Brief in Opposition to Petition for Writ of Certiorari — Sanapaw v. Wisconsin

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‘£2 £i-f> Ww

Utfice Supreme Court, U.S...

FILED

APR 17 1964

"JOHN F. DAFIS, CLERK

State of Wisconsin’

— State: Capitol -

. Madison, Wisconsin

ns “In. The

Supreme Covi of the uU ane, Siete

| October Term, 1963 ss - yf

r Mi 930.

‘ JOSEPH L. SANAPAW, WILLIAM J. GRICNON,

-_ FRANCIS BASINA, -

# 9 _ Petitioners,

_ STATE OF WISCONSIN, ‘ 4

Respondent. ;

BRIEF IN OPPOSITION TO PETITION “

FOR WRIT OF CERTIORARI TO THE «sss

SUPREME COURT OF THE HE STATE OF WISCONSIN

‘iisieas THOMPSO

Attorney General. si Se

HAROLD H. ‘PERSONS ,

Le Assistant’ “Attorney General ee

; __ JOHN H, BOWERS ~ se ene ee ee

Special Counsel ' . ‘ D

| Attorneys: ‘for Respondent, — | g-

IIT.

-_—

ae Se

INDEX ee ae

, RAGE

_ OPINION OF THE COURT BELOW 2.000 11

_ JURISDICTION pa peste svat: Mae teres

QUESTION PRESENTED: FOR REVIEW ....... mes ae

_ STATEMENT OF THE CASE - eonataconts 58 4

pene ae : ‘

~ Upon termination of federal supervision and ‘control .

over, the Méhominee Indian Tribe by Public La

399, 83rd Congress, the enroHed members of: the

Ménominee Indian Tribe and the’ lands in Mefiémi-

nee County, comprised of what was formerly the

~ Menominee Indian Reservation, became sibject to”

_ Wisconsin laws. with’ respect to hunting, and the

Application of state hunting laws to such persons .

‘and lands presents no substaritial aa question. 7

= * asia ard for granting, fe writ inadequate . ed

B. Congress had plenary a to deal with. the ie: )

“ dians.and-- may abrogate Indian privileges-and

rights, including treaty rights, by statute... 8

C. The Menominee, “Tefeination Act” specifically

‘provides that foliowi & termination all ‘statutes

of the United States which affect Indians be-

cause of their status as Indians shall no longer

‘e be applicable . to: the -Menominee. Indians, and

- that the laws of the several states shall. apply ~

to the tribe and its.members in the same man-

nér as they apply to other citizens or persons

within their jurisdictior ? 10

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PAGE

pa “D. “The treaties between ‘the Menominee’ Indian

Tribe and the United States established no hunt- |

ing rights ov privileges in favor of the Indians

within the State of Wisconsin which could con- —

>, ° *tinue ne Srraination 15 |

CON CLUSION ..-y Nace Sheet eRe ee a18

Bact caressa BE ee Ne ON * 19-24

CASES CITED |

iii V. Gladden (CCA 9th; 1961), 293 F.. a ) 463,

_ Cert. den. 368 U.S. 949 LER CO.

Kennedy v. Becker (1916), 241 U. * 556 ee Spar 9, 13

Lone Wolf Vv. Hitchcock (1903), 187 U. s 554. SER econo 8

Maison ¥, Federated Tribes ( cc Oth; 1963 % 314 F. (a, .

"169, cert. den. 375 U.S. =e, oom ies ram, 18

a Tribe Vv: United State 1941). 95 C. Cls.

Else chahe ae eeene S : ie

n (1962), 369 U.S

ESA RES CRE <n, Sa 9, 11

Seymour v. United States (1961), 38 i > | ae

per et al. v. Work ete D. Cy 1925), 3 F. (24) =

; | ee At) Washington (1942), $15 U. S. a_i os Po. 8, 9, TY, 18

re 7

~ : %

iii : ay

a Set cae . PAGE

~~ United States v. Waller (1917), 243, U. S. 452 sg 8

Ward | v.. Race Horse (1896, 163 U. S: 504 prea rae WO |

Moise «© © oe. OD fee “*

State v. Johnson (1933), 212 Wis, 301, 249 N. W. 284... 216, 18 oe

State v. Sanapaw (1963), 2 Wis. (2d) 377, 124 N. Ww

(2d) 412... REA | a eR Read 4

- ° F . cs y

CONSTITUTIONAL PROVISIONS AND STATUTES

FEDERAL STATUTES AN af SATIS: 7

fe° o

~ P.-L. 280; 83rd aunts. as amended °(67: Stat. 588,

. as amended 68 Stat. 795, 18 U..S. C. sec. 1162,

~28U. S.C. sec. 1360) . seep acaeearadiccieatstbdialanasitnonaiiecssa .5

- Act of August 6 6, 1846 (9 Stat. 56) Panne EASELS RAE |

Act of May 29, 1848 (9 Stat. 233)... Se P

Treaty ‘of Oct her 18, 1848 (9 Stat. 952) ae Saece

Treaty of February 11, 1856 is ll Stat. 679 oot ie

Treaty of May 12, 1854° (10 Stat. 1064) . Be nie 15, 16

é 3 ; . A : -

ee » HOUSE CON. oa) 108 (67 Stat. BI 32, _ Con-

33 ApDERAL REGISTER

ver ae, ae "8

: PAGE

ies First. Session) Py BROS ALE oR Leen lee PPLE ” .

~ KLAMATH TERMINATION ACT: (68 Stat, 718, 722;

om es BUS, we, Mam) og i B

__ MENOMINEE TERMINATION ACT

". P. L. 399. 83rd Congress, 68 Stat.. 250, as amended,

"70 Stat: 544, 70 Stat. 549, 72 Stat. 290, 74. Stat..

=i a -, 867; iad S. C. 691-902 ....g..-....0.....2.6, 10, 14, aie

26 Federal Register No. 82, April 29, 1961 ,...6, 12, 14, 15.

WISCONSIN wae

Ch. 258, Laws of 1959 °.. Salis Sol ea ea 15

259," Laws Of.1959.eccoceececeeeeedeeeee ure! 6, 13°

Section 958.12 (d), Stats. ......... Sea ox ie oe

| Wis, Adm, Code §.10:07 (ay! Sacialates , ae iene 4

Lf LET

> ie 7, :

{> : ?

- Supe ae ae fe United Sta

In The

October Term, 1963 . 4

No. 930

JOSEPH L. SANAPAW, WILLIAM J.GRIGNON, >:

. and FRANCIS BASINA,

| | | i betitioners,

: + v. : q

| STATE OF WISCONSIN, | .. 7

Fotos: . ; 2. Respondent.

; ? * . .

- BRIEF IN OPPOSITION TO PETITION |

FOR WRIT OF CERTIORARI TO THE.

SUPREME ‘COURT OF THE STATE OF WISCONSIN - -

A. OPINION-OF THE COURT BELOW. og

: The opinion of the Supreme Court of Wisconsin is re-

_-ported in 21 Wis. (2d). 377, 124 N. W. (2d) 41.

‘

Fe: ‘JURISDICTION.

“Respondent opposes the petition ae writ of? certiorari

on the ground that -these casts do not present any sub- -

stantial federal question in connection, ““— the applica- °°

Two judgments are 2 jnvpived. By agreem« nt of the parties ; in the Wis-

' « ‘consin Supreme Court the two J‘? of error were submitted together.

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\ tion of Wisconsir Nan laws to enrolled members of the

\ Menominee’ Indian ‘Tribe and to the area which was for-

merly the Menominee Indian Reservation (now Menominee

County ) following termination of féderal supervision, ‘nd

control over the Menominee-dindian: Tribe by Public Law _

* 399, 88rd Congress, a as amended. Pl

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III. QUESTION PRESENTED FOR REVIEW.

: We respectfully submit - following revision of the |

question stated in petitioners’ petition @t page 2:

‘Upon, termination of federal supervision and. control

over the Menominee Indian Tribe _by Public Law 399, gard .

Congress, as amended, did the enrolled members of the

Menorninee dian Tribe and- the lands ins Menominee .

County, comprised of what, wis formerly the Menominee

Indian Reservation, become subject to Wisconsin-Jaws ‘with

respect - to hunting in the same manner and to the same

extent as other persons and lands within the state?

= Be acne ;

¢.

IV. STATEMENT OF -THE CASE. _

The defendants Joseph L. Sanapaw, William J. Grig- .

non, and Francis Basinia were each charged with hunting .

dane with the aid of an artificial light, in violation of Wis.

Adm. Code, Sec. WCD 10. 10 (2), amd with the transporta- ~

tion’ of a dpaded and uncased gun in an automobile in vio-

lation of Wis, Adm. Code, Sec. WCD 10.07 (3), in the

Town. of Menominee, in Menominee County, on the 8th and

9th days of September, 196? (R. 131-132; 140-141).* Each

of the defendants is an’enrolled member of the Menominee

Indian Tribe of Wisconsin (R, 133-134). The triak court —

fouid that each of the defendants did in fact commit the

~ acts charged in the coniplaint and warrant, but the court

- further ‘found that by reason of. their; erirollment as mem-

bers of the Menominee Indian Tribe the defendants were

not subject to the State’s conservation laws and that the:

applicable s statutes and conservation cogamission or ders un-

7 Ger which the prosecutions were brought do not apply to

the defendants by reason of their enrollment as members

-of the Mengminee Indian Tribe (R. 121- -122; 137- -138). The

- state presecuted. writs of error to the Wisconsin Supreme .

Cpurt pursuant to section 958.12 (1) (d), Wis. Stats., terye-

view the judgments ‘upon the question of law. involved.”

By agreement of the parties, two writs of error were sub-

mitted together because. the -cases presented a- common

question of Jaw.‘ The Supreme Court of Wisconsin re-

versed the: judgment ‘of the trial court dnd-held that the _

k “Termination sAct” abrogated ‘any right to. be free of the

“The page references are to the pages of the appendix. which was filed

in the Wiscoasin Supreme Court.

“State v. Sanapaw (1963), di Wis (2d) ah 379, 124 N. W. (2d) 41.

°>

state’s game laws in exercising ‘hunting rights over the

fogmer tribal lands of. the reservation.

_ . By,the Treaty of October 18, 1848 (9 Stat. 952). be-

tween-the Menominee Indians and the United States, the

Menominees ceded all of their lands i in the State of Wiscon-

sin to the United States. The Treaty providéd for a grant

of lands to the Menomiriee Indians from the United States

for a home west of the Mississippi, ‘and provided that the

Meriominee Indians would be permitted to remain on the |

ceded lands in Wisconsin: for an ensuing period of three

* vears from the date of the Treaty and until the President

notified the Indians that the lands were wanted. .The tribe

did not remove from Wisconsin and *by the Treaty of May

19. 1854.10 Stat. 1064) the United States ceded a tract: of

land to the Menominees for a’ permanent home, and this

tract became the Menominee Indian Reserv ation. :

Prior to May 1, 1961, the*Menominee Indian:Tribe and

the Menominee Indian Reservation were, with certain ex-

ceptions not material here, subject to federal ‘supervision

and control. Title to the Menominee Indian Reservation

was held in trust for the tribe ‘by ‘the United States Govern--

ment. Civil and criminal jurisdiction over the Menominee

- Indian Reserv ation was surrendered by the United States

Government in favor of the State of Wisconsin if 1954, by

Public Law 280, 83rd Congress, as amended (67 Stat. 588,

as amended 68 Stat. 795; 18 U. 5.°C. secs 1162;:28 U. S. C.

sec. 1360). Public Law 280 specifically retained, in favor

- of the Indians, all hunting and fishing privileges enjoyed

by the Indians by reason of federal treaty or statute.

In 1954 Congress provided for the termination of all »

federal supervision and confpes ov er the Menominee Indian

a @ 6 *

Tribe and the Menominee Indian Reservation by Public:

Law 399, 83rd Congress, popylarly known as the “Termi-

_ nation‘Act” ¢68 Stat. 250, as amended, 70 Stat. 544, 70 Stat.

549, 72, Stat. 290, 74 Stat. 867; 25 U.S. C. secs. 891-902).

On April 29, 1961, the Secretary of the Interior proclaimed

the transfer, pursuant to sec. 8 of the Termination Act, of -

all tribal property held in trust by the United States Gow-

ernmertt, and the termination df all: federal supervision and .

control over the Menominee Indians and the’ Menominee

Indian Reservation effective midnight April 30, 1961 (s 26 °

Fed. Reg., No. 82, April 29, 1961, page 3726). Upon publi-

cation of the “Plan For The Future Control Of Menominee

Indian Tribal Property And Future Service Functions”

(hereinafter the Plan) in the Federal Register-in connec- -

tion with the proclamation of termination by the Secgetary

of the Interior, Ch. 259, Wis. Laws 1959, became effective,

and what was formerly the Menominee Indian Reservaten

became Wisconsin's 72nd count ty (Wis. Laws 1959, Ch, 259,

sec. 42). tot 4 * . €

- ———y

€

V. AAGTEET

UPON "TERMINATION: OF FEDERAL SUPERVISION

AND CONTROL OVER THE MENOMINEE INDIAN

TRIBE BY PUBLIC LAW 399,.83rd CONGRESS, THE

ENROLLED MEMBERS OF THE MENOMINEE INDI- ©

AN TRIBE AND THE LANDS IN MENOMINEE

COUNTY, COMPRISED OF WHAT WAS FORMERLY

\THE MENOMINEE INDIAN RESERVATION, BE-

CAME SUBJECT TO WISCONSIN LAWS WITH RE- |

SPECT TO'HUNTING, AND THE: APPLICATION OF |

STATE HUNTING LAWS TO SUCH PERSONS AND -

LANDS PRESENTS NO SUBSTANTIAL FEDERAL

QUESTION.

A. Reason’ stated for grantiny the writ inadequate.

i, support of their petition for the writ, petitioners

contend \that this case. is important not ‘only to the Me-

‘nominees but to other Indian tribes as well, that since other

. tribes may be terminated inthe future the question y will |

_ be important to them, that the question 1 is already under

litigation in other states, and that. thea matter has already

been productive of much dispute and emotion in other —

states and needs to be settled (Petitiori,.pages 11-13). The

inference is that a decision in this case will settle the mat-

‘ter for other states and tribes.. We respectfully submit that

it will not. The-rights and privileges of other. tribes in

other states under termination must be decided upon the

basis of the particular facts, treaties and statutes involved,

and will not be determined or eontrolled by decision in.

this case. The treaties between the several Indian tribes in

the United States” vary in their terms, termination acts

vary in their terms, and the jurisdiction of the several

x o

; states may vary: allie upon the particular territorial

ordinance, enabling act and state - constitution involved.

See, for example, Tulee v. Washington (1942), 315 UPS.

681; Klamath Termination Act, 68 Stat. 718, 722; 25.U. S.C.

‘Sec. 564m).

B. Conc gress has aa power to deal with the Indi-

ans and may abrogate Indian privileges and rights,

. including treaty; rights, by statute.

: ws “i :

The extent to which tribal Indians should be emanci- -

pated from their status as wards of the Federal Govern-

ment is a matter which rests entirely withift the discre-

tion of Congress. Lone Wolf v. Hitchcock (1903), 187 U.S.

553, 565- 567; United States v. Waller (1917), 243 U. S. 452,”

—$59- 460. The power to make treaties with the Indian tribes

was abolished in 1871 (16 Stat. 544, 566; 25 U. S. C. sec. .

71) and: the United States now deals with the Indians by

statute. Congress has plenary power to deal with: the In-

dians and may abrogate Indian privileges and rights, in- .

cluding treaty rights, by _statute. Super et al..v. .Work

(CCA, D. C., 1925), 3 F. (24) 90, affirmed per curiam, 271

Y. S, 643. The power of Congress over Indian tribes and

tribal ‘property cannat be limited by treaty so as to bar

Ps) repeal or amendment by later statute.

See, ne |

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

_Lone Wolf v. Hitchcock. (1903), 187 U.S. 553, 565- |

567;

Se emi Stater v. Waller (1917): 243 U. ae 452:

F tte

Audet v. Gladden (CCA 9th, 1961), 293 F. (24)

463, Cert. denied 368 U. S. 949;

See, also, a

Organized Village of Kake v. nin (1962) M 369

. B.S. 60, 42-76. ws

Even. win there is an express grant of hunting or -

fishing privileges to the Indians, such grant'is*repealed to :

the extent. that it conflicts with the inherent sovereignty _ 6

of the.state to conserve fish and cx within its borders and

‘outside of Indian reservations, in the exercise of its police -

~ power.

Ward v. Race Horse “(1895 ), 163 U. S. 504:

Kennedy v. Becker (1916), 241 U. S. 556; _ :

C See also, ; ihe : tas

Tulee v. Washington (1942), 315 U. ‘s. 681.

While the foregoing setitinioes the power of Congress -

to abrogate Yndian privileges and rights, including treaty ~

rights, by statute and to terminate the status of Indians

and Indian tribes ‘as wards of the Federal Government, it

is: of interest to note that the Menominee Indfan Treaty - 4)

of February 11, 1856 (11 Stat. 679) expressly provides, in

part:. ° ; oe fs

ee : ee : ; wv

“ARTICLE 3. To promote the welfare and the

improvernent of the said Menornonees, and, friendly

relations between them and the citizeis of the United

States, it is further stipulated—

“

—T s

. 10

«, That in casé this agreement. and the treaties

made previously with the Mendthonees should prove —

insufficient, from causes which cannot now, been (be)

_ foreseen, to effect the said objects, the President of the

United States may, by and with the advice and con-

sent of the Senate, adopt such ‘policy in the manage-

_ ment of the affairs of the Menomonees as in his judg--

ment may.be most beneficial to them; or. Congress may,

hereafter, make such provision by law, as experience

shall prove to be necessary.’

; a a,

C. The Menominee Germination Att” specifically pro-

_ vides that following termination all statutes of the

‘United States’ which affect Indians because of their

status as Indians shall no longer be applicable to the

Menominee Indians, and that the laws of the several

_ states shall apply to the tribe and its members in

the same manner as they apply to other citizens or -

> persons within their jurisdiction.

The Menominee “Termination Act” (25 U. S. C. secs.

891-962) provides in part: »

“( After title to the property of the tribés has been

transferred] . _all statutes of the United States which

affect Indians ‘because ef their status as Indians shall i

no longer be applicable to the members of the tribe,

and the laws of the several States shall apply to the

tribe and its members in the same manner. as they

apply to other citizens or — within their juris-

diction . hf

The intent of Congress in passing the. “Termination }

Act” was to terminate federal trusteeship over the Me-

nominee Indians, to abolish the Menominee Indian Reser- |

-vation, and to’ make the laws of the several States —

sae oe 11

| ©

cable to the Menominee Indians in the : same manner’ that,

such laws are applicable to. other citizens within the states.

‘This is evident not only from the face of the Termination

Act itself, but from House Concurrent Resolution 108 (67

Stat. B132, 83rd Congress, First Session) which declares

_ as folfows in part: ; Z

"+ “Whereas it is the policy of Congress, as rapidly

as possible, to’make the Indians within the territorial

¢ limits ef the United States subject to, the same laws

and entitled to the,same privileges and responsibilities

as are applicable to.other citizens ofthe United States, . -

to end their status as wards of the United States, and

.to grant’ them all of the rights and prerogatives per- —

taining to American citizenship; and Whereas the In-

_dians within the territorial limits of the United States |

should assume their. full responsibilities as. raariemn

citizens: Now, therefore, be it

“Resolved by the House of epinicivistives (the

Senate concurring), That it is declared to be the.sense,:

of-Congress:that, at the earliest possible time, all of the

Indian tribes and the individual members thereof lo-

cated within the States of California, Florida, New

York,.and Texas, and all of the following nanied Indian

tribes and individual members thereof, should be freed

" from Federal supervision :and control and from all dis-

abilities and limitations specially applicable to Indians:

. the Menominee Tribe of Wisconsin . . .” (Empha-

sis s added.) ia ny ae

The Termifmation Act contains no reservation of hunt-

~ ing rights or privileges in favor of the Indians. The Indian

reservation has been abolished, (Cf. Organized Village of

Kake v. Egan (1962), 369 U. S. 60, 74) and the status of

~ 12

5 the Mennentives Indians and the Menominee Indian Tribe

as wards of ‘the Federal Government has been ended. °

In 26 Federal Register, No. 82, April 29, 1961, at page

3726. the Secretary of Interior proclaimgd ‘the transfer of:

title to all property real and personal heli in trust by the

United States for the Menominée Indian Trigg, as follows:

. “Pursuant to the authority contained in section 10 of ©

the Act of June 17,°1954 (Public Law 83-399; 68 Stat.

250), it is hereby proclaimed that the title to all prop-—

erty, real and personal, held in trust by the United

States for the Menominee Tribe has been transferred ~ -

‘in, accordance with section 8 ‘cf the Act of June 17,

1954, supra, and that effective midnight April 30, 1961,

individual members of the Menominee Tribe shall not

be entitled to any of the services performed by the .

United States for Indians because of their status, as

Indians; all statutes of the United States which affect -

Indians because of their status as Indians shall no

. . longer be applicable to the members of the Menominee

Tribe; and the laws of the several States shail apply to

~ the Menominee ‘Tribe and its megtes in the same .

manner as they apply to other citizehs or persons with-

~ in their jurisdiction. .

“As required by section 7 of the Act of June 17, 1954,

supra, the-Plan for ,the Future Control of Menominee

_ Indian Tribal Property and Future Service Functions

: a. published and — _— below this fio-

tice.”

Thus, the.United States has divested itself of all right,

title and interest to the lands which comprise what .was

formerly the Menominee Indian Reservation, and has end- ,

ed its trusteeship over the lands. What was formerly the

”

reservation ig now Wisconsin’ s 72nd county, governed by a

Wisconsin County - Board and a .Tgwn Board (Wis. Laws,

1959, Ch. 259). Enrolled members of the Tribe - are or -

“may. become residents of the town and county and elect

town and county officers (Wis. Laws, 1959, . 259). Ac-

cordingly, Wisconsin has jurisdiction to enforce its conser- __

- vation laws in the area, and over the members of what

was formerly the Menominee Indian Tribe, without ©x-

“ception.

Ward wv. Race Horse (1896), 163 U. S. 504; c

Kennedy v. Becker (1916), 241 U. S. 556;

Anderson v. Gladden (C. C. A 9th 1961), 293 F.

(2d) 463, cert. den., he U. S. 949.

- This i is —_ a case’ like Semele v. United States (1961 ),

368 U. S. 351. In that case this Court held that the state. _

of Washington had no jurisdiction ovér a crime committed

_ by an Indian on land within an Indian reservation, although

such land had been. patented in fee to a white man, and

was included within the limits of a town, since such land»

was within “Indian country” as defined by Title 18 of the

_ United States Code (18 U. S. C., sec..1151). In the Sey- .

‘mour case, the status of the Indian in’ “question as a ward

_ “éf the. United States Government, and the status of the

place ‘where ‘the offense was committed as an Indiari reser- —

vation, had net been terminated as in the present case.

Title to the tand is held by Menominee Enterprises,

Inc., a Wisconsin. corporation. This is more than a. mere

technical change in form of ownership as suggested by

“petitioners (Petition, page 6, note 11).

‘

For example, the corporation is authorized to lease non-

forest lands and. to sell to-enrolled members of the tribe,

_or their heirs at law, individual parcels of non-forest lands

for homesites and other development. Such sales may not

exceed 14,500 acres in the aggregate (Articles of Incorpo-

ration, Menominee Enterprises, Inc., 26 Fed. Reg. No. 82,

April 29, 1961, page 3730; Appendix, post p. 23). The capi-

tal stock of the. company is held in a voting trust for the

benefit of the members of the tribe. And, while the initial

stockholders are tribal members, the voting trust certifi-

cates may be: transferred by gift or will to a member's

". spouse ‘and descendants, -and, after*January:1, 1966, may

he sold, subject to certain conditions (26 Fed. Reg. No. 82;

April 29, 1961, pages 3735- 3737; Appendix, post p. 22).

Petitioners contend that the requirement in the Termi-

nation Act that the tribe’s Plan‘contain, provisions for the

- protection of fish and wildlife suggests, exclusive tribal

jurisdiction -because Congress must have been aware of.

state regulations and would have concluded that such regu-

lations afforded adequate protection had they thought state

law applicable (Petition, page 7). Equally . -tenable,’ -how- —

ever, is the inference that Congress intended that state law

should apply and that the Plan itself, which was submitted

to the Secretary’ of the Interior for approval, should re-

flect the adequacy of state law to protect fish and wildlife. -

This conclusion is supported by the fact that the Termina-

tion Act also required ‘that the’ plan provide for “. . . pro-

tection of the fogest . on a sustained ‘yield basis : i oa

_ US. C. 896), and authorized the Secretary of the 1 enatiee

‘to accept the tribe’s plan provided that he found “?. . that _

it conforms to applicable Federal and State law” (25 v. S.C.

- 896). ‘The Plan was approved by the Secretary of thé

Interior (26 Fed. Reg. No. 82, April 28, 1961, p. 3726 :

et seq.). Significantly, the Plan itself cites for the

protection of the forest on. a sustained yield basis, as

' required by 25 U. S. C. sec. 896, and state legislation for

that specific purpose was enacted (Wis. Laws’ 1959, ch. 258;

see Plan for the: Future Control of Menominee Indian. Tribal

Property -and- Future Service Functions, 26 Fed. Reg. No.

- 82, April 29, 1961, p..3727 et seq.). The Plan, on the other.

hand, contained BS express provision for the protection of

- fish and wildlife.” It is therefore fair to conclude that a

separate, provision. for protection of fish and wildlife was

unnecessary since such protection is provided by the appli- — |

cation of Wisconsin’s conservation laws to the“area andto —_—, v

the members of the tribe. oe bs : , (

* ° D- The treaties between the Sisnawiiiie Indian:Tribe oO :

. and the United States established no hunting rights ..

‘or privileges in favor of the Indians within the

. State of Wisconsin which could continue following

termination. .

Menominee Indian Reservation was created in

1854 out of lands which previously had been ceded by the.

. Menominees to the United. States (10 ‘Stat. 1064). The

reservation was created by a grant of lands to the Indians

from the United States, which lands were. at the time a_

part of the public domain and subject to disposal under .

general law. Menominee Tribe v. United. States (1941),

-95 C..Cls, 232. Accordingly, the Treaty of 1854 ( 10 Stat.

1064) creating the Menominee Indian Reservation was not

a reservation of rights: by the Indians, it was a grant to the -

somiene. The treaty is silent as to the — of any

. &

hunting privileges or rights in favor of the Indians. Co

‘sequently: the treaty imposed no servitude on the lands in

: en in favor of the Indians. Exemption ‘from state

conservation law could only be accorded the Menomineés

so long as théir status as wards of the federal government

continued, and while the area remained an sees reserva-

tion. See, Ward v. Race Horse (1895), 163 U. S. 504; see,

also, State v. — (1938), 212, Wis. 301, 309, 245 N.

W. 284.° es

' In its opinion the Wisconsin Supreme Court held that .

the prov ision in the Treaty of 1854 to the elfect that the:

lands in question would be held as “Indian lands are held”

meant that the Indians enjov@a the same exclusive hunting

rights free from the restriction of the state's game laws

over the ceded lands, which compr ised the Menominee In-

dian Resérvation, as they had enjoyed over: the lands ceded

to'the United States by the i848 treaty. The court went on

to determine that such rights wére terminated by- Public

Law 399. It is respectfully submitted that the provision in:

‘the Treaty of 1854 to the effect that the lands in question

would be held as “Indian lands are hel@” means simply

‘that they are held as the oe directs.

The fact that the provision whereby the lands in ques-

tion were “to-be held as Indian lands are held” includes

exclusive hunting rights free from the restrictions of the

state’s game laws over the ceded lands prior to termina-.

tion does not mean that such provision imposed a servitude

_upon the lands. ; |

. Significantly the Act of Aol £0, 1836 (5 Stat. .10),

creating the Territory of Wisconsin, expressly reserved

Indian rights. The Act of Aniith 6, 1846 (9° Stat. 56), to

enable the Territory of Wisconsin to: ‘become a state and

the Act of May 29, 1848 (9 Stat. 233), ‘admitting Wiscon-

sin into the Union are silent.as to'the reservation of rights

in favor of’ the Indians. Wisconsin was admitted into the

Union on equal footing with the original states. Accord-.

ingly, the énabling Act of August 6, 1846, and the act ad-

mitting Wisconsin into the Union on an equal footing ar,

in patent conflict with any grant, express or implied, * of >

hunting privileges, in favor of the Indians which, would

survive a canveyance of title to the reservation lands to a

private corpor ation, dnd the dissolution of the reservation .

and the trusteeship of the United States over the Indians

thereby ending their status as wards of the Federal Gov-

ernment. Ward v. Race Horse (1895), 163 U.,S. 504, 514,

“516. 7 | :

This is not a case like Tulee v. Washington (1942), 315

U.S. 681, in which this Court held that where a treaty with

the Yakima Indians expressly reserved to members of the

tribe certain fishing priviléges, and where the state did not

deny that the enabling act, which admitted Washington

as a state preserved the treaty rights of the Indians, the

State could not requi.g™the Indians to pay a license. fee. *

Significantly, however, this Court did recognize the power

of the State to impose purely regulatory restrictions upon

the fishing privileges of such Indians outside of their reser-

vations, despite the express reservation of fishing ‘privi-

leges in. favor of the Indians contained in. the treaties.

*According to Menoniinee Tribe v. United States (1941), 95 C. Cis. 232,

241, part of the inducement for selecting the lands in question for the

Menominee Reservation was that they contained swamp lands which

“were suitable for hunting. .

443

/. Tulee t v. Washington (1942), 315 U. S. 681, 684; - See, also,

Maison v. Federated Tribes: os C. A. 9th, 1963), 314 F. 2d

_ 169, cert. den. 375 U. S. 829.

In the light of the foregoing, any attempted ‘reservation

of hunting rights or privileges in favor of the Indians which -

would exempt them from the state’s conservation laws, fol-

- lowing abolition of the reservation, and the termination of

the federal trusteeship over the individual Indians, would

be of doubtful constitutionality, particularly in view of

thefact that Wisconsin was ’ admitted into the ‘Union on an

equal footing with the other states and without any reser-

vation of such rights in favor of the Indians. Ward v. Race _

Horse (1895), 163 U. S. 504; State v. Johnson (1933), 212

Wis. 301, 309, 249 N. ‘Ww. 284.

CONCLUSION

It is therefore respectfully submitted that the facts

of this case do not present any substantial federal ques-

tion and that the application for writ of certiorari should

' be denied.. ' |

ee Respectfully submitted,

_ GEORGE THOMPSON

Attorney General :

HAROLD H. PERSONS

Assistant. Attorney General

JOHN H. BOWERS

* Special Counsel

° _ Attorneys for Respondent,

", | State of Wisconsin

APPENDIX

APPENDIX’

| FEDERAL REGISTER, Volume 26, No. 82, April 28-

29, 1961, pages 3726-3755, in part. 7 .

* * *

FR, p. 3726: - en ee

—

DEPARTMENT OF THE INTERIOR

Office of the Secretary

‘TERMINATION OF FEDERAL SUPERVISION OVER -

WISCONSIN AND OF THE INDIVIDUAL MEMBERS

THEREOF:

Pisani to the authority “contained in section 10 of

the Act of June 17, 1954 (Public Law 83-399; 68 Stat. 250),

it is hereby proclaimed that the title to all. property, real

“ahd personal, held in trust by the United States for the

Menominee Tribe has been transferred in accordance with

section 8 of the Act of June 17, 1954, supra, and that effec-

tive midnight April 30, 1961, indiv idual members of the

_ Menominee Tribe shal} not be entitled to any of he“serv-

ices performed by the United States for Indians because of

oo their status as Indians; all statutes of the United States

which affect Indians because of their status as Indians shall

no longer be applicable to the members of the Menominee

Tribe; and the. laws’of the several States shall apply to the

Menominee Tribe and its members in the same manner

as they apply to other citizens | or — Within their

* jurisdiction.

APPENDIX

As required “by section 7 of the Act of June 17, 1954,

supra, the Plan for the Future Control of Menominee Indi-

an Tribal Property. _and Future. Service Functions. is.pub- |

lished and -appears immnietianety below this notice. ;

Srewart L. UDALL,

Secretary: of the Interior.

April 26, 1961.

[F.R. Doc. CL", Filed,- Apr. 28, 1961; 8:55 a.m.|

F. R., p. 3727:

Saturday, April 29, 1961

Bureau of Indian Affaire

PLAN FOR THE. FUTURE CONTROL OF ‘MENOMINEE//

' INDIAN TRIBAL PROPERTY AND FUTURE SERV-

ICE FUNCTIONS

-—.The Plan § consists of the following documents:

a, Statement of the Plan and Description of its Ob-

jectives and Goals (revised December 1, 1960).

2. Articles of. Incorporation of Menominee Enterprises,

Inc. (revised November 30, 1959).

3. By-Laws of Menominee Enterprises, Inc. (revised

November 30, 1959).

4. Menominee Common Stock and Voting ve ‘(re--

‘vised November 30, 1959).. |

™~.

~wont

O i

. APPENDIX

‘3. Menominee Assistance Trust ( revised November

- 3, 1959). + se

6. Menominee Satirsetnn: Inc., Bond sptniuee (form

of bond inclidéd)~trevised.November | 30, 1959).

7. Menominee Indian Tribe, Certificate’ of Beneficial

interest. e: i

In addition the following documents are included by

reference: '

Tribe, January or

2. Resolution o\General Council, Menominee ‘Indian

Tribe, July 27, 1959. ~e

3. Resolutior, of Advisory Council, Menominee Indian

Tribe, July 28, 1959.

4. Letter of Glen A. Wilkinson, Attorney for Tribe, to

Secretary of Interior, July ‘31, 1959. . a

5. Letter from Acting Secretary of Interior to James

G. Frechette, Chairman, Menominee er? Council,

July 31, 1959.

6. Letter from Acting Secretary of Interior to james

G. Frechette, Chairman, Menominee er Council, Oc-

tober 30, 1959. } ; '

6a. Letter from George W. Abbott, Assistant ie

tary of Interior to Jerome Grignon, Chairman, Menominee

Advisory Council, January 9, 1961.

1. Resolution of General Council, Menominee Indian

APPENDIX

7. Copies of Chapters 258, 259, and 260, Laws of Wis-

consin, 1959. |

FB, R,, p.3730:

Articles of Incorporation of Menominee Enterprises, Inc. .

The undersigned — iduals, who are the members of

the Coordinating and Negotiating Committee of the Me-_

“nominee Indian Tribé, for the purpose of forming a Wis-.

consin corporation under ‘Chapter 180 of the Wisconsin

Statutes, do hereby adopt the following Articles of Incor-.

oration:

ArTIcLeE I—NAME

The name of the corporation is Menominee Enterprises,

Inc.

- ARTICLE XI SALE OF LAND

Unless otherwise pores ized by the affirmative vote of

the holders of not less than two- -thirds of the outstanding

shares of stock entitled to vote thereon, the corporation

shall have no authority to sell, exchangg, assigt , convey or

otherwise ‘transfer all or any portion of the real property

owned by the corporation; prov ided, however, that the

board of directors, or the appropriate officers at the direc-

tion of the board of directors, may mortgage or pledge cor-

poration assets, for such borrowing purposes as it ‘shall

e e*

qué teem my

‘APPENDIX

_deem necessary and advisable, in an amount not exceeding |

- $250,000: and, provided, further, that the board of directors

or the appropriate oflicers at the direction of the board of.

directors shail have authority to lease real’ property other

than lands designated as forest lands* and, provided, fur-

ther, that-the board of directors, or the appropriate officers

at the direction of the board of directors; shall have au-;

thority to sell or to convey to individuals, -who were en-

rolled tribal members under section 893, Title 25, U. S.C. -

(final roll) or their heirs-at- law, individual parcels which

in the aggregate w ill not exceed 14, 500 acres for home sites,

agricultural use or other development, : which lands shall.

‘be zoned for that purpose and shall not include lands desig-

nated as forest lands. ;

F.R,, p. 3734:

_ Menominee Common Stock: and Voting Trust \

* » «* ‘ \

FR, p. 3736: Fe eer : |

(A) No Beneficiary may transfer any Trust Certifi-

cates prior to January 1, 1966, except that transfers may be |

made by gift or by will or operation of laws of deseent at

death, subject to the conditions: specified 1 in paragraphs (C}

(1) and (2) and (D).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.