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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 172

## Text

ir
—

No. 97-1337, 97-1356, and 97-1357
LoRK
In the = -

Supreme Court of the United States
October Term, 1997
—>

STATE OF MINNESOTA, et al.,

Petitioners,

Vv

MILLE LACS BAND OF CHIPPEWA INDIANS, et al.,
Respondents.

-
—

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

-

MOTION AND BRIEF AMICUS CURIAE
OF PACIFIC LEGAL FOUNDATION
IN SUPPORT OF PETITIONERS

-

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0163%3A26. Public record. Not legal advice.