Petition for Writ of Certiorari — Thompson v. Mille Lacs Band of ChipPewa Indians

9@L 3857 Fg 17 i099

No. ___ OF kicg -

In the

Supreme Count of the United States

October Term, 1997

JOHN W. THOMPSON: JENNY THOMPSON; JOSEPH

N. KARPEN: LEROY BURLING: GLENN THOMPSON:

GARY M. KIEDROWSKI: MICHAEL SHEFF; AND

ROBERT L. EDMONDS,

Petitioners,

Vv.

OF AMERICA; MILLE LACS BAND

I A INDIANS; ARTHUR GAHBOW,

U YN: CARLEEN BENJAM

DUN agar bare caaee kis GAN

ES L

9 MIN: JOSEPH

WISCONSIN: LAC DU FLAMBEAU BAND OF LAKE

Ny,

(

UNITED ST:

OF CHIP

WALTERS

AT

EV

TT

S JIANS OF

IN; Li

SUPERIOR CHIPPEWAS;: BAD RIVER BAND OF LAKE

SUPERIOR CHIPPEWA INDIANS; LAC COURTE

OREILLES BAND OF LAKE SUPERIOR CHIPPEWA

INDIANS OF WISCONSIN; SOKAOGAN CHIPPEWA

COMMUNITY. MOLE LAKE BAND, WISCONSIN; RED

CLIFF BAND OF LAKE SUPERIOR CHIPPEWA; FOND

DU LAC BAND OF CHIPPEWA INDIANS: ROBERT

PEACOCK; PETER DEFOE; CLIFTON RABIDEAUX:

HERMAN WISE: GEORGE DUPUIS,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

GARY E. PERSIAN, ESQ.

Counsel of Record

PERSIAN, MacGREGOR &

THOMPSON

Of Counse 1530 International Centre

Stephen é 'p roehle, Esq. 900 Second Avenue South

Randy V. Thompson, Esq. Minneapolis, _ ssota 55402

(612) 339-673

Attorneys for Pei:tioners

1998 — Bachman Legal Printing & (612) 339-9518 @ 1-800-715-3582 @ Fax (612) 337-8083

This petition addresses whether "[t]he privilege of

hunting, fishing, and gathering the wild rice upon the lands,

the rivers and the lakes included in the ceded territory, ...

during the pleasure of the President of the United States.”

contained in an 1837 treaty with the Chippewa, 7 Stat. 536,

art. V, has been revoked, relinquished, abrogated or

terminated by executive actions, subsequent treaties,

legislative acts, and judicial decisions, including:

1) Whether the privilege was revoked by executive actions

including an 1850 Presidential Order of President Zachary

Taylor, which states "the privileges granted temporarily to the

Chippewa Indians, by the Fifth Article of the Treaty ... of

July 1837... are hereby revoked."

2) Whether the privilege was relinquished by an 1855 treaty,

10 Stat. 1165, where the Chippewa agreed to “relinquish and

convey to the United States any and all right, title, or

interest... in, and to any other lands in the territory of

Minnesota or elsewhere."

3) Whether by virtue of the Nelson Act, 25 Stat. 642 (1889)

and the General Allotment Act, 24 Stat. 388 (1887). the

Chippewa were subject to state regulation for all off-

reservation hunting and fishing activities.

4) Whether the lower courts’ characterization of the privilege

aS an immunity from state regulation rather than a revocable

license or other interest "in or to land” is contrary to this

Court's holding in Oregon Department of Fish & Wildlife v.

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

5) Whether the lower courts’ determination that the privilege

operates | aS an immunity from state regulation,

unconstitutionally usurps state police powers in conflict with

the principles of federalism embodied in the 10th Amendment

of the United States Constitution and the equal footing

doctrine.

6) Whether the present litigation against the State is barred

by the Indian Claims Commission Act, 60 Stat. 1049 (1946),

which provided for an exclusive forum, a statute of limitations,

and under which a monetary award was granted to the

Chippewa for claims under the 1837 Treaty.

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........ccsessessesssessessesssessecseeseesecee

PGS 5. scssnsvenrvoeacsourneeeedsaosoc xii

OPINIONS BELOW...........cccssccsescsessesssessessesssesucssessesseesecsece

PEI onc. ccsncsscuscccsnccoessnersnscsecoscsscevicsndsssdscoeenets |

CONSTITUTIONAL PROVISIONS, TREATIES, AND

ED osccrsvnnvecsveronssvacesnedescendsscensvoescssscoss 2

EE SPE 1 URE SPAABS coanerevevexerasccssessonorsssesseosanseesees 2

SUMMARY OF REASONS FOR GRANTING

eae eae sv cade cau sdaavewmseadeosoxiacscgoeeconces 12

REASONS FOR GRANTING THE PETITION ................. 14

I. ACCORDING TO THE CANONS OF TREATY

INTERPRETATION, THE DISTRICT COURT

ERRED BY EXAMINING INDIAN

UNDERSTANDING WHEN THERE WAS NO

FINDING OF AMBIGUITY IN THE 1837

TREATY OR OTHER KEY DOCUMENTS IN

I cs sce sss dc suulgaueanaesuvhasuaussiveskate 14

Il. THE 1837 TREATY WITH THE CHIPPEWA

RESERVED A PRIVILEGE, SUBJECT TO

STATE REGULATION, NOT A RIGHT TO BE

Petes WP SEALE REGULATION.’ ....cscccssccsscsssscaccoves 15

iil

Ill. THE 1850 PRESIDENTIAL ORDER AND

SUBSEQUENT EXECUTIVE ACTIONS

REVOKED THE TEMPORARY PRIVILEGE............ 17

IV. THE TREATY OF 1855 AND THE NELSON ACT

EACH SEPARATELY ELIMINATED OFF-

RESERVATION HUNTING AND _ FISHING

FE MIs san ssenacassnistesginedenmnecrcamnraaieansvactaentebuase: 20

V. THE LOWER COURTS' RULING IMPROPERLY

FRACTURES THE CONSTITUTIONAL

STRUCTURE OF FEDERALISM RECOGNIZED

BY THE 10TH AMENDMENT AND EQUAL

PE ee Bs 6 Ns vshenerscsanioriatnendsposanecernnosismass ae

VI. THE COURT MUST RESOLVE A CONFLICT

BETWEEN THE EIGHTH AND _ NINTH

CIRCUITS ON WHETHER THE FINALITY OF

THE INDIAN CLAIMS COMMISSION ACT

PROCESS BARS A CLAIM FOR’ AN

ADDITIONAL REMEDY UNDER THE SAME

fg) rere euneee Rn ne PEP en RCE ire CE Ba eke Rian: SAP AT RURYA 24

Ree ae IN scars os ans tin thchssanscitisden i edees oan acheee ele 30

TABLE OF AUTHORITIES

Cases Page

Ahghazali v. Secretary of Health & Human Services, 867

F 26 921 CG Gy, TIRED eissinticeracieccncceaenaare 26

Amoco Products Co. v. Gambell, 480 U.S. 531 (1987).......... 6

Bear v. United States, 810 F.2d 153 (8th Cir. 1987)............ 25

Bowen v. Public Agencies Opposed to Social Security,

4771S. 81 C1 sche eee 24

Catawba Indian Tribe of South Carolina v. United States,

OG? F 28 1 S68 Ce: Gar, Fe ireneiscdacsavic ese 26

In re Cherokee Tobacco, 78 U.S. (11 Wall. 616, 621)

CROTID vccinscrsdcsvcdccccesiasatccidaeiivensss ee ree 24

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

BFS CED isiiccscditavcicesinsticeeine eee 6, 15

Connecticut Nat. Bank v. Germain, 503 U.S. 249 (1992) ...... 6

Dalton v, specter, S11 U.S. 462 (V994)......ccccsessvcsscsesens. 13, 18

DeCoteau v. District County Court, 420 U.S. 425 (1975)....21

De Haro v. United States, 5 Wall. (72 U.S.), 559, 10

Le. GT tisk deine eee 17

Bik v. Wilkins, 112 U.S. 94 (1884) . ccsssessscsscvesssassssssscssasaseee 16

V

Fond du Lac Band of Chippewa Indians v. Carlson, No.

5-DZ- 1 SD CD. DERM. FUME. Tig TOD cncecscccsscccsnsccsccssssscccccns |

Hagen v. Utah, 510 U.S. 399 (1994) oo. 17, 19, 20, 21

Haphey v. Linn County, 924 F.2d 152 (9th Cir. 1991)......... 25

Harris v. Gillingham, 6 N.H. 9, 23 Am.Dec. 701 (1832)...... 17

Immigration & Nat. Serv. v. Cardoza Fonseca, 480 U.S.

421 ( POS vvcccciccaccrssectcactonscssc ade eee 6

Kennedy v. Becker, 241 U.S. 556 (1916) .......... 2. tt thea

Lac Courte Oreilles Band v. Voight, 700 F.2d 341 (7th

Cir. 1983) cert. den. 464 U.S. 805................ 17, 19, 25, 29

Lane v. Peterson, 899 F.2d 737 (8th Cir. 1990)................... 25

Menominee Indian Tribe of Wisconsin v. Thompson, 943

F.Supp. 996 (W.00. Wie. mel cacinanninnanaunhe 17, 25

Mille Lacs Band of Chippewa Indians v. Minnesota, 853

F.Supp. 1118 (D. Minn. 1994) (Mille Lacs 1)... eee

Mille Lacs Band of Chippewa Indians v. Minnesota, 861

F.Supp. 784 (D. Minn. 1994) (Mille Lacs I]).............. passim

Mille Lacs Band of Chippewa Indians v. Minnesota, No.

3-94-1226 (D. Minn. March 29, 1996) (Mille Lacs III) .. 1, 6

Mille Lacs Band of Chippewa Indians v. Minnesota, 952

F.Supp. 1362 (D. Minn. 1997) (Mille Lacs IV) ........ 1, 6, 23

vi

Mille Lacs Band of Chippewa Indians v. Minnesota, 124

F.3d 904 (8th Cir. 1997) (Panel ODP.) ..........ccccceeeeeeeees passim

Mole Lake Band v. United States, 139 F.Supp. 938 (Ct.

Co. Fe va iuicienissncndin Racassacesesedsevvervsevaciasiibans suhacaeicileulalnicte 17

Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455

A Pe pe Ae ee EO 1]

Negonsott v. Samuels, 507 U.S. 99 (1993)... eee. 15

North American Comm. Co. v. United States, 171 U.S.

Ie Se icdrvroc.cscccacssssauianecuicisetetas scabs caannsanaeiaions 17, 22

Oglala Sioux Tribe v. Homestead Mining Co., 722 F.2d

A Is I a es acaeinaneba 29

Oglala Sioux Tribe v. United States, 650 F.2d 142 (8th

Be A 5 RI ce eine ae SP are De eer Re 29

Oregon Dept. of Fish & Wildlife v. Klamath Indian Tribe,

aD Beas Fa 8 Fe Biiksatecndacs acaivoniseaasanserdeceneasacee! passim

Otoe and Missouri Band of Indians v. United States, 131

Fs BN CRBs Co, UPC Passsncscscncccsecnensatyussnanviaatenvoseesivas 1]

Printz v. United States, _-:; U.S. __. 117 S.Ct. 2365

Dy | PPE Lae RE AOR RPE ARRAN Mh Deen SaB 23

Sac & Fox Tribe v. United States, 383 F.2d 991 (Ct. Cl.

aa a ciiasmabsnchaaunoiueuniapeaisineuss 16

South Carolina v. Catawba, 476 U.S. 498 (1986)............ 6, 15

South Dakota v. Bourland, 508 U.S. 679 (1993) ................ 21

Vil

South Dakota v. Yankton Sioux Tribe, __ U.S. __, 1998

es ee FE ivciucsude crn tcaresaccececnnsdctetnadéimeoierusiees 21

Strong v. United States, 518 F.2d 556 (Ct. Cl. 1975) .......... 16

Sunkyongint Inc. v. Anderson Land & Livestock Co., 828

ae Pe RUIN TE. WED Fo .c sc csciccnictencodamsbcraciaeacesecetocdeasois 26

United States v. State of Alaska, __._—~*U.S. __, 117 S.Ct.

PE RUT oasis iSads crn eae seiddclpncededsolasncagtoseteosseonsonieaes 19

United States v. Bouchard, 464 F.Supp. 1316 (W.D. Wis.

United States v. Chippewa Indians, 229 U.S. 498 (1913)....... 5

United States v. Choctaw & Chickasaw Nations, 179

DRE | TE. | | TERR Aeon AMEN, Sal Rees. SME Pan em ote ee 13

United States v. Dann, 470 U.S. 39 (1985)......................00. 1]

United States v. Dann, 873 F.2d 1189 (9th Cir.1989).... 13, 29

United States v. Forty-Three Gallons of Whiskey_93 LS —.____

Pe i iccsccecelsxcncceaeeliccie odes oa 24

United States v. Minnesota, 466 F.Supp. 1382 (D. Minn.

1979) aff'd sub nom. Red Lake Band of Chippewa

Indians v. Minnesota, 614 F.2d 1161 (8th Cir. 1980).. 16, 20

United States v. Oregon, 718 F.2d 299, 305 (9th Cir.

5) NER ENE LIANE, RRO E Etre an ahs oem AIOE Le prs DP 23

Vill

United States v. Pend Oreille Public Utility Dist, No. 1,

De a eRe BE CIE aE ED OED ciccescersccscecestastenisreesizanes 11,29

Wahkiakum Band Chinook Indians v. Bateman, 655 F.2d

Se Os EE 0 - avecaracunacechnsunecanecosadeuanicasceiaesntereneis 29

Western Shoshone National Council v. Molini, 951 F.2d

SE OE Rasika cascnniesacb tive caswevacsisbdtnsadiesabwcnonswnaedens 29

White v. Arco/Polymers Inc., 720 F.2d 1391 (Sth Cir.

Cee te ete eas dancsadeeemberaeniaseanereaen 26

Winfield Ins. v. Edward Leroux Group Inc., 896 F.2d 483

Oe Sen EI, 20s calcu vccussubsceheusecndensisuntetcbaiaaiaataearaiarees ae

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

CEN ceca cch-ectacecseniecenvoitorcuorede'eovacvecdenectecasesdenienaaes 13, 18

Other Sources

Page

Gai MeN, SINIIINs Mibo tc cxekecadassiacacccdacncnscaceiiscsabsdiasoesacenspnraress 2

| a ” 78. Const 43 8 cl. : See ari en paeekes . SE OOP 24

Treaty of July 29, 1837, 7 Stat. 536, art. V.........0... ie Fe te

Freaty Of FED. ZZ, 1855, 10 Stat. FIGS .......cccrcccsressssoees passim

Treaty of Sept. 30, 1854, 10 Stat. 1109... eee 2,18

Nelson Act, Jan. 14, 1889, 25 Stat. 642.00... eee passim

PA GE ED. Bc Be, BE BUN Biv ctncshacetncsitnciccccseiaicicw 2

Act of May 11, 1858, 11 Stat. ZED ...........00..ccc000000.. 2, 23, 24

Piast GE EPO. FD, TDG, TO) DAM. FIG a ccicesccnnsccssescccsvcocisnsrsnses i,2

Act of Aug. 13, 1946, 60 Stat. 1049.00. 2, 1

FUE OE GUE. SUN, TEIN, F SORE, FIG cs sccescsinenssssessovesvcsnssenesarecs 2

Pe Ae ia, a ee Fk neckn cccnttccecnessnscecsaieicasxesersases 2

1887 General Allotment Act, 24 Stat. 388 200.000... 2]

Exec. Order of Pres. Taylor, Feb. 6, 1850...................... passim

H.R. Ex. Doc. No. 51-247 (March 4, 1890) ....................2, 11

Minnesota Territorial Resolution of 1849 ............000.........2, 19

ee a alee cat av chai cacenanscacanareneanials cuss

a i NO aie nics an ce cpats vias sodaunansesnedecreensscsansastuneoes 2

Be a es Ry so vtcaniecaenconennsaeassconanncnsensncnsaceinens 2

SPN a I III eit dad seein acta ipianieksceceicinondecaiclpnammccuanseeminectes 2

4 Richard R. Powell & Patrick J. Rowhan, Powell on Real

Property, Ch. 34 “Easements and Licenses," pp. 34-301

ibe I ITE cr desrs cairn cases iatainasnan onirenedatouanscenionenveniauns 22

a

PARTIES

The caption includes all Respondents, all of whom were

plaintiffs at the district court level and appellees at the Eighth

Circuit Court of Appeals. The caption does not include two

other petitioner groups who were defendants along with these

Petitioners at the district court level, and appellants with these

Petitioners at the Eighth Circuit Court of Appeals.

The other two petitioner groups include the State of

Minnesota and its officials, and a coalition of nine counties

located in the geographic area of the 1837 treaty at issue.

Specifically, the two additional petitioner groups include:

1. State of Minnesota, Minnesota Department of

Natural Resources, and Joseph Alexander, Commissioner

of Natural Resources and Ame Carlson, Governor of

Minnesota, Rodney Sando, Commissioner of the

Minnesota Department of Natural Resources, and

Raymond B. Hitchcock, Assistant Commissioner of

Operations Minnesota Department of Natural Resources;

2. County of Aitkin, County of Benton, County of

Sherburne, County of Crow Wing, County of Isanti,

County of Kanabec, County of Mille Lacs, County of

Morrison and County of Pine.

XI

OPINIONS BELOW

The August 26, 1997 panel decision of the Eighth Circuit

(App. 1-73)' is reported at 124 F.3d 904. Final judgment was

entered at the district court by way of a January 29, 1997

Opinion (Mille Lacs IV, App. 74) which is reported at 952

F.Supp. 1362. The four district court opinions relevant to the

questions presented by this Petition are:

1. Mille Lacs I (App. 351-418), reported at 853 F.Supp.

1118.

tN

Mille Lacs II (App. 212-350), reported at 861 F.Supp.

784.

3. Mille Lacs HI (App. 164-211), unreported.

4. Fond du Lac (App. 419-481), unreported.

JURISDICTION

The Court of Appeals entered its judgment on August 26,

1997 (App. 1). A timely Suggestion for Rehearing En Banc

was denied by a 7 to 2 vote on November 17, 1997 (App.

482). The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

' These Petitioners rely on a Joint Appendix entered into with the

two other petitioner groups. the State of Minnesota and the nine

Counties. References herein to “App.” are citations to the Joint

Appendix which is being filed in accompaniment to the State's Petition.

References herein to "LA" refer to the Landowners’ Appendix filed at the

Eighth Circuit level by these Petitioners. Citations herein to "SA" refer

to the State's Appendix filed by the State of Minnesota at the Eighth

Circuit level.

CONSTITUTIONAL PROVISIONS, TREATIES, AND

STATUTES INVOLVED

1. U.S. Const. amend. X (App. 483).

2. Treaty of July 29, 1837, 7 Stat. 536, art. V (App.

484-489).

3. Treaty of Feb. 22, 1855, 10 Stat. 1165 (App. 502-514).

4. Treaty of Sept. 30, 1854, 10 Stat. 1109 (App. 490-501).

5. Nelson Act, Jan. 14, 1889, 25 Stat. 642 (App. 535-544).

6. Act of Feb. 26, 1857, 11 Stat. 166 (App. 517-521).

7. Act of May 11, 1858, 11 Stat. 285 (App. 515-516).

8. Act of Dec. 19, 1854, 10 Stat. 598 (App. 532-534).

9. Act of Aug. 13, 1946, 60 Stat. 1049 (App. 550-564).

0. Act of Sept. 30, 1850, 9 Stat. 944 (App. 522-527).

11. Act of Feb. 27, 1851, 9 Stat. 570 (App. 528-531).

12. Exec. Order of Pres. Taylor, Feb. 6, 1850 (App. 565).

13. H.R. Ex. Doc. No. 51-247 (March 4, 1890) (App.

545-547).

14. Minnesota Territorial Resolution of 1849 (App. 566-568).

STATEMENT OF THE CASE

The district court’s jurisdiction was invoked under 28

U.S.C. §§ 1331, 1362, and under 28 U.S.C. § 1343(a)(3), (4).

In July, 1837, near Fort Snelling, Minnesota, Ojibwe*

Bands gathered to treat with the United States. This was not

their first treaty. The 1837 treaty negotiations were attended

> "Ojibwe" is the traditional name for the "Chippewa." The

Department of Interior currently uses the term "Chippewa," as do the

Bands in their official name designations.

>In 1825 the Ojibwe had entered into the Treaty of Prairie Du

Chien, a treaty designed to separate the hunting lands of the Dakota and

2)

Le

by at least 1,000 members of the Bands, their leaders,

representatives of government, traders, and missionaries. The

tribal leaders and the United States officials would meet in

council, and then break so the Indians could confer among

themselves and their allies. The Bands first offered to lease

the lands to the United States* but this offer was rejected by

Wisconsin Territorial Governor Henry Dodge who countered:

your Great Father, never buys land for a term of

years. I will agree on the part of the President that

you shall have the free use of the rivers, and the

privilege of hunting upon the lands you are to sell to

the United States, during his pleasure. If you sell

these lands, you must sell them as all the other

nations of Indians have done;...

1837 Treaty Journal at 144 (LA. 729). The next day, on July

28, 1837, Governor Dodge stated:

I will make known to your Great Father, your request

to be permitted to make sugar, on the lands; and you

will be allowed, during his pleasure, to hunt and fish

on them. It will probably be many years, before your

Great Father will want all these lands for the use of

his white Children.

Ojibwe to reduce continuing wartare between them by separating them

geographically. For nearly 200 years prior, these Bands were in contact

with French and British groups.

* 1837 Treaty Journal at p. 144 (LA. 729). This 60 year proposed

lease, with the United States to renegotiate with the Tribe's children, is

evidence of the Ojibwe's knowledge and sophistication in land

conveyance.

iii iat acacia

Id. at 146 (LA. 731). One missionary in attendance later

suggested problems if removal was attempted “before five

years" (LA. 740).

When revoking the privilege in the 1850 Executive Order,

President Taylor referred to the privilege as “temporary”

(App. 565). Whether “temporary,” “probably many years,"

until wanted "for the use of” white settlers’ , "five years," or

even the rejected “sixty years" of lease, the passage of 160

years has long ago passed all these measures of duration.

There is no evidence or suggestion whatsoever in the 1837

Treaty Journal that the President's authority to revoke the

treaty privilege was limited by an Indian "misbehavior"

standard or a requirement of Chippewa removal. The

privilege is not described as “perpetual” in the 1837 treaty, the

specific term used by federal negotiators to describe hunting

and fishing nghts in an 1820 treaty (7 Stat. 206) with the

Chippewa of Sault Ste. Marie.

The district court found that the Indians’ understanding of

the 1837 treaty was modified by assurances allegedly given to

the Wisconsin Bands during the 1842 treaty negotiations.

Mille Lacs Band of Chippewa Indians v. Minnesota, 86]

F.Supp. 784, 799 (Mille Lacs II) (App. 242).°

* Virtually all public domain lands in the 1837 ceded territory in

Minnesota have been conveyed out of the public domain by the United

States and most public land tn the territory, including the Mille Lacs

Band trust lands, were once privately owned (LA. 1977-1979).

° The fundamental error of finding a “misbehavior” standard for

revocation in the 1837 treaty trom the 1842 treaty (LA. 8988) originated

from United States v. Bouchard, 464 F.Supp. 1316, 1349 (W.D. Wis.

1978) affd, 700 F.2d 341, 356 (7th Cir. 1983) (LCO). The 1842 treaty,

which is not at issue in this litigation, applies only to upper Michigan and

Wisconsin. Nothing from the 1842 treaty modifies the 1837 treaty's

terms. The trial court erroneously relied upon the flawed analysis from

Bouchard and LCO. Mille Lacs I], 861 F.Supp. at 827 (App. 302).

4

The idea that the land use privilege would go on forever is

undermined by the statements of Chief Flatmouth:

My Father, if it was my land you was buying, I

would, instead of an annuity for only 20 years

demand one from you, as long as the ground lasted.

You know that without the lands, and the Rivers &

Lakes, we could not live. We hunt, and make sugar,

& dig roots upon the former, while we fish and

obtain Rice, and drink from the latter.

(1837 Treaty Journal, LA. 732). Flatmouth understood that

the Chippewas’ ability to obtain their living from the lands was

temporary.

The Chippewa language was able to convey the 1837

treaty's plain meaning that the privilege lasted “as long as the

President allows or as long as the President permits” (LA.

9467-68). The language contained separate word

combinations for "forever" and "perpetual" (LA. 9418-9419).

While in isolation, "guarantee" might mean "to set firm" (LA.

9437), if the meaning of the "guarantee" in the 1837 treaty

was translated in conjunction with "during the pleasure of the

President" there would be "probably hundreds" of words

available to translate the concept (LA. 9438-9439) such as

“promised for a time” or “until the President says” (LA.

9438-9). No record exists of how the 1837 treaty was

translated into Ojibwe.

"Removal" and "misbehavior" arose later from the Mille Lac Band's

argument, based on an 1863 treaty, that the Band was entitled to damages

resulting from settlement of certain parts of their reservation prior to the

1889 Nelson Act cession. United States v. Chippewa Indians, 229 U.S.

498, 33 S.Ct. 811, 813 (1913).

The first standard of treaty interpretation requires a

textual ambiguity before the Indians’ understanding, or lack of

understanding, applies to treaty interpretation.’ This canon of

treaty interpretation was not applied by the lower courts. The

Circuit Court deferred to the district court's findings as to the

parties’ treaty understandings (Panel Op., App. 37) and then

applied the same treaty interpretation standard utilized by the

district court.* "We look first at the interpretation understood

by the Bands" (Panel Op., App. 36). The district court, in five

key instances specifically did not find that there was a textual

ambiguity,’ yet still ruled for the Bands based on a finding that

the Indians did not understand the plain meaning of the treaties

and the 1850 Order.

In 1850 President Taylor issued an Order specifically

revoking the 1837 treaty privilege (App. 565). President

Franklin Roosevelt, on March |, 1938, wrote to the Bad River

” South Carolina v. Catawba, 476 U.S. 498, 506 (1986); Choctaw

Nat. of Indians _v. United States, 318 U.S. 423, 432 (1943); see also,

Amoco Prod. Co. v. Gambell, 480 U.S. 531, 557 (1987); Connecticut

Nat. Bank v. Germain, 503 U.S. 249, 112 S.Ct. 1146, 1149 (1992),

Immigration & Nat. Serv. v. Cardoza Fonseca, 480 U.S. 421, 452 (1985)

(Justice Scalia concurrence).

“The "first rule is that Indian treaties must be construed as the

Indians understood them.” Mille Lacs Il, 861 F.Supp. at 822, App. 300);

and “first, treaties must be construed as the Indians understood them"

Mille Lacs Band of Chippewa Indians v. Minnesota, No. 3-94-1226 (D.

Minn. 1997) at 27, (Mille Lacs Ill), App. 193. "[T]he first rule of

construction applicable to the interpretation of Indian treaties requires the

treaty language be construed as the Indians understood them, . . .." Mille

Lacs Band of Chippewa Indians v. Minnesota, 952 F.Supp. 1362, 1376

(D. Minn. 1997) (Mille Lacs IV), App. 102.

*No ambiguity found regarding: “privilege” and "during the

pleasure of the President" language from the 1837 treaty, the 1850 Order,

the 1855 treaty language, or the 1889 Nelson Act language.

6

Chippewa Band and confirmed that the 1850 Order revoked

the 1837 treaty privilege (letter at App. 575). In the 1950's,

the Fond du Lac and Wisconsin Bands participated in Court of

Claims litigation and filed pleadings with the Court claiming:

|. "A temporary right to remain in the [1837] ceded area

during the pleasure of the President was granted to these

Indians. This right was terminated by Executive Order of

February 6, 1850. No other action was required to

terminate this temporary right" (LA. 11130).

to

"This privilege [1837] was cleariy temporary in character .

2. Ga. TEES).

3. "This privilege of hunting, fishing and remaining in the

ceded areas (granted to these Indians temporarily) was

terminated by Executive order of February 2, 1850... .”

(LA. 11122).

4. "The Order of February 6, 1850, was never revoked nor

extended” (SA. 499).

Nevertheless, the district court in Mille Lacs II stated

that, "[t]he evidence shows that the only reason that the 1850

Executive order included lamguage extinguishing the hunting,

fishing, and gathering privilege was to facilitate removal of the

Chippewa..." Id., 861 F.Supp. at 825, App. 310. The

Circuit Court concluded that “there is no evidence that

revocation of usufructuary rights would have been made

independently of the removal mandate” (Panel Op., App. 29-

30).'° The record contains substantial evidence that there

10 . , : ee

The Circuit Court did not address the district court's conclusions

that removal had been suspended, and privilege revocation required

misbehavior.

were other valid reasons for the 1850 Order stemming from

federal land alienation policies, which drove federal Indian

policy (LA. 7390, 10611, 10635, 10679-80, 10640).

Unrefuted expert testimony of a historical geographer was

introduced on this point.

The President authorized all land sales and issued all

federal land patents.'' The 1850 Executive Order was issued

"to remove the occupancy and use rights that had been

temporarily granted to the Chippewa in 1837. . . to facilitate

selling the public domain by removing any aboriginal claims to

the title to such lands . . ." (LA. 7390) so lands could be sold

and settlement encouraged. The survey, sale, and patent

process was inconsistent with, and terminated, the treaty

privilege. An 1836 Opinion of the Attorney General of the

United States confirms that the issuance of land patents

terminated any pre-existing Indian use rights.

[I]n my opinion, the... Article of the Treaty .. .

with the Chippewa Indians by which ‘the Indians

stipulate for the right of hunting on the lands ceded

with the other usual privileges of occupancy until the

land is required for settlement’ must be regarded as

reserving the use of the ceded land for all the

purposes of Indian occupancy as it existed prior to

the treaty until] such lands shall have been actually

disposed of to individuals by the United States. Such

disposition may be made by sale under the general

'' The land patent granted by President Cleveland in 1895 to one of

these Petitioners’ predecessor in ttle with respect to property in the 1837

lerntory, expressly provided: "TO HAVE AND TO HOLD the same,

together with all the rights, privileges, immunities and appurtenances of

whatsoever nature, thereunto belonging, unto the said John Colson and

his heirs and assigns, forever.” (App. 549) (emphasis added).

8

laws or by special grants, or in any other way that

Congress may direct. And whenever an actual

disposition of any particular tract shall be made, the

usufructuary right of the Indians will cease as to such

tract.

(LA. 10663-4).

The authorizing statute for the 1855 Treaty, 10 Stat. 598,

called for the "extinguishment of [Chippewa] title to all of

lands owned and claimed by them in the territory of Minnesota

and State of Wisconsin" (App. 532) and the Act made clear

that "[t]he laws of the United States and the Territory of

Minnesota shall be extended over the Chippewa Territory in

Minnesota whenever the same may be ceded, and the same

shall cease to be ‘Indian country’... ." 10 Stat. 598 (App.

533). Thereafter, the Mille Lacs Band entered into the 1855

treaty, 10 Stat. 1165 (App. 502), and accepted a reservation in

anticipation that the Chippewa would settle in one place,

cultivate the soil, open farms, build houses, and educate their

children (1855 Treaty, 10 Stat. 1165, art. IX, App. 513). The

Chippewas’ lead negotiator, Hole-In-The-Day, was convinced

that the Chippewa would live in poverty if they did not change

their habits and ideas of acquiring wealth (LA. 809, Transcript

of 1855 proceedings). During the 1855 treaty negotiations, he

stated:

We want to change our habits and customs and live

like the whites.... You want us to work, to change

our habits, and live like the whites, and I see the

benefit of your advice, and so do the Chiefs.

(LA.828).'?

12 wags

We want the right of suffrage, the right to vote, to_be subject to

your laws, and we have set our hearts upon it.” (Hole-In-The-Day

Q

It is very essential that the Indians shall be thrown on

their own resources. The country is getting scarce of

game, and we cannot get along without changing our

habits. We have tried the old system, and found it

wanting. We should therefore try a new one.

(Hole-In-The-Day statement, 1855 negotiations, LA. 836).

The Circuit Court nevertheless found that the absence of a

specific reference to usufructuary "rights" in the 1855 treaty

meant that the federal government did not intend to extinguish

the hunting and fishing privilege by the 1855 cession and

neither the federal government nor the Bands understood the

1855 treaty to have that effect (Panel Op., App. 35-36).

In 1889 Congress passed the Nelson Act, 25 Stat. 642

(App. 535), calling for the sale and relinquishment of all

Chippewa reservations in Minnesota except for White Earth

and Red Lake. The consent of the Chippewa Bands was

obtained, and the cessions were approved by the President on

March 4, 1890 (App. 546-7). During the Nelson Act

negotiations on October 4, 1889, in counsel with the Mille

Lacs Band, U.S. Commissioner Henry Rice was asked about

off-reservation hunting.

MUH-ENG-AUNCE ... Another thing about the wild

animals. If an Indian wishes to go outside of the

reservation to hunt deer, will he be allowed to do so in the

hunting season?...

MR. RICE... In regard to hunting deer, that is a matter

for the Legislature of the State to determine. You can

hunt deer in any event, wherever you find them during the

statement, 1855 negotiations, LA. 830) (emphasis added).

10

season set apart for hunting; and wherever the white man

may hunt, your young men will have the same night to do

0 rr

(H.R. Exec. Doc. 247, 51st. Cong., Ist Sess. (1890) at 169

(LA. 945) (emphasis added). The Circuit Court did not

address the Nelson Act defense appealed by these petitioning

Landowners.

In 1946 Congress enacted the Indian Claims Commission

Act, 60 Stat. 1049 (App. 550) which created a Commission

with the broadest jurisdiction and powers to resolve all Indian

claims against the government once and for all.'? Through

their tribes, these Bands filed claims at the Indian Claims

Commission alleging interference with their 1837 hunting and

fishing privilege, later amending their Petition to include

claims for all unconscionable consideration under the 1837

treaty. The hunting and fishing privilege was part of the

consideration for the 1837 cession, and in 1974 these

Chippewa Bands were awarded over nine million dollars in

damages by the Commission for their 1837 treaty claims.

'’ See Otoe_and Missouri Band of Indians _v. United States, 131

F.Supp. 265 (Ct. Cl. 1955) (legislative history of effort to pass ICCA),

Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455 (10th Cir. 1987);

United States v. Dann, 470 U.S. 39 (1985); United States v. Pend Oreille

Public Utility Dist, No. 1, 926 F.2d 1502, 1508 (9th Cir. 1991).

SUMMARY OF REASONS FOR

GRANTING PETITION

Animated by the desire to discover a long extinguished

hunting and fishing "right" for the Chippewa, the lower courts’

decisions, in unrestrained judicial activism, move in a new

direction for Indian law contrary to this Court's fundamental

principles. The Supreme Court's development of Indian law

charts a course for the lower courts to follow. Because of the

unique nature of United States/Indian relations, set against the

American settlement of the continent and the interplay of state

and federal powers, this is akin to a navigational chart through

a difficult sea. The Supreme Court has established definite

markers for the lower courts, and those ships should follow

within its wake. In this case, a ship has broken ranks and is

sailing away, far off course.

Unless the Supreme Court takes command of this ship's

rudder, and reverses direction, other lower courts will be

encouraged to rewrite history and follow this errant course:

(1) A temporary privilege to hunt and fish has been

transformed from an interest "in or to land" into an

immunity from state regulation, giving the Chippewa de

facto co-management power with the State over half of

the natural resources in a twelve county area of

Minnesota, under the perpetual supervision of the federal

court. Kennedy v. Becker. Oregon Department of Fish &

Wildlife_v. Klamath Indian Tribe,” and the Tenth

Amendment no longer provide guidance.

'* Kennedy v. Becker, 241 U.S. 556 (1916); Oregon Dept. of Fish &

Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985).

12

(2) The President's 1850 Order revoking the 1837 Treaty

privilege, affirmed by a subsequent Congress and

Presidents, and issued under the express and unambiguous

language of the treaty creating the privilege, is canceled

by judicial decision 140 years later. Youngstown Sheet &

Tube, Dalton v. Specter, and United States v. Choctaw &

Chickasaw Nations,'° are not on this ship's map.

(3) The 1855 Treaty whereby Chippewa "fully and

entirely relinquish . . . any and all right, title and interest,

of whatsoever nature . . . in, and to any other lands" does

not terminate the 1837 privilege, nor does the 1889

Nelson Act cession, because the privilege is not an

interest in or to land, but instead is a newly minted judicial

exemption from state police power. Klamath just passed

on the starboard side.

(4) The finality required by the Indian Claims

Commission Act, under which these Bands received

payments for the lands and waters at issue, without offset

for hunting and fishing, does not bar a suit to set aside the

Presidential Order, because the suit 1s now filed against

the State of Minnesota in a collateral attack. Klamath and

United States v. Dann. 873 F.2d 1189 (9th Cir.1989) cert.

den., 493 U.S. 890 (1989). sink as this ship, buoyed by

the opening floodgates. surges into uncharted waters.

Nothing less than whether the history of American/Indian

affairs was writ by the historical participants, or will be

rewritten by the federal distrigt courts, hangs in the balance.

'S Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952):

Dalton v. Specter, 511 U.S. 462 (1994); United States v. Choctaw &

Chickasaw Nations, 179 U.S. 494 (1900).

13

The decisions by the lower courts challenge or ignore

numerous Supreme Court decisions, the authority of

Congressional acts and treaties, and Presidential power in

Indian affairs. At stake is the Supreme Court's principled

approach to Indian law, the separation of powers, and the very

Constitutional structure of state and federal relations which

are all implicated by the underlying dispute. Landowners

submit this Petition for Certiorari of this case of exceptional

public importance'® which will impact 4.4 million

Minnesotans, and devalue the lands and businesses of

thousands of landowners and business owners. The Eighth

Circuit decision allows 24,000 Band members the permanent

right to take, without regard to State law and under de facto

co-management authority, up to 50% of the harvestable

natural resources in a twelve county area.

REASONS FOR GRANTING THE PETITION

I. ACCORDING TO THE CANONS OF TREATY

INTERPRETATION, THE DISTRICT COURT ERRED

BY EXAMINING INDIAN UNDERSTANDING

WHEN THERE WAS NO FINDING OF AMBIGUITY

IN. THE 1837 TREATY OR OTHER’ KEY

DOCUMENTS IN THE RECORD.

Article V of the 1837 Treaty (App. 486) states:

'° The United States’ attorney represented in open court on

10/19/93: “This case is not a parochial case that strictly deals with the

fate of the treaty nghts of the Mille Lacs Band . . [I]t will impact upon

Indian tribes throughout the country . . There are tribes all over this

country who are going to be watching this case closely, and watching the

United States’ role in it, and will be taking actions as a result of the

decisions reached in this case, as will the United States" (Hearing Trans

pp. 5-6, Ex. A to SGF 11-1-93 Aff., LA. 8295).

14

[t]he privilege of hunting, fishing, and gathering the

wild rice, upon the lands, the rivers and the lakes

included in the territory ceded, 1s guarantied to the

Indians, during the pleasure of the President of the

United States.

No finding of textual ambiguity exists in five key

instances: 1837 treaty “privilege” exists “during the pleasure of

the President"; the 1850 Presidential order; 1855 treaty; and

the 1889 Nelson Act. A court may not look at Indian

understanding or expand the text beyond its clear terms to

remedy a claimed injustice or to achieve the asserted

understandings of the parties.'”

Il. THE 1837 TREATY WITH THE CHIPPEWA

RESERVED A PRIVILEGE, SUBJECT TO STATE

REGULATION, NOT A RIGHT TO BE FREE OF

STATE REGULATION.

Kennedy v. Becker explained the key distinction between

a privilege to hunt and fish and a right to hunt and fish.

Even if the tribe had expressly reserved a ‘privilege of

fishing and hunting’ on the ceded lands, our

precedents demonstrate that such an_ express

reservation would not suffice to defeat the state's

power to reasonably and even handedly regulate such

activity.

'? South Carolina v. Catawba, 476 U.S. 498, 506 (1986); Choctaw

Nation of Indians v. United States, 318 U.S. 423, 432 (1943); see

Nevonsott v. Samuels, 507 U.S. 99, 104 (1993).

15

——

Klamath, 473 U.S. at 768-769 (citing, Kennedy). Because a

privilege is different than a right, state regulation on a basis

equal to all citizenry 1s not foreclosed even if the 1837 Treaty

privilege still exists.'" The lower courts failed to acknowledge

the 1837 privilege as an interest in or to land, instead

describing this “treaty right" as an immunity from law.

Classifying the usufructuary "privilege" as an immunity from

State regulatory authority implicates the Tenth Amendment

and opens the floodgates to hunting and fishing claims in a

manner rejected by this Court in Klamath.'” Specifically, the

Klamath Tribe's brief argued “a mght to hunt and fish free of

State regulation is a right separate and apart from an interest in

the property itself.” (LA. 8668). This argument, rejected in

Klamath, has found new life in Mille Lacs.

The Eighth Circuit erroneously concluded that the 1855

Treaty, which created the Mille Lacs Reservation, was

concerned with the extinguishment of Indian ttle to all the

land owned and claimed by them, and that extinguishment of

title, and sale of land, did not concern usufructuary rights.

(App. 36-37). Indian title, of course, included the privilege to

hunt and fish.’ A privilege to hunt and fish is an interest in or

‘* As non-citizens in 1837, after the land sale, Band members did

not hold the privilege to hunt and fish at all, absent the 1837 treaty

privilege. Elk v. Wilkins. 112 U.S. 94, 123 (1884); Lund testimony LA

9690

” The trial court, over Landowners’ objections, allowed law

Professor Thomas Lund to testify as an expert on "wildlife law" to

support the immunity theory. Professor Lund’s theory was briefed by the

Klamath Tribe to the Supreme Court in Klamath to support the Tribe's

argument, and the Klamath decision rejects the argument. Id.

°° Sac & Fox Tribe v. United States, 383 F.2d 991, 997 (Ct. Cl.

1967) (cert. den., 389 U.S. 900) (as cited in, Strong v. United States, 518

F.2d 556, 560 (Ct. Cl. 1975)); United States v. Minnesota, 466 F.Supp.

1382 (D. Minn. 1979) affd sub nom. Red Lake Band of Chippewa

to land, not an immunity from regulation. Kennedy, 241 U.S

at 562-564.°

(iI. THE 1850 PRESIDENTIAL ORDER AND

SUBSEQUENT EXECUTIVE ACTIONS REVOKED

THE TEMPORARY PRIVILEGE.

The 1837 Treaty language granted a temporary privilege

that could be revoked by the President at his will. "The most

probative evidence . . . is of course the statutory language .

of the treaty. Hagen v. Utah, 510 U.S. 399, 411 (1994). The

unambiguous language of the 1837 Treaty granted the

President power to revoke the privilege by its plain term:

during the pleasure of the President."~

When the President acts pursuant to an express or

implied authorization of Congress, the executive

action ‘would be supported by the strongest of

presumptions and the widest latitude of judicial

Indians v. Minnesota, 614 F.2d 1161 (8th Cir. 1980); Lac Courte Oreilles

Band v. Voight, 700 F.2d 341, 351-52 (7th Cir. 1983)

(cert. den. 464

U.S. 805)

~ Klamath, 473 U.S. at 768-69; Menominee Indian Tribe of

Wisconsin v. Thompson, 943 F.Supp. 994, 1018 (W.D. Wis. 1996): see

North American Comm. Co. v. United States, 171 U.S. 110, 137 (1898)

** See, De Haro v. United States, 5 Wall. (72 U.S.), 559, 10 L.Ed

651 (1866) (a license is a personal privilege revocable at the pleasure of

the party making it); see_also, Harris v. Gillingham, 6 N.H. 9, 23

Am.Dec. 701 (1832) (permission to occupy “during the pleasure” of the

owner was a license revocable at will); Mole Lake Band v. United States.

139 F.Supp. 938, 940 (Ct. Cl. 1956) cert. den. 352 U.S. 892 (analyzing

the 1837 treaty privilege as a “revocable license")

“7

1 /

interpretation, and the burden of persuasion would

rest heavily upon anyone who might attack it.’

Youngstown Sheet, 343 U.S. at 637 (Jackson J. concurring).

Judicial deference was reaffirmed in Dalton where the Court

held that "how the President chooses to exercise the discretion

Congress had granted him is not a matter for our review." Id.

511 U.S. at 476. When a statute commits a decision to the

discretion of the President, judicial review of that decision is

not available. Id. at 477. Arguments including whether or not

the President's order was: carried out (or understood) fully by

subordinate officers, exceeded his statutory authority, was

based on poor recommendations, or did not follow procedural

niceties, have al] been rejected by Dalton as a basis of

invalidating presidential authority.

The attempt to invalidate the President's 1850 order

revoking the privilege by applying a "misbehavior" standard

for "removal" is unavailing because, even if applicable, these

arguments do not make the order unconstitutional. If the

President exceeded his statutory authority, that is insufficient

under Dalton. Moreover, there is simply no evidentiary or

textual support for the proposition that the 1837 Treaty

contained either a misbehavior or removal standard for

privilege revocation. The Eighth Circuit refused to apply the

standard mandated by Youngstown and Dalton. If there is any

basis to affirm the President's order, it must be affirmed.

The Circuit Court erroneously dismissed the idea that the

President could revoke the privilege without ordering

removal,” (Panel Op., App. 29). Valid reasons for revoking

*> The 1854 Treaty, 10 Stat. 1109, granting reservations to the

Wisconsin tribes after they retused to move to Minnesota following the

1850 Order, establishes the intent of the parties to remove the Wisconsin

Chippewa to reservations in lieu of removal to Minnesota. The

Petitioners intend to argue this issue on appeal if Certiorari is granted.

18

the privilege in 1850 existed.°* Under Hagen, the President's

interpretation of the 1837 privilege is to be given great weight

as “clear evidence of the understanding at the time." Hagen at

420. The President's 1850 Order described the privilege as

‘temporary’ (App. 565). The Circuit Court's decision even

fails to acknowledge that the 1850 Order's revocation of the

privilege was reaffirmed by President Franklin Roosevelt in

1938 (App. 575). The President's "pleasure" was further

expressed by President Cleveland in 1895 when he (and other

Presidents) issued patents for the ceded area granting settlers

“all rights, privileges, immunities . . . of whatsoever nature .. .

forever" (App. 549).°

While the Bands will argue that this case simply follows

Lac Courte Oreilles Band, 700 F.2d 341, that argument fails to

acknowledge key differences. LCO had a different factual

record and did not involve the 1855 Treaty. LCO also was

decided before Klamath's decision on the express language of

** Wisconsin statehood had occurred in 1848. Minnesota became a

territory in 1849. The population of Wisconsin was exploding

exponentially, and the President was being urged by many in the

Minnesota-Wisconsin area to issue an order terminating the privilege to

encourage settlement and clear ttle to the public domain to encourage

land sales (1849 Territorial Resolution, App. 566, LA. 7390, 10611,

10608, 10679, 10630, 10640. 10663-64)

** Even if one assumes argucndo that the President did not have the

Statutory power trom the 1837 treaty to issue the 1850 order because of

the Bands’ understanding regarding removal, Congress ratified the

revocation of the privilege when: appropriating money to carry out the

Order (9 Stat. 944, 9 Stat. 5701 [App. 525, 530]); ratifying the 1855

treaty; passing Minnesota's Enabling Statute which was silent with

respect to the privilege or any limit on State police power; and ratifying

the Nelson Act Agreement whereby the Bands agreed to be subject to all

State law. See United States v. State of Alaska, 117 S.Ct. 1888.

1910-1911 (1997).

19

cession, and the Hagen and Dalton analysis of Presidential

power in Indian affairs. See also footnotes 6 and 35.

IV. THE TREATY OF 1855 AND THE NELSON ACT

EACH SEPARATELY ELIMINATED OFF-

RESERVATION HUNTING AND FISHING

PRIVILEGES.

The Supreme Court in Klamath affirmed United States v.

Minnesota, 466 F.Supp 1382, 1385 (D. Minn. 1979), affd sub.

nom. Red Lake Band v. Minnesota, 614 F.2d 1161 (1980)

holding that the express language of cession is "precisely

Suited" to extinguish all hunting and fishing rights or

privileges.°° Id. Neither the trial court nor the Panel decision

even references Red Lake, an omission made more astounding

by the fact that the Red Lake decision was supported by what

Henry Rice told the Mille Lacs Band during the 1889 Nelson

Act (25 Stat. 642) proceedings: off-reservation hunting is a

“matter for the Legislature of the State to determine." See

supra, [LA.945]; United States v. Minnesota, 466 F.Supp. at

1387.

The Eighth Circuit's attempt to distinguish Klamath is

unavailing. First, the Eighth Circuit claims that the 1855

Treaty language was not “explicit” (Panel Op., App. 36) in

revoking the 1837 privilege, but Klamath rejected the need for

a specific reference in the face of the general language of

cession. Klamath at 768. The proper test is whether there has

*° The 1855 treaty, 10 Stat. 1165, contained language first

conveying a specific tract of land (App. 502), and then added the separate

and additional! provision that the “Indians do further fully and entirely

relinquish and convey to the United States, 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.” (App. 503), see Klamath, 473 U.S. at 768.

20

been an express reservation of the privilege following the

general language of cession. Id. at 772-773. The Eighth

Circuit erroneously limits Klamath to exclusive on-reservation

rights versus non-exclusive off-reservation rights, a distinction

without a difference (App. 39).*’ Both exclusive rights and

non-exclusive privileges are interests in or to land, and are

eliminated by the general language of cession. Klamath, at

768.

The Nelson Act, 25 Stat. 642, together with the 1887

General Allotment Act, 24 Stat. 388, extinguished all

Chippewa reservations in Minnesota except two. This Court

has consistently ruled that sales of reservation lands, without

an express reservation of sovereignty, convey any sovereignty

and Indian jurisdiction with respect to the soid lands. Hagen;

South Dakota_v. Bourland, 508 U.S. 679 (1993); See

DeCoteau_v. District County Court, 420 U.S. 425, 442-447

(1975); South Dakota v. Yankton Sioux Tribe, vo.

1998 WL 23149 (1998). In like manner, through the 1855

treaty the Bands ceded any jurisdiction and pre-existing

immunity regarding the 1837 treaty area in Minnesota except

for those portions of the newly created Mille Lacs reservation

that were in the 1837 ceded area.~* Then, through the 1889

Nelson Act, any immunity from hunting and fishing laws with

respect to the former reservation lands was relinquished.

*’ The converse is actually true: exclusive on-reservation rights are

subject to a more stringent extinguishment test than a non-exclusive, off-

reservation privilege. As a license, a privilege is lost by a wide variety of

inconsistent actions. See footnote 29.

*° The original Mille Lacs reservation created in 1855 and last

ceded in 1889, encompassed 61.000 acres. The 1837 treaty area

encompasses more than 6.5 million acres.

2]

—

V. THE LOWER COURTS' RULING IMPROPERLY

FRACTURES THE CONSTITUTIONAL STRUCTURE

OF FEDERALISM RECOGNIZED BY THE 10TH

AMENDMENT AND EQUAL FOOTING DOCTRINE.

By failing to recognize the treaty privilege as a revocable

license,” the district court departed from established

principles,’ holding that the United States "may convey its

ability to regulate taking of the wildlife it owns." Mille Lacs

Il, 861 F.Supp. at 834. In North American Comm. Co. \

United States, 171 U.S. 110, 137 (1898), this Court ruled to

the contrary

Their regulation [of seal fisheries] involved the

exercise Of power as sovereign and not as a mere

proprietor. Such [federal] governmental powers

cannot be contracted away, and it is absurd to argue

that in this instance there were any attempts to do so

A license 1s revocable by any manifestation of the licensor's

intent to end it. This manifestation may be a formal express notice of

svocation, or it may consist of conduct obstructing the erstwhile

permitted use, or otherwise inconsistent with the license’s continued

existence A license ends on the conveyance of the servient estate

by the licensor” 4 Richard R. Powell & Patrick J. Rowhan, Powell on

Real Property, Ch. 34 “Easements and Licenses,” pp. 34-301 to 34-303

( 1997)

~ Professor Lund also advanced his theory that hunting and fishing

rights were not interests in land in Menominee II which specifically

rejected this “fallacy in plaintiffs’ argument . . .." Menominee II, 943

F.Supp 999, 1018. This is the same argument the Klamath Tribe

advanced to the Supreme Court in December of 1984, citing to Professor

Lund's 1976 article (Klamath Tribe's Supreme Court brief at LA

8664-5). See footnote 19, supra

a

_——

Id

The Eighth Circuit erred when stating "[t]here is no

federal law commanding state regulation here" (Panel Op. p

D1 n. 44, App. 58). A treaty interpretation which requires’

the State to allow hunting and fishing by Indian citizens under

a separate set of rules created under a different standard,’ and

to Oversee implementation of two sets of laws, is contrary to

the federal government's historical interpretation of the

privilege, and violates Kennedy, Klamath, and Printz v. United

States, __ U.S. __, 117 S.Ct. 2365 (1997).

The 10th Amendment issue is whether the federal

government, through the 1837 pre-statehood treaty,

preempted and usurped state police power when the 1858

Enabling Act for Minnesota, !1 Stat. 285 (App. 515), is silent

with respect to any such constraint. Bear in mind that when

Minnesota became a state in 1858, the 1837 treaty privilege

had already been revoked by a President who labeled it

temporary, and was subject to the 1855 treaty relinquishment

of all interests in and to land by language of general cession

Such a pre-statehood treaty provision could only bind the state

if it concerned a matter where there is clear federal preemption

and the limit on State authority is specifically set forth in the

~ When compiling and negotiating the Band Hunting and Fishing

Code, the State did not do so “voluntarily,” but pursuant to the district

courts requirements Mille Lacs Il, 861 F.Supp. 784, 838-9 (D. Minn

1994)

* In order for the State to include a regulation in the Band Hunting

and Fishing Code, it had to “put forth specific evidence establishing why

the regulation is a measure ‘to forestall the imminence of extinction’

(Mille Lacs IV, at 39, App. 119) (emphasis added) (citing, United States

v. Oregon, 718 F.2d 299, 305 (9th Cir, 19#3))

i,

Ld

Enabling Act (App. 515).°° There is no constitutional basis for

preemption of state police power. While Congress has plenary

power over Indian tribes it does not have plenary power over

states. Congress never stated in the Enabling Act that the

temporary privilege would limit Minnesota's sovereignty by

acting as a permanent immunity.” Therefore, if the privilege

still exists, it cannot interfere with the State's normal

regulatory plan by requiring a different set of rules for one

group of citizens, and necessitating changes in the State's laws.

States do not cede sovereignty and jurisdiction by way of

Indian understanding. If the Bands did not understand the

course of events, the Chippewa Bands had, and received, a

remedy from the Indian Claims Commission. If the United

States owes any further obligation to the Bands, it cannot

solve its dilemma by taking power from a state, and the lower

courts lacked the constitutional authority to do so.

VI. THE COURT MUST RESOLVE A CONFLICT

BETWEEN THE EIGHTH AND NINTH CIRCUITS

ON WHETHER THE FINALITY OF THE INDIAN

CLAIMS COMMISSION ACT PROCESS BARS A

Sovereign power . is an enduring presence .. . and will

remain intact unless surrendered in unmistakable terms." Bowen_v.

Public Agencies Opposed to Social Security. 477 U.S. 41, 106 S.Ct. 2390,

2397 (1986). When analyzing Minnesota's Enabling Act (11 Stat. 285) to

determine whether there is a constraint on police power, the “clear

expression” for treaty abrogation standard 1s inapplicable. In re Cherokee

Tobacco, 78 U.S. (11 Wall. 616, 621) (1870).

* United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188

(1876) is consistent with this analysis since regulation of Indian

commerce is within the federal government's constitutionally delegated

preemptive power (U.S. Const. Art. 1, § 8 cl. 3). Further, there was a

plain statement in the Act that the federal power at issue would continue

after statehood (93 U.S. at 194)

i.

i

CLAIM FOR AN ADDITIONAL REMEDY UNDER

THE SAME TREATY.

Even if these Chippewa had not prosecuted claims under

the 1837 treaty before the ICC, which they have, their claims

to reestablish the 1837 treaty privilege would be barred

because the ICC was the exclusive forum for their claims for

wrongful federal conduct. 60 Stat. 1049 (1946) (App. 550).*”

Treaty claims are subject to the rules of res judicata’ and

election of remedies..’ The Bands are not entitled to

re-litigate issues that were or could have been raised in a

previous action. Bear v. United States, 810 F.2d 153, 157

(8th Cir. 1987). "The issue of usufructuary rights arose in

various cases brought before the [Indian Claims] Commission

under the enabling legislation" Menominee Indian Tribe of

Wisconsin v. Thompson, 943 F.Supp. 994, 1017 (W.D. Wis.

1996). “The Claims Commission was not only authorized to

consider compensation for lost usufructuary rights but it did so

in a number of instances." Id. The initial Docket 18 Petition

44 ~ _ .

The defenses associated with the Indian Claims Commission Act

and the Chippewa Bands’ receipt of an award in Docket 18-C, were never

raised in any of the Lac Courte Oreilles Wisconsin and Seventh Circuit

litigation concerning the 1837 and 1&4? treaties

© While the State only pursued a collateral estoppel argument on

appeal (Panel Op. p. 40, n. 36. App. 44) Landowners appealed their

arguments that the ICC damage award in Docket 18-C barred the instant

claims by res judicata, accord and satisfaction, payment, release, election

of remedies as well as collateral estoppel

’ The election of remedies doctrine bars a second remedy when

damages have been received under the same basic facts and claim. Lane

v. Peterson, 899 F.2d 737, 744 (8th Cir. 1990); Haphey v. Linn County.

924 F.2d 152 (9th Cir. 1991); Winfield Ins. v. Edward Leroux Group

Inc., 896 F.2d 483, 488 (11th Cir. 1990)

25

of the Chippewa specifically claimed the United States had

denied to the Indians their right to hunt and fish upon the 1837

ceded lands, and that the usufructuary "rights" were "a

material consideration’ for the land cessions under various

treaties, including the 1837 treaty. The Chippewa Bands had a

full and fair opportunity to pursue damages for the taking of

the hunting and fishing privilege before the ICC. Therefore,

this suit is barred by collateral estoppel.

The Bands were well aware of their claims for the hunting

and fishing treaty privilege in 1946. The Bands specifically

raised the claim in their original Docket 18 Petition. In 1931

Band members were convicted of hunting violations in the

1837 ceded territory (LA. 2742-2747). President Roosevelt

confirmed the effect of the 1850 Executive Order in 1938

(App. 575). The Bands admitted as much in their Court of

Claims pleadings in the 1950's.“* The district court lacked

jurisdiction to grant equitable relief to the Bands enjoining

enforcement of State law because the Bands' claims were

barred by the ICCA's five year statute of limitations. Catawba

Indian Tribe of South Carolina _v. United States, 982 F.2d

1564, 1568-1569 (Fed. Cir. 1993).

The Bands have already been paid in full for the treaty

privilege. There was no separate finding by the Commission

(ICC) as to the value of the treaty privilege because the Bands

and the Commission knew that damages for the "highest and

most valuable uses" of the lands and waters (Panel Op., App.

47) (emphasis added) were best measured by the timber value,

*’ The contents of the original Docket 18 Petition, and other ICC

and Court of Claims pleadings are admissions against interest, and also

support an argument of judicial estoppel. Sunkyongint Inc. v. Anderson

Land & Livestock Co., 828 F.2d 1245 (8th Cir. 1987); Ahghazali_v.

Secretary of Health & Human Svc., 867 F.2d 921 (6th Cir. 1989); White

v. Arco/Polymers Inc., 720 F.2d 1391 (Sth Cir. 1983).

26

and this encompassed damages for the hunting and fishing uses

of the property. Klamath, 473 U.S. at 773-4. The Chippewa

admitted in their Docket 18-S* action before the ICC that

“the fisheries did have value and were an asset to the land"

(LA. 3666). This is because whether the treaty privilege is

deemed a “usufruct,” "license," "profit a prendre" or a

“franchise,” these are all interests in or to land which are

encapsulated in a payment based on full fee title (LA.

3388-3393). "[T]he value of fish, game, and vegetation on the

ceded lands was subsumed within the estimated value of the

land in general." Klamath, 473 U.S. 768, 773-4. The experts

for the Bands in Docket 18-C at the ICC claimed that the

valuation of the acreage based on the value of the area for pine

timber, yielded the highest per acre dollar value. The 1974

damage award of over nine million dollars "in full satisfaction"

(SA. 526) of all Docket 18-C claims was based on a full fee

value, without any offsets for any retained interests, and

included payment for all acres of land and water (LA.3274) in

the ceded territory.~”

The premise of the lower courts’ rulings is that the treaty

privilege is not a subset of fee simple under real property law

and therefore a separate payment for hunting and fishing rights

would have to be set forth in the ICC Docket 18-C award if

the Bands were actually compensated for the treaty privilege.

Exactly the opposite is true.

The Tribe finally contends that the absence of any

payment expressly in compensation for hunting and

*° The Commission itself stated that, "{t}his case [18-C] is similar to

the claims presented by the Minnesota Chippewa and others in Docket

Nos. 18-S and 18-T." (LA. 4367).

° The ICC paid the Bands for all the waters in the 1837 area by

utilizing the dollar value per acre as if all the waters were pine timber.

27

fishing rights on the ceded lands demonstrates that

the parties did not intend to extinguish such rights in

1901 . . . As explained above, that assumption 1s

incorrect. . . . the value of fish, game, and vegetation

on the ceded lands was subsumed within the

estimated value of the land in general. Indeed, had

the parties actually intended to preserve independent

hunting and fishing rights for the tribes on the ceded

lands, the Boundary Commission presumably would

have computed the value of such nghts and explicitly

subtracted that amount from the price to be paid for

land so encumbered.

Klamath, 473 U.S. at 773-4. When specifically referring to the

Indian Claims Commission proceedings, the Court stated:

the Tribe has since been afforded an opportunity to

recover additional compensation for the ceded lands,

in light of the ‘unconscionable’ amount paid in

1906. 20 Ind. Cl. Comm'n at 530. Yet, in that

proceeding, which resulted in an award to the Tribe

over $4 million. . . . the Tribe apparently agreed that

the ‘highest and best uses’ for the ceded lands were

commercial lumbering and livestock grazing, again

without mention of any hunting and fishing rights.

The absence of specific compensation for the rights at

issue 1S entirely consistent with our interpretation of

the 1901 Agreement.

Klamath, 473 U.S. at 774 (emphasis added). Those

circumstances are virtually identical to those of the Chippewa

whose final, amended Docket 18-C Complaint sought an

award for the “fair and just compensation or consideration for

the lands ceded . . . [and] damages resulting from defendant's

failure to deal fairly and honorably ..." (SA. 524).

28

Bands described their Docket 18-C action as "an

unconscionable consideration claim arising out of the cession .

. . by the treaty of July 29, 1837..." (LA. 3722). Since the

Bands had claimed and admitted in their original Docket 18

Petition that the hunting and fish‘ng privilege was a material

part of the consideration for the 1837 cession (SA. 468. LA.

3184-3185), and since the Docket 18-C damages award paid

the Bands for all inadequacies in consideration under the 1837

treaty, the Bands have been paid for the value of the treaty

privilege.

The Docket 18-C ICC award was based on full fee title.

after the Bands first proved they previously held recognized

title to the 1837 ceded area.“' The Ninth Circuit has

concluded that when Bands receive damages from the ICC for

all inadequacies in the cession of Indian title, the Bands were

paid for any hunting or fishing rights.*- Both aboriginal and

treaty reserved hunting and fishing rights are presumed lost,

and taken, as the result of an ICC award. The Eighth Circuit

classified the privilege as something other than Indian title or

an interest in or to land, evading its prior rulings that real

property claims came within the exclusive jurisdiction of the

Icc.*

* “(Bjoth aboriginal and treaty-recognized title carry with them a

right to use the land for the Indians’ traditional subsistence activities of

hunting, fishing, and gathering.” Lac Courte Oreilles v. Voight. 700

F.2d 341, 351-52 (7th Cir. 1983) (cert. den., 464 U.S. 805).

** Western Shoshone National Council v. Molini, 951 F.2d 200. 203

(9th Cir. 1991); United States v. Dann, 873 F.2d 1189 (9th Cir. 1989)

(cert. den.); Wahkiakum Band Chinook Indians v. Bateman, 655 F.2d

176, 181 (9th Cir. 1981); See United States v. Pend Oreille Public Utility

Dist., No. 1, 926 F.2d 1502, 1508 (9th Cir. 1991).

** Oglala Sioux Tribe v. United States, 650 F.2d 142 (8th Cir.

1981); Oglala Sioux Tribe v. Homestead Mining Co., 722 F.2d 1401 (8th

Cir. 1983)

29

rt needs to resolve this dispute between

Supreme Court n

application of Klamath

proper

Bands that received an

a clear message

ling the

ICC

' are 312

A. 1835). The Court must send to

he Circuits that the ruling in Klamath bars treaty based

ing and fishing claims by Bands which received damages

from the ICC for the treaty lands and waters. If such a

seen is not sent, the Eighth Circuit has drawn the

lavigational chart for all Bands who were compensated by

ICC for lost lands or reservations to commence uae

igainst states seeking hunting and fishing right

which the tribes were paid

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CONCLUSION

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Minneapolis. MN 4 é

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