.

124 F.3d at 924.

Nevertheless, 140 years after President Taylor revoked

their usufructuary rights, the Band and some of its individual

“members filed this action against the State of Minnesota

seeking to enjoin the State from enforcing its hunting and

fishing regulations against Band members on lands they had

ceded to the State under the 1837 Treaty. Several Minnesota

counties and landowners intervened in the action to protect their

rights.

_~_The United States district court granted the requested

relief and enjoined the State of Minnesota from enforcing its

hunting and fishing regulations against members of the

Chippewa tribe on ceded public lands and on private lands that

their owners had kept open to the public. The Eighth Circuit

5

affirmed the district court and this Court granted the State of

Minnesota’s Petition for Writ of Certiorari.

—>

SUMMARY OF ARGUMENT

The State of Minnesota, the counties, and the

landowners argue that the 1850 Executive Order, the

subsequent 1855 Treaty, the Act admitting Minnesota to the

Union as a State,’ and the Indian Claims Commission award of

$9,000,000 terminated the Chippewa usufructuary rights on

ceded lands. Amicus, however, will not repeat the parties’

arguments. Instead, Amicus will demonstrate that injunctive

relief is not an appropriate remedy to vindicate Chippewa treaty

rights.

Three principles of equity dictate against injunctive

relief in this case; First, injunctive relief should not issue when

an adequate remedy at law is available. Even if the Band’s

treaty rights were not completely terminated by the 1850

Executive Order, the 1855 Treaty, the Minnesota Statehood

Act, and the Indian Claims Commission award, the federal

government, nevertheless, has taken them. The Band has an

adequate remedy in the form of compensation from the United

States government for any taking of its usufructuary rights.

This Court and Congress have approved of this remedy in other

cases where the United States government improperly

* Minnesota, like all states, was admitted to the United States “on

equal footing with the original states in all respects,” and there was

no reservation or exception made for the usufructuary rights

temporarily allowed to the Chippewa. 124 F.3d at 926. Since those

rights existed only during the pleasure of the President, they were

“temporary and precarious” and terminated upon the admission of

Minnesota to the Union. Ward v. Race Horse, 163 U.S. 504, 507

(1896). e

6

abrogated an Indian treaty right and enforcement of the

improperly abrogated treaty right would adversely affect the

rights of third parties.

Second, before a court issues injunctive relief, equity

requires the court to consider the harm to the parties.

Consideration of the harms in this case should preclude the

issuance of an injunction. Stopping the State from enforcing its

fishing and hunting regulations will seriously harm the

economic and business interests of the innocent landowners.

Finally, laches precludes relief where a party delays

bringing an action to enforce a right and the delay prejudices

others. This doctrine applies here because the Band delayed

bringing this action for 140 years even though it knew about

Minnesota’s interpretation of its rights under the 1837 Treaty

and knew that Minnesota enforced state hunting and fishing

laws inconsistent with Band usufructuary rights. The Band’s

delay has severely prejudiced landowners who have developed

and invested in their property under the belief that the Band

would not be asserting any residual treaty claims.

>—

ARGUMENT

INJUNCTIVE RELIEF IS IMPROPER

BECAUSE THE BAND HAS AN

ADEQUATE REMEDY AT LAW

It is a fundamental principle of long standing

that a request for an injunction will not be

granted as long as an adequate remedy at law is

available.

7

National Farmers Union Insurance Companies v. Crow Tribe

of Indians, 47\ U.S. 845, 856 n.22 (1985). Thus, a court should

not grant injunctive relief for the Band if an adequate legal

remedy exists.

A. Ifthe Mille } acs Band’s Usufructuary

Rights Survived the 1850 Executive

Order and the 1855 Treaty, Then the

Wrong the Band Seeks to Remedy by

This Action Is the United States

Government’s Taking of Those Rights

The record in this case shows that the United States

government issued land patents that purported to convey

unreserved title in ceded Mille Lacs Band lands to many

landowners. In making these conveyances, the United States

did not reserve any aboriginal rights. For example, the land

patent given to one of the current landowner’s predecessors in

title provided:

TO HAVE AND HOLD the same, together with

all the rights, privileges, immunities and

appurtenances of whatsoever nature, thereunto

belonging, unto the said John Colson and his

heirs and assigns, forever.

Landowner’s Trial Exhibit 13, A. Vol. 10 at 2911. Such land

patents issued without reservation of any rights are inconsistent

with the continuation of any Mille Lacs Band usufructuary

rights. When the United States government issued these land

patents, it transferred the fee simple estate, which is the highest

estate in land. Cormelius J. Moynihan, /ntroduction to the Law

of Real Property, 33-35 (1979). The fee simple estate

authorized the lands’ permanent, exclusive, physical occupation

by their new owners which made it impossible for the Band to

possess any longer, much less, enjoy its usufructuary rights.

See, e.g., Kaiser Aetna v. United States, 444 U.S. 164, 176

8

(1979) (the night to exclude others is one of the most essential

sticks in the bundle of nights that are commonly characterized

as property).

The United States’ issuance of patents without

reservation of any Band amounts to the government authorizing

the physical occupation of private property (Band's

usufructuary rights) which constitutes a taking:

|A] permanent physical occupation authorized

by government is a taking without regard to the

public interests that it may serve. Our

constitutional history confirms that rule, recent

cases do not question it, and the purpose of the

Takings Clause compels its retention.

Loretto v. Teleprompter Manhattan CATV Corporation,

458 U.S. 419, 426 (1982).

The government’s action in this case is also similar to

the action taken in Whitney Benefits, Inc. v. United States,

926 F.2d 1169 (Fed. Cir. 1991), cert. denied, S02 U.S. 952

(1991). There, by enactment of the Surface Mining Control

and Reclamation Act, 30 U.S.C. § 1201, et seg., Congress

prohibited a mining company from exercising its night to mine

a particular coal deposit, because the coal was located in an

alluvial valley floor Congress deemed necessary to protect. In

essence, Congress appropriated the coal for its own purposes

which the Court found to be a taking.

This case is no different conceptionally. By conveying

unrestricted ownership of the ceded land to settlers along with

the nght to exclude all others, including Band members, trom

gaining access to the land to hunt and fish, the government

appropriated the Band’s usufructuary property nghts for what

it considered a more important purpose. It packaged these

rights with all other nghts embodied in fee ownership as an

9

incentive for settlers to move into Minnesota. Such an

appropriation is a taking.

B. The Band Has a Legal Remedy for the

Taking It Claims to Have Suffered:

Compensation

Compensation, not injunctive relief, is the remedy for a

taking. First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, 482 U.S. 304, 314 (1987) This

remedy has been successfully sought a number of times by

tribes. See Yankton Sioux Tribe of Indians v. United States,

272 U.S. 351 (1926); United States v. Sioux Nation of Indians,

448 U.S. 371 (1980); and Shoshone Tribe of Indians of the

Wind River Reservation in Wyoming v. United States, 299 U.S.

476 (1937). Compensation is the appropriate remedy here as

well.

The mechanism for seeking compensation is readily

available. The Band can seek compensation and money

damages from the United States in federal claims court under

28 U.S.C. § 1505,* which provides:

The United States Court of Federal Claims

shall have jurisdiction of any claim against the

United States accruing after August 13, 1946, in

favor of any tribe, band, or other identifiable

group of American Indians residing within the

* The record shows that a monetary value can be placed on the 1837

Treaty mght to hunt, fish, and gather on ceded Chippewa land.

Landowner’s Appendix to the Eighth Circuit at 10955. Thus, there

is no difficulty in arriving at a dollar figure to compensate the Band.

* Individual Native Americans deprived of treaty rights can sue in

federal district court or the claims court under the Tucker Act. See

28 U.S.C. § 1346(a)(2) (federal district jurisdiction for claims under

$10,000).

10

territorial limits of the United States or Alaska

whenever such claim is one arising under the

Constitution, laws or treaties of the United

States, or Executive orders of the President, or

is one which otherwise would be cognizable in

the Court of Federal Claims if the claimant were

not an Indian tribe, band or group.

(Emphasis added.)

See, e.g., Hurley v. Kincaid, 285 U.S. 95, 104 (1932)

(holding that if government action “does constitute ... a taking,

the complainant can recover just compensation under the

Tucker Act in an action at law” (citation omitted)).

C. Compensation Is Not Only an Available

Legal Remedy, It Is the Proper Remedy

This case, of course, does not represent the first time a

branch of the United States government has been called upon

to balance Indian treaty nghts against landowner rights. On

most occasions where the rights are in conflict, both the

judiciary and legislative branches have endorsed a

compensation remedy.

1. This Court Has Approved a

Compensation Remedy Rather

Than Injunctive Relief to

Enforce an Indian Treaty Right

A tribe’s right to take fish and game is a compensable

property nght under the Fifth Amendment. Grand Traverse

Band of Chippewa and Ottawa Indians v. Director, Michigan

Department of Natural Resources, 971 F. Supp. 282, 288 (W.D.

Mich. 1995). To protect this property right, this Court has

approved just compensation as a remedy where United States

government conduct has frustrated Indian treaty rights. For

example, in Yankton Sioux Tribe of Indians v. United States,

272 U.S. 351, the Sioux Tribe sought monetary damages for

the government’s taking of a rock quarry and transferring it to

private parties. This Court upheld the lower court’s award of

monetary relief to the Sioux Tribe. /d. at 359. With regard to

its decision on the remedy, the Yankton Court expressed its

concerns for the plight of innocent landowners:

It is impossible, however, to rescind the cession

and restore the Indians to their former nights,

because the lands have been opened to

settlement and large portions of them are now in

the possession of innumerable innocent

purchasers.

Id. at 357. The Court concluded that, since the Tribes were

entitled to a judgment in their favor but a return of the lands to

the Tribes was impossible, the Tribes were “entitled to just

compensation as for a taking under the power of eminent

domain.” /d. at 359.

As in Yankton, courts regularly tailor remedies to the

problems at hand. Monetary relief representing fair value is

“just compensation” and constitutionally is the equivalent of

tangible or real property. See, e.g., United States v. 564.54

Acres of Land, 441 U.S. 506, 510 (1979); Olson v. United

States, 292 U.S. 246, 255 (1934), United States v. 131.68 Acres

of Land, 695 F.2d 872 (Sth Cir.), cert. denied, 464 U.S. 817

(1983) (“the government must, and need do no more than, put

the owner in ‘as good a position pecuniarily as if his property

had not been taken.”” /d. at 875 (quoting Olson v. United States,

292 U.S. at 255)).

In another case, United States v. State of Minnesota,

270 U.S. 181 (1926), the United States sought cancellation of

land patents given to the State of Minnesota. The lands subject

to the patents should have been reserved for the Chippewa.

12

This Court ruled in favor of the government and the Chippewa.

It ordered the patents canceled “unless the state has sold the

lands, and in that event [the United States] is entitled to recover

their value.” 270 U.S. at 206. While this Court did not

specifically address why lands sold to others were not canceled,

prejudice to third parties and the availability of an alternative

compensation remedy undoubtedly provided the basis.

Such judicial tailoring of an appropriate compensation

remedy also took place in United States v. Sioux Nation of

Indians, 448 U.S. 371, where the Supreme Court addressed

tribal claims that the Tribe was entitled to the return of land

sold by treaty. Under the Fort Laramie Treaty of 1868, the

United States had originally promised that the Sioux

reservation, including the Black Hills (and basically all of

South Dakota west of the Missouri River), would be set aside

for the absolute and undisturbed use and occupation of the

Sioux. /d at 375-76. The treaty also provided that no cession

of land would occur without three-fourths approval of the adult

male Sioux. /d. at 376. After the discovery of gold in the

Black Hills, the United States wanted to trade the Sioux the

Black Hills for subsistence rations. Although only 10% of the

adult male Sioux approved the new treaty, Congress enacted the

agreement anyway, thereby abrogating the Fort Laramie Treaty.

Id. at 381-83. The Court held that, because the government had

acquired the land dishonestly and unfairly, the amount paid for

the Black Hills had to be construed as an abrogation of the

onginal treaty. The action of Congress in abrogating the treaty

effected a taking of tribal property, property

which had been set aside for the exclusive

occupation of the Sioux by the Fort Laramie

Treaty of 1868. That taking implied an

obligation on the part of the Government to

make just compensation to the Sioux Nation,

13

and that obligation, including an award of

interest, must now, at last, be paid.

United States v. Sioux Nation, 448 U.S. at 424.

Once the abrogation was established, the United States

was required to pay the Indians just compensation for the taking

of the Black Hills. /d. at 423-24. The Indians could not

reclaim the Black Hills—even though the United States acted

in bad faith—-because the land had already been settled and was

put to other uses. Under these circumstances it was impossible,

unreasonable, and impractical to award the Black Hills back to

the Sioux. /d. at 377-78. See also Shoshone Tribe of Indians

v. United States, 299 U.S. 476 (United States government

ordered to pay Shoshone compensation for illegally moving

Arapaho onto Shoshone lands).°

In the case at bar, many of the affected landowners

innocently acquired their property which had, as a critical

component of its value, the availability of fish and game. Some

invested in lodges and resorts where guests came to hunt and

fish, reasonably expecting that the State of Minnesota would

regulate the taking of fish and game to ensure an adequate

supply for future generations. Other property owners opened

their land for public hunting with the same expectations and in

reliance upon the United States government’s representation

over 150 years that no Chippewa usufructuary rights remained.

> Lower courts have declined to issue injunctions where innocent

landowners are injured. For example, United States v. Imperial

Irrigation District, 799 F. Supp. 1052, 1069 (S.D. Cal. 1992) (distnet

court refused to enforce an injunction against private property owners

because “{a]n injunction would render useless thousands of acres of

cultivated farmland to the detriment of innocent farmers who are

blameless in this lawsuit and who have worked hard to cultivate

desert lands”; monetary relief awarded).

14

Should this Court decide these rights were never

acquired by the treaty, it has, nevertheless, become impractical

and unreasonable to recognize them now as they have been

taken by the government's authorization of private party

occupation. Rather than disrupting the status quo by enjoining

the State from enforcing its needed regulations and

concomitantly injuring private landowners, this Court should

instead direct the Band to refile its claim in the Court of Federal

Claims where it can seek an award of monetary damages from

the federal government. See Preseault v. Interstate Commerce

Commission, 494 U.S. 1, 12-14 (1990).

2. Congress Has Recognized That a

Compensation Remedy Is More

Appropriate to Enforce Indian

Treaty Rights Than Injunctive

Relief

Oregon Department of Fish and Wildlife v. Klamath

Indian Tribe, 473 U.S. 753 (1985), is very similar to the case at

bar. This Court addressed the question of whether a tribe,

which had ceded territory to the United States under a valid

agreement, still retained a special mght to hunt and fish on the

lands free of state regulation. Even though the Court found that

the tribe did not retain any special nghts, id. at 763-64, it

proceeded to address the appropriateness of the remedy

Congress provided for a survey error that had improperly

excluded certain land from the Klamath reservation. /d.

at 756-57. This Court reasoned that the federal purchase of the

improperly excluded Indian land was necessary to settle

conflicts between the Indians and rapidly increasing numbers

of settlers who had moved 1” .o disputed reservation lands.

Rather than restore the lands excluded, due to the survey error,

to the tribe—an option which would have left intact the tribe’s

exclusive night to hunt and fish on those lands——-Congress chose

15

to remove the excluded lands from the reservation entirely,

leaving them open for all citizens’ use and to compensate the

tribe for a taking. /d. at 771-72.

Such reasoning was earlier embodied in statute when

Congress adopted the Indian Claims Commission Act. Act of

1946, Chapter 959, 60 Stat. 1049 (1946). The Act created an

Indian Claims Commission to “hear and determine ... claims

against the United States on behalf of any Indian tribe, band, or

other identifiable group of American Indians.” Section 2. The

Act provided relief for:

(1) claims in law or equity arising under the

Constitution, laws, treaties of the United States,

and Executive orders of the President; ... (3)

claims which would result if the treaties,

contracts, and agreements between the claimant

and the United States were revised on the

ground of fraud, duress, unconscionable

consideration, mutual or unilateral mistake,

whether of law or fact, or any other ground

cognizable by a court of equity; (4) claims

arising from the taking by the United States,

whether as the result of a treaty of cession or

otherwise, of lands owned or occupied by the

claimant without the payment for such lands of

compensation agreed to by the claimant.

60 Stat. 1049 § 2.

Significantly, although the Act allowed equitable

claims, it provided only for monetary relief. See 60 Stat. 1049

§ 2 (providing for the method of determination of the amount

of relief). Congress had a reason to limit the relief to payment

of compensation: the unfair impact on innocent landowners of

making them pay for past wrongs of the United States

government. As the District Court of the District of Columbia

16

noted in applying a law which required the Secretary of the

Interior to propose legislative solutions to all Indian claims that

the Secretary decided not to litigate:

Congress was acutely aware that litigation in

many instances would be unfair to third parties

who had purchased or inherited their property

many years ago without knowledge of the

Indian claims. The legislators were also

troubled by the serious problem of complicity

on the part of the federal government in

bringing about many improper transfers and

encumbrances of Indian land.

Covelo Indian Community v. Watt, 551 F. Supp. 366, 382 (DC

Cir. 1982).

Covelo describes a congressional awareness of how

litigation decisions could be unfair to third parties who

purchased property without knowledge of Indian treaty claims.

Covelo also noted that Congress was aware that the United

States was complicit in bringing about unfair transfers from

Indians. Both of those problems are present here. As

demonstrated above, the injunction harms innocent third party

landowners. Also, the federal government caused this harm

when it transferred ceded land without any warning to the

Innocent settlers and purchasers that their property may still be

subject to some unsettled claims.

Accordingly, this Court should direct that any remedy

to enforce the Band's treaty claims must be limited to federal

compensation.

17

BALANCING THE EQUITIES

COUNSELS AGAINST AN INJUNCTION

Before an injunction can issue, the court must balance

the equities between the parties. Burford v. Sun Oil C ompany,

319 U.S. 315, 345 (1943). A principle consideration of whether

to grant injunctive relief is “whether the harm to the plaintiff

outweighs any harm threatened by the injunction.” Savage

Industries, Inc. v. Savage Arms, Inc., 43 F 3d 714, 719 n.8 (Ist

Cir. 1994).

To be sure, courts have issued injunctions after

balancing the equities but, even on the few occasions courts

have issued injunctive relief to enforce an Indian treaty nght,

they have still provided equitable protections to those who may

be adversely affected. For example, in State of Washington v.

Washington State Commercial Passenger Fishing Vessel

Association, 443 U.S. 658, 686 (1979), this Court allowed

Indian tribes to take only as much fish as necessary to achieve

a moderate living.

More recently, the Ninth Circuit in United States vy.

State of Washington, 135 F.3d 618, 640 (9th Cir. 1998),

fashioned an injunction to minimize its impact on landowners.

The issue was whether specific tribes still had shell fishing

rights on state tidelands. The circuit court found nights to exist

but still balanced the equities by prohibiting the tribes from

benefiting where the landowners had improved the shellfish

beds. The United States v. Washington court also limited the

time, place, and manner of gathering on unimproved beds.

However, in this case, the Eighth Circuit employed no equitable

considerations. It should have.

18

A. The Landowners Are Innocent Because the

United States Government Represented that

the Treaty Rights Are Terminated

Amicus agrees with the state, counties, and landowners

that the 1850 Presidential Executive Order and the later 1855

Treaty in which the Chippewa again ceded their lands in

exchange for reservation land lawfully terminated the Mille

Lacs Band’s usufructuary rights. However, even if the order

and subsequent treaty did not lawfully terminate those rights,

they did have one effect: they created an unmistakable

reasonable expectation in the landowners that their lands were

free of Chippewa usufructuary nghts.

When President Taylor terminated the usufructuary

rights in 1850, the United States government had a policy

promoting Western settlement and expansion of the nation. Act

of Congress, March 3, 1837, 5 Stat. 158, State Appellate

Appendix to the Eighth Circuit at 312. In order to promote

settlement, all prior claims had to be extinguished so that land

could be conveyed to the new settlers. /d.

From the 1850's until it took a contrary position in this

litigation, the United States government supported this policy

and consistently acted as though the Band's usufractuary nghts

had been terminated. For example, in 1938, President

Roosevelt stated that “the hunting, fishing, and gathering

privileges guaranteed by the 1837 and 1842 Treaties had been

revoked by the 1850 executive order.” State Appellate

Appendix to the Eighth Circuit at 511.

The record below also shows on many other occasions

the United States government expressly told both new settlers

and the Chippewa that the hunting and fishing privileges were

terminated on ceded lands, and that Chippewa hunting was

subject to state law. See Opening Brief of Appellant Counties

to the Eighth Circuit Court of Appeals at 12-14 and Opening

19

Brief of Landowner/Appellants John W. Thompson to the

Eighth Circuit Court of Appeals at 24.

Consistent with the government’s representations, the

United States government issued land patents which did not

show any reservations of Indian hunting or fishing rights. As

the Minnesota Supreme Court has noted,

patents were granted conveying title to private

individuals ... in‘ticatles] that our government

did not construe these treaties as reserving

hunting, fishing or any other nghts to the

Indians.

State of Minnesota v. Keezer, 292 N.W.2d 714, 721 n.10 (Minn.

1980). Thus, the private landowners of ceded Chippewa land

are in all respects innocent of any wrongdoing.

B. The Innocent Landowners Reasonably

Relied on the Representations of the

United States Government and Will

Suffer Serious Injury if an Injunction

Is Upheld

The landowners heavily relied on the United States’

representations. Based upon the expectation that they had clear

title to their property, they developed a substantial tourism

industry based on hunting and fishing. Landowner’s Appendix

to the Eighth Circuit at 10948. They invested their lives and

money in it.

The record shows that the impact of an injunction on

these landowners and the tourism industry is severe. The

landowners’ economist testified about the extent cf the impact

on tins industry if the Chippewa are given unrestricted hunting

rights. He testified that allowing a treaty harvest would cause

an annual loss in sales to the tourist industry of $17,310,000

and 863 full-time jobs. Landowner’s Appendix to the Eighth

20

Circuit at 10948. The economist also testified that there would

be a $41,290,000 loss in property values. /d

Later, other property owners relied on the United States

government's representations and commercially developed their

nroperty. For example, some of the landowners developed

commercial timber operations. Much of this land is subject to

the Minnesota Tree Growth Tax Law. Minnesota Statute

§ 270.31, et seq. Under Section 270.38 subd. 1, a property

owner may apply to place his forest land under the Tree Growth

Tax Law. The application must agree that

“while the land is under the tree growth tax law

it will be used exclusively for the growing of

continuous forest crops in accordance with

sustained yield practice and will be open to use

by the public for hunting and fishing.”

Id. (emphasis added).

Under the lower court’s rulings, Band members may

exercise their nghts only on public lands and private lands open

to public access. Since the forest lands under the Minnesota

Tree Growth Tax Law are open to the public, Band members

may hunt and fish on them free from state regulations.

When landowners applied to put their property under the

Minnesota Tree Growth Tax Law, they did so with the

expectation that the public’s access for taking fish and game

from those lands would be limited by Minnesota wildlife

conservation regulations. The landowners did not expect that

putting their lands under the Minnesota Tree Growth Tax Law

would subject them to unlimited tribal access that could

seriously conflict with commercial timber operations. Yet,

under the district court's ruling, that is exactly what will

happen; these landowners will be unprotected as the state may

not limit the Band’s access for hunting and fishing.

21

Why not just remove these lands from the tree growth

tax law? In order to take the lands out of the Minnesota Tree

Growth Tax Law, the property owners must apply to the local

government or the State of Minnesota. Jf the application-is

granted, the property owner will have to pay back taxes and

penalties for up to ten years of the time the property was under

the Minnesota Tree Growth Tax Law. Thus, landowners with

Minnesota Tree Growth Tax Law property can only protect

themselves from unregulated hunting access if they pay a

substantial penalty. Minnesota Statute § 270.38 subd. 5.

None of these landowners would have invested in their

developments had they known that the Chippewa had a night to

commercially harvest fish and game on and near their property

tree of state regulation. Now they are threatened with severe

economic hardship because of their reliance on United States

government representations and the inaction of the Chippewa.

Landowner’s Appendix to the Eighth Circuit at 10948. A court

of equity should not issue an injunction under these

circumstances.

THE BAND SHOULD BE BARRED

UNDER THE EQUITABLE DOCTRINE

OF LACHES FROM ENFORCING ITS

USUFRUCTUARY RIGHTS

Under the doctrine of laches, a court should not grant

injunctive relief if a party unreasonably delays bringing an

action for an injunction and causes prejudice to another party.

Creswill v. Grand Lodge Knights of Pythias, 225 U.S. 246,

260-61 (1912). “To prove laches, a party asserting the defense

must show (1) lack of diligence by the party against whom the

defense is asserted and (2) prejudice.” Southside Fair Housing

Committee v. City of New York, 928 F.2d 1336, 1354 (2d Cir.

1991), Tri-Star Pictures, Inc. v. Leisure Time Productions.

22

17 F.3d 38, 44 (2d Cir. 1994) (laches bars injunctive relief

where a plaintiff unreasonably delays in commencing an

action).

Here, the Band is belatedly claiming a night which it had

apparently accepted as no longer existing. For example, the

State of Minnesota has been enforcing its fishing and hunting

regulations against Band members on ceded lands for more than

100 years. See Opening Brief of Landowner/Appellants John

W. Thompson to the Eighth Circuit at 4 and 24. Yet the Band

did not seek injunctive relief until 1990. It could have done so

much earlier. In 1960, the Band made a claim to the Indian

Claims Commission for monetary compensation for abrogation

of its treaty rights. It received $9,000,000 for the highest and

best use of its ceded lands but never raised any arguments for

injunctive relief or additional compensation for the usufructuary

rights it now claims still to possess. If the $9,000,000 did not

compensate for these usufructuary rights, why did the Band fail

to seek additional relief?

In reliance on the Band’s inaction, Mille Lacs area

landowners made substantial commercial and residential

investments. For example, they built hunting lodges that must

have a reasonable supply of fish and game to attract patrons and

survive. The landowners would never have developed their

properties in this manner had they known the fish and game

could be depleted by the Band. The Band and its members

easily could have prevented the landowners’ prejudice had they

used the Indian Claims Commission opportunity to seek

additional compensation or had they brought a separate legal

action for enforcement of their treaty nights (if any) prior

to private landowners’ investments. They never did.

Consequently, the Band’s action for injunctive relief should

23

have been, and still should be, dismissed under the laches

doctrine.®

+

CONCLUSION

The Eighth Circuit affirmed the district court’s

injunction against the State of Minnesota preventing it from

entorcing its fish and game regulations. This injunction permits

members of the Mille Lacs Band of Chippewa Indians to

substantially interfere with the property rights of innocent.

long-time private landowners in the Mille Lacs area. However,

this Court and Congress have recognized that injunctive relief

under such circumstances is inappropriate. Therefore, if this

Court finds that any treaty rights still exist, it should reverse the

* In United States v. Washington, 135 F.3d at 637, the Ninth Circuit

held that laches cannot apply to defeat Indian treaty nghts. The

circuit court based its decision on this Court’s decision in Board of

Commissioners of Jackson County v. United States, 308 U.S. 343,

351 (1939). In Board of Commissioners, the United States

government asserted an Indian claim against a county government

that had improperly collected taxes from the tribe. This C ourt based

its decision on the general unavailability of equitable defenses against

the United States finding that, “state notions of laches and state

Statutes of limitations have no applicability to suits by the

Government, whether on behalf of Indians or otherwise.” In reaching

this holding, Board of Commissioners relied on United States v.

Minnesota, 270 U.S. 181. In thaltcase, this Court considered whether

an action substantively brought by the tribes rather than by the United

States 1s subject to laches. This Court's implicit conclusion was that

if the tribes bring the action, equitable defenses such as laches are

available. 270 U.S. at 194-95. Here, the action is substantively

brought by the tribe and, accordingly, laches should apply.

24

Eighth Circuit's approval of injunctive relief and instead direct

the Mille Lacs Band of Chippewa Indians to seek compensation

trom the federal government in the Court of Federal Claims.

DATED: August, 1998.

Respectfully submitted.

eae

Rosin L. Rivert

Pacific Legal Foundation

2151 River Plaza Drive. Suite 20S

Sacramento, Califorma 958 33

Telephone: (916) 641-8888

Facsimile: (916) 920-3444

*BRENT D. Boer

*COUNSEL OF RECORD

Pacific Legal Foundation

lO800 NE 8th Street, Suite 325

Bellevue, Washington 98004

Telephone: (425) 635-0970

Facsumile: (425) 635 0196

{flornevs for imuicus C urias