# Opposition Brief — Menominee Indian Tribe of Wisconsin v. Thompson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1066

## Text

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.

|

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1767%3A2. Public record. Not legal advice.