Amicus Curiae Brief — Thompson v. Mille Lacs Band of ChipPewa Indians

INTEREST OF THE AMICUS CURIAE!

lhe Citizen’s Equal Rights Alliance (CERA), is a non

profit association of non-Indians and Indians Incorpo

rated and licensed under the laws of the State of New

Mexico and headquartered in Santa Fe, New Mexico

CERA’s interest in this lawsuit arises from CERA’‘s advo

cacy of the principle that all people should be treated

equally, whether Indian or non-Indian. In this, CERA‘s

interest mirrors that of Petitioners. The ( hippewa Bands

position that they are entitled to the reinstatement of

treaty rights to avoid application of state police power

authority to regulate hunting, fishing and gathering

rights applicable to all other state citizens, violates the

principle of equal rights under law. This amicus brief

supports the Petitions for Certiorari for the Counties

Docket No. 97-1356 and the Landowners. Docket N

a Xe.

SUMMARY OF THE ARGUMENT

[he main argument of this brief challenges thi

iuthority of the Courts of the United States to reinstate

treaty rights deemed extinguished or terminated for

eighty years by all parties. Upon the land cession of the

Mille Lacs Band and their consent to be placed on

reservation by the treaty of 1855, Congress placed

[he parties have consented to the filing of this brief

Counsel fora party did not author this brief in whole o1

part. No person or entity, other than the Amicus Curia

members, or its counsel made a monetary, contribution to ft]

preparation and submission of this brief

Nm

termination of the treaty rights on non-reservation land

to hunt, fish and gather wild rice at the pleasure of the

President. President Zachary Taylor terminated the usu-

fructuary treaty rights by Executive Order on February 6,

1850. this termination and further act of full extinguish-

ment of the Mille Lacs reservation by the Nelson Act of

1889, ch. 24, 25 Stat. 642, §§ 3, 5 and 6, was treated by the

United States as an extinguishment not only of the reser-

vation but also of the treaty rights until 1970. In 1970, the

United States with a change of Indian policy to restore

tribal sovereignty, brought suit on behalf of the Leech

Lake Band of Chippewa to restore the usufructuary treaty

rights from the Treaty of 1837. Leech Lake Band of Chippewa

v. Herbst, 334 F. Supp. 1001 (D.Minn. 1971). The 1837

Treaty established all of the claimed treaty privileges for

all of the Chippewa Bands, including Mille Lacs.

Although there were multiple land cession treaties with

the various Chippewa Bands, the restoration argument of

the Bands and the United States has not varied in the

many cases brought by the United States has not varied

in the many cases brought by the United States on behalf

of the different Bands. This case, therefore, shares many

facts and potential consequences with the Leech Lake Band

of Chippewa v. Cass County case, Docket No. 97-174,

already briefed and argued before this Court.

By unanimous opinion of the court in State of Alaska

v. Native Village of Venetie, 1998 WL 75038 (U.S.), 118 S.Ct.

__ (1998), this Court ruled that Congress’ intent to extin-

guish or terminate an Indian reservation is the para-

mount consideration in examining whether a reservation

was actually terminated. This reasoning comports to the

plain language of the Property Clause, Art. IV, Sec. 3, Cl.

2, that “Congress shall dispose of the territories...” This

g

very simple reasoning makes Congress accountable for

the use of the territorial war powers. There is no question

that Congress intended with the Nelson Act of 1889 to

terminate all of the Chippewa reservations except Red

Lake and White Earth. Congress has never acted in any

way to restore the Mille Lacs reservation. There is a real

question whether the constitutional power exists in Con-

gress to restore only the usufructuary treaty rights to any

Indian Tribe over lands no longer in its jurisdiction under

the Property Clause. Instead of leaving this question to

Congress, the Federal Courts in the Eighth Circuit

decided they would restore the treaty rights of the 1837

Treaty to the Mille Lacs Band at the urging of the Execu-

tive Branch. This amicus brief challenges whether the

federal courts have jurisdiction under Art. III to even

hear a suit brought by the Executive Branch asserting

Property Clause authority.

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STATEMENT OF CASE

Beginning in 1971 with the Leech Lake Band of Chip-

pewa, the United States on behalf of different bands of

Chippewa Indians, a tribe recognized under the Indian

Reorganization Act of 1934, 25 U.S.C. § 461 et seq., has

brought several lawsuits against the State of Minnesota to

reinstate Indian treaty rights deemed extinguished by all

parties from the 1890’s to 1970. Mille Lacs is the latest

seeking to reinstate the hunting, wild rice gathering and

fishing rights. So far for the Chippewa, the United States

has participated in more than six suits in Minnesota and

Wisconsin for the Chippewa which displace the regula-

tory powers of those states to administer the hunting,

gathering and fishing rights on state and private lands.

Minnesota and Wisconsin are not public land states

with vast amounts of federal land available for with-

drawal or reservation. The use of the term “reservation”

as to the Mille Lacs Band is a misnomer. The “reserva-

tion” designation flows from the fact that some Indians

still own land and the Band has purchased land within

the original boundaries of the reservation expressly ter-

minated by the Nelson Act of 1889, ch. 24, 25 Stat. 642.

The United States refers to the Mille Lacs “reservation”

because it asserts that the 1837 treaty rights still exist. The

United States claims that the possible existence of an

unextinguished Indian treaty right requires a court to

find that these privately owned lands are “Indian coun-

try” and therefore are “Indian territory” entitling the

Indian Band to protection of their treaty right under the

Treaty Clause, Art. II, Sec. 2 and thereby the Supremacy

Clause, Art. Vl, Cl. 2. This argument in effect creates

permanent reservations with sovereign rights at least

equal if not actually superior to the states. See Leech Lake

Band of Chippewa v. Cass County briefs.

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ARGUMENT

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INTRODUCTION

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The Mille Lacs decisions of the Eighth Circuit conflict

with the decisions of this Court in South Dakota v. Bour-

land, 508 U.S. 679 (1993) and South Dakota v. Yankton Sioux

Tribe, 118 S.Ct. 789 (1998) which interpret the extinguish-

ment of Indian lands as also being an extinguishment of

Indian Treaty claims. The Yankton Sioux argument pre-

sented by the United States for the tribe was very similar

mpi = =

to the reasoning used in this case. The Eighth Circuit

ruled for the tribe in that case as well. Just as the Eighth

Circuit was overruled in Yankton Sioux, so should it be in

this matter. As Yankton Sioux observed, these cases fall

within a line of termination cases which began with

DeCoteau v. District County Court. See, e.g., DeCoteau v.

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

The DeCoteau Court determined that the State of

South Dakota possessed jurisdiction because the reserva-

tion had been extinguished and could not be “restored”

by the Secretary. In overruling the Eighth Circuit, the

Court established the process used to determine whether

the use and occupancy rights of the Tribe were termi-

nated. DeCoteau, 420 U.S. at 442-47. For the first time, the

court distinguished between extinguishment acts and

surplus lands acts. A conclusion of termination indicates

permanent extinguishment of all tribal interest in the

land. For the lands in question, the compliance with the

Nelson Act met this exacting standards, as well as the

standard expressed in Hagen v. Utah, 114 S.Ct. 958 (1994),

for the disestablishment of “Indian country.” Nelson Act

of 1889, ch. 24, 25 Stat. 642 (1889). The Nelson Act is the

Minnesota version of the General Allotment Act of 1887,

ch. 119, 24 Stat. 388, §§ 5 and 6.

The Eighth Circuit discussion of the Nelson Act is

based upon an error which fails to acknowledge the

impact of Hagen v. Utah, on the Seymour v. Superintendent

interpretation of the criminal statute defining “Indian

country.” Compare i8 U.S.C. § 1151 (1994) with Hagan v.

Utah, 114 S.Ct. 958 (1994) and Seymour v. Superintendent,

368 U.S. 351 (1962). As the recent Native Village of Venetie

decision makes crystal clear, the definition of the “Indian

country” requires a federal set aside of land. In this case

there is no federal set aside of these lands upon which the

hunting, gathering of wild rice and fishing is supposed to

take place. In 1971, the federal district court of Minnesota

in Leech Lake Band v. Herbst, 334 F. Supp. 1001, 1005 (D.

Minn. 1971), inappropriately relied on Seymour to hold

that the 1855 Treaty with the Chippewa was not extin-

guished by the Nelson Act. Leech Lake Band of Chippewa

Indians v. Herbst, 334 F. Supp. 1001, 1005 (D.Minn. 1971);

see, e.g., Leech Lake Band v. Cass County, 108 F.3d 821

(opinion by Judge Murphy); Mille Lacs Band of Chippewas

v. Minnesota, 861 F. Supp. 784 (1994) (same); Mille Lacs

Band of Chippewas v. Minnesota, 853 F. Supp. 1118 (1994)

(same). The Eighth Circuit since 1971 has consistently

held that the usufructuary treaty rights specifically recog-

nized in the treaty of 1837 were not extinguished by the

termination of the 1855 treaty rights because the acts of

Congress and express language of the President were not

made sufficiently clear to the Chippewa. The Eighth Cir-

cuit has always addressed the extinguishment from the

perspective of the Indians’ understanding, based on the

United States’ trust responsibility, and never addressed

whether a power to restore Indian treaty rights not

reserved at statehood exists under the Constitution of the

United States.

By relying on “Indian country” as an exemplar of ’

tribal sovereignty, the Eighth Circuit ignored the princi-

ple that “Indian country” has no relevance to an express

extinguishment act of Congress and can provide no lim-

itation thereto. See Hagen v. Utah, 114 S.Ct. at 967. The

Eighth Circuit, without expressly citing the law of the

case or res judicata, has continued to use its 1971 prece-

dent of Herbst for all Chippewa cases proceeding after the

initial Leech Lake Band decision. In doing so, the Eighth

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Circuit has completely avoided applying the extinguish-

ment line of cases to any of the Chippewa Bands claims,

including Mille Lacs. The new decisions of South Dakota v.

Yankton Sioux Tribe, 118 S.Ct. 789 (1998) and State of Alaska

v. Native Village of Venetie, 1998 WL 75038 (U.S.), 118 S.Ct.

____ (1998) directly contradict the Eighth Circuit land sta-

tus rationale as to treaty rights extinguishment and

“Indian country” respectively.

In no way can the Nelson Act be construed as any-

thing but a disposal act. The Nelson Act disposed of all

lands which had been reserved for the Leech Lake Band

and the Mille Lacs Band, under allotments, timber sales

or homesteads. 25 Stat. 642. The Eighth Circuit Court of

Appeals’ extrapolation of the initial Herbst error to pre-

vent the lawful operation of a proper disestablishment act

only makes the error more needful of correction. Judge

Murphy’s expansive view cf treaty cases which are no

longer proper precedent led her to prevent extinguish-

ment of treaty rights, where the disestablishment act

required relinquishment of all right, title, and interest to

the reservation. The Eighth Circuit has not reviewed the

first impression ruling of Leech Lake Band v. Herbst after

the case law on extinguishment developed in higher

courts. The fundamental! shift in higher precedent leaves

the Eighth Circuit on uncertain ground and in need of

redirection.

Il.

DISPOSAL OF THE TERRITORIES IS A

REQUIREMENT WHICH PROTECTS FEDERALISM.

Congressional power over territorial lands was

meant to be temporary. As the Constitution provides,

“Congress shall dispose of the Territories ...” U.S.

Const., Art. IV, Sec. 3, Cl. 2. The principle mandating

disposal has long been upheld by this Court. See U.S. v.

Midwest Oil, 236 U.S. 459 (1915); Pollard’s Lessee v. Hagan,

44 U.S. (3 How.) 212 (1845), U.S. v. Gratiot, 39 U.S. (14

Pet.) 525 (1840). In other areas, Congress itself recognized

the temporary nature of its regulatory authority. See Fed-

eral Land Policy Management Act of 1976 (FLPMA), 43

U.S.C. § 1701 et seq. Additionally, this Court recently

required specific congressional action to create perma-

nent reservations in a state. Alaska v. United States, 117

S.Ct. 1888 (1997); see also New Mexico v. Watkins, 969 F.2d

1122 (D.C.Ct.App.1992) (affirming in part, and on Prop-

erty Clause grounds, 783 F. Supp. 633 (D.D.C.1992)).

Congress expressly terminated the Mille Lacs reser-

vation with the Nelson Act. After the 25 year trust period

expired, the Mille Lacs tribal rights to these lands and all

of the rights upon these lands were extinguished. The

United States, through the Clinton Administration, is

attempting to subvert the old cases of Fletcher v. Peck, 10

U.S. (6 Cr.) 87 (1810) and Johnson v. McIntosh, 21 U.S. (8

Wheat.) 543 (1823) and fundamentally alter the sover-

eignty balances set by the Constitution. The United States

acknowledged, in the Treaty with the Chippewa of 1855, _

that it held sovereign title to the lands under the Property

Clause, Art. IV, Sec. 3 and that the Bands held only

“Indian title.” This “Indian title” gave only a right to use

and occupy the land until the right was terminated by

Congress. “Indian title” has been transformed by clever

legal wording referring to the lands as “Indian territory”

into a full sovereign claim over the land. Congress has

given the tribes many powers of self-government but has

never linked the powers to land status. The power Con-

gress has allowed the tribes flows completely from Con-

gress. Any delegation of authority is revocable at will

because there is no sovereign connection to the “Indian

territory.” The Clinton administration is literally attempt-

ing to expand the definition of the word “territory” just

as they have expanded the definition of “reservation”

into any lands where any Indians live.

Whatever Indian sovereignty existed in the Mille

Lacs Band was determined by the Treaty and is entirely

subject to the plenary authority of Congress. United States

v. Kagama, 118 U.S. 375 (1886). Even under the Treaty of

1855, the Mille Lacs Band was not the supreme sovereign

over this land. The Treaty acknowledged the territorial

sovereignty of the United States. From 1855 until the

termination of the reservation by the Nelson Act in 1889 --

with the disposal by sale of the lands - these lands were

federal reserved public domain lands. Arguably until the

25 year trust period expired for the final sales and dispo-

sition of the lands, the United States retained territorial

jurisdiction against the states on the allotted lands

acquired by Indians. The State of Minnesota accepted

jurisdiction and exercised full jurisdiction over former

Chippewa lands under the Nelson Act until 1971 when in

a-case of first impression, the federal district court erro-

neously concluded that the Nelson Act was not a termi-

nation of the usufructury treaty rights of the Leech Lake

Band of Chippewa.

Although asserted under the guise of unextinguished

treaty rights, this case is merely a variation on a theme —

the United States attempting to forcibly displace state

jurisdiction. There is no practical difference between an

BOS LET EL TIT

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Indian tribe reacquiring lands by purchase or by assert-

ing a claim to an extinguished treaty right. Tribal pur-

chase of lands in fee simple alone does not divest state

jurisdiction. It is only the interpretation the United States

has placed on its General Welfare/Spending Clause, Art.

1, Sec. 8, Cl. 1, trust responsibility through the Indian

Reorganization Act and the Indian Self-Determination

Acts which purport to dispossess state jurisdiction. This

argument is fully made to the Court in an Amici Curiae

Brief submitted by CERA in the current Leech Lake case.

The questions presented in this case demonstrate an over-

all problem with judicial review created in the Scott v.

Sandford, 60 U.S. (19 How.) 393 (1857) decision. That

problem stems from the two holdings which dealt speci-

fically with the Court declining to protect constitutional

rights in territories of the United States and the use of the

political question to prevent the Court from ever revisit-

ing the perpetuation of slavery in the territories.

Although the Thirteenth Amendment effectively

overruled the first holding in Scott v. Sandford concerning

the ability to make freed Negro citizens, the rest of the

majority decision has been left completely intact. To this

day the Court has never reexamined its authority in the

territories. Constitutional rights still do not apply to per-

sons residing on lands subject to the plenary authority of

Congress under the Property Clause. This is precisely the

result the Founding Fathers attempted to prevent with

the structure of the Constitution because they had fought

the Revolutionary War to gain full citizenship rights for

the former territorial colonies of Great Britain. As George

Mason, the most prominent Anti-federalist, predicted in

his speech to the Constitutional Convention, because of

slavery, this very carefully constructed structural balance

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to protect the People’s rights would not hold. He

demanded a Bill of Rights and the battle for ratification

began. It is hard to believe that more than two hundred

years later we are still having the same fight, especially

after such a costly Civil War. The Civil War did result in

the Amendments needed to fix the territorial problem. It

also resulted in a virtually completely Federalist victory.

Even though the Southern States gave three major

chances to the Supreme Court to apply the Fourteenth

Amendment against the territorial war powers, three

times the Court declined and used the rationale of Scott

without citing to the actual decision to deny jurisdiction.

State of Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867);

Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1868); and Texas v.

White, 74 U.S. (7 Wall.) 700 (1869).

It is not the purpose of this brief to question the

result of the Civil War. The purpose is to question why

the Supreme Court has never placed the will of the Peo-

ple in the passage of the Civil War Amendments back into

the dominant position in the structural balance. To this

day, the definition of “sovereign people” in Black’s Law

Dictionary is still the perverted definition from Scott v.

Sandford. No group of people has been more victimized

by this inaction on the part of the Supreme Court than the

Indian people. The Indian people, although called citi-

zens because of the Naturalization Act of 1924, 8 U.S.C.

§ 1401, only have rights when they are not on territorial

lands. How much of this result flows from the fact that

the Indian cases of Cherokee Nation v. Georgia, 30 U.S. (5

Pet.) 1 (1831) and In re Kansas Indians, 72 U.S. (5 Wall.) 737

(1867) became a major part of the Reconstruction Act

debate will be left for historians to decide if the result is

ever altered by this Court. Certainly, the words of Justice

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Davis in In re Kansas Indians quoting the 1854 Treaty with

the Shawnee have been ignored. “It may be that they

cannot exist much longer as a distinct people in the

presence of the civilization of Kansas, ‘bu! until they are

clothed with the rights and bound to all the duties of

citizens’ they enjoy the privilege of total immunity from

state taxation.” Id. at 756. Indian citizenship has not

changed the willingness of the Court to confront the

territorial war powers.

Under the current United States perspective, Indian

treaties were made outside of the territorial boundaries of

the United States. Congress has never passed any act for

or against the Indian tribes which disclaims territorial

jurisdiction of the United States over lands currently or

formerly occupied by Indian tribes. This argument

asserted by the Executive Branch attempts to displace

Congress’ plenary power over the Indian tribes and its

Property Clause authority. Instead, it places a potentially

unlimited power to reinstate treaties within the territorial

boundaries in the Executive Branch under the Department

of Justice. These reinstated treaties hope to displace state

jurisdiction by reasserting the Supremacy Clause to both

reinstate the Indian property rights and to attach Indian

sovereignty rights to the land. Although this Court has a

long history of avoiding applying the Fourteenth Amend-

ment to Indian cases because of the direct conflict between

the Fourteenth Amendment protections and the Property

Clause’s inherently unaccountable powers, the reinstate-

ment of treaty rights without examining the Fourteenth

Amendment consequences goes too far.

The United States asserts it is merely protecting tribal

interests by reasserting these treaty rights. However, the

United States’ claim that these reasserted treaty rights are

13

treaties under the terms of the Supremacy Clause entitled

to assertion as the supreme law of the land creates an

ability to completely displace state law. The Supremacy

Clause requires that the treaty be made under the author-

ity of the United States Constitution to be the supreme

law of the land. The adoption of the Fourteenth Amend-

ment in 1868 essentially prevented any more treaties from

being negotiated with the Indian tribes. There is no doubt

that at the time of negotiating and ratifying the Indian

treaties, the United States used the treaties primarily to

negotiate land cessions. The 1855 Treaty with the Chip-

pewa was a treaty of cession. These land cessions were

originally executed under the authority of the Treaty

Clause. However, the power to administer the lands as

territory was in the Property Clause.

The Treaty Clause defines a mandatory process, nec-

essary to create a treaty. It carefully separates and bal-

ances the power of the Executive Branch to enter into

international agreements against the power of Congress

to make domestic law. There is no point of having a

constitution to limit the domestic powers of the federal

government if the international powers are unlimited and

superior to domestic law. The United States is incorrect in

asserting that the Supremacy Clause creates such a result.

Entering into a treaty does not alter the doctrines of

separation of powers or checks and balances. The deci-

sion to enter a treaty requires both the President and the

Senate for ratification. The treaty power is a very care-

fully constructed political process. The Executive can

enter a treaty which then is not ratified by the Senate,

rendering the treaty null and void. The most famous

example of this was President Wilson and his League of

Nations inclusion at the end of World War I which failed

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ratification in the Senate. This political decision was not

subject to judicial review. It is an inherently political deci-

sion whether a treaty passes this constitutional process.

Reinstating a treaty cannot be done by the courts

under the Treaty Clause because it violates the political

process created in the clause. The treaty power does not

bestow upon the courts any authority except to review

whether the other branches adhered to the required pro-

cess. The power being asserted by the Eighth Circuit to

restore the 1837 Treaty is actually derived from the Prop-

erty Clause. To allow reinstatement of treaties, judicial

review must include the ability to overrule an express

political decision to extinguish or terminate indian reser-

vations made by Congress to dispose of the public domain

lands. No party in this case has questioned the constitu-

tionality of the Nelson Act. Again, the courts undoubtedly

possess the power to review whether the disposal act

contained sufficient process to protect constitutional

rights. The courts as demonstrated by DeCoteau and the

whole line of extinguishment cases, may set due process

requirements which Congress must meet. Lands not prop-

erly disposed may still have Indian treaty rights attached

subject to the plenary authority of Congress to remedy.

However, ensuring due process is not an exercise of an

affirmative power to restore Indian rights over land speci-

fically disposed. This is a power not contained in Art. III.

While Art. III does allow judicial review to determine

if property rights were taken or civil rights were violated

by the United States in extinguishing a treaty, the power

does not extend to review of the political decision to

terminate. This includes not only the power of Congress

under the Property Clause but also the power of the

Executive under the Treaty Clause. In this case, the Eighth

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Circuit actually managed to violate separation of powers

against both other branches by reinstating the treaty

against an express termination by Congress and by ignor-

ing the President's exercise of properly and expressly dele-

gated power to terminate the 1837 treaty privileges. The

fact that Indian policy was altered subsequently does not

affect the fact the President ended the privilege.

The United States Supreme Court correctly ruled in

the extinguishment line of cases starting with DeCoteau v.

District County Court that the extinguishment is examined

from the Intent of Congress at the time of passage of the

disposal act. The Eighth Circuit erred in examining the

Mille Lacs treaty claim from the United States perspective

that the Nelson Act should be interpreted based upon

present law. The Eighth Circuit should have followed the

extinguishment line of cases and ruled that the treaty

rights were extinguished. By following the United States

perspective, the Court became the instrument to impose

an ultra vires restriction on Minnesota’s jurisdiction to

regulate hunting, fishing and wild rice gathering on state

and private lands.

Il.

THE PURPOSE OF JUDICIAL REVIEW IS TO

PROTECT THE RIGHTS OF THE PEOPLE FROM

USURPATION BY GOVERNMENT.

The case at bar is an excellent example of how the

Court’s order does not completely divest Minnesota of

jurisdiction — it compels Minnesota to exercise its regula-

tory authority in a manner defined by the court. The

Eighth Circuit ordered the State of Minnesota to enter an

agreement with the Mille Lacs Band, placing the tribal

“treaty” rights ahead of all other use rights on Mille

16

Lacs.? This type of court order is the worst sort of federal

mandate. See Leech Lake Citizens Committee v. Leech Lake

Band of Chippewa Indians, 355 F. Supp. 697 (D. Minn. 1973).

Certainly, the constitutional reasoning is identical to that

asserted by Congress to compel specific state regulatory

action. See, e.g., Printz v. United States, 117 S.Ct. 2365

(1997), New York v. United States, 505 U.S. 144 (1992). This

result is just as unconstitutional as a federal mandate

which compels a state to regulate a specific way accord-

ing to a federally funded program.

It is particularly disturbing to see a federal court

caught in this separation of powers violation. An Article

III court must protect the rights of all the people in an

unbiased manner. The credibility of the courts depends

on the people believing they are fair and impartial in the

protection of constitutional rights. Part of that respon-

sibility is ensuring that the elected representatives of the

People may politically be held accountable by the People.

When government policy based on territorial power

favors a minority over the majority, the People literally

have no right to even question the authority in court and

cannot hold their elected representative accountable for

discrimination which occurs outside of their district. It is

a true “slippery slope” problem because by the time the

discrimination hits the majority, it is too late to remedy

the initial claim of territorial power. The perfect example

of this assertion is in Kansas v. Colorado, 206 U.S. 46 (1907)

discussing the Property Clause power against the Tenth

2 This agreement will survive the Leech Lake ruling of this

Court unless a direct order issues requiring the Eighth Circuit to

review its Mille Lacs rulings based upon the decisions of the

current term.

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Amendment concerning the Reclamation Act of 1902, 32

Stat. 388.

“These arid lands are largely within the Territo-

ries, and over them by virtue of the second

paragraph of section 3 of Article IV heretofore

quoted, or by v:rtue of the power vested in the

National Government to acquire territory by

treaties, Congress has full power of legislation,

subject to no restrictions other than those

expressly named in the Constitution, and, there-

fore, it may legislate in respect to all arid lands

within their limits. As to those lands within the

limits of the States, at least of the Western

States, the National Government is the most

considerable owner and has power to dispose of

and make all needful rules and regulations

respecting its property. We do not mean that its

legislation can override state laws in respect to

the general subject of reclamation. While arid

lands are to be found, mainly if not only in the

Western and newer States, yet the powers of the

National Government within the limits of those

States are the same (no greater and no less) than

those within the limits of the original thirteen,

and it would be strange if, in the absence of a

definite grant of power, the National Govern-

ment could enter the territory of the States along

the Atlantic and legislate in respect to improv-

ing by irrigation or otherwise the lands within

their borders. Nor do we understand that hith-

erto Congress has acted in disregard to this

limitation.” Kansas v. Colorado, 206 U.S. at 92.

It only takes a reading of the Clean Water Act, 91 Stat.

1566, 33 U.S.C. § 1251, et seq., and its amendments to

realize that this judicially approved discrimination

against the Western States has now spread to include all

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of the States in regards to wetlands and tribal grants of

authority to regulate, 33 U.S.C. § 1377 of the Clean Water

Act, under the same power analysis as the Reclamation

Act.

The Mille Lacs decisions, like the Leech Lake deci-

sions, hold that the United States is not accountable for

placing the rights of the Mille Lacs Band ahead of the

rights of the majority of the citizens of the State of Minne-

sota. The decisions make it seem this is a proper role for

the federal government instead of the extra-constitutional

action it is.

Federalism is the separation of powers doctrine

which protects the states from intrusions by any of the

federal branches on powers reserved to the states. It is

unusual that this intrusion is from the Judicial Branch

because of the limitations placed in Art. III. This is not an

original jurisdiction action which grants very broad

authority to this Court on very limited subjects. The

Eighth Circuit is claiming appellate jurisdiction includes

an affirmative constitutional power to act to remedy the

disposal of the Mille Lacs reservation.

There is no constitutional power which allows the

United States Congress or any other branch of the federal

government to unilaterally divest state jurisdiction and to

make it federal except under direct war power authority.

The intent of the disposal of the public domain was to

create states to prevent the territorial war powers from

becoming perpetual. Throughout the discussions of the

overall effect of the territorial powers was a great concern

articulated by the Anti-federalists about maintaining a

standing army. No group of persons understood that

constitutional rights were not recognized in a territory

19

because of the war power authority under English com-

mon law better than the men that started our Revolution-

ary War and drafted this Constitution. They specifically

worded Art. IV, Sec. 3 to place the creation of states in

Clause 1 ahead of the compelled disposal of the territory

in Clause 2. These clauses have been erroneously inter-

preted separately for too long. The first Clause is an

express limitation on the second.

Ultimately, the reinstatement power is a question of

the nature of judicial review. If judicial review is primar-

ily to protect the People’s rights then the People are the

supreme sovereign. If judicial review was intended to

further the power of the national government, then the

government is the supreme sovereign. Under the first

analysis the courts are accountable to the People to pro-

tect their rights. Under the second analysis the courts

become the most dangerous branch of government to the

People. In point of fact, this second result has happened

because the trial courts do not examine the constitu-

tionality of a federal mandate before they apply it to a

father delinquent on child support or to protect the rights

of a part Indian child to be with the only parents the child

has ever known.

The Court must decide the nature of judicial review

in either this case or apply its decision on this fundamen-

tal question from the Leech Lake v. Cass County case

already before this Court. The Fourteenth Amendment

confrontation with the Property Clause power is ripe and

must be decided before lower courts, both state and

federal, lose all credibility by refusing to hear cases

because they must overrule federal mandates that con-

tribute major amounts of money to state budgets. No trial

judge can take on the responsibility for terminating state

a0

funds without major support from the United States

Supreme Court that it must be done to protect civil rights.

——— e aensensenennennnemmeneianeenenseees

CONCLUSION

The decisions of the Eighth Circuit Court of Appeals

should be reversed. This Court should grant the petition

to allow this correction and to address the important

judicial review question presented by the Eighth Circuit

not reviewing its 1971 precedent against a whole line of

Supreme Court decisions to the contrary.

Respectfully submitted,

Douctas Y. FREEMAN

Counsel of Record

LANA E. MARCUSSEN

BRIAN A. THOMAS

631 North Center

P.O. Box 429

Hardin, Montana 59034

(406) 665-1412

Counsel for Amicus Curiae