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

* LAIDrAare 7 ans ORT RH o

: 2UPREME COURT. L. &

© 23 — APR 8 ides

__ JOHN F. DAWS, ef PRK

! In the

SUPREME COURT of the UNITED STATES.

_ October Term, age

te, "Ne. 187

THE MENOMINEE TRIBE OF

INDIANS, et al.

*

ce

THE UNITED STATES

ects BRIEF OF THE STATE

| OF WISCONSIN, AMICUS CURIAE

ON RE-ARGUMENT :

BRONSON C.LA FOLLETTE ye

Attorney General |

. : State of Wisconsin

WILLIAM F. EICH

Assistant Attorney General

, State of Wisconsin:

State Capitot ' - . .

Madison, Wisconsin

\

~ a uf = e

a

PAGE

Interest of the pe curiae ee ia) pian Sa 1.

Summary of Argument ji - se ee aS 3

Argument . : : dmionanmannagpatanceninnsil 6-44

rT

Il.

‘and Congress may abrogate treaty | and -

i

TABLE OF CONTENTS

hunt and fish their reservation lands, these rights

having been ‘secured to them by the _ River

Treaty of 1854 , ‘

The power of Sania over Indians is plenary,

privileges by statute >

The intent of Cunquene to extinguish the special

hunting and fishing rights of the Ménominees is

evidenced by the plain language of the Termina-

tion Agt and its legislative history , |

* Prior t termination, the Menominee Tribe en- .

joyed the exclusive and untrammeled right to.

6

10

A. Prior to terminatiof, the Menominees were |

governed by ‘an organized tribal government -

with extensive law enforcement machinery, ° .

and were always under the ultimate super-

vision of the federal government

B. The 1954 Termination Act summarized ............

C. The legislative history of the Termination Act

'. reinforces the plain“‘language thereof subject-

ing the Menomitiees to Wisconsin law, and re-

veals that Congress, being advised that it would

abrogate the treaty hunting and fishing rights,

other versions aterm reserving such

rights ~

10

12

>» passed: the Act—even though it-had before it -

: 16

4

;

;

i

ms

t

-

i

‘ IV.

. Vv

}

os

3

i

'

i

:

: VI

4

VII

. If the decision of the Court of Claims is allowed

‘ to stand, the tribal treaty rights, being “prop-.

~ vate corporation—which apparently permits them

i

PAGE

D. The Termination Act, as implemented, re-

sulted in the transfer of title to all tribal prop-

erty to a private corporation ~ 2

E. Pursuant to the plan, the Wisconsin Legisla-. .

ture turned the former reservation into a full-* ae

fledged Wisconsin county, with all incidents, |

powers, duties and liabilities thereof ................ 23,

The net result of the Act and its implementation

was the dissolution of the tribe and the reserva- ,

tion, and ‘the extinction of pre-existing tribal .

treaty rights | 7 24.

. The Court of Claims’ construction of the Termi-

nation Act is unwarranted ; 27

A. The constuniate of Public Law 280 by the same

‘Congress does not, in the face of the plain lan-

guage of the Termination Act and its dgcu-

mented history, lead to the conclusion that the

Act “preserved” the treaty rights . 28

B. The reference to P. L. 280 in one isolated por-

- tion of: the Menominee termination plan is not

_. part of the history of the Termination Act, and,

~ in any event, is equally supportive of the view

‘that the Act did indeed extinguish the special —

hunting and fishing rights 32

. The Klamath Act, and the cases decided there-

~ under are not.supportive of the. anaes taken by

the Court of Claims : , : 35

erty”, must survive in the successor entity—a pri-.

-Chemah v. Fodder (D. C., W. D. Okla, 1966), 259\F

PAGE

to ‘be exercised by nontribal members. What-?

ever their form, their survival would render. it

impossible for the’State of Wisconsin to carry out

it conservation management and ce piemar pro-

grams in one of its duly organized — scien 40

_ NIL. Indian hunting and fishing rights constitute valu-

able property, and their loss at the hands of the

federal government is compensable ... . 44

ee

IX. Conclusion .... Rhnrwenn, connor . 44 -

CASES CITED

Anderson v. Gladden (CCA 9th, 1961), 293 F. (2d) 463,

cert. den. 368 U. S. 949 7-8

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

F. (2d) 532 | | fs

|

Supp. 910 : : - ote 8

Choate v. Trapp (1912), 224 v. S. 665, 32 s. Ct. 565, 56

L. Ed. 941 saat 8

Clairmont v. United States (1912), 225 U. S. 551, 32

S. Ct, V67, OFZ, Bd, 1201 _ 43

Colliflower v. Garland (9th Cire, 1965), 342 Fed. (2d).

369 ....... teens 26

Healing v. Jones (D. C., Ariz., 1962), 210 F. Supp. 125,

affirmed 373 U. S. 758, 83 S. Ct. 1559, 10 L. Ed. (2d)

703 % | aa

- iv -

. PAGE

Klamath a Modoc Tribes v. Maison (D. C., Ore.,

1956), 139. F. Supp. 634 manana ... 39

* Klamath and Modoé Tribes v. Maison (9th Circ. 1964);

338 Fed. (2d) 620 ........ 36-39, 40, 46

Lone Wolf v. Hitchcock (1903), 187 U. S. 553, 23S,

Ct. 216, 47 L.Ed, 299 Wiehe ae i; 8

Menominee Tribe of Indians (1941), 95 ( EL $32.

Menominee Tribe of Indians 1967), 179 Ct. Cl. 496 _......

; 2, 6, 19, 30, 31, 32, 33, 35. .

Moore v. United States (9th Cire. 1946), 157 F. —

_ 760, cert. den. 330 U. S Se 6

ae

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

(2d) 41, cert. den. 377 U. S. 991 ae 1, 2, 6, 34, 44

eee Tribe of Indians v. United wae (Ct. Cl., 1956),

| 146 F. Supp. 229 .. ‘ enemas = %

State v. Johnson (1933), 212 Wis. 301, 249 N. W. 284 ....42-43

Super et al. v. Work (CCA, D. C., 1925), 3 F. (2d) 90,

" affirmed per curiam, ane U. S. 63 7

United States v. Waller goin), 243 U. S. 452, 37° Ss. Ct.

430, 61 L. Ed. 843 - ; , 7,8

Ward v. Race Horse (1896), 163 U. S. 504, 16 S. Ct. 1076,

41 L. Ed. 244 _..... aia 7,9

Williams v. Lee (1959), 358 U. S. 217, 79 S. Ct. 269,

3L Ed. (2d) 251 17

. > PAGE

Williams v. United States (9th Circ., 1954), 215 Fed.

(2d) 1, cert. den. 348 U. ‘S. 938 | bx 7 43

_*

Winters v. United States (1908), 207 U. S. 564, 28 iid

Ct. 207, 52 L. Ed. 340 6-7

Federal Statutes -

Act of April 20, 1836 (5 Stat. 10) aceon a

Act of May 29, 1848 (9 Stat. 233) eecenneeeeeenennnnne 40

Enabling Act of August 6, 1846 (9 Stat. 56) .. 40,41

Klamath Termination Act (25 U.-S. C. sec. 564) te ot

. , ..5, 35, 36, 37, 40, 45 :

-

Menominee Termination Act (25 U. S. C. secs. 991-902) .

1, 2, 4, 5, 10, 11, 12-15, 16, 18, 19, 21, 24, 26, 27, 28,-31, 32,

33, 34, 35, 40, 42, 44, 45, 46

25 U. S.C. §§ 677r, 757, 806 and 851 nn 96

| 25 U. S. C. secs. 891. 902 (See Menominee Termination.

oo ee | |

Public Laws

- Public Law 280 (18 U. S. C., sec. 1162, 28 U. S. C, sec.

TD aici : .------D, 28,.29, 30, 32, 33, 34, 46

Public Law 661, 83rd Congress, 2nd — August 24,

a, Ns WHEE \ciitehtinimisisnsieiicinsaliecineeainsilabnibinaap tain 28

ts sabeish ‘acacia |

“ eubbbehe’s Nits wale

rh <a esi lids bia 8: ise hoi lap let ace Mea ise lb Fc os

Wolf River Treaty of 1854 (10 Stat. 1964) .:

Treaty of October 18, 1848, 10 Stat. 952 2 41

1, 2, 3, 6, 9, 24, 27,-39, 41, 43, 44

| Bills .

House Concurrent Resolution-108 : 17, 18 |

H. R. 2828 .:.... wa 18, 19, 28, 45

RE oes 18, 19, 20, 28, 45

S. 2813. eee TT

Wisconsin Laws.

" Wis. Laws 1959

,-

- Chapter 258 eT

- ' Chapter 259 cA 3.16, 25

Chapter 260 eek: oe

oe

Other

ill Congressional Record, No. 57, p. 6093, March 30,-

1965 : , eo ae

Federal Register, Vol. 26, No. 82, April 29,'1961, p. 3726,

3727 | | nt 15-16, 21, 23, 34

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: ‘

NS Se ee an See een eleanor 2. a =

‘ Se » is PAGE

26 Federal Register, August 12, 1961, p. 732 ... 35

Hearings Before”the Subcommittee on Indian Affairs,

House Committee on Interior and Insular Affairs,

83rd Cong., Ist Sess. pp. 4,7 ae -18

J oint Hearings Before the Subcommittee of the Commit-

, tees on Interior and Insular Affairs, 83rd Cong.,

2nd Sess. fpaitiniis

38 Oregon .L. Rev. 193. ( — : . 18

US. Depactanent of the Intexjor, Federal Indian Law ne

~~“ (1958), pp. 24-25... 9, 10, 16, 26

ae Legislative Council, 1965 Report, Vol. III, -

p. 35 .... , — . 25

as °

Se oe eee ae oak aa . “~—

‘In the <

~ SUPREME COURT of the UNITED STATES

October — 1967

og

No. 187

THE MENOMINEE TRIBE OF

INDIANS, et al. _- oe

v.

THE UNITED STATES

7 BRIEF OF THE STATE ©

_ OF: WISCONSIN, AMICUS CURIAE

ON RE-ARGUMENT

INTEREST OF THE AMICUS CURIAE _ te

7 ‘a ,

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

_ position to the” holding of the 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 ; ranted to .

the Menominee Indians by the Wolf River Treaty \of 1854 -

(10 Stat. 1064) 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 — In grant- -

mt 2 |

oe.

.

pe See WORT ey Pawan eee Dele /

ao,

aie

> ‘

2 .

ing the government’s motion. for summary judgment and:

dismissing the petition, the court held that the treaty rights

referred to above were not abrogated by the Termination

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

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

tion of the State of Wisconsin acting through its. supreme

court and law eriforcement 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 ‘m this respect. The Wisconsin Supreme

Court, following the rfandate of.a federal law which, we

submit, is clear in its abrogation of Menominee hunting

and fishing rights, cannot in any ral subject the state to

liability. 3

, in the proceedings before the Court of Claims, the peti-

~ tioners’ contention was that the Termination Act abrogated

and abolished the special hunting and fishing rights granted

_ to the Menominee Tribe: by the 1854 Treaty of Wolf River.

Menominee Tribe of Indians (1967), 179 Ct. Cl. 496, 499-

500. In the proceedings before this court on certiorari, the

‘petitioners. have reversed: their position and now contend

that the Act did not abolish these right’. The United

States thas undergone a similar. reversal, for in State v.

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

cert. den. 377 U. S. 991, the Solicitor General argued to

_ this court: that the effect of the Termination Act was to

“terminate the reservation status of the Menominee lands

and to subject hunting rights on those lands to * * * state —

regulation. ”. State v. Sanapaw, supra, Memo dum for

* the United States on Petition for Writ of Certiorari, No.

930, O. T., 1963, p. 2. -

The State of Wisconsin filed a brief amicus curiae,

and, being unaware of the petitioners’ reversal of their

. position, did not include any discussion on what we feel

to be highly important aspects of this case, bearing directly

upon the sovereignty of the State of Wisconsin and its abil-

ity to apply and enforce its conservation laws in one of its ‘

72 duly organized counties. i

On J anuary 29, 1968, the court ordered rebriefing and -

reargument of the cause, and invited the State of Wiscon-

sin to participate. om

It is our conviction that the shiny rights of the Me-

bd

| BA: were. indeed cut off by Congress and that the

United States is fully and solely liable therefor.

< ws . .° ‘

SUMMARY: OF ARGUMENT

The Wolf River Treaty of 1854 granted to the Me-

nominees an unqualified right to hunt and fish their lands,

free fr all outside regulation. Thus, these rights are

not derived from aboriginal user, but from a formal treaty

| with the United States.

Cones has always had plenary power to deal with

Indians, and may pass laws in conflict oa treaties made

with Indians.- Thus, Congress has the power to abrogate

’ Indian privileges and a including nace d rights, by .

statute.

For over one hundred years prior to termination, the _

Menominee tribal government ‘constituted the political or-

ganization of, and together with the United States provided

governmental services to the Menominee people. The land

was held by the government, and the government super-

vised virtually all aspects = reservation life.

:

&

»

- 4 e-

an +. .

-. The Menominee “Termination Act,” Public™Law 399,

83rd Congress, terminates federal trusteeship over the

Menominee Indians and their .lands, which formerly com-

prised the Menominee Indian Reservation. The Act also

provid 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 states.

The .Agt contains no reservation ‘of hunting - and fishing

rights or anes in favor of the Indians.

The stated purpose of the Termination Act was to sub-_

ject the Menominees to the same laws, privileges and re-

: spenaibalition as aré applicable: to alt other citizens. The .

gislative history shows that Congress was advised that

- thelanguage of.the Act would extinguish the hunting and

- fishing rights, yet Congress made no express provision re-

serving eB even though it had before it another

version of the b — specifically would have reserved

panty es : .

‘The termination plan adopted by the Secretary ‘of ‘the

Interior pursuant to the act transferred all tribal assets,

‘inéluding title to the reservation lands, to a private cor-

poration in which enrolled members of the tribe were

shareholders.

The Wisconsin legislature took all steps necessary to

duly organize the reservation lands into a county, and set

_up the machinery for the usual. governmental services and

functions. .

- The net sonal of the Act, the plan, and its iiiiiaitieee

“tation, was to dissolve the tribe and the reservation, and

to extinguish the treaty hunting and fishing rights. The

*

‘Klamath Termination Act, and the cases decided there-

under, are consistent with this view. . ;

The contemporaneous “enactment of Public Law 280

‘does not indicate any legislative intent to preserve shunting

and fishing rights under the Termination Act: Nor does

the reference to Publie Law 280 in the Termination Plan

lead to any similar inference. Rather, it leads to the in-

ferénce that Congress intended that state law regarding

_ the management of fish and wildlife was to apply to the

new county in the same. manner that state law regarding

the maintenance of law and ‘order was to. apply.

' Affirmance of the decision below, without clarification,

will leave the State of Wisconsin in an impossible situation

‘insofar as implementation ef its conservation management

and enforcement programs in Menominee County is_con-

cerned. | eS | , . ¥

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. ". :

-.6 ar

- ARGUMENT >

I. PRIOR TO TERMINATION, THE MENOMINEE

TRIBE WAS POSSESSED OF THE EXCLUSIVE

_AND UNRESTRICTED RIGHT TO HUNT, FISH

AND TRAP’ THE RESERVATION LANDS FREE

FROM STATE REGULAZION.

Between 1817 and 1854 the United States and the

Menominee Tribe executed six treaties dealing with land

" cessions and territorial grants.:On May 12, 1854; the gov-

ernment and the tribe signed the document known as the

Treaty of Wolf River, which created the Menominee Indi-

an 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, have held that the language of the 1854 treaty

granted to the- Menominees an- unqualified right to hunt

and fish their lands free from all outside regulation and

control. State v. Sanapaw (1963), 21 Wis. (2d) 377 » B83,

124 N. W. (2d) 41; Menominee Tribe of Indians (1967), 179

Ct. Cl. 496;*Menominee Tribe of Indians (1941), 95 Ct. Cl.

232, 240-241. See also Moore v. United Sigtes (9th Circ.

1946), 157 F. (2d) 760, cert. den. .330 U.S. 827. The rule

of construction to be followed in interpreting Indian treaties

is that in case of ambiguity they are to be interpreted in

favor of the Indians. This was the holding in “Winters v.

United States (1908), 207 U. Ss. 564, 576, 28 Sup. Ct. 207,

52 L. Ed. 340, _ wherein this court declared: ,

“By a rule of interpretation of agreements and

treaties with the ‘Indians, ambiguities occurring will

be resolved from’ the standpoint of the Indians. And

the rule should’ certainly be applied to determine be-

tween two inferences, one of which would support the -

purpose of the agreement and the other impair or

; defeat .:

It is unlikely that the Menominees would have know-

ingly relinquished the special fishing and hunting rights

‘ which: they enjoyed on their own lands, and accepted in

exchange other lands to which such rights did not extend.’

They undoubtedly believed that these rights were guaran- .

teed when other lands were ceded to them “to be held as

Indian lands are held.”

Thus, the rights of the Menominees in this respect do

not derive from aboriginal user, but from a formal treaty

“— the United States government.

Bans CONGRESS HAS PLENARY POWER TO DEAL

WITH INDIANS, AND MAY BY STATUTE ABRO-

GATE INDIAN RIGHTS AND PRIVILEGES, IN-

-CLUDING THOSE SECURED BY TREATY.

sad : 4

Congress has plenary power to deal with Indians and

-may.abrogate Indian privileges and rights, including theaty

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

1925), 3 F. (2d) 90, affirmed ver 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. 504,16 S. Ct. 1076, 41 L. Ed. 244; Lone Wolf

. v. Hitchcock (1903), 187 U. S. 553, 565-567, 23 S. Ct. 216,

47 L. Ed. 299; United States v. Waller (1917), 243 U. S.

452, 37 S. Ct: 430, 61 L. Ed. 843; Anderson v. Gladden

(CCA 9th, 1961), 293. F. (2d) 463, Cert: denied 368 U.S.

i

i. erat Cpr aK \

3°

949. See also, Cain v. First Nat. Bank of Oregon (9th Cir.

_ 1963), 324 F. (2d) 532.

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, supra, pp. 565-

367; United States v. Waller, supra, pp. 459-460.

In Lone Wolf v. Hitchcock, supra, this court stated —

(187 U.S. at » 566):

“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 and 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 in a contingency

such power might be availed of.from considerations

of governmental policy, particularly if consistent with

— good faith towards the Indians. *. * -*”

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

259 F. Supp. 910; 914... “is

‘Indian tribes have ii ‘been regarded as tent

ent nations, or quasi-sovereigns, and treaties with them

have been looked upon not as contracts, but as public laws

which may be abrogated at the will of the United States.

Choate v. Trapp (1912), 224 U. S. 665, 671, 32 S. Ct. 565,

56 L. Ed. 941; Sioux Tribe of Indians v. United States (Ct.

Cl., 1956), 146,F. Supp. 229, 236. = * |

_* legislative acts, and when a treaty is inconsistent with a

ee ee

Where, as here, treaty provisions operate as domestic

legislation, they have no greater legal force or effect than

subsequent act of congress, the latter prevails under ordi- ;

nary rules of statutory construction. U.S. Department of ©

the Interior, Federal Indian Law (1958), pp. 24-25. See ©

also Ward v. Race Horse, supra, p. 514.

It is interesting to note that in a treaty executed two

years after the Wolf River Treaty the Menominees and the

' government stipulated as follows: . .

“1 That if this agreement and- the treaties made

‘previously with the Menominees should prove insuf-

ficient, 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 «vice and con-

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

_ ment of the affairs of the Menomonees as iin his judg-

ment may be most beneficial to them; or Congress may,

hereafter, make such provision by law, as experience

shall prove to be necessary.” said of ny 11,

> 1856 (11 Stat. a.

Rese eee? . pctne. 0s tas. 7 ee L ih: teist wet

RS is 10

Ill. THE PLAIN LANGUAGE AND THE ‘LEGISLA- -

TIVE HISTORY OF THE MENOMINEE “TERMI-

NATION ACT” (25 U.S. C. §§ 891-902) INDICATES

CLEARLY THAT, BY SO ACTING, CONGRESS

EXTINGUISHED THE HUNTING. AND: FISHING

RIGHTS GRANTED -TO THE MENOMINEES BY

THE WOLF RIVER TREATY.

gh a A. Prior to Termination, the Menominee: Tribal

, government and the federal government provided

the political framework of the Menominee So-

ciety.

. Each Indian Tribe began its relationship with the fed-

eral government .as a quasi-sovereign, and while subse-

quent conquesf rendered the tribes subject to -the legisla-

tive power of the United States, it did not extinguish the

_ tribes’ internal sovereignty, or their powers of self-govern-

- ment. Federal Indian Law, supra, pp.- 395-396.

In the case of the Menominees, tribal snialivevhie x

originally depended upon birth or adoption into the tribe,

the maintainance of tribal relations, and recognition of

membership by the tribe. Everitually, tribal arenas:

was governed by the Secretary of the Interior.

For over a hundred years the Menominee people had

lived in Wisconsin under uncodified and undefined tribal

law supplemented by federal laws and federal agency su-

pérvision. Their pattern of life has always been that of a

c@mparatively isolated group in the social, economic and

. governmental structure of the state 4nd nation.’

1Wisconsin Legislative Council, 1965 Report, Vol! III, Report of Me--

nominee Indian wind Committee, p . 13.

MR ee RR an ee et ca a

2 *

In igo the Menominees adopted a tribal constitution

under which the tnibe operated until implementation of

the Termination Act, The constitution vested governmen-

tal authority in a tribal council (a “Town Meeting” form

of organization). The reservation was divided into six dis-

a tricts for election of the members of the Advisory Council, _

which was the executive - ‘body. The Advisory Council,

chaired by a full-time, salaried, official, had authority over

most matters of direct importance to the tribe, although

the Bureau of Indian Affairs ‘processed mont major deci-

sions.”

The Advisory Council operated through twelve stand-

ing committees: Pension and. Relief; Forestry and Mills;.

- Education and Hospital; Law and Order; Fair Association;

Agriculture; ‘Recreation; Garment Factory: Land. Use;

Finance; Governmental Planning and Economic ceed

ment.*

The general council met in semi-annual and special

meetings on call of the Advisory Council, as approved by

the Reservation Superintendent, the principal local agent

of the Bureau of Indian Affairs‘ ~~ -

The Council’s role in law enforcement was sizeable -_

and direct—the Law and Order Committee supervised a

tribal police department of four full-time aeaeaarae a

game warden and part-time assistants. .

2Robertson, “A Brief Story of the Menominee Indians,” Journal of the

' Wisconsin Indians Research Institute (March, 1965), pp.4, 13.

3Wisconsin Legislative Council, 1965 Report, supra, note 1, p. 59.

Local Government For.The Menominee Indian Reservation, prepared

by the Bureau of Government, the University of Wisconsin, Madison,

Getober 1, 1956, p. 13. .

SIbid., p. 25.

Gand ; °

4Report To The Menominee Indian Study Committee On County And |

NRE DRE EIEN AP ROE BOC INIEN

:

Toe eee ae ed

12.

.f

ce

As with most Indian reservations, the land was free

from the property tax. There were some service charges

for. public utility services, but no property or other local

taxes were levied.* Prior to termination, reservation home-

' sites were not individually owned.’

* The Menominee Community, broadly speaking, was an

integrated combination of industrial, municipal, and human

relations activity—including public health, education, wel- —

fare, credit, law and order functions—all of which were

sustained or paid for from tribal“funds held in trust in the

- United States Treasury. These funds were subject to use -

for the above purposes only through appropriation by Con-

gress. Indeed, the federal function. .was to retain general

guardianship of the Menominee people and their property,

including general supervision of the area’s only industry—

the mill and foréstry operation.*

B. The 1954 Termination ‘Act: Terms 7

er

in 1954 Congress sprovided for the termination of all

federal supervision and control over the Menominee Indi-

" an Tribe and the: Ménominee Indian Réservation by Pub-.

lic Law 399, 83rd Congress, ‘popularly known as the “Ter-

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

70 Stat. 549, 72 Stat. 290, 74.Stat. 867; 25 U. S. C. secs.

891-902). The Act provides, in pertinent part as follows:

Ҥ 891.. The purpose of sections 891-902 of this

title is to segue for orderly termination of Federal

*Wisconsin Legislative Council, 1965 — am, Note 1, p. 17.

TIbid., p. 35.

8Ibid., p. 13.

U

* ~ the date of ‘such proclamation, the rights or beneficial |

.

eS i a ae ls tk oe ars ee ee Sane te

~ s 13

supervision over the property and — of the

| Menominee Indian Tribe of Wisconsin. .

“g 893 . . . At midnight of June 17 1954 the roll

' of ‘the tribe maintained pursuant to the Act of June |

15, 1934 (48 Stat. 965), as amended by the Act of July

14, 1939 (§3 Stat: 1003), shall be closed and no child

born thereafter shall be eligible for enrollment... .

* * *

“When the Secretary has made decisions on all ap¢"'' 5

peals, he shall issue and publish in the Federal Reg-* .

ister a Proclamation of Final Closure of the roll of the ~~

tribe and the final roll of the members. Effective upon |

interests of each person whose name appears on the -

roll shall constitute personal property: and. shall be

evidenced ‘by a certificate of beneficial interest which

shall’ be issued by the tribe. Such interests shall be.

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

in rfo 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- an

ducted by or under the supervision of the United States,

including-but not limited to services in the fields of

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

order, and for all other matters involved i in the With-

drawal of Federal supervision.

e* 2¢ « a ;

“The Secretary af accept such tribal plan as the me

distributable in accordance with the laws of the State ; yj

of Wisconsin. Such interests shall be alienable only

in accordance with such regulations as may be adopted. —i‘(‘#S‘G«yz(“

by the tribe. § 3, 68 Stat. 250. ‘,,

‘basis for the conveyayice of the tribal property. if he

finds that it will treat with reasonable equity all mem-

bers on the final roll of the tribe prepared pursuant to

a ’ aa |

ee” @.- . cana

pina sini muncmnsie ” Sued ses pods ealticied eee nee

@

: a

eutinin 893 of this: title, Pid that it inaidiatonn to appli-

cable Federal and State law.

“The responsibility of the United States to furnish

all such supervision and services to th tribe and to the

members thereof, because of their\status as Indians,

shall cease on April 30, 1961, or on-such earlier date

as may be agreed upon by the tribe and the Secretary.

The plan shall contain provision for protection Of the

forest on a sustained yield basis and for the protection

of the water, Soil, fish and wildlife. the extent nec-

essafy, the plan shall provide for such terms of trans-. .

fer pursuant’ to section 897 of this title, by trust or.

otherwise, as shall insure the continued fulfillment of

the plan. a ae

“$897... On or before April 30, 1961, the Secre-

tary is authorized to transféfr to the tribal corporation

or to a trustee of the Secretary’s choice, as provided

in section 896 of this title, the title to all property, real

and aera held in trust by the United States for the -

“The Secretary is authorized, in his discretion, to

transfer to the’ tribe or any member or group of mem-

bers thereof any federally owned property acquired,

withdrawn, or used for the administration of the affairs:

of the tribe which he. deems necessary for Indian use,

_ or to transfer toa public or nonprofit body any such ©

property which he deems necessary for public use and

from which members of the tribe wall derive benefits.

Ҥ 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 Register

an appropriate proclamation of that fact. Thereafter |

individual members of the tribe shall not be entitled.

to any #f the services performed by the United States ._

for Indians because of their status as Indians, all stat- /

15

utes 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 sev- _

eral States shall apply to the tribe and its members in

the same manner as they apply to other. citizens or per-

sons 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. ” (Empha-

sis —

In sidition, Section 894 of the Act becca ‘es per

capita payments to all enrolled members of the tribe.

On April 29, 1961, the Secretary of the Interior, hav-

ing approved The Termination Plan (which will be dis-

cussed below), proclaimed the transfer of title to all tribal

trust property as follows (26 Federal Register, No. 82, p.

3726):

“Pursuant to the authority contaitind in ‘enttinn. 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 bythe 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 Menominee 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*

ee longer. be applicable to the members of. the Menominee

- Tribe; and the ldws of the several States shall apply

_ to the Menominee Tribe and its members in the | same.

_ manner as they gpply to other citizens or persons with-

in their jurisdiction. °

. 16

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

1954, supra, the Plan for the Future Control of Me-

’ nominee Indian: Tribal Property and Future Service

.. Functions is published and appears immediately be-

. low this notice.” (Emphasis sugpeee)

: Upon publication of the plan in the Federal Reg-

- 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- Meyiominee Indian

Reservation became Wisconsin’s’ 72nd county.

_ (C, The 1954 ‘Tiemdnetion Act: Legislative aad

The policy of termination had its genesis in oe 1940’s.

In 1949, the then Commissioner of Indian Affairs stated

* » that it was not the intention of the federal government to

“continue in its role. as Indian trustee, and that:

, ‘Development of * * * property to full utiliza-

tion and encouragement of the owner to accept respon- _

- sibility for management. These are the proper goals

of Indian administration. They are the means by .

which the United States may, within a reasonable time, .

withdraw entirely from its historic role and turn over

its trusteeship to a trained and ae Indian

BY ape

Annual report of the Sioa of the Ingerior,

1949, p. 388. .

Similar. manifestations ‘of’ the government’s intent ulti-.

mately to;transfer Indian Bureau functions to the Indians

themselves, or to appropriate state and local agencies? are

recounfed in Federal Indian Law, supra, p. 261.

or : a

Ree eee ere Bae nn Re te

17

’ This court acknowledged the federal policy ef “eman-

cipation” in Williams v. Lee (1959), 358 U. S. 217, 220-221,

% S. Ct. 269, 3 L. Ed. (2d) 251, wherein it is stated that:

“Congress has, followed a policy calculated eventu: |

ally to make all Indians full-fledged participants in

American. society: This contemplates criminal and

civil ay «ge over Indians by any state ready to.

assume the burdens that go with it as soon as the edu-

cational and economic status of the Indians permits the

change without disadvantage to them.”

This policy was amply stated by Congress in House

Concurrent Resolution 108 which started the process of

termination for the Menominees, and which stated, in per-

tinent part, as follows. (67 Stat. 132, 83rd Cong. Ist Sess.):

“Whereas it is the policy of Congress, as rapidly.

as possible to make the Indians within ##e territorial

limits of the United States subject to the same laws

and entitled to the same privileges and responsibilities

‘as are applicable 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 — per-

taining to American citizenship; and ©

Whereas the Indians within the territorial limits -

of the United States should assume their full responsi- :

bilities as American citizens: Now therefore, be it RE- . .- -

SOLVED BY THE HOUSE OF REPRESENTATIVES -

(THE SENATE CONCURRING), That it is declared

to be the sense of Congress that, at the earliest pos-

sible tirhe, all of the following-named .Indian tribes

and individual members thereof, should be freed from

Federal supervision and control and from the disabil-

_ ities and limitations specially applicable to Indians:

* * * The Menominee Tribe of Wisconsin. * * * It is

further declared to be the sense of Congress that, up-

“a

18

on the release of such tribes and individual members

thereof from such disabilities and limitations, all offices

of the Bureau of Indian Affairs in the States of Cali-

fornia, Florida, New York, and Texas, and ‘all other

offices of the Bureau of Indian Affairs whose primary

purpose was to serve any Indian tribe or individual

Indian freed from Federal supervision should be abol-

ished.” (Emphasis supplied) .

It became clear at the hearings on H. C. R. 108 that

the government was committed 'to a policy of “ext: icating

itself from Indian Affairs.” See Hearings Before the Sub-

committee on Indian Affairs; House Committee on Ifiterior

and Insular Affairs, 83rd Cong., Ist Sess., pp..4, 7. -

A later comment on the policy of termination is found -

in 38 Oregon L. Rev. 193, 241 (1959):

‘ “In essence, the government, which has maintained

the Indians iii the status of ‘wards’ for a century and

‘a half, has finally wearied of its role as guardian and

is closing shop on the reservations. * * * The new fed- _

eral policy is a resumption of pre-New Deal attempts

to compel the tribesmen to acculturate themselves to

_ the general Americar culture. * * *”

The original legislative proposal, which was finally en-

. acted by the 83d Congress in 1954 as the Termination Act,

_ originated in the House of Representatives as mf

Two other companion ‘bills to provide for the withdrawal

of the ‘Menominee Tribe from federal jurisdiction were also"

| introduced, 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 subcom-

mittees of the Senate Committee on interior and and In-

, Sular Affairs and the Committee on Interior and Insular

en

uv

19 *

Affairs of the House’ of siihaseeiiabelh ae March 10, 11,

_ and 12, 1954. Both S. 2813 and H. R, 7135 contained express

provisions ‘which preserved any special hunting and fish-

ing rights, the Menominees might have by treaty, statute,

custom, or judicial decision. H. R. 2828 contained no gach

corresponding provision.

- The court below referred to. the testimony of two wits

nesses appearing before the house committee who expressed _

their opinion that H. R. 2828's silence oh the subject “would

“s not affect hunting and fishing rights acquired by’ treaty,

but only those acquired by statute (179 Ct. Cl., at pp. 505-

506). It should be noted, however, -that neither witness

mentioned the. provision of H. R. 2828 (now sec. 899 o- the

Act) stating that: “the laws of the several States. shall ap-

ply to the tribe and its members in the same manner as

they apply to other citizens or persons with their juris-

diction,” (Italics supplied.) See Joint Hearings Before the

‘Subcommittee of the Committees on Interior and Insular

Affairs, 83rd Cong., 2nd Sess., on S. 2813, H. R. 2828 and

HL R. 7135. (Hereafter referred .to as “Joint* Hearings. 2

It is also a fact, barely alluded to by the court below, :

that the general counsel for the then Menominee Tribe,

‘Mr. Glen Wilkinson, filed a memorandum with the joint

committee, testified at the hearings, and in both his memo-

randum and testimony specifically disagreed with the two

other witnesses, and stated that H. R. 2828 would, by its

"silence, abrogate Indian hunting and ‘fishing rights.

In his memorandum, Mr. Wilkinson stated in iat

| (Joint Hearings, pp. 697, 704) :

> “Om page 4 (item 7) the Onn is made that

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

Ps

& FFP EE UE OI TMT AST LTD

' « s 20

does not purport to affect any treaty per 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::

“I 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 on this subject. It goes on to say that it does,

not purport’ to affect any =. rights the Indians _

may have. ~° iS

“T 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

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

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

ongress enacted the bill which was silent to suta.sights.

ae es

21

D. Termination—The Plan and the Suepeenm.

_ The Termination Act required the Menominees to pre- |

pare a plan for future control of tribal property and serv--

ice functions—including health, education, welfare, credit, .

roads, and law and order, and “other: matters involved in

termination.” 25 U, S. C. § 896. Another portion of § 896 °

required the plan to “contain provisions for protection of

the forest'on a sustained yield basis and for the protec-

- tion of the water, soil, fifh and wildlife.”

. The plan as submitted to, and approved by, the Secre-

tary of the Interior, was published in 26 Federal Register,

No. 82, p. 3726, ang had a8 its stated objectives: - (1) The

deyelopment of machinery for “municipal activities previ-

_ ously supervised by the’ Department of the Interior, in-

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

~ and order;” and (2) the development of a sound economic

' base through operation of the forest on a sustained yield

basis. The heart-of the plan is the transfer of all tribal

Inc.

In the eyes of the tribe, the subjects of local govern-

ment and business organization were closely related, for

the Menominee people had long. been. dependent economic- © |

- ally upon the forest and lumber mill. As indicated above,

the mill operations, like the tribal government and politi-

cal machinery, had been supervised ™. the Bureau of Indi- :

an Affairs.

In essence, all tribal ‘ania forest lands and all

' the other property of the Menomine@s—were transferred

to the corporation, except for the roads, highways and cer-

tain public buildings. The corporation is managed by a

property to a private canpeeeem, Menominee Enterprises, -

sii ihe Ee

22 .

:

voting trust set up under Wisconsin’ S general corporation .

law. The 3,270 Menominees who were enrolled at the time

the tribal rolls were closed in 1954 each have a 1/3270th

equity in the corporation. | | me

The plan provided that the lands transferred to the

corporation could not be alienated for a period of 30 years.°

The voting. trust conteniplated by the plan prohibits the

trustees from selling the trust stock without approval, of

the State Conservation Commission and:the governor for

a period of 30 years. No trust beneficiary could transfer |

‘any trust certificates—except to his family or heirs—for

. five years.’° After that time, transfer may be made after

_ first offering the certificates to the corporation. All restric-

tions on alienation: expire on January 1, 1981.

A special trust was set up for minor and mncomnpetent

enrolled members.

~ The plan also seatiine the desitability of a mnerit” Sys-

tem in government, the transfer of tribal buildings to mu-

nicipal use, the distribution of state escrow funds to the

new county, the improvement and transfer of roads with-

in the reservation to the new onenay, etc., and states (ap- ,

‘pendix, p. 6-a):

“It is unnecessary, 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 Reser-

vations having been surrendered by the United States

by Public Law 280, 83d ongrem, as amended (18

U: S. C. 1162). = e

om restrictions are found in sec. V of the Menominee Common Stock

and Voting Trust. See Federal Re r, Vol. 26, No. 82, April 29, 1961,

p. 3726, et seq. Appendix, p. I=b; e seq.

10This five-year period expired in 1966.

a ds 2 Rel <2 Sat ce ee Re Se ee —

2.

There is no-mention of a plan for “fish and wildlife.”

Menominee Enterprises, Inc., was incorporated under

Wisconsin’s general corporation law prior to the Secre-

tary’s proclamation. The Articles of Incorporation author-

ize-the corporation to engage in any lawful corporate ac-

tivity, and, particularly, to manage the business and prop-

‘erty transferred to it by.the United States. See Federal

Register, Vol. 26, No. 82, April 29, 1961, p. 3726.

» .

ba)

E. ‘Tecnalinnstan-Qruni ss

The 1959 Wisconsin. Legislature enacted a series of

laws in anticipation of termination (Chs. 258, 259 and 260, -

Laws of 1959). TheSe laws related to the following:

(1) Providing a new method of taxation and’ nies

tion of forest lands required by federal law to be ee

on a sustained-yield basis;

(2) Creation of a new county to be named “Menomi-

nee County,” aid comprising the lands of the reservation

(7 townships in Shawano County and 3 townships i in Oconto

County) ;

_gressional, State Senate and State Assembly districts;

(4) Attachment to Shawano and/or Oconto Counties

for the provision of certain political and service functions, ~~

such as: county superintendent of schools and school dis-

tricts; juvenile court; district attorney; divorce counsel;

circuit court; county and municipal courts, etc.;

5 |

(3) Attachment of Menominee County to existing Cur |

shea SF eng

24

(5) The structure and manner of selecting county and -

~ town governing bodies and officers;

-.(6) Methods of real and personal property valuation;

assessment and taxation; j

(7) Pro-ration and sharing of expenses of district at-

torney, county and circuit judges, etc., with Oconto and

Shawano Counties;

(8) Distribution of state tax credit funds to ‘Menomi-

nee County.

In addition, laws were enacted dealing with:land and

title records,. legal settlement and residence, town taxa-

tion, permission to restrict alienation of corporate stock for

5 years, etc. Other pertinent state legislative acts relating

to Menominee County aressunimarized in Appendix C.

IV. THE NET RESULT OF THE TERMINATION ACT

WAS THE DISSOLUTION OF THE MENOMINEE

. TRIBE, THE ERADICATION OF THE MENOMI-

‘NEE RESERVATION, AND CONCOMITANTLY,

THE EXTINCTION OF ANY SPECIAL HUNTING

AND FISHING RIGHTS GRANTED BY THE WOLF

_ RIVER TREATY OF 1854.

The Treaty from which the Menominees’ hunting and

fishing rights derive ‘was the document. establishing the

Menominee Reservation. Through the Termination Act,

and the steps taken thereunder, the United States has di-

vested itself of all right, title and interest to the lands

which comprise what was formerly the Menominee Indi-

an Reservation, and has ended its trusteeship over the lands.

Tite to the forest land is now held by Menominee Enter-

prises, Inc., a private Wisconsin stock corporation. Title

-25

to certain parcels of land has been conveyed by the -cor-

poration to individuals for homesites. What was formerly

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 js now on the

- tax rolls. Enrolled members of the Tribe are residents of

the town and county, are subject ‘to the State’s tax laws,

and elect town and county officers (Was. Laws, hanes Ch.

259).

Prior to, final termination, homesites were not individ- —

ually owned within the reservation. Between 1961 ard

1965, however, 426 homesites and 146 farms averaging over

_ 100 acres each had been conveyed to individual Menomi-

nees. See Wisconsin Législative Council, 1965 Report, Vol.

Ill, p. 35.

Menominee Enterprises, ‘Inc., is indeed@he “successor

entity to what formerly was the Menomine@Tribe. It was

recognized as such by the Bureau of Indian Affairs of the

United States Department of the Interior in a 1965 report

' of that agency to the House Committee on Appropriations,

wherein it is stated (111 Congressional Record, No. 57, p.

6093, March 30, 1965): Pa

“The experience of the Meriueninees under termination

_- May be examined first of all in terms of the two entities —

established by the state law-.as successors to the Me-

nominee Indian Tribe. One of these, a State corpora-

tion, was Menominee Enterprises, Inc., to which was

conveyed all the tribal land which had comprised the

. reservation * * * the other was a new county, Wiscon-

sin’s 72d, carved from the two counties in which the

reservation had been located and-with borders identi-

cal to those of the reservation.” ¢Emphasis added) —

. oe

a

e : Ae

A reservation is, after all, “simply.a part of the public

" domain set aside by proper authority for use and occupa-

tion by a group of Indians *.*-* The United States holds

the title arid the right of use and occupancy is in the Indi-

ans.” Federal Indian Law, supra, p. 20.. Similarly, it has

been stated that, while neither allotment -nor citizenship

alone imply a termination-of tribal existence, they are fac-*

tors to be considered—along with the cessation of partici-

pation in tribal resources and tribal government. Federal

Indian Law, supra, p. 465. See also Healing v. Jones (D.C.,

Ariz., 1962), 210 F. Supp. 125, 180, affirmed 373 U. S. 758,

83 S. Ct. 1559, 10 L. Ed. (2d) 703; Colliflower v. Garland

. (9th Circ., 1965), '342 Fed: (2d) 369,°377.

The legislative history of the Termination Act, the

plan approved by. the Secretary and implemented by the

» Wisconsin legislature, and the present status of the Me- .

> nominee people, are whollyginconsistent with any notion

that either the Menominee Tribe or the Menominee Indi-

an Reservation has continued in existence. The effect of

these actions has beén to strip away all vestiges of organ-

ized tribal structure, and to make all Wisconsin laws—in-

cluding the fish and game regulations—applicable to all

residents of Menominee County, and enforceable within

the county boundaries in the same manner that such laws

are applicable to other citizens within the state. Cf. 25

U.S. C. § 899.

The United States, through the fisieiiie and the De- .

partment of the Interior, has clearly and unequivocally ter-

minated the tribal existence and reservation status of the

Menominees. All tribal property is owned by a ‘private

corporation and what was formerly the Menominee Reser-

vation is a duly organized Wisconsin County; with.all the

27

powers, duties and liabilities of a County. By so acting,

the Congress of the United States has extinguished the spe-

cial hunting and fishing rights which accrued to the Me-

nominee Tribe by virtue of the 1854 Treaty.

V. THE COURT OF CLAIMS’ CONSTRUCTION OF

THE TERMINATION ACT IS CONTRARY TO THE

-PLAIN LANGUAGE AND LEGISLATIVE HIS-

TORY ‘THEREOF, AND THE CURRENT STATUS

OF THE FORMER MENOMINEE TRIBE.

Sec. 891 of the Termination Act provides that its pur-

pose “is.to provide for orderly. termination of Fedéral su-

pervision over the property and members of the Menomi-

nee Indian Tribe of Wisconsif®’ 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 s no longer, be applicable to

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

shall apply to the tribe and §ts members in the same man-

" ner as they apply to other citizens or persons within ceed

| jurisdiction. ia (Italics supplied.) Pe

The italicized statutory language, given its plain and

ordinary meaning, would subject the Menomineés’ pre-

existing special hunting rights 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 aie. of the Congress.

28

>

As indicated earlier in this brief, Congress was advised

| by the tribal attorneys that passage of H. R. 2828 would

~ “abrogate” the tribal hunting and fishing rights ‘granted ©

therein. Being so advised, and with alternate bills before

it whieh would havé expressely teserved hunting and fish-

ing rights to the ‘Menominees (S. 2813 and H. R. 7135),

| Congress enacted the bill which was silent on this point.

It is clear from this, together with. thé myriad -facts of

termination discussed above, that Congress oO y and

intentionally chose to extinguish the ~ hunting and .

- fishing rights. The-continuation of$uch rights after termi- _

_ nation is inconsistent with not only the plain language

- of the Act, but also its purpose, effect, and legislative his-

tory. k .

The Court below held otherwise, basing its decision on .-

two facts: (1) The subsequent passage of Public Law 280;

and (2) the reference to P. L. 280:in one portion of the Me- 3

nominees’ termination plan.

A. ‘The enactment of Public Law 280 does not jus-

‘tify the court’s interpretation of the Termination

Act as preserving. the gag and fishing rights —

of the Menominees. ‘Se dD

»

The Termination Act was ae on June 17, 1954

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

. later, Congress extended the provisions of P. L. 280 to the

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

2nd session, August 24, 1954, 68 Stat. 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

td

- over hunting: and fishing, water, and certain property

_ Tights. Public Law 280 (18 U. S. Cs sec. 1162, 28 U. S. ai

sec. 1360), provides in part as follows: ~- «

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

table shall have jurisdictfon over offenses committed

by or against Indians in the areas of Indian country

' disted opposite the name of the State to the same ex-

‘ tent that such State has jurisdiction over offenses

‘ecdmmitted 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:

"s &

“(b) Nothing in this section shall prenren 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 heid in trust by the United States or is sub-

ject“fo a restriction against alienation imposed by the

ited States; of s+ 11] authorize regulation of the use‘

uch property in a manner ‘inconsistent. with any

ral treaty, agreement; or statute or with any regu-

or any Indian tribe, band, or community of any

right, privilege, or immunity afforded under Federal

treaty, agreement,” or statute with réSpect. to hunting,

trapping, or fishing or the control, licensing, or ge

lation thereof,

«

.

* * *

Ҥ 1360. State civil idiiiimeis in actions to ih

Indians are parties : m

7" (a) Each of the States listed in the following ©

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-

waite

OVO Oe Te he ae eee Wie Oe a) ene

me

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

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 the

State: :

** |

“(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 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 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 confer juris-

diction upon the State to adjudicate, in probate pro-

ceedings or otherwise, the ownership or right to pos-

session of such property or any interest therein.

“(c) Any tribal orginance 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 that since the Act was silent on the question: of .

preservation or abrogation of the treaty rights, “* * * we

‘must look to the legislative history of the Act * * * to de-

termine if it cut off these rights by implication.” 179 Ct.

’ Cl. at p. 505. After a brief discussion of the two bills pend-

31

ing before Congress a the time,: the Court ererory (179

Ct. Cl. at p. 507): 7

“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 ahd there was

‘no need to mention them in the-Termination Act.” ~

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

islative state of mind, and we: have been unable, to find

_any such suggestion in the multitude of hearing reports

and other documents bearing upon the Termination Act—

which is, after all, the legislation being interpreted by the

court. The only point made by the documented history of

the Act is that Congress had two bills before it—one which |!

would have expressly preserved the hunting and fishing |

Tights; and another which, as they were advised by the

attorney for the tribe, would “abrogate”: and “abolish’s —

these rights. Congress chose the latter.

- It is submitted that the “logical assumption” of the .

Court of Claims is'no more than speculation, and,‘as such,

is insufficient to overcome the plain language of the Act,

buttressed by the only documented history of its travel

through Congress. The Termination Act clearly fulfilled its

stated purpose of making the laws of Wisconsin applicable

to the Menominees “in the same manner as ‘they apply to:

other citizens or persons within-* * * (its) * * * jurisdic-

tion.” 25 U.S. C. § 899.

YY

)

os Be

7 Own eD eee

t

>

oes

B. The Para to Public « ‘xw 280'in one portion

of the T ermination Plan does, not require thé

: Construction of the ‘Termination Act — by

. © the Court below. ,

$ re)

As indicated above, the iain Act required the

Tribe 40 prepare a plan which, when approved and pro-

claimed by the Secretary of the Interior,.would effectuate:

the termination. As may be seen from the relevant por-

tion of the Act (25 U. S. C. p. 896, reprinted at pp. 13-14, |

Supra), the pertinent “plan requirements were. separate.

At the beginning of sec. 896 it is stated:

“The tribe shall *.* * formulate * * *’a plan * * *

_ including services in the fields’ of health, education,

welfare, credit, roads, and law and. order. a

At the end of the section the following appears:

“The plan shall contain provision for protection

_ of the forest on a sustained yield basis and for protec- °

tion of the water, soil, fish and wildlife. ti

- ‘The court — the requirement of § ‘896 deal |

| ing’ with a plan for protection of forest, water, soil, fish and

wildlife. .The court then quoted the following excerpt from _

the plan (179 Ct. Cl. at p. 508; See Appendix’ p. 6-a):

“Tt. is unnecessary, 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 Ljaw 280, 83d Congress, as amended’ ’

(18 U.S. C, 1162) - at

From these two items the court concluded that Pub-

lic Law 280 was made a part of the plan by reference, and

eR be won eat EN i As ae RT alan Rey tae OA ae ER

33 .

that, as a result, it was unnecessary for Congress to spe-

cifically preserve the hunting and fishing. rights . in oe

Termination Act. 179 Ct. Cl. at p. 508.

iia

First of all, the plan was prepared. by the Menominees

themselves, and whatever its terms, it is not part of the

legislative history of the Act, nor can it be used, as the .

Court of Claims appears to have done, to indicate the in-_

tent of Congress in passing the Termination Act some seven |

years ‘earlier.

Secondly, the quoted portion of the plan refers to “law

and order’—it ‘does not pertain to protection of fish and

wildlife. It is merely the: fulfillment ofanother separate

and distinct requirement of the-Act. It cannot be said that,

by referring to Public Law 280 in connection with a spe-

cific requirement dealing with “law and order,” _the pro-

visions thereof are. incorporated into another portion - of

‘the plan pertaining to the protection of forests, soil, water, —

fish and wildlife. The legislative requirements for inclusion

of these items in-the plan appear in caret portions of:

sec. 896 of the Act.

' Even if the chain of inferesices may be so canned. 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 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

should apply and that the plan itself which was submitted

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

. flect the —— of the state law to protect fish and wild-

~ \

7 hs

e \

;

, *

~~ c % » @ .

34 ie es

life. This conclusion is ‘supported | by‘ the fact that the

SeEEMRERNR Act also. required that the ‘plan’ provide for.

* . protection of the forest on a sustained yield basis |

-.,” and. authorized the Secretary of the Interior to ac-

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

corfforms to applicable Federal,and State law” (25 U. 8.C.

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

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

by 25-U. S. C. sec. 896, and state legislation 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., Appendix, p. 2a). 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, separate provision for. pratection, of fish

and wildlifé was unnecessary since such protection would

~ be provided by the application of Wisconsin’s conserva-

. tion laws to the land and its peoplé. .

it should also be noted that 1e Wisconsin ‘Su me

‘Court’ was not, as the court bel indicates, ‘unapprised °

of the passage of Public Law 280 when it rendered its de-

cision in State v. Sanapaw, supra. The brief filed by the’

State of Wisconsin bn rehéaring in that case devoted 3

to 5 pages to a discussion of P. L. 280, and quoted exten- - - :

sively from its text.

35

|

VI. THE KLAMATH ACT, AND THE CASES pious

THEREUNDER, ‘DO NOT SUPPORT 'FHE ‘DECI-

‘SION OF THE COURT BELOW.

_ The Court of Claims indicated that its decision on the |

effect of the Termination Act is supported by three cases _ ;

. involving the Klamath Indians. 179 Ct. Cl. at pp. “511-512. .

The only one of the three cases which was réported, Kla-

~ math and Modoc Tribes v. Maison (D. C., Ore., 1956), 139

F. Supp. 634, did hot mention the Klamath Termination

Act (25 U.S.C. § 564), and, in fact,,was decided five years- 3

before the Klamath termination was effected. See 26 Fed- ,

eral Register, August 12, 1961, p. 732, E :

‘The Court: of Claims mentibned, -however, : that the

two unreported cases held that the act preserved ‘prior

treaty rights. 179 Ct. ~~ pp. 511-512.

‘The Klamath Termination Act gave each tribal mem-

_ ber, the option of r@maining in the tribe and participating

ina “tribal management plan” to be prepared by a designee

of the Secretary of the Interior,’ or of withdrawing from

the tribe and having his interest“in the tribal property ©

converted into cash and paid'to him outright. 25 U. S. C.

— -§ 564d (2). The Secretary was authorized to sell certain

* portions of the tribal land to obtain funds to pay those

members electing to\withdraw from the tribe, and any sueh

lands: not sold would be purchased by the United States.

25 U. S. C. §564w.” The remaining land, to be retained

for those Indians electing “to rémain in: the tribe” is desig-

nated as “tribal property” and is to be managed by a true.

tee, apparently as a reservation. 25 U. S. C. So.

-

poate a ORIEN 2 EO ERG ee ae,

11Under the Mieneeainee Act, the Menominee vais were responsible

for preparing their own plan.

ee

. 36

The differences between the Klamath and Menominee .

termination programs are obvious. In the case of the Me-

riominees, all tribal property, and all reservation lands

were conveyed to a private corporation.- Many- of these

lands have been sold to individuals. No Menominee had

the option of “remaining in the tribe,” as did the Klamath

people. Instead, the Menominees were required to “formu-

late a plan for future control-of tribal property and serv- -

ice functions.” 25 U. S. C.’ §'896. Pursuant to the plan,

the United States relinquished all interest in the real and —

personal property of the Menominee. tribe.

- It is true oe t the Klamath: Act contained much of

the same general Nanguage pertaining to application of

“the laws. of the several states.” See, for example, 25

U. S. C. §564q. However, the’ provisions of the Klamath _

Act differ in several significant respects in addition to those

mentioned above. See for example, 25 U. S. C. § 564e (c);.

-§ 564r, which. contemplates the continued existence of a |

tribal government; §564w(q), which limits individual

homesites to a life estate only; and. § 564w(i), which re-

serves highway right of way use and maintenance to the --

; United States. a 2 . :

The most notable differerices are found in the express |

_ reservation to the Klamaths of water rights and treaty sh-

ing rights. In fact, specific reservations of water. rights are

- found in the Ute, Paiute, Wyandotte and Ottawa Terfnina- ©

tion Acts. 25 U.S. C. §§ 677r, 757, 806 and 851.

- The reserved fishing rights of the Klamaths were con-

- sidered—along: with the effect of the Klamath Termina-

tion Act on hunting and trapping rights—in Klamath and

Modoc Tribes v. Maison. (9th Circ. 1964), 338 Fed. (2d)

620, which was not discussed inthe decision of the Court -

e*

oe.

622-3):

sate GES ’ ©

37

“of Claims. There the question was whether those Klamaths -

who elected to remain in the tribe had an untrammeled

right to hunt and trap upon former reservation lands which.

had been taken by the United States pursuant.to § 564w

a ‘the ‘Klamath Termination Act, discussed above.. The ©

court held that such | had been lost, — (pp.

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

denied (1964) 377 U. S. 991, 84 S. Ct. 1911, 12 L. Ed.

2d 1044. That case dealt with the Act terminating the

- Menominée Tribe upon substantially the same terms

as those of the Act before us. | There the Court re-

ferred to House Concurrent Resolution 108, 83d Con-

gress, lst Session, pursuant to which the Menominee :

Termination Act was drafted and introduced. That

resolution. recited the. palicy of Congress ‘as: rapidly

as possible, to make the Indians within the territorial

limits of the United States subject to the sameé laws

“and entitled to the same’ privileges and responsibilities a

as are applicable 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 aise es per-

taining to American citizenship.’

“The Wisconsin Supreme Court ‘referred to lan- pe

- guage of the Act ‘hat ‘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 jurisdi¢tion.’ It concluded that ‘the Termi-

nation Act abrogates any right to be free of the state’s

fh: game laws in’ exercisirig hunting rights over. the for-

mer tribal lands of the resérvation.’

“The ie States, appearing here ~as amicus.

iz curiae throggh the Attorney General, has in its brief

. ‘expressed its view as follows: | 2 .

ess '

“The same issué was presented in State v. Sana-_

i

38 Pe

‘The Klamath Termination Act and the’ many oth-

-er termination acts of the 1950’s and 1960’ con--

clusively show that Congress now desires the In-

dians to be amalgamated with the rest of our popu-

‘lation and not to be specially treated “because of

‘their status as Indians” * * * The purpose.of the

-Klamath Termination. Act to (a) end federal su-

pervision, (b) remove from the Indians their spe-

cial status as Indians, and (c) make state laws

applicable to them, “in the same manner as they

apply to other citizens” are expressed and un-

equivocal in the terms of the Act.’

“We are in agreement with this. position.

“Notwithstanding this clear evidence of Congres’

sional purpose, appellants contend that their right to

involved, is conferred by treaty; that while Congress

has the power to abrogate such treaty rights, it will

not be assumed to have doné so in absence of express

_ language; that there is nothing in the Termination Act:

limiting their right to hunt and trap upon the lands

assigned to them by treaty..

“If appellants are correct.in their position not only

"és their right to hunt and trap on the lands in question

(or, indeed, on any former reservation lands which

may have been taken into private. ownérship) one

which is free from'state control; their right is exclu-

“sive; no one elsg may hunt or.trap-on these lands.

Their treaty Secured to the Indiansthe exclusive right

of taking fish in the streams and lake’, included in said

reservation * * *.’ 16 Stat. 707. By judicial inter-

pretation of the District Court in 1956, .139 F. Supp.

‘ hunt and trap, free from state control upon The area -

at 637, this right was extended to hunting and trap- |

ping. :, oe

_ “We agree that Termination Act has not ex-

pressly dealt with any treaty rights respecting hunting

‘and trapping. It has, however, most certainly reduced

anf

a’

—

39

' . the area to which those ‘rights attach. By treat the

' - rights of the Indians were limited to the lands of the

reservation. By the Klamath Termination Act, supra,

it was provided that to the éxtent. necessary to meet

_ the requirements of the Act, lands should. be taken

from Indian ownership and sold. Such lands clearly .

were thereby severed from the reserbation and thus

released from any restrictions imposed upon them as ~

reservation lands by the treaty. | |

‘It § 564m (b) has preserved to the Suttinne: fish-

ing “tights and privileges to the extent previously en- /

joyed and thus not limited to the’ present reservation’s

area (a question not before us), it has done so by an

express statutory grant of rights which the Indians

could not otherwise have claimed: since, under the —

treaty, their rights were limited to the reservation land.

With complete awareness: of the Indian’s claims to at

- hunting and trapping rights Congress has seen fit to .

limit the application of this.section to fishing alone and

must be presumed to- have intended™the section to be

thus limited.” (Emphasis added)

The portion of the Wold River Treaty on which the

Menominees’ rights are founded reads as ' follows ad Stat.

1064, 1065) :

“Articles of agreement made and concluded ** * be-

tween the United States of America * * * and te

Menominee Tribe of Indians * 72,

-

_ARTICLE 2 * * * he Rhine Gate cones ei, and

do hereby give, to said Indians for a home, to be held: .

as Indian lands are held, that tract of country. lying

upon the Wolf River, in the State of Wisconsin * *.*”

we

‘ 40~

Thus, the caurt’s statement in the Klamath case,

supra, to the effect that the rights are limited to reserva-

tion lands is equally applicable here. .The Menominees’

hunting and fishing rights are grounded upon the phrase

“as Indian lands are held.” These rights, like the rights

.of the Klamath Tribe, are based upon the government’s

“reserving” the lands for tribal use. The lands are, as od

result of termination, now in the ownership of a private

corporation, and the reservation no longer exists.

Thus, the Klamath Termination Act, and the Klamath -

case, if they constitute any authority at all, provide sup-

port for the proposition that the Menominees’ special hunt-

: ing and fishing rights were indeed. extinguished by the

Termination Act.

_VIl. AFFIRMANCE OF THE DECISION BELOW

WOULD CUT INTO THE SOVEREIGNTY OF THE

STATE OF WISCONSIN, AND, WITHOUT CLARI-

_ FICATION WOULD RENDER IMPOSSIBLE THE

MAINTENANCE OF CONSERVATION MANAGE-

MENT AND ENFORCEMENT PROGRAMS. —-

‘

The Act of April 20, 1836 (5 Stat. 10), which created

the Wisconsin Territory, contained an express reservatigh

of.Indian rights. Both the’ Enabling Act of August 6, 1846

(9 Stat. 56), and the Act of May 29, 1848 (9 Stat. 233),

which admitted Wisconsin to the Union, are silent on: the

subject of Indian rights.

_A few months after Wisconsin achieved statehood,

the Menominee Indians ceded and conveyed all their Wis-

-consin lands to the United States. in ariticipation of the

tribe’s removal to other lands west of the Mississippi.

4

41

(Treaty of Oetdber 18, 1848, 10 Stat. 952.) The removal’

never fully succeeded, and on May 12, 1854, the United

States carved the former Menominee Reservation out of

this tract of ceded ‘land in the Wolf River Treaty, which

,is the origin of the Menominee Tribe’s special hunting

and fishing rights. <° . : |

Wisconsin was admitted into the Union on an equal

footing with the original states. Accordingly, the Enabling

Act of August 6, 1846, and the act. admitting Wisconsin into

the Union -are in patent conflict with any grant, express

or implied, of hunting privileges in favor of the Indians

-_ which would survive a conveyance of title to the reser-

‘vation -lands to a private corporation and the dissolution -

of the reservation and the tribal organization. By reason

of its prior admission to the Union, the sovereignty of.the

"State of Wisconsin had attached—in one form or another— |

to the lands designate@]Jn 1854 as the Menominee Reser-

vation. - Today, with all former reservation lands in 1 pri-

vate ownership (either by the corporation or by indi-

vidual Indian citizens), that sovereignty is complete in-

sofar as Menominee*County is concerned. The special

tribal hunting and fishing rights granted \by the treaty

cannot survive termination of the tribe as a political

entity and termination o* the reservation status of the

Menominee lands.

If the Court of Claims. austen is allowed to stand, and

. the law is stated: to be that these treaty rights exist, it

. would appear that they must exist in Menominee Enter-

prises, Inc., the “successor entity” to the Menominee |

_Tribe.’? This conclusion* follows from the fact that special ©

12See discussion at pp. 24-26, supra.

‘ NLL CME RITA ENE LEGER LGR SION ML OTS OR OTR YEG

‘

- 42

Indian hunting and fishing rights are “property”'"—as was

ably argued by the petitioners herein before the Court of

' Clainis—and the Termination Act specifically transferred

all tribal “property” and all “assets” of*the tribe to a pri-

- vate corporation. ;

If, as it appears, the hunting anil fishing rights survive

in the corporation, the criterion for exercise of these rights’ °

would appear to. be ownership of. a share or shares of

‘stack in the corporation. The stock is, however, transfer-

‘ able by gift or inheritance to members of a shareholder’s

_family—some of whom were not — members ‘of

the tribe when ‘the rolls-were closed: It eventually will be

fully and completely alienabie. Thus, to say that the treaty

rights follow the stock is to permit them to be acquired,

_and exercised by non-tribal members, and, not inconceiv- a

ably, by non-Indians. ‘

' Even if, these right were said to survive only in en-

_ rolled tribal memibers, they would, by virtue of the clos-

ing of the rolls in 1954, (eventually disappear by attrition. |

In either case, “the problem of identification would be

nearly insurmountable, ‘insofar as conservation law enforce-

ment is concerrgd. Some county residents would be exempt

from these laws and some not. |

It cannot seriously be claimped that such rights, if if

found to continue, will attach to all land$ and waters with-

in the former\yeservation. All these lands have been pat-

ented and conveyed to a private corporation and, in some

cases to individual citizens.. In State. v. Johnson (1933),

13See Federal Indian ion, supra, P. 583; Hobbs, “Indian Hunting and

Fishing Rights,” 32 Geo. Wash. L. Rev. 504, ‘517-518 (1964); and cases

cited at pp. 24-26, in the Petitioner’s oom in the court below. .

43 i

212 Wis. 301, 305, 249 N. W. 284, ‘the Wisconsin Supreme

Court stated: . ay

— 3-6 The controlfing question, therefore, is whether .

fully patented lands located within the exterior limits

of an Indian reservation may properly be held to be

‘ ‘within the limits of an Indian reservation.’ We do not

think that lands, the title to which has been fully re-. is

linquished by the United States and to which the juris-: :

diction of the state, for taxation and other government-

al purposes, has attached, are ‘within the limits ‘of-an—

Indian reservation’ as a - — be* con-

| See also Williams v. _ United States (9th Circ., 1954), 215

Fed, -(2d) 1,-3; cert. den. 348 U. S. 938; Clairmont v. United —

States: (1912), 225 U. S. 551, 32 S. Ct. 787, 790,56 L. Ed:

1201.

: The pre to this action have not offered any solu-

tion to these fundamental re which are certain to

arise should this court hold that ‘fhe 1854 treaty rights sur-.

' vive. If sucha decision is issued with no indication of the

entity or entities who presently possess them, the method

of determining the constituency of these entities, whether

they. are transferable, or on what land areas they may be

exercised, the state’s efforts to maintain sound and effective ;

~ conservation management and enforcement programs will. |

be thwarted. Presumably, the wardens would have to de-

termine whether the individual is possessed of these rights, —

and° whether the land on which he stands has-been con-

veyed ‘or still remains in corporate ownership. As time-

passes and the corporate stock, as well, as the land be-

‘comes fully alienable, these problems will be compounded. -

The parties have done no more than claim’ that these rights,

44

whatever they may be, tontinue to exist. Wherever, and:

in whomever they exist is left open. .

er

aa

< & me

. ° ¥ . Re os. “\ : :

Vil. ‘TREATY HUNTING AND FISHING RIGHTS CON-

Ne STITUTE VALUABLE PROPERTY, AND THEIR

LOSS IS COMPENSABLE.

Since this question will be discussed wy 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

4 | being valuable property rights, their loss is compensable

= by the federal government. a

‘The State of Wisconsin, through its supreme court and

law enforcement officers, was merely carrying out the Con-

gressional mandate in applying its fish.and game laws to

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

i liable for the loss suffered by the Menominee people, as

intimated by the court below.

he s IX. 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 Terminate Act the United States

Congress has abolished the Menoesace Indian Reservation,

and has ended the Federal trusteeship over the Menominee

Indian people. Accordingly, the reservation area andthe

-enrolled members of what was formerly the Menominee

ee ee

45

4ndian.Tribe are now fully assimilated under the laws of

the State of: Wisconsin.

Prior to termination, the United States held itle to

the forest lands and other’property within the reservation.

The people were governed and served by a tribat govern-

ment operating under a tribal constitution. Among the

services performed by the tribal government ° were law

and order, and conservation enforcement functions. The

| govertimental structure and all tribal property was under

the general supervision of the federal government.

Today the former reservation i is a duly organized coun-

ty within the State of Wisconsin. Governmental services

are provided by the state and duly constituted county and

-town boards. All land is owned by'a private. ————

_ ' or individual residents of the ——

Section 899 of the Termination Act is clear “a 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 hunting and shing by °

the Menominees were presented at the joint hearing of the

committees of Congress. Thus advised and with an alter-

native bill before it which expressly reserved hunting and

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

which did not reserve such privileges. And, when Congress

' intends that hunting or fishing privileges enjoyed by In-

dians be preserved when state jurisdiction over Indians is*

enlarged by federal act, it has expressly. so provided. In

P..L. 280 (67 Stat. 588); supra, hunting and fishing rights -

were expressly exempted. In the Klamath Termination Act,

water and fishing rights arid privileges of the Indians under

>

vant 46 ;

. aes her

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

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

ful of the matter, and indeed the issue was specifically

raised at the hearings on the Menominee bills.

The Klamath case is supportive of.the position of the

State of Wisconsin herein, rather than in view of-the parties .

. or the Court of Claims. »

The plain intent of evapo to abrogate these rights —

is not overcome. by the coritemporaneous passage of Public *

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

related portion of the e-cceeaaane plan. . :

The rights so abrogated by the United States a are valu:

able property rights, arising from treaty, and their loss is

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 is not liable therefor.

| Accordingly, it is urged that the judgment granting the .

government’s motion for summ judgment and dismiss-

ing the — 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

ae 8