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

No. 97-1337

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.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF AMICI CURIAE STATES OF CALIFORNIA,

MICHIGAN, MONTANA, SOUTH DAKOTA, UTAH,

WISCONSIN AND WYOMING IN

SUPPORT OF PETITIONERS

Danie. E. LUNGREN

Attorney General of the

State of California

Roperick E. WALSTON

Chief Assistant Attorney General

RicHArRD M. FRANK

JAN S. Stevens*

Assistant Attorneys General

*Counsel of Record

Joet S. Jacoss

Deputy Attorney General

1300 I Street, Suite 125

P.O. Box 944255

Sacramento CA 94244-2550

Telephone: (916) 445-8178

Fax: (916) 327-2319

(Continued on inside cover)

O& THE CLERK

FRANK J. KeLiey

Attorney General

State of Michigan

JosepH P. Mazurexk

Attorney General

State of Montana

Mark BaRNeTT

Attorney General

State of South Dakota

JAN GRAHAM

Attorney General

State of Utah

James E. Doyte

Attorney General

State of Wisconsin

Wituam U. Hie

Attorney General

State of Wyoming

QUESTIONS PRESENTED

1. Whether a treaty provision giving Indian bands the

right to hunt and fish “during the pleasure of the Presi-

dent” creates only temporary rights that are extinguished

when a State is admitted to the Union on an equal footing

with the original 13 States.

2. Whether a treaty ceding to the United States “all

right, title and interest of whatsoever nature” in previously

ceded territory abrogates hunting and fishing rights reserved

in the previous treaty under the rule set forth in Oregon

Department of Fish and Wildlife v. Klamath Indian Tribe.

3. Whether the President acted within the scope of his

authority when he revoked Indian hunting and fishing rights

that had been guaranteed by treaty “during the pleasure of

the President of the United States.”

TABLE OF CONTENTS

INTEREST OF AMICI

SUMMARY OF ARGUMENT

ARGUMENT

THE STATES’ INTEREST IN MANAGING FISH

AND GAME IS A CORE ATTRIBUTE OF THEIR

SOVEREIGNTY

A. The Original Colonies Acquired Their Fish

and Wildlife as an Attitude of Sovereignity,

and the Other States Entered the Union on an

Equal Footing With the Original States

. Fish and Wildlife, Like the Navigable Waters

of a State, Are Held in Public Trust on Behalf

of All the People

. The Federal Government Holds These Re-

sources in Trust for the Future States; While

Congress May Make Pre-statehood Reserva-

tions, Its Intent to Do So Must Be Expressed

in the Most Clear and Unequivocal Terms

THE BANDS’ USUFRUCTUARY RIGHTS BE-

CAME SUBJECT TO FULL STATE REGULA-

TION UPON MINNESOTA’S ADMISSION TO

THE UNION IN 1858

A. The Bands’ Usufructuary Rights Were

Extinguished Minnesota’s Admission in

1858 Because Congress Neither Created Per-

manent Usufructuary Rights at the Time of the

Treaty, nor Reserved Such Rights to the Bands

in the Act of Admission

Implementation of the Usufructuary Rights

Conflicts with State Sovereignty

ee

3

5

8

8

1]

a

TABLE OF CONTENTS, CONT’D

Page

Ill. THE MILLE LACS BAND’S USUFRUCTUARY

RIGHTS WERE EXTINGUISHED EVEN PRIOR

TO ADMISSION TO STATEHOOD 14

CONCLUSION 17

Iv Vv

TABLE OF AUTHORITIES TABLE OF AUTHORITIES, CONT’D

Page Page

Cases Lacoste v. Dep’t of Conservation

263 U.S. 543 (1929) 4,5

Choctaw Nation v. United States Martin v. Waddell’s Lessee

318 U.S. 423 (1943) 14 41 USS. (16 Pet.) 367 (1842) 4

Crow Tribe of Indians v. Repsis Maryland Dep’t of Natural Resources

73 F.3d 982 (10th Cir. 1995 v. Amerada Hess Corp.

cert. denied, 517 U.S. 1221 (1996) 9, 10 350 F. Supp. 1060 (D. Md. 1972) 6

Do v. Seacoast Products, Inc.

431 U.S. 265 (1977) 5 o US. OS 31 ust)" 5

Ex parte Maier Menominee Tribe of Indians

103 Cal. 476 v. United States

37 P. 402 (1894) 4 391 U.S. 404 (1968) 7

Geer v. Connecticut Mescalero Apache Tribe v. Jones

161 U.S. 519 (1896) 4 411 U.S. 145 (1973) 9, 12

Hughes v. Oklahoma Mille Lacs Band of Chippewa Indians

441 US. 322 (1979) 4 v. Minnesota .

124 F.3d 904 (8th Cir. 1997) 10, 14

Idaho v. Coeur d’Alene Tribe of Idaho

117 S. Ct. 2028 (1997) 4 Mille Lacs Band of Chippewa Indians

. v. Minnesota

In re Steuart Transportation Co. 952 F. Supp. 1362, 1367 (D. Minn. 1997) 12, 14

495 F. Supp. 38 (E.D. Va. 1980) 6

Missouri v. Jenkins

Kake an v. Eagan 495 U.S. 33 (1990) 14

369 U.S (1962) 12

Montana v. United States

Lac Courte Oreilles Band of Lake Superior 450 U.S. 544 (1981) ° 7, 8

Chippewa Indians v. Voigt

700 F.2d 341 (7th ag National Coal Ass’n v. Marshall

cert. denied, 5 (1983) 10 510 F. Supp. 803 (D. D.C. 1981) 14

New York ex rel. Kennedy v. Becker

241 US. 556 (1916) 11, 12

vi

TABLE OF AUTHORITIES, CONT’D

—— Dep't of Fish & Wildlife

v. math Indian Tribe

473 U.S. 753 (1985) 3, 12, 15

Phillips Petroleum Co.

v. Mississippi & Pet.

484 US. (1988 5

Pollard’s Lessee v. Hagan

44 US. (3 How.) 212 (1845) 4

Puyallup Tribe v. Department of Game

391 U.S. 392 (1968) 12

Red Lake Band of Chippewa Indians

v. Minnesota

614 F.2d Part Cir. 75

cert. denied, U.S. 905 (1980) 16

Rhode Island yg Action Committee

v. Rhode Island Pub. Transit Auth.

718 F.2d 490 (ist Cir. 1983) 14

Salt River Pima-Maricopa Indian Community

v. Yavapai Coun

50 F.3d 739 (9th Cir. 1995) 12

Shively v. Bow!

152 US. 1 (1894) 6

Smith v. Maryland

59 U.S. (18 How.) 71 (1855) 5, 7

State v. Thompson

355 N.W.2d 349 (S.D. 1984) 16

Tulee v. Washington

315 U.S. 668 (1942) 13

vii

TABLE OF AUTHORITIES, CONT'D

United States v. Holt State Bank

270 US. 49 (1926) 6, 7

United States v. Oregon

295 U.S. 1 (1935) 7

United States

v. Pend Oreille Pub. Util. Dist. No. 1

926 F.2d 1502 (9th Cir)

cert. denied, 502 U.S. 956 (1991) 7

United States v. a a

)

135 F.3d 618 (9th Cir. 1 7

United States v. Washington

520 F.2d 676 (9th Cir. 1 2

cert. denied, 423 U.S. 1086 (1976) 12

United States v. Winans

198 U.S. 371 (1905) 7, 8, 10, 11, 12

Utah Div. of State Lands v. United States

482 U.S. 193 (1987) 6

Ward v. Race Horse

163 U.S. 504 (1896) 2, 7, 9, 10, 11

Wisconsin v. Baker

698 F.2d 1323 (7th ae

cert. denied, U.S. 1207 (1983) 7

INTEREST OF AMICI

The States represented in this brief have a trust responsi-

bility, arising from their sovereignty, for the management of

their fish and wildlife. Experience shows the difficulties in

successfully filling this role in an increasingly complex and

hostile environment. The health, and very existence of

many species of fish, plants, and wildlife are in jeopardy,

and state fish and game programs are the front line of de-

fense. Effective preservation requires a deep scientific

understanding of how each element of an ecosystem func-

tions, and how it affects other elements; it also requires the

balancing of competing policy goals.

Stewardship for these resources is difficult enough with-

out the complications added by the decision below. The

lower court opinions unnecessarily foster a second program

for the management of fishing, hunting, and gathering; one

administered by a district court that will be the ultimate

arbiter of the necessity for, and reasonableness of, a given

regulation. This program uneasily exists within the State,

but not as part of it. State fish and game managers will

have to make their decisions mindful of unquantified Indian

rights to the same resource. In the event of disagreement,

the final decision will be made not by resource experts, but

by the court. ~

This scheme —so antithetical to the federal system —is un-

necessary, undesirable, and inconsistent with the intent of

Congress and the Executive, as well as the decisions of this

Court.

SUMMARY OF ARGUMENT

Under our constitutional scheme, the federal government

bears a duty to the States to respect their sovereignty, and

to refrain from ceding away those lands and resources that

make up that sovereignty unless international obligations or

public exigency require.

The natural resources at issue here passed to the States

2

when they became sovereigns. The original thirteen States

acquired them at the time of independence. Later States

acquired them under the constitutional equal footing doc-

trine, not by the grace of Congress. All States hold these

resources in trust for all their people.

Congress held these resources in trust for the future

States. While it could make pre-statehood conveyances of

them, this Court has exercised a presumption against such

grants, and required that they must be made in the clearest

and most unequivocal terms. The treaty at issue in this

case reserved for the Bands the privilege of hunting, fishing,

and gathering wild rice “during the pleasure of the Presi-

dent” throughout lands the Indian tribes ceded to the

federal government. That language does not satisfy the

rigorous standard requiring an unequivocal expression of intent

to defeat Minnesota’s sovereign interest in the resources.

Instead, the treaty between Congress and the Bands

defined the rights in transitory terms, and Congress made

no other provision for rights that would survive Minnesota’s

admission to statehood. The Court should not imply a

reservation of tribal hunting and fishing rights into the act

admitting Minnesota to the Union. See Ward v. Race Horse,

163 U.S. 504, 511 (1896). Respondents attempt to distin-

guish Ward by noting that the treaty language there is

different from the language here. This attempt at distinc-

tion is unpersuasive: the language describing the rights in

this case anticipates termination of the rights, just as the

treaty language in Ward did. Thus, even if the terminating

condition is different (occupation of unoccupied lands in

Ward, presidential termination here), in both cases the

rights are temporary rights that do not exist after admission

to statehood.

This rule, under which courts do not infer Congressional

intent to interfere with state sovereignty over their fish and

wildlife, was intended to prevent serious intrusions into

States’ difficult policy judgments. Such intrusions not only

interfere with the crucial work of state resource conserva-

3

tion agencies, they also place the courts in a policymaking

role. The concurrent micromanagement of fish and wildlife

by State, tribal band, and federal court established by the

decisions below is inherently troublesome, inconsistent with

the decisions of this Court, and anathema to the federal

system.

Independent of the effect of Minnesota’s admission to the

Union, the Bands by treaty gave up the usufructuary rights

they seek to protect here, along with “all right” in lands

they ceded. Though respondents argue that “all right”

does not mean “all right,” this Court previously rejected

respondents’ argument in the context of almost identical

treaty language. Oregon Dep't of Fish & Wildlife v. Klamath

Indian Tribe, 473 U.S. 753 (1985). There, the Court relied

on a number of grounds, but central to its decision was the

plain language of the treaty. The treaty language here is

just as plain. As a result, the Bands’ usufructuary rights

were extinguished even prior to statehood. '

ARGUMENT

I. THE STATES’ INTEREST IN MANAGING FISH

AND GAME IS A CORE ATTRIBUTE OF THEIR

SOVEREIGNTY

A. The Original Colonies Acquired Their Fish and

Wildlife as an Attitude of Sovereignity, and the

Other States Entered the Union on an Equal Foot-

ing with the Original States

“When the Revolution took place, the people of

each state became themselves sovereign, and in that

character hold the absolute right to all their navigable

waters, and the soils under them for their own common

use, subject only to the rights since surrendered by the

1. This brief does not address the question presented concerning

interpretation of the presidential order, petitioners’ brief amply discuss-

es that issue.

4

Constitution.” Martin v. Waddell’s Lessee, 41 U.S. (16

Pet.) 367, 410, 414 (1842).

These rights include the power to regulate the public fisher-

ies and other wildlife. /d. at 413-414.

These sovereign state powers were extended to newly

admitted States under the equal footing doctrine. Pollard’s

Lessee v. Hagan, 44 U.S. (3 How.) 212, 230 (1845). There-

fore, the original and later-admitted States alike exercise

police power over their natural resources and, insofar as

they are capable of ownership, dominion over them in their

sovereign capacity on behalf of the people. Geer v. Con-

necticut, 161 U.S. 519, 522-28 (1896), overruled on other

grounds, Hughes v. Oklahoma, 441 U.S. 322 (1979); see also

Ex parte Maier, 103 Cal. 476, 483, 37 P. 402 (1894).

This power to manage and regulate fish and wildlife re-

sources is an attribute of sovereignty that can be traced to

Greek and Roman law. Geer, 161 U.S. at 522-23. The

authority to control and regulate the taking of game existed

in England “from the earliest time,” and the colonies were

vested with this power, “as a trust for the benefit of the

people.” Jd. at 527-29; accord Lacoste v. Dep't of Conser-

vation, 263 U.S. 543, 549 (1929).

The principle that underlies the equal footing doctrine

and the strong presumption of state ownership is that

navigable waters uniquely implicate sovereign interests.

And throughout the doctrine’s lengthy history, from the

time of Justinian, Bracton, and the Magna Carta, the fisher-

ies have been an integral part of the doctrine. Jdaho v.

Coeur d'Alene Tribe of Idaho, 117 S. Ct. 2028, 2041 (1997).

States do not have title to fish and wildlife in the conven-

tional sense, so as to defeat commerce clause inhibitions,

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

power to regulate those resources remains unquestioned:

“(T]he retained interests of States in such common re-

sources as fish and game are of substantial legal mo-

ment, whether or not they rise to the level of a tradi-

5

tional property right. The range of regulations which

a State may invoke under these circumstances is ex-

tremely broad. Neither mere displeasure with the

asymmetry of the pattern of state regulation, nor a

sensed tension with a federal statute will suffice to

override a state enactment affecting exploitation of

such a resource. Barring constitutional infirmities, only

a direct conflict with the operation of federal law .. .

will bar the state regulatory action.” Douglas v. Sea-

coast Products, Inc., 431 U.S. 265, 288 (1977) (Rehnqu-

ist, J., concurring in part and dissenting in part) (cita-

tions omitted).

B. Fish and Wildlife, Like the Navigable Waters of a

State, Are Held in Public Trust on Behalf of All

the People

Wild animals, fish, and other natural resources are held

by the State in its sovereign capacity, for the common bene-

fit of all the people. Lacoste, 263 U.S. at 549. This Court

has long acknowledged the power and responsibility of

States to regulate the fisheries within their borders on

behalf of their people. McCready v. Virginia, 94 U.S. 391,

394-95 (1876). The fisheries are directly part of the States’

public trust interest in its navigable waters: “The State

holds the propriety of its soil for the conservation of the

public rights of fishery thereon, and may regulate the modes

of that enjoyment so as to prevent the destruction of the

fishery.". Smith v. Maryland, 59 U.S. (18 How.) 71, 75

(1855); see also Phillips Petroleum Co. v. Mississippi & Saga

Pet., 484 U.S. 469, 476 (1988).

The protection of wildlife within a State “is peculiarly

within the police power, and the State has great latitude in

determining what means are appropriate for its protection.”

Lacoste, 263 U.S. at 552.

The States’ public trust interest in their wildlife gives

them not only the right to manage this resource on behalf

of all their people, but also an affirmative duty to do so.

6

As a fiduciary, the States may bring actions and recover

damages for injuries to the trust res, whether it be water or

the fish or animals dependent on it. Maryland Dep't of

Natural Resources v. Amerada Hess Corp., 350 F. Supp. 1060

(D. Md. 1972); In re Steuart Transportation Co., 495 F.

Supp. 38, 40 (E.D. Va. 1980).

C. The Federal Government Holds These Resources

in Trust for the Future States; While Congress

Make Pre-statehood Reservations, Its Intent

to So Must Be Expressed in the Most Clear

and Unequivocal Terms

Congress has the power to commit these resources prior

to statehood when it becomes necessary “to perform inter-

national obligations, or to effect the improvement of such

lands for the promotion and convenience of commerce with

foreign nations and among the several States, or to carry

out other public purposes appropriate to the objects for

which the United States hold the Territory.” Shively v.

Bowlby, 152 U.S. 1, 48 (1894). lis intention to do so, how-

ever, must be expressed in clear and unequivocal terms.

The consistent scheme for such resources is that they shall

not be granted away “unless in case of some international

duty or public exigency (italics added),” and are held for the

future State “for the purpose of being ultimately adminis-

tered and dealt with for the public benefit by the State.”

Id. at 50.

Such reservations are “not lightly to be inferred, and

should not be regarded as intended unless the intention was

definitely declared or otherwise made very plain.” United

States v. Holt State Bank, 270 U.S. 49, 55 (1926). They

require a showing (1) that Congress clearly intended to

include the lands at issue in the grant or reservation, and

(2) that Congress affirmatively intended to defeat the future

State’s title. Utah Div. of State Lands v. United States, 482

U.S. 193, 202 (1987).

A State’s dominion over navigable waters is “so identified

7

with the sovereign power of government that a presumption

against their separation from sovereignty must be indulged,

in construing either grants by the sovereign . . . or transfer

of sovereignty itself." United States v. Oregon, 295 US. 1,

14 (1935). This canon of construction applies even when

Indian tribes are involved. See Holt State Bank, 270 US. at

49.

This Court recently applied its accepted rule of construc-

tion to the Big Horn River and concluded that at the time

of the treaties, no “public exigency” existed “which would

have required Congress to depart from its policy of reserv-

ing ownership of beds under navigable waters for the future

States." Montana v. United States, 450 U.S. 544, 556

(1981);° see also Wisconsin v. Baker, 698 F.2d 1323, 1334-

2. The Ninth Circuit recently held that the equal footing doctrine

had been applied only to navigable waters, and not to fishing rights.

See United States v. Washington, 135 F.3d 618, 632-33 (9th Cir. 1998).

That court ignored the cases applying the doctrine to other natural

resources. See, e.g, Ward v. Race Horse, 163 U.S. 504 (1896); Menomi-

nee Tribe of Indians v. United States, 391 U.S. 404, 411 n.12 (1968). It

additionally ignored the conceptual contradictions of its approach,

given the more general cases (cited above) holding that States have

sovereign interests in fish and wildlife, just as they have sovereign

interests in navigable waters. Fisheries, for example, are an inherent

part of the trust in which navigable waters are held. See Smith v. Mary-

land, 59 U.S. (18 How.) 71 (1855); see also United States v. Pend Oreille

Pub. Util. Dist. No. 1, 926 F.2d 1502 (9th Cir.), cert. denied, 502 U.S.

956 (1991) (mere dependence on river insufficient to establish tribal

ownership absent evidence United States intended to include riverbed

in reservation). Washington also cited Winans in support of its conten-

tion that presumption of the equal footing doctrine did not apply to

hunting and fishing rights. In fact, Winans’ statement that Congress can

create permanent rights, 198 U.S. at 383, is entirely consistent with the

doctrine, as is Winans’ determination that the language defining anadro-

mous fishing rights created a permanent easement, 198 U.S. at 381.

The Eighth Circuit in this case applied the doctrine (though it found

the presumption to have been overcome), and Respondents do not

challenge the application.

35 (7th Cir.), cert. denied, 463 U.S. 1207 (1983). It reached

this conclusion notwithstanding treaties setting apart reser-

vation lands “for the absolute and undisturbed use and

occupation” of the Tribe, and providing the Tribe did “not

surrender the privilege of hunting, fishing, or passing over

any of the tracts of country” referred to in them. Montana,

450 U.S. at 553. Congress’ recognition in the 1837 treaty of

certain privileges “subject to the pleasure of the President”

does not show an intent to defeat the State’s assumption of

sovereignty.

Il. THE BANDS’ USUFRUCTUARY RIGHTS BE-

CAME SUBJECT TO FULL STATE REGULA-

TION UPON MINNESOTA’S ADMISSION TO

THE UNION IN 1858

The equal footing doctrine compels a conclusion that

Congress did not intend the Bands’ usufructuary rights to be

immune from ordinary state regulatory authority upon

Minnesota’s admission to the Union. Congress had the

power to reserve the usufructuary rights to the Bands free

from state regulation beyond statehood, but did not exercise

that power by an express permanent reservation.

A. The Bands’ Usufructuary Rights Were

— by Minnesota’s Admission in 1858

Neither Created Permanent

ee ts at the Time of the Treaty, nor

Reserved Such to the Bands in the Act of

Admission

The federal government, in drafting the 1837 treaty, did

not include language indicating that the rights would survive

statehood, or more generally, that the rights were intended

to be permanent in the sense of being immune from the

ordinary application of state law. Cf. United States v. Wina-

ns, 198 U.S. 371, 380-81 (1905) (language providing for

ge

9

contingencies of future ownership of land made anadro-

mous fishing rights continuing against United States and

grantees, and State and grantees). Nor did Congress in-

clude any language in the act of admission that could plau-

sibly be read as reserving the usufructuary rights to the

Bands. Cf. Ward v. Race Horse, 163 U.S. 504, 511 (1896)

(“The act which admitted Wyoming into the Union, as we

have said, expressly declared that the State should have all

the powers of other States of the Union, and made no

reservation whatever in favor of the Indians."). Thus,

under Ward, with statehood came the right to regulate the

Bands’ hunting and fishing in the same manner as those of

non-Indians—a principle reflected by this Court’s holding

that “[a]bsent express federal law to the contrary, Indians

going beyond reservation boundaries have generally been

held subject to nondiscriminatory state law otherwise appli-

cable to all citizens of the State." Mescalero Apache Tribe

v. Jones, 411 U.S. 145, 148-49 (1973).

Although the central equal footing question is whether

Congress explicitly reserved permanent usufructuary rights

for the Bands, respondents have argued that the rights were

not intended to be “temporary.” Notably, respondents have

identified no treaty language suggesting that the rights were

intended to be permanent. Instead, they have attempted to

distinguish the treaty language in this case and the treaty

language in two other cases reaching different results.

Ward v. Race Horse, 163 U.S. 504 (1896); Crow Tribe of

Indians v. Repsis, 73 F.3d 982 (10th Cir. 1995), cert. denied,

517 U.S. 1221 (1996).

In fact, Ward and Repsis are directly on point, even if it

is possible to point to differences in their facts. In both of

those cases, as here, the rights in Ward and Repsis were

temporary because the treaty creating the rights anticipated

events that would terminate the rights. In Ward and Repsis,

the event was occupation of public lands; here, it was a

presidential revocation. That the extinguishing events were

different does not change their character as extinguishing

10

events, and does not make their rights any less temporary.

Respondents have attempted to distinguish Ward and

Repsis on the basis that the rights were tied to the United

States’ ownership of the lands. Mille Lacs Band of Chippe-

wa Indians v. Minnesota, 124 F.3d 904, 927 7 re 1997).

ing to ndents’ analysis, since t ts con-

pene oe Beste lands of the United States,” one would

naturally assume that the rights in Ward and Repsis would

disappear at such time as the lands were no longer lands

“of the United States,” i.e., at admission. /d.

If anything, the rights here are even more “temporary”

than the rights in Ward and Repsis. In those cases, the

courts inferred from the use of the word “unoccupied” that

the rights would terminate when the unoccupied lands be-

came occupied. Here, no inference is necessary: the rights

exist only “during the pleasure of the President.". Ward

and Repsis are controlling.

The Seventh Circuit examined the same rights at issue

here, and determined that they were not permanent. Lac

Courte Oreilles Band of Lake Superior Chippewa Indians v.

Voigt, 700 F.2d 341, 355 (7th Cir.), cert. denied, 464 U.S. 805

(1983). .

Finally, the impermanent nature of the rights under the

1837 Treaty distinguishes this matter from United States v.

Winans, 198 U.S. 371 (1905). There, this Court concluded

that an 1855 treaty with the Yakima Nation was intended

to reserve to the tribe an easement over privately owned

lands to reach and to fish from “usual and accustomed

places.” In so concluding, the Court construed the treaty as

“impos[ing] a servitude upon every piece of land as though

described therein” and as “foresee[ing) and provid[ing]

for” the “contingency of the future [private] ownership of

the lands.” Jd. at 381.

Here, in contrast, respondents claim no comparable ease-

ment over private land; they instead recognize that land-

owners may close their property to hunting and fishing

activities generally and that tribal members are bound by

1]

such determination. The situation is thus strikingly similar

to that in Ward, where the Court commented upon the

anomaly of an argument that, “after [land] had become

subject to state authority, admits that the privilege would

cease by the mere fact that the United States disposed of

its title to any of the land, although such disposition, when

made to an individual, would give him no authority over

game, and yet that the privilege continued when the United

States had called into being a sovereign State, a necessary

incident of whose authority was the complete power to

regulate the killing of game within its borders." Ward, 163

U.S. at 510. In sum, unlike Winans, this is not a situation

in which “the United States, while it held the country as a

Territory, . . . create[d] rights which would be binding on

the States.” Winans, 198 U.S. at 383.’

B. Implementation of the Usufructuary ts Con-

flicts with State Sovereignty _

This case presents a patent conflict between usufructuary

rights and state sovereignty. The Bands have become the

primary rulemaking and enforcement authority for their

own Off-reservation hunting and fishing. See Mille Lacs

Band of Chippewa Indians v. Minnesota, 952 F. Supp. 1362,

3. Winans is also distinguishable because, unlike this matter, it did

not involve the question of state regulatory authority over the exercise

of off-reservation fishing or hunting rights. See Winans, 198 U.S. at

384. The Court held only that the 1855 treaty right “fix{ed]* in

“usual and accustomed” fishing locations “such easements as enables

the right to be exercised." Id; see also New York ex rel. Kennedy v.

Becker, 241 U.S. 556, 563-64 (1916) (relying on Winans for the holding

that, although treaty reserved *a privilege of fishing and hunting upon

ihe granted lands in common with the grantees, and others to whom

the privilege might be extended,” such privilege was subject to “that

necessary power of appropriate regulation, as to all those privileged,

which inhered in the sovereignty of the State over the lands where the

privilege was exercised”).

12

1367 (D. Minn. 1997) (Bands governed by their own Con-

servation Code). The district court enjoined Minnesota

from enforcing against the Bands various state laws, laws

that Minnesota in its sovereign judgment believes are

important. See id. at 1379-82 (prohibiting on shining deer

in December); id. 1382-84 (limitations on gillnetting). The

district court required Minnesota to justify its regulations by

proving they were necessary “to forestall the imminence of

extinction.” Mille Lacs, 952 F. Supp. at 1382. The excruci-

ating and minute analysis of each specific conservation

measure illustrates both the magnitude of this impingement

on Minnesota’s sovereignty and its impracticability.

The existence, within a State, of two concurrent resource

management programs, one tribal and one state adminis-

tered, subject in the event of disagreement or inconsistency

to the final decision of a federal judge, is unworkable and

unnecessary.

Nondiscriminatory state regulations applied to Indians

outside of Indian country are presumed valid “in the ab-

sence of express federal law to the contrary (internal quota-

tion marks omitted).". Klamath, 473 US. at 765 n.16;

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973);

- Salt River Pima-Maricopa Indian Community v. Yavapai

County, 50 F.3d 739, 740 (9th Cir. 1995); United States v.

Washington, 520 F.2d 676, 684 (9th Cir. 1975), cert. denied,

423 U.S. 1086 (1976). The Court has held repeatedly that

Indian hunting and fishing rights are subject to state regula-

tions of general applicability. See Puyallup Tribe v. Depart-

ment of Game, 391 U.S. 392, 398 (1968); Kake Village v.

Eagan, 369 U.S. 60, 75 (1962); New York ex rel. Kennedy v.

Becker, 241 U.S. 556, 563-64 (1916).

Even the cases upon which respondents have relied allow

that tribal usufructuary rights must be subject to state

regulation. Winans was careful to explain that, in holding

that the United States had reserved usufructuary rights for

the Indians, it was not holding that a State was without

power to regulate the exercise of the rights:

| | eT ee

13

“And surely it was within the competency of the Nation

to secure to the Indians such a remnant of the great

rights they possess as ‘taking fish, at all usual and

accustomed places.’ Nor does it restrain the State

unreasonably, if at all, in the regulation of the right. It

only fixes in the land such easements as enables the

right to be exercised.” 198 U.S. at 384.

Tulee objected to regulations only insofar as they accom-

plished purposes other than resource management. Tulee

v. Washington, 315 U.S. 668 (1942). Thus, it refused to bar

regulations governing the use of the resources:

“The treaty leaves the state with power to impose

on Indians, equally with others, such restrictions of

a purely regulatory nature concerning the time and

manner of fishing outside the reservation as are

necessary for the conservation of fish.” 315 U.S.

at 684.

It rejected, however, the State’s argument that it could

charge license fees, because a stated purpose of the license

fees was to raise revenue for the state government. 315

U.S. at 685."

To add additional dimensions to judicial review of state

resource regulations is to assign a policymaking role to the

courts for which they are not well equipped. This Court

4. Some lower courts have read the Tulee language to authorize

greater judicial oversight of regulations than Tulee intended. As noted

previously, Tulee distinguished between regulation that only managed

resources, and regulation that served other purposes, such as revenue.

The Tulee language should not be read to require courts to make policy

decisions about what steps are necessary for the conservation of a re-

source. Nor should *conservation® be construed as the equivalent of

*non-extinction.*. Once a court has determined that a regulation is

directed at resource management rather than some other goal, it should

not make policy determination of optimal resource levels or the effec-

tiveness of alternate regulatory regimes.

14

and lower courts have repeatedly eschewed policymaking

roles. See, e.g., Missouri v. Jenkins, 495 U.S. 33 (1990)

(ordering a specific tax levy to facilitate school desegrega-

tion not an appropriate judicial action); Rhode Island Hand-

icapped Action Committee v. Rhode Island Pub. Transit

Auth., 718 F.2d 490, 497-98 (1st Cir. 1983) (state and feder-

al administrators, rather than judges, “are charged with

devising the nuts and bolts of transportation programs for

the handicapped"); National Coal Ass’n v. Marshall, 510 F.

Supp. 803, 805-06 (D.D.C. 1981) (case non-justiciable

because court would be required to make benefit eligibility

determinations, and otherwise manage federal benefits

programs).

Ill. THE MILLE LACS BAND’S USUFRUCTUARY

RIGHTS WERE EXTINGUISHED EVEN PRIOR

TO ADMISSION TO STATEHOOD

The Mille Lacs Band and Congress agreed in the 1855

Treaty that the Bands would convey “all title, and interests

right, ... in, and to any other lands in the Territory of

Minnesota or elsewhere.” Mille Lacs Band of Chippewa

Indians v. Minnesota, 124 F.3d 904, 920 (8th Cir. 1997).

The Bands argue that somehow “all right” does not encom-

pass usufructuary rights, basing their argument on some of

the surrounding historical circumstances. This contention

is contrary to the plain meaning of the 1855 Treaty. While

a court may examine evidence of Indian understanding of

a treaty to the extent that the treaty contains ambiguous

terms, courts should not substitute their sense of Indian

intent for the plain terms actually agreed to. Choctaw

Nation v. United States 318 U.S. 423, 432 (1943) (“But even

Indian Treaties cannot be rewritten or expanded beyond

their clear terms to remedy a claimed injustice or to achieve

the asserted understanding of the parties.”).

This Court recently considered treaty language essentially

identical to the treaty language in this case, and found that

15

language to be clear, notwithstanding evidence of a contrary

understanding held by the Indians who were parties to the

treaty. Oregon Dep't of Fish & Wildlife v. Klamath Indian

Tribe, 473 U.S. 753 (1985). There, a 1901 agreement be-

tween the Klamath Tribe and the United States provided

that the tribe would “cede, surrender, grant, and convey to

the United States all their claim, right, title and interest in

and to” land erroneously excluded from the tribe’s reserva-

tion. The Court determined that, although this language

did not explicitly address usufructuary rights, it should be

read to surrender such rights. The Court explained that the

language of the 1901 Treaty unambiguously ceded all rights:

“(T]he 1901 Agreement contained a broad and un-

equivocal conveyance of the Tribe’s title to the land

and a surrender of a ‘all their claim, right, title, and

interests in and to’ that portion of the reservations. 34

Stat. 367 (emphasis added) (footnote omitted). The

1901 Agreement thus was both a divestiture of the

Tribe’s ownership of the ceded lands and a diminution

of the boundaries of the reservation within which the

Tribe exercised its sovereignty. In the absence of any

language reserving any specific rights in the ceded

lands, the normal construction of the words used in the

1901 Agreement unquestionably would encompass any

special right to use the ceded lands for hunting and

fishing.” Klamath, 473 U.S. at 768.

The Court noted that the nature of the rights, and the

wording and effect of other treaties between the parties

also supported its conclusion. Thus, for example, the fact

that the usufructuary rights had been exclusive “unequivo-

cally confirmed” the decision required by the plain lan-

guage. Id.

The Mille Lacs Band’s focus on extrinsic evidence of the

parties’ contemporaneous understanding of the treaty lan-

16 c

guage, and rejection of the plain meaning of that language,

is thus at odds with Klamath.

Several other courts reached conclusions similar to

Klamath’s based on similar language. E.g., Red Lake Band

of Chippewa Indians v. Minnesota, 614 F.2d 1161 (8th Cir.

1980), cert. denied, 446 U.S. 905 (1980) "The decision below

threatens the reliance of states and tribes on Klamath and

will likely open up jurisdiction disputes with regard to

disestablished and diminished reservations thought long

settled."; State v. Thompson, 355 N.W.2d 349 (S.D. 1984).

17

CONCLUSION

Under our federal system, the States are trustees of their

navigable waters and their fish and game. They hold these

resources for all of their people, and bear both the power

and responsibility as trustees to manage and preserve them

effectively. These resources are an inherent attribute of

their sovereignty.

For these reasons, this Court has been properly reluctant

to attribute to Congress any intent to defeat States’ stew-

ardship. The traditional test should be applied to the

treaties, executive order and acts of Congress at issue here.

The result will be to restore that balance to the federal

system given it by the drafters of the Constitution and allow

Minnesota to manage its resources for all of its people.

The Court should reverse the decision of the Eighth

Circuit Court of Appeals.

Respectfully submitted,

DANIEL E. LUNGREN

Attorney General of the

State of California

RODERICK E. WALSTON

Chief Assistant Attorney Gener-

al

RICHARD M. FRANK

JAN S. STEVENS*

Assistant Attorneys General

*Counsel of Record

JOEL S. JACOBS

Deputy Attorney General

1300 I Street, Suite 125

P.O. Box 944255

Sacramento CA 94244-2550

Telephone: (916) 445-8178

Fax: (916) 327-2319

August 1998

(Complete counsel list appears

on inside front cover)