Opposition Brief — Menominee Indian Tribe of Wisconsin v. Thompson

QUESTIONS PRESENTED

l. Does the alleged “Indian understanding” override

plain treaty language?

2. In an 1831 treaty with the United States. the

Menominee Indian Tribe retained title to lands west of the

Fox River and reserved the area “for a hunting ground, until

the President of the United States, shall deem it expedient to

extinguish their title” to these lands. The tribe also

“promise[d] to surrender it immediately” when notified of the

government’s desire to possess it. Were the tribe’s special

hunting rights thereafter extinguished as a matter of law

when the tribe conveyed title to these lands to the United

States through subsequent treaties?

c In the alternative, were the tribe’s special hunting

rights on these lands extinguished as a matter of law (a) when

the tribe entered into subsequent treaties requiring their

removal from the lands and their relocation to Minnesota. or

(b) when Wisconsin attained statehood in 1848?

QUESTIONS PRESENTED

STATEMENT OF THE CASE

li

TABLE OF CONTENTS

REASONS WHY THIS COURT SHOULD

NOT GRANT THE PETITION

A.

B.

Page

spentdnbudsdudintanitatiaptcuinmtbusiinacdatl [

iotsaantvaevtaroenbtaaguagadintieleaiionaes

This case presents nothing

WUE, cnconscersinnsnsthoctsbascaioeruaateee es 8

2 The treaty unambigu-

ously makes the

hunting right _ title-

NT sa vssiscscniccosidainerescas, 8

2. Having lost title, no

other event was

necessary to extinguish

the usufructuary right. .......... 1]

3. Alternatively, the 1836

and 1848 _ treaties

independently _extin-

guished __ the 1831

temporary use rights............. 13

4. The lower courts did

not confuse use rights

with title to land........... rae. 17

Cc Petitioner would undermine

this Court’s precedents that

unambiguous language is

COMPOIIIMG, ...........ccccceeeeeseeeeeeeeeeeeerees 18

D Che claimed inconsistency with

this Court’s precedents is

raised for the first time and is

Without METIt. .............ccceeeeeeeeeeeeeeeeees 20

I In any event, there is an

independent ground for

upholding the decision:

statehood extinguished these

temporary mghts under the

183] treaty. 0... cccccceceeeseeeeeeeeeeeeees 23

Nothing in the Chippewa treaty

litigation will affect the result

Of this CASE. ...........cccsseceeeeeseeeeeeereeeeee

CONCLUSION o0....cccccccccccccccssecseeeeceeseteereeeseececeneneeneeerseneeens 28

CASES CITED

Beecher v. Wetherby,

Fe Wiech PEF CBOE FD seevecerverscnnecsrsntsesnstcianepinneciianiaineee 16

iV

Choctaw Nation of Indians v. United States,

FE Weaels ee CEE tescicticetindenntentiepidienbomnandien 19

Confederated Bands of Ute Indians v. United States.

Fe ERs PE BEE P sutbccctascinesceemsemscbdebtinciastseeuieka 19

DeCoteau v. District County Court for the

Tenth Judicial District

Ae as ATED seicciccentennicrdenstsinctoeantencabnnbee 19

Menominee Tribe of Indians v. United States,

EE Sous Se EE eactcetahedincaréscatecredincbecatnens passim

Mille Lacs Band of Chippewa Indians v. Minn.,

124 F.3d 904 (8” Cir. 1997)

cert. granted, 118 S.Ct. 2295 (1998) 000.0... passim

New York Indians v. United States,

phe Sekt | aaa eee ereanee 14

Northwestern Bands of Shoshone Indians v.

United States,

S24 U.S. 335 (194S) .ncsrerecesosressenvesevsrcensecenencenconeneees 19

Oregon Department of Fish & Wildlife v.

Klamath Indian Tribe,

FD ee FP CD niientiontebicisinicanndesatigudsanis 12, 19, 27

South Carolina v. Catawba Indian Tribe.

Fe AA Oe CID aicitescecctodies ent eenaceen, 19

State v. Sanapaw,

21 Wis. 2d 377, 124 N.W.2d 41 (1963),

cert. denied, 377 U.S. 991 (1964).............cccceceeeeeees

tN

we

United States v. Choctaw and Chickasaw Nation,

OF er Bae re OE carsinccicksstrtdvicctenvermicooasamennes 12, 20

Ward v. Race Horse.

BE Guay GE OPIN icscccccicucisevessucrincieuctrtsecnndasenstaniees 24

Wisconsin v. Lane

Re Gis GABF ETA) ncsecstocenicincesessticnetsenmiensebeses passim

Youakim v. Miller,

Dad Wis AOE GEO FO) vecpnccsevecesecepstersapeniobcnssbinicinmincs 20

ACTS AND TREATIES

Act admitting Wisconsin to the Union in 1848

Sy SI ROD cnciaNioeisedenteesallnoodesandacatteniiaeisiceepspbaneanneeas 24

Act creating the Wisconsin Territory (5 Stat. 10) ....00.0.000.... 24

Enabling Act of 1846 (9 Stat. 56)...........:cccccscesseseesereeseeeeeeees 24

Treaty with the Chippewa of

February 22, 1855, 10 Stat. 1165.00.00... cceeeee 25, 26

Treaty with the Chippewa of

FUEY 9, 1ST, 7 Stat. S36 .cccocccccverssecosevesascooses 25, 26, 27

Treaty with the Menominee of

February 8, 1831, 7 Stat. 342;

supplemented February 27, 1831, 7 Stat. 346;

amended October 27, 1832, 7 Stat. 405. ........... passim

Treaty with the Menominee of

May 12, 1854, 10 Stat. 1064 oo... eens passim

Treaty with the Menominee of

Chet. BB, BRAG, DBR: DO cacccccctimscienscessstvenasisies passim

Treaty with the Menominee of

September 3, 1836, 7 Stat. 506......000..cccceeeeeeeeee passim

vi

OTHER AUTHORITIES

Annual Report of the

Commissioner of Indian Affairs

Ce eID sree ets) ee ne] Seo ee 15

Pa AE BEE FEE chnvitiststei encase oe 8

Pe Bc Es FPP iatilnc ae ee ee ee 4

Respondents respectfully submit this brief in

opposition to the Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit.

STATEMENT OF THE CASE

Petitioner commenced this action in January 1995 to

enjoin state of Wisconsin officials (hereafter “state”) from

interfering with claimed aboriginal and treaty-based

usufructuary rights. R.2. The complaint advanced six

different claims, but the tribe here abandons all but one -- the

claimed hunting right west of the Fox River in Wisconsin

under the 1831 treaty.!

There were four treaties between the tribe and the

government in 1831, 1836,° 1848,° and 1854.4 Only the

1831 treaty reserved usufructuary rights. It distinguished

between lands east of the Fox River and lands west of the

Fox River. On the east, title was conveyed to the United

States but the right to hunt and fish was preserved until the

lands were “surveyed and offered for sale by the President;

they conducting themselves peaceably and orderly.” App.

170. As the tribe conceded, these lands were surveyed and

offered for sale by 1834. App. 4, 20-21, 151. On the west,

the hunting right was to remain “until the President of the

United States, shall deem it expedient to extinguish their

title.” App. 171. When notified of the government’s “desire

to possess it,” the “tribe promise[d] to surrender it

‘February 8, 1831, 7 Stat. 342; supplemented February 27, 1831, 7 Stat.

346; amended October 27, 1832, 7 Stat. 405.

*September 3, 1836, 7 Stat. 506.

*October 18, 1848, 9 Stat. 952.

*May 12, 1854, 10 Stat. 1064.

The tribe’s appendix inadvertently omits the word “it”.

eens |

2

immediately.” Id. In 1836 the tribe ceded lands immediately

west of the Fox, and in 1848 it ceded all remaining

Wisconsin lands “wherever situated.”®

In addition to ceding lands, in the 1836 treaty the

Menominee agreed to remove from the portion ceded.’

Likewise in the 1848 treaty, having ceded all Wisconsin

lands, the Menominee agreed to remove to the Minnesota

reservation conveyed to it by that treaty.® But they were

permitted “to remain on the lands hereby ceded for and during

the period of two years ... and until the President shall notify

them that the same are wanted.” Article VIII; App. 203.

The Menominee complaint did not mention the 1848

treaty. When the state officials cited its terms of cession and

obligatory removal, the Menominee argued that treaty was

the product of fraud’ and that it had been nullified by the

1854 treaty. App. 60-61. The courts below, however, read

all four treaties together. The district court said, "Each treaty

built upon its predecessor by continuing forward the

obligations undertaken in the previous agreements." App. 65.

°Under the 1836 treaty, Article First, the Menominee "cede[d] to the United

States, all of that tract or district of country” west of the Fox River described

in that article. App. 190. Under the 1848 treaty, Article II, the Menominee

"agree to cede, and do hereby cede, sell, and relinquish to the United States

all their lands in the State of Wisconsin wherever situated." App. 199..

’The 1836 treaty, Article Fourth, provided that "the said Meromonie nation

do agree to remove from the country ceded, within one year after the

ratification of this treaty." App. 193.

‘Article IV gave the Menominee benefits “preparatory to their removal to

the country set apart for and given to them” and “in consideration of their

removing themselves, which they agree to do.” App. 200. The new

reservation was some 300 miles away. App. 18. See the district court’s

extensive discussion, App. 127-30, 155-56.

*There is no basis for the tribe’s puzzlement here as to why the courts

below thought it argued the 1848 treaty was a product of fraud. See its

district court brief, R.25, at 17, 19, 41, 42, 44. Also see its Seventh

Circuit brief at 32; but see 30 n.17 (asserting its references to fraud were

not intended to argue for invalidation of the 1848 treaty).

3

The court of appeals noted that “courts must construe

successive treaties in conjunction with the language of earlier

treaties.” App. 16 (citations omitted).

The 1854 treaty itself explains what happened after

the 1848 treaty. The Menominee did not want to go to

Minnesota. See Preamble (“upon manifestation of great

unwillingness ... to remove ... and a desire to remain in the

State of Wisconsin”). App. 206. So, “the President

consented to their locating temporarily upon the Wolf and

Oconto Rivers,” id., and the 1854 treaty was to be

“supplementary and amendatory” to the 1848 treaty.

Preamble, App. 205. The Menominee retroceded the

Minnesota reservation to the government. Article 1, App.

207. The government gave the Menominee a Wisconsin

reservation lying on the Wolf River as well as other enhanced

benefits. App. 207-08, esp. Article II.

The state moved to dismiss for failure to state a claim

because the treaties on their face showed that the temporary

usufructuary rights were title-dependent and that the tribe had

given up title. At first the district court dismissed only one of

the six claims, but admitted it was a "close question" whether

the plain treaty language could support the tribe’s use night

claims. App. 47. The tribe “has not explained how it can show

that the apparently clear language of the treaties into which it

entered did not operate to terminate all of its rights, title and

interest to its lands in the state of Wisconsin, including its

usufructuary rights.” App. 95. But the court decided to give

the tribe another chance: it called for "contention

interrogatories ... to learn the factual basis for its claims." Id. at

54. The court noted that the tribe was “noticeably reticent” to

explain the basis of its claim, id. at 49, and during a later

hearing expressed its frustration over the continued failure to

explain.

THE COURT: ... This case was filed

... [f]ifteen months ago. You must know what

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4

the basis for your filing is. ... [Y]Jou have

kept it a secret, and [ think it's time to let it

out.

Tr. 3/22/96 ai 72.

THE COURT: I did not criticize you

for not bringing forth documents. I criticized

you for not letting me know why you believed

that these treaties could be interpreted to say

something other than what they seem to say on

their face.

THE COURT: Anyone can walk into

court and say we think that this treaty that says

day is day and night is night should be

interpreted to say day is night and night is day.

That takes no effort whatsoever. But it's also a

violation of the Rule 11.

Id. at tr. 73.

On receipt of the tribe’s answers to contention

interrogatories, the state renewed its motion to dismiss, relying

only on the treaty language and historical materials from the

tribe’s answers to the contention interrogatories. R. 78, 79.

While decision was pending, petitioner at no time sought leave

to supplement its June 26, 1996, brief (R. 91) to explain how

the experts’ reports filed on September 3, 1996 (R. 99-104),

might affect the pending decision. It did not flag them to the

district court until after dismissal in its motion under Fed. R.

Civ. P. 59(e). R. 108, 110-19. Nevertheless, on rehearing the

court emphasized that it had "made a careful review of

plaintiffs motion, supporting briefs and expert reports in an

effort to ensure that none of plaintiffs arguments has been

overlooked or construed incorrectly." App. 149.

a eel

5

In its dismissal decision, the district court treated the

motion to dismiss as one for judgment on the pleadings and

accorded the tribe’s entire submissions, including its answers

to contention interrogatories and its judicially noticeable

historical materials, as supplemental allegations enjoying the

same liberal indulgences as on a motion to dismiss. App.

100-02. The court of appeals did so as well. App. 12-14.

REASONS WHY THIS COURT

SHOULD NOT GRANT THE PETITION

A. Summary

There are four reasons why this Court should not

grant the petition for a writ of certiorari: (1) the case simply

involves the application of unambiguous treaty language; (2)

petitioner would undermine this Court’s precedents that

unambiguous language is controlling; (3) petitioner’s

contention, that the holdings below are contrary to two prior

decisions of this Court, is being raised now for the first time

and lacks merit; and (4) as an independent ground for

affirmance, the Equal Footing doctrine extinguished these

temporary rights when Wisconsin attained statehood in 1848.

This case presents nothing novel. The tribe merely

refuses to accept plain and unambiguous treaty language. The

tribe agreed in 1831 that its use rights west of the Fox River

in Wisconsin would remain “until the President of the United

States, shall deem it expedient to extinguish their title.” App.

171. When notified of the government’s “desire ... to posses

it,” the “tribe promise[d] to surrender it immediately.” Id.

Thus, the treaty language itself made the rights title-

dependent.

Critically, the tribe never doubts it lost title. Nor

could it: the tribe ceded ownership of part of its remaining

lands in 1836 and all of the rest in 1848. Rather, the tribe

6

simply does not want to follow the plain, unambiguous treaty

language. As noted, the district court admonished tribal

counsel of the Rule 11 consequences of arguing “that this

treaty that says day is day and night is night should be

interpreted to say day is night and night is day.” This brief at 4.

Petitioner would undermine this Court’s precedents

that unambiguous language is controlling. It baldly told the

district court that "treaty language is almost irrelevant" and

that treaties "cannot speak for themselves,"!? a position it

reiterated in the court of appeals. Principal br. at 5 and reply

brief at 9 (there need be “no threshold finding of ambiguity” to

skip from the language to alleged Indian understanding).

By insisting that the tribe’s subjective view is

controlling regardless of the clarity of the language, the tribe

would have this Court undermine the solemnity of treaties.

No longer could Congress, the President, or anyone else rely

on plain, ordinary words. What the Indians allegedly thought

the words meant would be dispositive, even in the face of

plain treaty language. This Court never has so held. Indeed,

it has clearly and repeatedly held otherwise.

The tribe for the first time argues that the holdings

below are contrary to Wisconsin v. Lane, 245 U.S. 427

(1918), and Menominee Tribe of Indians v. United States,

391 U.S. 404 (1968). The tribe cited these cases below for

different purposes than now advanced here.

Moreover, the contention wholly lacks merit. As to

Lane, the tribe distorts this Court’s language as meaning that

the 1848 treaty gave them an indefinite nght of occupancy on

Wisconsin lands. In fact, Lane confirms the lower court

holdings in this case that the Menominee remained in

Wisconsin beyond the time allowed in the 1848 treaty as a

matter of grace and discretion of the government. As to

1R 25 at 37: R.109 at 16. See also R. 25 at 22-23, 31; R.109 at 41. 52.

———————————_——S ee

7

Menominee Tribe of Indians v. United States, this Court held

that the 1854 treaty, which created a reservation out of a

small portion of the lands previously ceded (compare maps,

App. 214 and App. 220), superseded Wisconsin’s regulatory

power by force of the Supremacy Clause, but only as to the

reservation lands. 391 U.S. at 411 n.12. In fact, this Court

acknowledged that the tribe had surrendered its off-

reservation usufructuary rights in order to get on-reservation

usufructuary rights. 391 U.S. at 406 n.2. In short, the tribe

would have this Court reverse its holding that there no longer

were off-reservation use rights.

In addition, under the Equal Footing doctrine these

temporary rights established under the 1831 treaty were

extinguished when Wisconsin attained statehood in 1848.

Only permanent treaty-based rights survive statehood. The

terms of the 1831 treaty manifestly bespeak temporary rights:

the special rights would continue “until” title was

extinguished and, once notified of the government’s “desire

to posses it,” the “tribe promise to surrender it

immediately.” App. 171.

This is an entirely different case than Mille Lacs

Band of Chippewa Indians v. Minn., 124 F.3d 904 (8™ Cir.

1997), cert. granted, 118 S.Ct. 2295 (1998). The rights here

were wholly title-dependent. The treaties here ceded title to

the same lands with the title-dependent use rights, not to a

separate parcel as in Mille Lacs. Last, Mille Lacs involves a

challenge to the validity of an Executive order requiring the

Indians to remove without first obtaining their consent.

Here, the duty to remove was validated by Congress when it

ratified the treaties which the tribe had signed and agreed to.

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8

B. This case presents nothing

novel.

l. The treaty unambigu-

ously makes the

hunting right _ title-

dependent.

A case needs to present something exceptional to

warrant this Court’s discretionary review. A petition will be

granted “only for compelling reasons.” This Court’s Rule

10.

There is nothing compelling here. The right to hunt

was dependent on title to land. The tribe lost its title to land.

Therefore, it lost its mght to hunt. This case is that simple.

Title dependency is obvious on the face of the

treaties. The 1831 treaty distinguished between lands east of

the Fox River in Wisconsin and lands west of it. Regarding

the lands east of the Fox, the tribe “cede[d] and forever

relinquish[ed]” them to the United States. App. 166.

Speaking to reserved use rights,

The Menomonee ... shall be at liberty

to hunt and fish on the lands they have now

ceded to the United States, on the east side of

Fox River and Green bay, with the same

privileges they at present enjoy, until it be

surveyed and offered for sale by the President;

they conducting themselves peaceably and

orderly.

App. 170 (emphasis added).

Turning to the west of the Fox, the treaty provided

that the lands

adjoining the farming country on the west side

of the Fox river, will remain to them as

heretofore, for a hunting ground, until the

President of the United States, shall deem it

expedient to extinguish their title. In that

case, the Menomonee tribe promise to

surrender it immediately, upon being notified

of the desire of Government to possess it.

App. 171 (emphasis added).

Until this petition, the tribe has argued that its

usufructuary rights under the 1831 treaty still existed both

east and west of the Fox. In regard to the claim east of the

Fox, the district court'’ and the court of appeals’? each

identified its many flaws. The tribe wisely abandons it here.

'' As the district court aptly said:

The natural reading of that clause is that the

Menominee could continue to hunt and fish on the

ceded lands until the President sold the land but that

their right to do so would expire before then if they did

not behave in a peaceable fashion.

App. 117. Further, "there was no ambiguity about the fact that it [the liberty

to hunt and fish] would end at some point, regardless how well the

Menominee conducted themselves." App. 152. Indeed, the Menominee

agreed the land was surveyed and offered for sale by 1834 or 1835. App. 4,

20-21, 151. The district court also identified other circular and contradictory

reasoning in petitioner’s argument. See App. 115, 152-53.

'2fter noting the land was surveyed and offered for sale in 1834, the

court said:

Therefore, according to the terms of the treaty, the

usufructuary rights on the east side of the Fox were

extinguished long before the Tribe and the United

States entered into the 1848 Treaty. Because the right

to hunt and fish on these lands was extinguished in

1834 through satisfaction of the conditional term

(namely, the land was surveyed and offered for sale), it

10

Nevertheless, the tribe presses its claim west of the

Fox. But it is equally without merit. The “hunting ground”

would remain “until [the President] shall deem it expedient to

extinguish their title,” and the tribe “promise[d] to surrender

it immediately, upon being notified of the desire of

Government to possess it.” App. 171.

Quite simply, once title was gone and once the

government wanted it, the hunting ground was to be

surrendered immediately. As the court of appeals stated,

“(T]he 1831 Treaty explicitly links the right to hunt on the

land to having title to the land.” App. 22. It necessarily

follows, as the district court held, “With the loss of title, the

tribe lost the use rights that were dependent on title.” App.

154.

The tribe lost title by ceding these lands west of the

Fox River in its 1836 and 1848 treaties Therefore, it lost the

hunting right.

was unnecessary to explicitly abrogate the right to use

lands east of the Fox in the 1848 Treaty, and even less

reason to mention that right in the 1854 Treaty.

App. 20-21. As to the tribe’s argument that the use rights would last so

long as they behaved “peaceably and orderly,” the court said:

[T]he 1831 Treaty simply does not support such an

interpretation: it does not distinguish between land

actually sold and land offered for sale. Moreover, the

government's express purpose for entering into the 1831

Treaty was to encourage the Menominee to become

farmers and to use the land east of the Fox River for

settlers. Allowing the Tribe to hunt on the lands that

were not actually sold certainly would not have served

the government's goals of discouraging the “‘ribe's

pursuit of hunting and gathering food and encouraging

settlement. Given this historical context, we will not

ignore the plain meaning of the 1831 Treaty.

App. 21.

1]

2. Having lost title, no

other event was

necessary to extinguish

the usufructuary right.

Petitioner relies heavily on the fact the later treaties

ceding all Wisconsin ownership interests do not also

explicitly say that they swept in the temporary 1831 hunting

rights west of the Fox. The short answer is that such a

subsequent explicit abrogation was unnecessary because the

1831 treaty itself set forth the extinguishing condition,

namely, loss of title. As the court of appeals said,

The 1831 Treaty explicitly links the right to

hunt on the land to having title to the land:

the Treaty states that the Tribe’s right to hunt

on the land remained until the President

extinguished their title to the land. The

Treaties of 1836 and 1848, in which the

Menominee ceded title to those lands, thus

-extinguished their right to use the land for

hunting. Again, it was unnecessary to

mention the usufructuary rights in the 1854

Treaty.

App. 22-23. The district court also put it nicely.

It would be unnecessary for the government to

provide expressly for the extinguishment of

rights that were to expire of their own accord.

The rights would be extinguished by the

occurrence of the terminating events, as

provided.

App. 56-57.

12

It is critical to observe that petitioner does not doubt

that it lost title to the land.'’ The tribe, therefore, concedes

that the extinguishing event occurred.

The tribe argues that the decisions below conflict with

this Court’s recognition in Oregon Department of Fish &

Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 765-766

(1985), that “Indians may enjoy special hunting and fishing

rights that are independent of any ownership of land.” Pet. 13.

But Klamath undermines rather than supports the tribe’s claim

in this case. As this Court emphasized in Klamath, tribal use

rights survive the cession of underlying title only if a treaty

“created hunting and fishing rights that were separate from and

not appurtenant to” ownership of the lands themselves;

otherwise, “silence concerning specific rights ... is consistent

only with an intent to end any special nights of the Tribe,” and

a conveyance of underlying title “unquestionably would

encompass any special right to use the ceded lands for hunting

and fishing” that “the Indians had previously possessed.” Id. at

766, 768, 773 & n. 23 (emphasis added). In this case, not only

were the tribe’s hunting rights not “separated” from underlying

title, the 1831 treaty expressly provided that they would last

only until title itself was extinguished. When title was

subsequently extinguished through the 1836 and 1848 treaties,

this “unquestionably” extinguished the Menominee’s

“appurtenant” use rights as well. Id. at 766, 768.

"It could not possibly make such an argument given the clarity of the treaty

language of 1836 and 1848. Under the 1836 treaty, Article First, the

Menominee "cede[d] to the United States, all of that tract or district of

country" west of the Fox River described in that article. App. 190. Under

the 1848 treaty, Article II, the Menominee "agree to cede, and do hereby

cede, sell, and relinquisi to the United States all their lands in the State of

Wisconsin wherever situated." App. 199.

13

3. Alternatively, the 1836

and 1848 treaties

independently _extin-

guished the 1831

temporary use rights.

The 1836 and 1848 treaties did not merely cede title

and all interests in the land. They also required the tribe to

leave Wisconsin.'4 Thus, in addition to being the self-

extinguishing events under the 1831 treaty, these treaties

extinguished all interests even if the usufructuary rights had

been indefinitely reserved in 1831. Until this suit, the tribe

always admitted it had given up these interests. See its 1951

petition to the Indian Claims Commission that, by these

treaties, it "relinquished and ceded ... all its right, title and

interest in and to" the affected tracts. App. 41. (emphasis

added).

The duty to leave Wisconsin for Minnesota is wholly

incompatible with retaining hunting rights in Wisconsin. As the

district court said:

[P]laintiff repeats its previous argument that

because the 1848 treaty did not make explicit

reference to abrogation of the use rights and

the tribe never abandoned those rights or

relinquished them voluntarily under the treaty,

the nights remain in the tribe. This argument

is logically inconsistent with the concept of

“Under the 1836 treaty, Article Fourth, "the said Menomonie nation do

agree to remove from the country ceded, within one year after the

ratification of this treaty." App. 193. Likewise, under Article II of the 1848

treaty the tribe ceded "all [Menominee] lands in the State of Wisconsin

wherever situated," App. 199; under Article IV they received benefits “in

consideration of their removing themselves, which they agree to do,” App.

200; and under Article VIII they were allowed “to remain on the lands

hereby ceded for and during the period of two years ... and until the

President shall notify them that the same are wanted.” App. 203. See the

district court’s extensive discussion, App. 127-30, 155-56.

14

obligatory removal from the area in which the

rights allegedly existed and it depends entirely

on the flawed premise that the tribe's use

rights were permanent in nature.

App. 156. The court of appeals said, “[T]he Menominee

could not reasonably have expected to continue hunting and

fishing on the land ceded in 1848, considering the Tribe had

just agreed to leave the Wisconsin land and move to the

Minnesota reservation approximately 300 miles away.” App.

18.

It makes no difference that the Menominee did not in

fact leave Wisconsin for Minnesota. By the 1854 treaty the

tribe exchanged its 1848-granted Minnesota home for a

Wisconsin reservation. The controlling decision is New York

Indians v. United States, 170 U.S. 1 (1898). "[T]hat their

failure to remove should result in a cancellation of the treaty,

and a restoration to them of their rights in the Wisconsin, lands

. ls precluded by the language ... which contains a present

and irrevocable grant of the Wisconsin lands, and puts it

beyond their power to revoke the bargain." Id. at 19.

Therefore, as the court of appeals said, “The 1848 Treaty ...

contained a present and irrevocable grant of the Wisconsin

lands; the Tribe’s refusal to move to Minnesota does not affect

that grant in any way.” App. 19. Or, as the district court put it:

By ceding the Minnesota lands [in 1854], the

Menominee acknowledged that the 1848

treaty had taken effect even though they had

not removed to Minnesota. Otherwise, the

Menominee would not have had the lands in

Minnesota to exchange for those on its new

reservation.

App. 129. “ [B]y maintaining that it did cede its land.

plaintiff recognizes that the 1848 treaty was not contingent

15

upon the exploratory trip or the removal. The plain language

of the treaty supports this conclusion.” Id. at 127. Further,

The treaty took effect when it was signed, as

shown by the fact that when the United States

agreed not to force the Menominee to go west

to lands they disdained, an entirely n‘ wv treaty

was negotiated, and made supplementary and

amendatory to the 1848 treaty. Plaintiff does

not contend that it did not obtain an interest in

the lands in Minnesota when it signed the

treaty. Obviously, those lands were the

consideration for the grant of the Wolf River

Reservation to plaintiff in 1854.

Id. at 155-56,

Here, the Menominee argue that the 1848 treaty right to

remain for two years gave them a right to remain indefinitely.

Apart from the tortured construction of the treaty language,

however,'> the Menominee conduct belies any such

understanding. The tribe asked permission to remain longer

and the President granted the request as an act of favor, not

right.'° This Court has noted this indisputable historical fact.

* Article VIII provided:

It is agreed that the said Indians shall be

permitted, if they desire to do so, to remain on the lands

hereby ceded for and during the period of two years

from the date hereof, and until the President shall notify

them that the same are wanted.

App. 203.

The 1851 report of the Commissioner of Indian Affairs stated the

following:

The fall of last year was the period fixed upon for their

removal; but owing to their urgent appeals, and those of

many of the whites in their immediate vicinity, and in

consideration of their peaceful habits, the President

granted them permission to remain until the Ist of June,

16

See Beecher v. Wetherby, 95 U.S. 517, 526-27 (1877) ("the

President permitted their temporary occupation") (emphasis

added.) Also see Wisconsin v. Lane, 245 U.S. 427, 429-30

(1918) (“the President gave the Indians permission to remain

upon the ceded lands until June 1, 1851; this time was

subsequently extended by the President to October 1, 1852”).

Petitioning to stay is the opposite of asserting a right to

stay. The court of appeals rhetorically asked: “if in 1850 the

Tribe did not believe that the 1848 Treaty was binding, why

did the Tribe seek the president’s permission to remain on land

in Wisconsin; if the Treaty was non-binding such permission

would obviously have been unnecessary.” App. 18.

All this undisputed historical evidence rejects the

present-day Menominee claim of having thought they had a

treaty right to occupy Wisconsin land indefinitely. Indeed, the

1854 treaty preamble itself stated that the tribe remained in

Wisconsin beyond the two years because "the President [had]

consented to their locating temporarily upon the Wolf and

Oconto Rivers." App. 206 (emphasis added). Summarizing,

the district court correctly said:

of the present year. At the expiration of this last named

period, it being known that they had made no

arrangements, and were in no condition to emigrate, the

President again, at their earnest solicitation, consented

that they might remain a twelvemonth longer, on

condition, however, that they should not interfere with

the public surveys, and with the distinct understanding

that this extension of time was to be considered an act

of favor, they being still subject to removal at his

discretion; and of this Superintendent Murray was

instructed to take care thai they should be fully advised.

(AROCIA 1851) (Ct. App. appendix 139(5)). The district court recited

other indisputable public records showing the Menominee understood they

remained by sufferance and favor, not by a reserved use right or a right to

revoke a treaty. App. 128-29; R. 15; R.71 (tab 11 at 52).

17

Plaintiff has identified no material ambiguity

that would suggest it could prevail upon its

claim. ... [P]laintiff has failed to allege any

facts that would show that the 1848 treaty is

anything other than an obligatory removal

treaty that extinguished at its Signing any

remaining rights plaintiff may have possessed

within or with respect to its former territory.

The government's agreement to let plaintiff

remain in Wisconsin for two years gave

plaintiff nothing more than a conditional right

to stay and to hunt, fish and gather while it

remained. The agreement did not restore the

usufructuary rights lost with the occurrence of

the events specified in the 1831 treaty or with

the signing of the 1848 treaty.

App. 159-60 (emphasis the-court's). See also the district

court’s recitations of the tribe’s many historical admissions

and representations that it had given up all off-reservation

rights. App. 132-33, 139-40.

4. The lower courts did

not confuse use rights

with title to land.

Petitioner also contends that the lower courts muddled

the fact that use rights and title are severable and that the

former does not necessarily require the latter.

The district court said it best. "That is not the issue.

The issue is whether plaintiff gave up both rights in the 1831

treaty." App. 113. The district court similarly rejected

petitioner’s argument that the Menominee understood that their

use right was not an interest in land but an immunity from state

18

‘ a , ” 17 , .

regulation, citing their expert Professor Lund. The district

court said:

Lund suggests that plaintiff's use rights

reserved by the 1831 treaty were not interests

in land but were instead a privilege and

immunity from state regulation. Even if

Lund's theory is correct, it does not change the

fact that plaintiff's "privilege and immunity"

expired with the occurrence othe

extinguishing events explicitly set forth in the

1831 treaty.

App. 113-14"°

oe Petitioner would undermine

this Court’s precedents that

unambiguous language is

controlling.

By ignoring the explicitly title-dependent nature of

their 1831 use rights the tribe invites this court to hold that

unilateral Indian understanding prevails over unambiguous

"Note the district court’s considerations of petitioner’s experts’ reports.

Also see App. 157-59. Contrary to petitioner’s suggestion here, the lower

courts did not ignore what petitioner wanted to present through these

experts. Rather, as the district court put it in denying petitioner’s motion

for reconsideration, it "made a careful review of plaintiffs motion,

supporting briefs and expert reports in an effort to ensure that none of

plaintiff's arguments has been overlooked or construed incorrectly." App.

149. The record also shows that, prior to its order dismissing the action,

petitioner filed its expert reports but at no time asked to supplement its

briefing to explain how they contributed to the tribe’s ciaim.

‘SBesides, the law is pellucidly certain that usufructuary rights are

interests in land. App. 135-37. Indeed, the tribe is judicially estopped from

saying otherwise because it successfully argued before the Wisconsin

Supreme Court that the use rights were interests in land, "exactly what

plaintiff disavows in this case." App. 137-38.

19

treaty language. Its words to the district court were that

"treaty language is almost irrelevant." This brief at 6.

This Court has never so held. Whereas the petitioner

thinks all Indian treaty cases require extensive evidentiary

data and findings, this Court has held that unambiguous

language controls. Indian treaties

are to be construed, so far as possible, in the

sense in which the Indians understood them,

and “in a spirit which generously recognizes

the full obligation of this nation to protect the

interests of a dependent people.” ... But even

Indian treaties cannot be re-written or

expanded beyond their clear terms to remedy

a claimed injustice or to achieve the asserted

understanding of the parties.

Choctaw Nation of Indians v. United States, 318 U.S. 423, 432

(1943) (citations omitted).’”

See also South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 506

(1986)(“The canon of construction regarding the resolution of

ambiguities in favor of Indians ... does not permit reliance on ambiguities

that do not exist ...”); Klamath, 473 U.S. at 774 (“courts cannot ignore

plain language that, viewed in historical context and given a ‘fair

appraisal,’ ... clearly runs counter to a tribe’s later claims”); DeCoteau v.

District County Court for the Tenth Judicial District, 420 U.S. 425, 447

(1975)“A canon of construction is not a license to disregard clear

expressions of tribal and congressional intent”); Confederated Bands of

Ute Indians v. United States, 330 U.S. 169, 179, 180 (1947)(“we cannot,

under the guise of interpretation, ... rewrite congressional acts so as to

make them mean something they obviously were not intended to mean.

... We cannot, under any acceptable rule of interpretation, hold that the

Indians owned the lands merely because they thought so”); Northwestern

Bands of Shoshone Indians v. United States, 324 U.S. 335, 353 (1945)\(a

court must “stop short of varying {a treaty’s] terms to meet alleged

injustices”); United States v. Choctaw and Chickasaw Nation, 179 U.S.

494, 541 (1900)(“it is not for the judiciary to defeat the will of the

20

This Court never should so hold. It would be

unprincipled to do so. Treaties have features both of contracts

and laws. See court of appeals citations, App. 15. If their

words are to be meaningful they must have some controlling

force. They are, after all, the “supreme law of the land.”

Menominee Tribe v. United States, 391 U.S. 404, 411 n.12

(1968) (internal quotes omitted).

And it would produce chaos to so hold. An opinion of

subjective Indian understanding would last only until displaced

by another opinion. As Judge Wood sagely noted here.

It is no surprise that some Native Americans of

this generation are dissatisfied with what their

prior generations agreed to in order to resolve

their problems of earlier times. Times chan: ¢

and people change, but treaties do not.

App. 29.

D. The claimed inconsistency with

this Court’s precedents is

raised for the first time and is

without merit.

This Court will not deal with an issue raised for the first

time on certiorari, and it requires that an argument be well

developed and presented below. See Youakim v. Miller, 425

U.S. 231, 234 (1976) (per curiam). Petitioner contends that the

lower courts failed to follow this Court’s holdings in

Wisconsin v. Lane, 245 U.S. 427 (1918), and Menominee

Tribe of Indians v. United States, 391 U.S. 404 (1968).

Respondents have lodged petitioner’s briefs below with this

Court. They show that petitioner has failed to meet this

legislative branch of the Government by giving to an Indian treaty a

meaning not justified by its words”).

saiaateertaneaeseneeeeiaeaeaeaaiemieiel

21

Court’s standards for presenting issues well developed

below.

As to Wisconsin v. Lane, this Court held that the

action of Congress in 1852 authorizing the tribe to remain

temporarily on what became reservation lands, together with

the 1854 treaty’s grant of a reservation, superseded

Wisconsin’s claim to section 16 school lands thereon.

Petitioner now argues this Court also held that this meant the

1848 treaty failed to defeat the tribe’s 1831 use rights. But

petitioner came nowhere near this proposition below. The

only remote resemblance was in the tribe’s principal brief in

the court of appeals when it said Lane “concluded that the

Menominee had continuous lawful occupation in Wisconsin

during those years” of 1848 to 1854. Page 36. This single

sentence is all there was. There was no reference to section

16 lands on or off reservation. None of this Court’s language

was quoted. There was no analysis at all. There was nary a

word that this Court held the 1848 treaty left the 1831 rights

undisturbed. The case was simply cited for the entirely

distinct point that the tribe’s remaining beyond the two years

was lawful, a point the state never disputed.

As to Menominee Tribe of Indians v. United States,

the tribe here argues this Court held that the 1848 treaty gave

Wisconsin no regulatory power anywhere in the state. No

such contention was made below.

Moreover, neither decision supports the tribe’s

position in this case. Both decisions, in fact, reinforce the

lower courts’ conclusions.

Wisconsin v. Lane held that the 1852 congressional

action and the 1854 treaty granting a reservation superseded

the grant to Wisconsin of section 16 lands on the reservation.

245 U.S. at 433-34. That is not at all inconsistent with saying

that the “President granted them permission to remain”

beyond the two years in the 1848 treaty as “an act of favor,

99

they being still subject to removal at his discretion.” This

brief at 15-16 n.16. Nor is it inconsistent with this Court’s

further statement in Lane itself that, by the 1848 treaty, the

Menominee Indians “gave up their holdings in Wisconsin.”

245 U.S. at 432. Losing 1831 use mghts by 1848 and

lawfully remaining thereafter while a new reservation was

established are not mutually exclusive. Indeed, that is

exactly what happened.

As to Menominee Tribe of Indians v. United States,

this Court clearly confined the limitation on the state's

regulatory powers to the reservation lands created under the

1854 treaty. 391 U.S. at 411 n.12. In addition, rather than

holding that the 1848 treaty was ineffectual to give

Wisconsin off-reservation regulatory power, this Court held

that the Menominee had traded in their off-reservation use

rights for those on-reservation.

“It would seem unlikely that the

Menominees would have knowingly

relinquished their special fishing and

hunting rights which they enjoyed on their

own lands, and have accepted in exchange

other lands with respect to which such rights

did not extend. They undoubtedly believed

that these rights were guaranteed to them

when these other lands were ceded to them ‘to

be held as Indians lands are held.’ Construing

this ambiguous provision of the 1854 treaty

favorably to the Menominees, we determine

that they enjoyed the same exclusive hunting

rights free from the restrictions of the state's

game laws over the ceded lands, which

comprised the Menominee Indian

Reservation, as they had enjoyed over the

lands ceded to the United States by the 1848

treaty.”

a

23

391 U.S. at 406 n.2 (emphasis added) (quoting from State v.

Sanapaw, 21 Wis. 2d 377, 124 N.W.2d 41 (1963), cert. denied,

377 U.S. 991 (1964)).

This Court should note that the lower courts did not

accept this argument. The court of appeals concluded this

Court decided a different question, namely, the effect of the

legislation terminating tribal status. App. 10-11. The district

court agreed that on its appeal to this Court the tribe “seems to

have adopted the position that, in fact, it had lost its off-

reservation fishing and hunting rights in the nineteenth

century.” App. 140. But it believed this Court resolved that

case “on other grounds.” App. 79 and 87-88.

Both courts are mistaken. Not only did the tribe press

this Court to agree it had given up its off-reservation use

rights, this Court so decided. The issue here was not only the

effect of termination legislation. The question also was

whether the tribe had any on-reservation use rights after 1848

and prior to termination. As seen, this Court said yes and

adopted the logic of the Wisconsin Supreme Court, at the

tribe’s urging, that it would have made no sense for the tribe

to give up its off-reservation use rights without getting on-

reservation use rights. The loss of off-reservation rights was

a linchpin to this Court’s analysis.

E. In any event, there is an

independent ground for

upholding the decision:

statehood extinguished these

temporary rights under the

1831 treaty.

Regardless of what this Court should decide about the

canons of treaty construction as applied to these treaties, the

decision below must be upheld because Wisconsin's admission

to the Union in 1848 independently extinguished the

Menominees’ temporary, title-dependent and aboriginal nghts

24

under Ward v. Race Horse, 163 U.S. 504 (1896). There, prior

to statehood, a treaty granted a tribe the right to "hunt upon the

unoccupied lands of the United States." Id. at 505. The

Territory of Wyoming was established with a proviso that

nothing would "impair the rights of person or property now

pertaining to the Indians." Id. at 506. But the law admitting

Wyoming to the Union provided that it entered "on an equal

footing with the original States in all respects whatever." Id.

Ward concluded statehood extinguished hunting rights.

It noted their "temporary and precarious" nature: they were

"subject entirely to the will of the United States, since ... the

right to hunt should cease the moment the United States parted

with the title to its land in the hunting districts." Id. at 510.

Second, Wyoming entered the Union on "equal footing" with

the original states. The Act admitting Wyoming "expressly

declared that that State should have all the powers of the other

States of the Union, and made no reservation whatever in favor

of the Indians." Id. at 511. Thus, the conflict between hunting

rights and statehood was "irreconcilable" because "under no

reasonable hypothesis can [they] be construed as coexisting".

Id. at 514-15.

Race Horse applies here. The reserved treaty rights

were not permanent and were subject to the will of the United

States. The Act creating the Wisconsin Territory (5 Stat. 10)

contained an express reservation of Indian rights. But both the

Enabling Act of 1846 (9 Stat. 56) and the Act admitting

Wisconsin to the Union in 1848 (9 Stat. 233) were silent on the

subject. The latter, however, assured Wisconsin admission on

an equal footing.

The district court did not accept this argument. "If, in

fact, the mghts granted plaintiff in the 1831 treaty are

temporary in nature, as defendants contend, then the rights

expired on their own terms and the equal footing doctrine has

no relevance." App. 64. But the court missed the alternative

nature of the argument. Even if the extinguishing events never

25

occurred, i.e., even if title never were otherwise lost, statehood

extinguished the temporary rights. The court of appeals did not

discuss the issue.

F, Nothing in the Chippewa treaty

litigation will affect the result

of this case.

Petitioner, anticipating that this Court will affirm

Mille Lacs Band of Chippewa Indians v. Minn., 124 F.3d

904 (8" Cir. 1997), cert. granted, 118 S.Ct. 2295 (1998), asks

this Court to remand this case once it does so. It asserts there

is a similarity in the language of the 1855 treaty”’ in Mille

Lacs and the 1848 treaty here”! but that the two circuits took

Opposite approaches to treaty interpretation.

The cases are quite dissimilar. The 1855 Mille Lacs

treaty, despite very express cession language, was held not to

extinguish usufructuary rights reserved under an 1837

treaty.** But the rights under the 1837 treaty were not title-

dependent. They were expressly severed from title and were

to- continue indefinitely “during the pleasure of the

President.” 124 F.3d at 910. Here, the temporary use rights

were “inextricably joined” to title, as the court of appeals

said, App. 23, not to the pleasure of the President.

February 22, 1855, art. 1, 10 Stat. 1165. The language of

relinquishment was that the Indians “do further fully and entirely

relinquish and convey ... any and all right, title, and interest, of

whatsoever nature the same may be, which they may now have in, and to

any other lands in the Territory of Minnesota or elsewhere.” 124 F.3d at

920.

*'The tribe agreed “to cede, and do hereby cede, sell, and relinquish to the

United States all their lands in the State of Wisconsin wherever situated.”

Article Il; App. 199.

July 9, 1837, 7 Stat. 536.

26

Moreover, the 1855 and 1837 Minnesota treaties

covered distinct parcels of Minnesota lands. Id. at 919-20.

Here, the 1848 treaty ceded all Wisconsin lands including

those that were the subject of the 1831 treaty. Thus, in Mille

Lacs the issue is whether the relinquishment relating to

parcel A is sufficiently clear to extinguish use rights on

parcel B. It is entirely different to argue, as the Menominee

do here, that the relinquishment of all Wisconsin lands to

remove to Minnesota did not extinguish temporary, title-

dependent use rights thereon.

Last, Mille Laes involves the President’s authority

regarding an Executive order that required the Indians’

removal. The Eighth Circuit held that, without Indian

consent, the President lacked authority to remove them and,

therefore, lacked authority to revoke their use rights. 124

F.3d at 916-18. Here, there is no issue of a valid or invalid

Executive order regarding removal. In fact, Congress ratified

the 1836 and 1848 treaties that extinguished title and required

the Menominee to remove. That made the treaty-imposed duty

to remove the "supreme law of the land." Menominee Tribe v.

United States, 391 U.S. 404, 411 n.12 (1968) (internal quotes

omitted). Critically, because the duty to remove was by treaty,

the Menominee agreed to remove. Neither Indian consent nor

removal authority is an issue here.

Accordingly, any possible holding in Mille Lacs that

the 1855 treaty did not extinguish reserved rights on a

different parcel of land could not affect the issue in this case

whether cession of title in a removal treaty terminated title-

dependent rights on the same parcel. Likewise, a holding in

Mille Lacs that the President had no authority to revoke use

rights, absent Indian consent to remove, could not affect the

issue whether title-dependent rights were terminated under

congressionally-approved removal treaties in which the

Indians agreed to cede title. These are entirely different

cases.

_ ane an aeeioadeaanien

ee eee rh lhl OO

27

These noted distinctions in the two cases make any

differences in “approaches” an apples-oranges comparison.

Moreover, the tribe’s claim that the approaches are different

is illusory. The Eighth Circuit focused first on the treaty

language before concluding it could proceed to look for

record evidence as to Indian understanding.” One can agree

with Minnesota that the Eighth Circuit failed to give meaning

to the plain language of the 1855 treaty, and that it failed to

adequately distinguish this Court’s holding on virtually the

same language in Oregon Dept. of Fish & Wildlife v.

Klamath Indian Tribe, 473 U.S. 753 (1985), but still agree

that the court saw the importance of first reviewing the treaty

language.

“The court found that the 1855 treaty lacked explicit language of

termination. Mille Lacs at 920 ("the 1855 Treaty is void of explicit

language extinguishing the Band's usufructuary rights, nor does it

mention the 1837 Treaty"). Regarding the 1854 treaty, the court observed

the requirement that treaty-based rights require an explicit termination

and relied only on the treaty language to conclude the evidence against

extinguishment was “overwhelming.” Mille Lacs at 919. It relied solely

on the facts that the 1837 treaty contained an express reservation on

ceded lands and that the 1854 treaty did so as well on the newly ceded

lands. Id. Consequently, in applying the explicitness rule and in

adhering strictly to the treaty language, Mille Lacs is the diametric

opposite of petitioner’s approach.

CONCLUSION

Che petition should be denied.

_ 44

Dated this & day of March. 1999.

Respectfully submitted.

JAMES E. DOYLE

Attorney General

Chel hf

Assistant Attorney General

State Bar No. 1010601

Counsel of Record

THOMAS DOSCH

JOHN NIEMISTO

PHILIP PETERSON

Assistant Attorneys General

Attomeys for Respondents

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-9945