Brief Amicus Curiae — Menominee Tribe of Indians v. United States

— Rte

SI}PREME COURT. vs.

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ee eee oS ee

In the

NOV 24 19577

JOHN F. DAVIS, CurpK

SUPREME COURT of the UNITED STATES

* THE MENOMINEE TRIBE OF

INDIANS, et al.

THE UNITED STATES

Ocashet Term, 1967

No. 187

GRIEF OF THE STATE.

(OF WISCONSIN, AMICUS CURIAE

>

v.

BRONSGN C. LA FOLLETTE |

Attorney General

State of Wisconsin

WILLIAM F. EICH

Assistant Attorney General

State of Wisconsin

State Capitol

Madison, Wisconsin

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TABLE OF CONTENTS _

tefeanel of the Amicus curiae ..... ; 1

Summary of Argument ... .

Argument . 4

I. The Menominee Indian Termination Act (P. L. 399,

83rd Cong), by its. plata language, abrogated the

exclusive hunting: and fishing rights of the Me-

nominee Indians which were granted to sa by

the Wolf River Treaty of 1854 -: é'

A The hunting and fishing rights of-the Menomi- —

nee Indians arose from treaties with the United |

States

B. Congress has plenary power to deal with the —

Indians and may abrogate Indian privilegs and

rights, including treaty rights, by statute —.......

C. The Menominee “Termination Act” specifically

provides that-following termination all statutes

of the United States which affect Indians be-

cause of their status as Indians shall-no longer

be applicable to the Menominee Indians, and .

that the laws of the several States shall apply

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

- ner as they apply to other citizens or persons

within their jurisdiction

=

a The legislative history of the Termination Act does .

not change the import of the language thereof, which

given its plain and ordinary meaning, would extin-

guish the Menominees’ pre-existing hunting and

fishing rights |

13

ii és ” ‘ | .

ac PAGE

A. Pertinent documents reveal congressional aware-

ness of the fact that the language of the Termi-

nation Act would abrogate these rights ............... 13 -

B. The enactment of Public Law 280 does not jus-

tify the court’s interpretation of the Termina-

tion Act as preserving the enntind and setiie

rights of the Menominees 16

C. The reference to Public Law 280 in one portion

of the Termination. Plan does not: require the

construction of. the Termination Act adopted

3 ” the Court below” 19

Ill: Treaty hunting and fishing rights-constitute valu-

able property, and their loss is compensable -........... 22

IV. Conclusion : _. 28

TABLE OF CITATIONS

‘ as y é ,

Cases

Anderson v. Gladden (CCA 9th, 1961), 293 F. (24) 463,

cert. den. 368 U. S..949 5, 6

Cain v. First Nat. Bank of a (9th Cir. 1963), 324

F. (2d) 532 : 6

Chemah v. Fodder (D. C., Ww. D. Okla., 1966), 259 F.

; Supp. 910 7

Lens Wolf v. Hitchcock (1903), 187 v. S. 553. ro etl 5, 6

§

Hi ‘

PAGE °

Menominee Tribe v.’ United States (1941), 95 Ct. Cl.

232 bint : , - 4,5

~

Menominee Tribe v. United States (1967), — Ct. Cl.

ee”: AC) 4, 14, 18, 20

Moore v. United States (9th Cir. 1946), 157 F. a) 760,

cert. den. 330 U.S, 827 =... a. 2

Organized Village of Kake’ v. Egan (1se2y, 3¢ 369 U.S. -

ren , Nene,

State v. Sanapaw (1963), 21 Wis. (2d) 377, 4 N. W.

(2d) 41, cert. den. 377 U. S. 991 ; 1, 4, 22

; _&

_ Super et al. v. Work (CCA, D. C., 1925), 3 F. (24) 90,

oA ee ee ee a —' §

United States v. Waller (1917), 243 U. S. 452 5

Ward v. Race Horse (1896), 163 U.S. 504 0. 5

Statutes

Menominee Indian Termination Act, Public Law 399,-

83rd Congress (68 Stat. 250, as amended, 70 Stat.

544, 70 Stat. 549, 72 Stat.. 290, 74 Stat. 867, 25

_U. S. C. secs. 891-902)

eoniiinainnt 1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 16, 19, 20, 217-22, 23, 24

si 8

16 Stat. 544, 566; 25 U.S. C. sec. a a 5

iv -.

PAGE

House Concurrent Resolution 108 (67. Stat. B132, 83rd.

bee ae Ist session) ; 10 ;

Public Law 280, 83rd Congress, lst session (August 1 15,

1953, 67 Stat. 588), 18 U.S. C., sec. 1162, 28 U.S. C.

o sec. 1360 | 3, 16, 17, 18, 19, 20, 22, 23, 24

Public Law 661, 83rd Congress, ond session, —— 24,

1954, 68 Stat. 795 16

oe Sint, V8; 26 U. S.C. ee. Ste

- Ch. 258, Wis. Laws 1959 egies ae

Ch. 259, Wis. Laws 1959. cccceeeen kcal a

— ve)

Other

. 1854, Treaty of Wolf River, 10 Stat. 1064 _....1, 2, 4, 12, 22

1856, Treaty of Menominee [ndiains, 11 Stat. 679... 7

26 Fed. Reg., No. 82, April 29, 1961, at page 3726 ........8, 11

Plan for the Future Control of Menominee Indian Tribal -

Property and Future Service Functions, 26 Fed.

Reg., No. 82, April 29, 1961, p. 3727 et seq. ........... -3, 8, 21

’

v..

hae PAGE

Legislative aaeey of Menominee Indian Termination

Act (83rd Cong.):

I i etiam. me ee

H.R. 7138 22 oe 14, 16, 19, 23

= ee ee | 14

- Joint Hearings before the Sichienpigonn of the

Committees -on rior and Insular Affairs,

: Congress of the @nited States, 83rd Congress,

2nd session, on S. 2813, H. R. 2828 and H. R.

7135 .. ‘ 14, 15, 16

In the

SUPREME COURT of the UNITED SATS

October Term, 1967.

No. 187

THE MENOMINEE TRIBE, OF

_ INDIANS, et al. |

et te

. THE UNITED STATES -

BRIEF OF THE STATE

- OF WISCONSIN, AMICUS CURIAE

INTEREST OF THE AMICUS CURIAE

The decision of the cod of Claims is in direct op-

position to the holding of Wisconsin Supreme Court >

in State v. Sanapaw, (1963) 21 Wis. (2d) 377, 124 N. W.

(2d) 41, cert. den. 377 U. S. 991. In that case it was held

that the exclusive hunting and fishing rights granted to

the Menominee Indians by the Wolf River Treaty of 1854

. (10 Stat. 1964). were abrogated by the so-called “Termina-

tion Act” (25 U. S. C. secs. 891-902).

The Menominees commenced an action in the United

States Court of Claims to recover compensation from the. .

federal government for the taking of these rights. In grant- .

-ing the government’s motion for summary judgment and

dismissing the petition, the court held that the treaty rights

~ referred to above were not abrogateti by the Termination

Act. In the course of its opinion, the court intimated that

if these rights have been interfered with, jt is due to the ac- |

tion of the State of Wisconsin acting through its supreme

‘court and law enforcement officials. As a result of this

opinion, and its threat of liability, the State of Wisconsin

_ has a keen interest in the resolution of the issues before ;

this court, and disagrees wholeheartedly with the lower

court’s opinion in this respect. The Wisconsin Supreme’

Court, following the mandate of a federa} law which, we

submit, is clear in its abrogation of Menominee hunting:

and fishing rights, cannot: in ed _ subject the -— to

liability.

In addition, the State of Wisconsin, as the traditional

home of‘ the Menominee people, las a clear interest in a°

final determination of the question of the. efficacy of its

. fish and game laws within the borders of the former Me-

nominee Indian Reservation “which, since the Termination

Act, has been a duly organized Wisconsin county.

“Tt is our conviction that the treaty rights of the Me-

nominees were indeed cut off by Congress and _thit-the, -

United States is fully and solely liable ‘therefor.

‘SUMMARY OF ARGUMENT

The: Wolf River Treaty of 1854 granted to the Me-

nominees an unqualified right to hunt and fish their lands,

free from all outside regulation. Thus, these rights are

not derived from aboriginal user, but from a formal treaty

' with the United States.

———

—

Congress has always had plenary power to deal with

Indians, and may. pass laws in conflict with treaties* made

. with Indians just as Congress may pass laws in conflict .

with treaties made with«foreign nations. Thus, Congress

the power to abrogate Indian privileges and rights, in-

cluding treaty rights, bys statute.

The Menominee “Termination Act,” Public Law 399,

3rd Congress, terminates federal trusteeship over ‘the

Menominee Indians and their lands, which formerly com-

prised. the Menominee Indian Reservation. The Act: also

provides: that the laws of the several states are applicable

to the Menominee Indians in the same manner that such

laws. are applicable to other citizens’ within the ates.

The Act contains no reservation of hunting and ing 7

’ rights or privileges in favor of the Indians. Thus, the Ack

- had the effect of abrogating 5 oe rights."

\ The legislative history, f the Termination Act does not

support an interpretation ntrary to the plain and ordi-

nary. meaning. -of the words.\ ; ;

First, the legislative history Deine that Congress was

_ advised that the language of the Act would extinguish the

hunting and fishing rights, yet Congress made no express

reservation preserving such rights. )

_ * Secondly, the contemporaneous enactment of Public .

Law 280 does not indicate any legislative intent as to the

; preservation of hunting and’ fishing rights: under the Ter-

mination Act. Nor does the réferente to Public Law 280

in the .Termination Plan lead to any similar inference.

Rather, it leads to the inference that Congress intended

state law regarding the management of fish and wildiife

— 4

t | ee | |

was to apply in the same manner that state law regarding

the. maintenance of law and order was to apply.

The abrogation of exclusive hunting and fishing rights

under the Termination Act constitutes a loss of valuable

property rights, and is compensable by the federal govern-

_ment.

\

ARGUMENT

I. THE MENOMINEE INDIAN TERMINATION ACT

(P. L. 399, 83rd CONG), BY ITS PLAIN LANGUAGE,

ABROGATED THE EXCLUSIVE -HUNTING AND

FISHING RIGHTS OF THE MENOMINEE INDIANS

WHICH WERE GRANTED TO THEM BY THE ~

WOLF RIVER TREATY OF 1854.

-A. The hunting and fishing rights of the Menominee

Indians arose from treaties with the United States.

The treaty of May 12, 1954, known as ‘the treaty of

Wolf River, created the Menominee Indian Reservation

through a cession of certain lands to the Menominees “to

be held as Indian lands are held.” 10 Stat. 1064. Both

‘the Wisconsin Supreme Court, and the United States

Court of Claims in the decision now under review, held

that the language of the 1854 treaty granted-to the Me-

nominees an unqualified right to hunt and fish their lands

frée from all outside fegulation and control. State v.

- Sanapaw (1963), 21 Wis. (2d) 377, 383, 124 N. W. (2d)

_ 41; Menominee Tribe v. United States (1967), — Ct. Cl. —

— Fed. (24) —.* See also Menominee Tribe v. United

*No reported decision of the court below being —_ to the amicus

curiae, all A o

— d dated April 14, 1967.

0

5

States (1941), 95 Ct. Cl. 232, $40-241; Moore: v. United

States (9th Circ. 1946), 157 F. (aa) 760, cert. den. 330

U.S. 827.

Thus, the rights of the acide in this respect do

not derive from aboriginal user, ‘but from a formal wonty

with the United tetas government.

B. Congress has plenary power to deal with the Indi-

_ ans and may abrogate Indian privileges and rights,

including treaty rights, by statute.

The extent to which tribal Indians should be emanci-

pated from their .status as wards of the Federal Govern-

ment is a matter which rests entirely within the discre-

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

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

U. S. 452, 459-460. The power to make treaties with Indi- -

an tribes was abolished in 1871 (16° Stat. 544, 566; 25

U. S.C. sec. 71), and the United States now deals with

Indians by statute.

Congress has plenary power to deal with Indians .and

may abrogate Indian privileges and rights, including treaty.

rights, by statute. Super et al. v. Work. (CCA, D. C.,

1925), 3 F. (2d) 90, affirmed per’curiam, 271 U.S. 643.

The power of Congress over Indian tribes and tribal prop-

_ erty cannot be limited by treaty so as to bar repeal, or .

amendment by later statute. Ward v. Race Horse (1896),

163 U. S. 504; Lone Wolf v. Hitchcock (1903), 187. U. S.

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

452; Anderson v. Gladden (CCA 9th, 1961), 293 F. (2d)

~,

.

¢ 7 6: .

. . es, t

463, Cert.. denied 368,U._S. 949. ‘See ‘also, Cain v. First

_ _ Nat. Bank of Oregon (9th Cir. 1963), 324 F. (2d) 532.

Ih Lone Wolf v. Hitchcock, oupee, this court stated

(187 U:S. at BP. 5652566) :

pie authority over the tribal relations of the

Indians has been exercised by Congress from -the be-

ginnirig, and the- power has. always been deemed a

* political one, not subject to be controlled by the judi-

- Cial department of the government. Until the -year

1871 the policy was pursued ‘by dealing with the Indi-

an tribes by means of treaties, and, of course, a moral

pgp rested upon Congress to act.in good faith

rforming the stipulations entered into on ‘its be-

_half. But, as with treaties-made with foreign nations, |

Chinese Exclusion Case, 130 U. S. 581, 600, the legis-

lative power might pass laws in conflict with treaties —

made with the Indians.. Thomas v. Gay, 169 U.S. 264,

270; Ward v. Race Horse, 163 U. S. 504, 511; Spalding

v. Chandler, 160. U. S. 394, 405; Missouri, Kansas &

Texas Ry. Co. v. Roberts, — U. S. 114, 117; The Chero-

kee Tobad@o, 11 Wall. 616. ee

—————

“The. power exists to abrogate the provisions of -

an Indian treaty, though presumably such power will

.be exercised only when circumstances.arise which will

not .only justify the: government, in disregarding the.

stipulations of the treaty, but may demand, in the

interest of the country arid the Indians themselves,

that it should do so. When, therefore, treaties were

entered into between the United States and a tribe--

of Indians it was never ‘doubted that the power to

abrogate existed in Congress,:and that im a contingency

such power might be availed of from\ considerations

- of gpvernmental policy, particularly if cohsistent with ©

ect good faith towards the Indians. ike taal

— 259 F. wea 910, 914,

S .

7

See also Chemah v. Fodder (D. 'C.,W. D. Okla., 1966),

; While it is submitted that the ‘foregoing bitin

the power of Congress to abrogate Indian privileges and —

‘rights, including treaty rights, by statute and to terminate

the status of Indians and Indian tribes as wards of the

. Federal Government, it is of interest to note that a sub-

sequent Menominee Indian, Treaty executed on Febgpary

11, 1856 (11 Stat. 679), provides in part as follows:

“ARTICLE 3. To promote the welfare and the i im,

provement of the said Menomonees, and friendly re- Pes,

’ lations between them and the citizens of the United ©

States, . further" stipulated—.

“1. That in this agreement and the treaties made

previously with the Menomonees should prove insuffi-

cient, from causes which cannot now been (be) fore-

seen, to effect the said objects, the President of the

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

~ “sent of the Senate, adopt such policy in the manage-

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

ment may be most beneficial to them; or Congtess may, °

hereafter, make such provision by law, as experience —

shall. prove to be necessary.”

\

"8

C. The Menominee “Termination Act” specifically pro- °

. vides that follewing termination all statutes of the

United States which affect Indians because of their —

status as Indians shall no longer-be applicuble to .

the Menominee Indians, and that the laws of the —

several States shall apply to the tribe and its mem- .

bers in the same. manner as they apply to other

citizens or persons within their jurisdiction. .

In 1954 Congress provided for the termination of all

federal supervision and control over the Menominee Indi-

an Tribe andthe Menominee Indian Reservation by Pub-

_ dic Law 399, 83rd. Congress, popularly known as the “Ter-

‘“ | mination Act” (68 Stat. 250, as amended, 70 Stat. 544,

| 3726). Upon publication of the plan in the Federal

2 ister in connection with the cited proclamation by’ the

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

‘ effective, and what was formerly “the Menominee Indian

Reservation became Wisconsiri’s 72nd county . (Wis. Laws

70 Stat. 549,°72 Stat. 290, 74 Stat. 867; 25-U. S.‘C. secs.~

891-902). On April 29, 1961, the Secretary of the* Interior a

proclaimed the transfer, pursuant to sec. 8 of the Termi-

nation Act, of all tribal property held in trust by ‘the

United States Government, and ‘the termination of all fed- —

‘eral supervision and control over the Menominee Indians

and Ge Menominee Indian ‘Reservation effective midnight

30, 1961 (26 Fed. Reg., No. 82, April 29, 1961, af oe

1959, Ch. 259, sec..-42). | _—

The Termination Act (25‘U. S. C. secs. 891- 902) pro-

| vides in es part as follows:

mt

-§ 891. ‘The purpose of secttiie 891-902 of this title

_ is to provide for orderly termination of Federal-super-

~

te

2

> i .

‘ vision over the orenerty ‘and members of the “Me.

- nominee Indian Tribe of. Wisconsin.

Ҥ 896. The tribe shall as soon as possible and in

‘no event later than February 1, 1959, formulate and

submit to the Secretary a plan for the future control

of the tribal property and service functions now. con-

ducted by or under the supervision of the United States,

including but not limited to services, in the fields of

health, education, welfare, credit, r , and law and

order, and for all other matters invt Ived in the with-

. drawal of Federal supervision. * * * The responsi- .

bility of the United States to furnish all such super-

vision and services to the tribe and to the pean

thereof, because of their status as Indians, shall

* on April 30, 1961, or on such earlier date as ma re

agreed, upon by the tribe and the Secretary. The -

plan shall contain provision for protection of the for-

est on a sustained yield basis and for t —

of the water, soil, jish ‘and wildlife. wile pes

§ 899. When title to the property of the tribe has.

been transferred, as provided in section 897 of ‘this.

title, ‘the Secretary shall publish in the Federal Reg-

ister an appropriate proclamation of that fact.. There-

after” individual members of the tribe .shali‘not be

entitled to any of the services performed by the United

States for’Indjans because of their status as Indians, |

all statutes ‘of the. United States which affect Indians

because of their status as Indians shall no longer be .

7 applicable to the members of the tribe, and the laws

of the several States shall apply to the tribe and its

~ members in the same manner as they apply:to other °

citizens or persons within their jurisdiction. Nothing

in’ sections 891-902 of this title shall affect the status

of the members of the tribe as’ citizens of the United

States.” (Emphasis added.) -

« 2

The intent of Congress in passing the’ “Termination

Act” was to terminate federal trusteeship over the. Me-

nominee Indians, to abolish the Menominee Indian Reser-

_ vation, and to make the laws of the several States appli-

cable to the Menominee Indians in the same manner: that .

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

This is evident not only from the face of the Termination

Act itself, but fom House Concurrent Resolution 108 (67

Stat. B132, 84rd —— First —_—_ which ‘declares

as follows in art:

‘Whereas it is the policy of Ciesiniane: as rapidly

- as possible, to make the Indians within the territorial

- limits. of the United States subject to the same laws

and entitled he same privileges anu responsibilities

as are sppukeble to other citizens of the United States,

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

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

taining to: American citizenship; and Whereas the In-.

dians within the territorial limits of the United States

should assume their full responsibilities as American

citizens: Now, therefore, be it |

“Resolved by the House of Representatives ‘(the’

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

of Congress that, at-the earliest’ possible time, all of |

the Indian tribes and the individual members thereof

‘located within the States of California, Florida, New °

York, and Texas, and all of the following named Indian

tribes and individual members. thereof, should be freed

from Federal supervision and control and from all dis-

abilities. and limitations specially applicable to Indi-

ans: .. . the Menominee Tribe of Wisconsin . . >”

(Emphasis added.) = sy fae : im

ee’

11

The Act contains no reservation of hunting rights or’

privileges in favor of the Indians. The Indian reservation

has been abolished, (Cz Organized Village’ of Kake v. Egan

— (1962), 369 U. S. 60; 74) and the status of the Menominee

Indians and the Menominee Indian. Tribe as: wards of the -

Federal Government has been ended. .

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

3726, the Secretary of the Interior proclaimied the transfer

of title to all property real and personal held in trust | by

the United States for the Menominee Indian txie, as fol-.

' Jows:

- “Pursuant to the authority contained in section 10

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

Stat. 250), it is hereby proclaimed that the title to all

- property, real and personal, held in trust by the United

_~ States for the Menominee Tribe ‘has been transferred

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

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

individual members of the Merreminee Tribe’ shall not

be entitled to any of the services performed by the

United States. for Indians because of their status as

. Indians; all statutes of the United States which affect

Indians because of their status as Indians shall no .

_ longer be applicable to the members of the Menominee

' Tribe; and the laws, of the several States shall apply

to the Menominee Tribe and its members in the same

manner as they apply to other citizens or persons with-

in their jurisdiction.

“As required by section 7 of. the hen of June 17,

1954, supra, the Pian for the Future ‘Control-of Me-

nominee Indian Tribal Property and Future Service

-Functions: is published and wisi 3 epee he-

low this notice.”

es © 12

+» Thus, through the Termination Act, the United States

has divested itself of all right, title and interest to the

lands which comprise what was formerly, the Menominee —

- Indian Reservation, and has ended its trusteeship over the

lands. Title to the forest land isnow held by Menominee ~

Ente¥prises, Inc., a private Wisconsin stock corporation.

Title to certain parcels of land has been conveyed by the |

corporation to individuals for homesites. What was for-

merly the reservation is now Wisconsin’s 72nd county,

governed by a Wisconsin County Board and a Town Board.

(Wis. Laws, 1959, Ch. 259.) The entire land area is now

on the tax rolls. Enrolled members of the Tribe are resi-

dents of the ‘town ‘and county, are subject to the State’s

* tax laws, and elect town and country officers (Wis. Laws,

1959, Ch. 259).-

Thus, the effect of the Termination Act has been to

abolish the federal trusteeship over the person and prop-—

erty the Menominees. Wise or unwise, it is an accomplished

. fact, and in its accomplishment Congress abrogated the

exclusive hunting and fishing of the Menominees which

had: been secured to them by the Treaty of 1854. ©

?

* Saas

13°

Il; THE LEGISLATIVE HISTORY OF THE TERMINA-

TION ACT DOES NOT CHANGE THE IMPORT OF

THE LANGUAGE THEREOF, WHICH GIVEN ITS

PLAIN AND ORDINARY MEANING, WOULD EX-

‘TINGUISH THE MENOMINEES’ PRE-EXISTING a

‘ HUNTING AND FISHING RIGHTS. |

A Pertinent Documknts reveal congressional aware-

ness of the fact that. the language of the Termina-

_., tion Act would abtogate these rights.

Sec. 891 of the Termina ion Act provides that the pur-

pose “is to provide for orderly termination of Federal su-

pervision over the property and. members, of the Menomi-

nee Indian Tribe of Wisconsin?” Sec. 899 of the act -pro-

vides: that upon the Secretary of the Interior’s publishing

a proclamation: in the Federal Register that all tribal prop- _

erty has-been transferred in accordance with the act, “all

statutes of the United States which affect Indians because

of their status as Indians shall no longer be applicable to

the members of the tribe, and the laws of the several States:

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

ner as they apply to other citizens or persons within their

jurisdiction.” (Italics supplied.) %

The italicized statutory language, given its plain and _

ordinary meaning, would subject the Menominees’ pre-

existing exclusive hunting righits to the state’s game laws. -

However, the .court below felt that the legislative history

_ surrounding the enactment of the Termination Act pre-

. cludes such an interpretation because it shows that this

was not the intent of the Congress.

The original bill, which was finally enacted by. the

83d Congress in 1954 as the Termination Act, originated

an 14

ea

in the House of Reptesentatives a as H. R. 2828. Two other -

companion bills to provide for the withdrawal of the Me-.

nominee Tribe from. federal jurisdiction were also intro-

duced, the one in the Senate being S. 2813, and the one

‘in the House of Representatives being -H. R. 7135. Joint

hearings on all three bills were held before subcommittee

of the Committee on Interior and Insular Affairs of the

Senate and the subcommittee of the Comniittee on Interior

and Insular Affairs of the House of Representatives on

March 10, 11, and 12, 1954. Both S. 2813 and H. R. 7135

contained express provisions which preserved any special

hunting: and. fishing rights the Menomineeés might have by

treaty, statute, custom, or judicial decision. H. R 2828 con-

tained no such corresponding provision.

The cpurt below referred to-the testimony of two wit-

pearing before the house committee who expressed

their op ion that H. R. 2828’s silence on the subject would

not Affect hunting and fishing rights acquired by treaty,

only ‘ those acquire ° oy statute (opinion. p. 8). It

_ should be noted, however, that*neither witness mentioned

' the provision of H. R. 2828 (now sec. 899 of{the Act) stat- —

~ ing that: “the laws of the several States shall apply to .

the tribe and: its members in the same manner as they

apply to other citizens or persons within their jurisdic- .

tion.” (Italics supplied.) See “Joint hearings Before the .

Subcommittee of the Committees on Interior and Insular ©

Affairs, Congress of the United States, Eighty-Third Con-

gress, Second Session on S. 2813, H. R. 2828 and H. R.

7135.” (Hereafter referred to as “Joint Hearings.”) .

_ It is also the fact, barely alluded to by the court

below, that the general counsel for the then Menominte

:

15

Tribe, Mr. Glen Wilkinson, filed a memorandum with joint

Senate House hearings on the termination bills, testified at

_the hearings, and in both his memorandum and testimony *

he specifically disagreed with the other witnesses, and

stated that H. R. 2828 would, by its fence, abrogate In- "

dian hunting and fishing rights. —

’ In his memorandum, Mr. Wilkinson stated in part

(Joint saenteagy, pp. 697, 704):

“On pede 4 (item 7) the statement is made that

‘H. R: 2828 contains no provision on this’ subject. It

does not purport to affect any treaty rights the Indi-

ans may have.’ -Whether it ‘purports’ to affect such ~

treaty rights seems immaterial; the fact is that it

does, at least by implication, abolish the tribal rights

to.exclusive hunting and fishing privileges within the

reservation—rights which were solemnly assured: to

the tribe in perpetuity.”

Mr. Wilkinson testified, in part: a)

“T just want to comment briefly on a few points

included in the Department’s report of March 5. As I

have already noted, I think they have a good point.

respecting section 3. On -page 4, item 7 of that report,

the statement is made that H. R. 2828 contains no pro-

‘vision 6n this’ subject., It goes on to say that it does

‘not purport to affect any treaty anes the Indians

may have.

“I have -already covered -this somewhat, but in

my judgment I think it is clear that -it does affect

those treaty rights and that those: treaties are abro-

gated. Certainly it abolishes the tribal: right to ex-

clusive hunting and fishing privileges, because auto-

matically upon the final termination date, the Me-

nominee Reservation so far as hunting and fishing is

a! -.

16 .

concerned, would become subject to the laws of Wis-

consin.” (Joint Hearings, p. 708, Emphasis added.)

Thus advised by the General Counsel for the -tribe,

and with an alternative bill before it which would have .

expressly reserved hunting and fishing rights (H. R. 7135), -

Congress enacted the bill which was silent to such rights. :

From this it is clear that Congress did not intend to pre-

’ serve hunting privileges in favor of the Indians following -

termination. The court below, while not discussing this

testimony, disagreed “for two reasons: (1) the subsequent ,

passage of Public Law 280; and (2) the reference to Pub-

lic Law 280 contained in one portion of the termination .—

plan... > . on | a

B. The enactment of Public Law 280 does not justify

the court’s interpretation of the Termination Act

. as preserving the hunting and fishing rights of the

* Menominees. | ; =

‘The Termination Act was passed on June 17, 1954

‘(P. L. 399, 83rd Congress—68 Stat. 250). A few months’

later, Congress &xtended the provisions of P. L. 280 to the . \

Menominee Indian Reservation (P. L. 661, 83rd Congress,

2nd session, August 24, 1954, 68 Gjat. 795). Public Law

280, as amended, conferred civil and criminal jurisdiction

‘over the Menominee Indian Reservation upon the ‘state, '

- and expressly reserved to the United States jurisdiction ,

over hunting and fishing, water, and certain property

rights. 1 ublic Law 280 (18 U. S. Q, sec. 1162, 28 U. S. C.,

sec. 1360), provides in part as follows: : |

17

“(a) Each of the States listed in the following

_ table shall have jurisdiction over offenses committed ~

by or against Indians in the areas of Indian country |

listed opposite the name of the State to the same ex-

tent that such State has jurisdiction. over offerises

_ committed elsewhere within the State, and the crimi-

nal laws of such State shall have the same force and

effect within such Indian country as they have else-

where within the State:

7 es

(b) Nothing in this section shall authorize the |

~ alienation, encumbrance, .or taxation of any real or .

' personal property, including water rights, _ belonging —.

to any Indian of any. Indian: tribe; band, or community

“that is “held in‘ trust by the United States or .is sub-

ject to a restriction against alienation imposed by the

United States; or shall authorize regulation of the use

of such property“in a manner. inconsistent. with any

Federal treaty, agreement, or statute or with any regu-

. lation .made pursuant thereto; or shall deprive any

- Indian or any Indian tribe, band, or community of any - ~—

right, privilege, or immunity afforded under Federal —

treaty, agreement, or statute with respect to hunting, «-

trapping, or fishing or the control, licensing, pr regu-

lation thereof.

Padiudiee

ag 1360. State civil jurisdiction in actions to “nh

Indians ‘are parties

-_—_—— >

“(a) Each of the States listed in’ the alain

table shall have jurisdiction over civil causes of ac-

tion between Indians or to which Indians are parties .

- which ‘arise in the areas of Indian country listed op-

posite the name of the State to the same extent that

such State has jurisdiction over other -civil causes of

action, and those civil laws of such State that are of.

18

general application to private persons or private prop-

erty shall have the same force and effect within such

Indian. country as they have elsewhere within ane

State: |

* * *

“(b) ‘Nothing in ‘this section shall authorize the

~ alienation, ehcumbrance, ér taxation of any real or

personal property, including water rights, belonging

to any Indian or any Indian tribe, band, or community

that is held in trust by the United States or is subject

to a restriction against alienation imposed by the

United States; or shaH authorize regulation of the use

of such property in a’ manner inconsistent with any

Federal treaty, agreement, or statute or with any regu-

lation made pursuant thereto; or shall confer juris-

diction upon the State to adjudicate, in probate pro-

2 ceedings or otherwise, the owhership or right ‘to pos-

. Xsession of. such property or any interest therein. |

ih dow (c) Any tribal ordinance of custom heretofore

or hereafter adopted by an Indian tribe, band, or com-

munity in the exercise of any authority which it may

possess shall, if not inconsistent with any applicable

civil law of the State, be given full force and effect

in the determination of civil causes of action pursu-

ant to this section.”

The court of Claims, in the decision under review,

stated (p. 10):

“It is logical to. assume that the Congress, acting

_ through its committees .... as well as by its own ac-

tion as a whole, knew that hunting and fishing rights -

were being protected in Public Law 280 and there was

no need to mention them in the Termination Act.”

ee

—=

19

The court has given no evidence even hinting such a.leg--

. islative state of mind, and we- have been unable to find |

any Ss such suggestion ; in the hearing reports and other docu-

ments bearing upon the Termination Act—which is, after

all, the legislation being interpreted by the-court.

It is submitted that this type of speculation is in-

sufficient to overcome the plain language of the Termina-.

ion Act, buttressed by the inescapable fact that the tribe’s

' general ‘counsel made it clear to the committee considering.

the bill that, in his opinion, failure to specifically yeserve _

these rights would result in their abrogation. With this-

advice, and with an alternative bill before it which would

have expressly reserved hunting and fishing rights (H.R.

7135), Congress enacted the “silgnt” version of the bill. It

follows. that Congress had no intention to reserve these

rights to the Menominees following termination, |

.C. The Reference to Public Law 280 in one portion

of the Termination Plan does not require the con-

struction of the Termination Act a by the

- Court below.

As indicated above, the Termination Act required the

Tribe to prepare a plan which, when approved and pro-

claimed by the Secretary: of the Interior, would effectuate

the termination. The court below quoted from sec. 7 of

the Act requiring the plan to provide for protection of the

forest, water, soil, fish and wildlife. 25 U: S. C. § 896.

The court then quoted cer! anguage from the plan as

submitted mentioning that *ecerei jurisdiction over the

Menominee Reservation had been surrendered by- the -

20

United States by Public Law 280. The text, as quoted by |

‘the court, reads as follows (p. 11):

_

“It is unnécessary, aside from.amendment of Wiscon-

_ sin laws to accord with existing judicial machinery,

to provide specific plans for future handling of law

and order, federal jurisdiction over the Menominee

Reservation-having been surrendered by the United .

States by Public Law 280, 83d Congress, as amended

W8 U.S. C. we r ~

It is clear sien this excerpt, as well as from the court’s

‘own language, that the quoted portion of the plan. pertains

to “law and order”—it does not refer to hunting and fish-

ing rights. It is. merely the fulfillment of another portion:

of sec. 7 of the Termination Act which provides as follows

(25 U.S. C. sec. 896):

“The tribe. shall as: soon as possible and in no event

- later than February 1, 1959, formulate and submit to

the Secretary a plan for the future control of ‘the

tribal. property and service functions now conducted :

by or under the supervision. of the United States, in-

cluding but not limited to services in the fields of

health, education, welfare, credit, roads, and law and

order, and for all other. thatters involved in the —

drawal of Federal supervision.”

It cannot be said that, by referring to Public Law 280

‘in connection with a specific. requirement dealing with

“law and order,” the provisions thereof are incorporated

into another portion of the plan pertaining to the. protec-

tion of forests, soil, water, fish and wildlife. The legisla- -

five requirements for inclusion of these items in the plan

appear in different portions of ‘sec. 7 of the Act.

21

. Even if the chain of inferences may be so extended, it

furnishes no basis for declaring the intent of Congress, in

passing the “Termination Act, to “protect and preserve’

rights which the plain language of the act abrogates.

There i is another, far more tenable, inference that may/

be drawn from all this, and that is the inference that Con-

_ gress, in abrogating the exclusive and unrestricted hunting

and fishing rights of the Indians, intended that state law

i: should apply and that’ the plan itself, which was submitted

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

flect the adequacy of the state law to protect fish and wild-

life. This conclusion is supported by the fact: that the

ee Act also required that the plan provide for

PD airasers of the forest on a sustained yield basis

” and authorized the Setretary. of the Interior to ac-

cept ‘the tribe’s plan provided that he found “. .+. that it

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

896). Significantly, the plan itself provides for protec-

tion of the forest on-a sustained yield basis, as required

by 25 U.S. C. sec. 896, and state legistation for that spe-

cific purpose was ‘enacted (Wis Laws 1959, ch, 258; see

Plan for the Future ‘Control of Menominee Indian Tribal -

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

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

hand, contains no express provision for the protection of

fish and wildlife. It is therefore fair to conclude that, in

view of the abrogation of the Indian’s rights in this area, a

separate provision for protection of fish and wildlife was -

unnece since such protection would be provided by

the application of Wisconsin’ Ss conservation laws to the

' land and.-its people.

22

It should also be noted that the Wisconsin Supreme

Court was apprised of the contemporaneous passage of

Public Law 280 in State ‘v. Sanapaw (1963); 21 Wis. 42d)

. 377, 124 N. W. (2d) 41, cert. den. 377 U. S. 991. The brief

filed by the State of Wisconsin in opposition to a motion

for rehearing in that case devoted 3-5 pages to a discus-

sion of P. L. 280, and quoted extensively from its text.

Ill. TREATY HUNTING AND FISHING RIGHTS CON-

STITUTE VALUABLE PROPERTY, AND’ THEIR

LOSS- IS COMPENSABLE.

Since this question will be discussed by the claim-

ants, the Menominee Tribe, et al., the State of Wisconsin,

as amicus curiae, will do no more than state its conten-

‘tion that the exclusive hunting and fishing rights held” by

the Menominees under the provisions of the Treaty of.

1854, were abrogated by the United States through the en- »

actment of 25 U.S. C. secs. 891-902, and that, such rights

being valuable property rights, their loss is compensable

by. the federal government. |

The State of Wisconsin, through its supreme court and.

_law enforcement officers, was merely carrying out the Con-> »

gréssional mandate in applying its fish and game laws: to

the Menominess, State v. Sanapaw, supra, and is in no way.

liable for the loss suffered by the Menomineee people, as

intimated by the court below.

>»

23.

~ IV. CONCLUSION.

"The Congress of the United. States has plenary power

over. the affairs of the Indians and Indian Tribes. By the

express terms of the Termination Act the United States

Congress has abolished the Menominee Indian Reservation,

’ and has ended the Federal trusteeship over the Menominee

Indian people. Accordingly, the reservation area and the —

enrolled members of what was. formerly the Menominee

Indian Tribe are. now fully assimilated under the laws of

the State_of Wisconsin. ’

Section 899 of the Termination Act is clear and un-.

ambiguous. By its express terms, the laws of Wisconsin,

- without exception, apply to the members of the tribe in the

same manner and to the same extent as they apply to other

citizens within the state. Conflicting views concerning the

effect of the Act (H. R. 2828) upon “i and fishing by

the "Menominees were presented at the-joint hearing of the

commitsees of Congress. Thus, advised and with an alter-..

native bill before it which expressly reserved hunting and

fishing privileges (H. R. 7135), Congress enacted the bill

which did not reserve such privileges. And, when Congress

intends that hunting or fishing privileges enjoyed by: Indi-

. . ans be‘préserved.when state jurisdiction over Indians is en-

_larged by federal act, it has expressed so provided. In P. L.

280 (67 Stat. 588), supra, hunting and fishing rights were

expressly exempted. In the,Klamath Termination Act, wa-

’ ter and fishing rights and privileges of the Indians, under

Federal treaty, were expressly preserved (68 Stat. 718,

722; 25 U.S. C., sec. 564m). Thus Congress is not untnind- .

ful of the matter, and indeed the issue was spedifically

raised at the hearings on the Menominee bills.

. 24

The plain intent of Congress to abrogate these rights

is not overcome by the contemporaneous passage of Public

Law 280, nor by oblique reference to this law is an un-

related portion: of the. termination plan.

_ The rights so abrogated by the United States are vV: ves

able property rights arising from treaty, and 1

compensable by the federal. government. — =

The State of Wisconsin, amicus curiae, respectfully

urges the Court to reverse the decision of the Court of

Claims herein, insofar as it holds that the exclusive treaty

rights of the claimants, the Menominee’ Tribe of Indians,

~. et al., have not been abrogated by ‘the Menominee Termi-

_ nation Act, and that the United States i is not liable » therefor.

Accordingly, it is urged that the judgment granting the

government’s motion for summary judgment: and dismiss-

ing the petition of the plaintiffs be vacated and set aside.

Respectfully submitted,

BRONSON C. LA FOLLETTE

Attorney General :

State of Wisconsin

WILLIAM F. EICH

Assistant Attorney General

State of Wisconsin

State Capitol -

Madison, Wisconsin