U.S. Supreme Court reviews
Mille Lacs treaty case

Ruling expected in three to seven months

By Julie Shortridge

On Wednesday, December 2 the U.S. Supreme Court heard oral arguments in their review of the Mille Lacs treaty lawsuit. Approximately 400 people filled the hearing room for the hour-long Mille Lacs treaty discussion which started at 10:00 a.m. At least several dozen of those present were from Minnesota, including members of the press, and supporters on both sides of the issue.

Four attorneys argued the case: John Kirwin with the Minnesota Attorney General's office, Randy Thompson for the Landowners, Marc Slonim for the Mille Lacs Band and Barbara McDowell for the U.S. Department of Justice.

The nine Supreme Court justices interrupted the presentations often, interjecting a barrage of lively and contentious questions as the attorneys tried to provide answers. McDowell from the Justice Department received the most intensive questioning. Only Justice Clarence Thomas remained silent.

Most of the questions had to do with defining what hunting and fishing rights the 1837 treaty gave the Chippewa, and whether President Zachary Taylor's 1850 Executive Order rescinded those rights. The Indian Claims Commission (ICC) payment to the Minnesota Chippewa of $9 million was also a point of questioning and discussion.

Excerpts from the hearing

Kerwin's testimony for the State (20 min.)

Justice O'Connor: The respondents got an ICC award in 1970. Did that claim encompass any of the hunting and fishing rights?

Kirwin: The tribe mentioned it in the beginning of their claim in that they said the hunting and fishing right had been temporary and the federal government had ended it. The Band experts then evaluated their loss based on the 'highest and most valuable' uses of the land, which presumably included all possible uses including hunting and fishing. They received $9 million dollars from the ICC, which was 10 times more than the original payment they got for the land [under the 1837 treaty].

Justice Rehnquist: Was that the Mille Lacs Band?

Kirwin: It included all the Minnesota Chippewa bands by the end.

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Justice Souter: One of the problems we have seeing it your way is that anyone could have hunted and fished this way at the time because there were no hunting and fishing regulations. That's where I have difficulty seeing your argument. If there were no regulations, how could there be special rights for the Indians to hunt and fish?

Kirwin: There is a burden of proof, but it goes the other way. The Chippewa bands need to explain why there should be a special right still in place.

Justice Scalia: Are there non-special hunting and fishing rights that the tribe now claims? I'll call them 'non-Souter rights.' What were the Indians allowed to do that Souter couldn't do, if he had lived there at the time?

Kirwin: There were no regulations on hunting and fishing until 1858 when Minnesota became a state.

Thompson's testimony for the landowners (10 min.)

Justice Rehnquist: We usually interpret treaties by their language, unless there's ambiguity.

Thompson: There is no ambiguity here.

Justice Scalia: There is ambiguity. Is it a once-and-for-all pleasure of the president where once the right is rescinded it's gone, or is it an on-again off-again pleasure of the president, where it can be reinstated by the same or future presidents?

Thompson: Once the president rescinded it, only Congress could have reinstated it.

Justice Ginsberg: You're reading it in the light that the party on the other side could understand the same language with the same sophistication.

Thompson: But we cannot ignore the plain language of the treaty.

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Thompson: In Section 12 of the ICC it says that any claim had to be brought in the time allowed or it would be barred. And in Section 22 it says that once a claim has been paid, it is barred from being raised again. The tribes argue that this isn't a claim against the United States government so it's not barred. But the Oglala Sioux case in South Dakota regarding the Black Hills says a bar on claims against the federal government also bars claims against a state. The ICC claim that the Minnesota Chippewa made was for the "highest and best use." There was no offset for hunting and fishing.

Slonim's testimony for the Mille Lacs Band (15 min.)

Slonim: For centuries Indians have hunted and fished for sustenance, as a way to provide for their families.

Justice O'Connor: And they could still hunt and fish like everyone else in the state.

Slonim: But they couldn't do it culturally. They wouldn't be able to do Spring spearfishing as their ancestors did.

Justice Scalia: Is there some religious connotation?

Slonim: Yes. It was part of their culture.

Justice Scalia: Something can be part of your culture and that doesn't make it religious. What you're saying is they speared for years and now they want to be able to spear again. That's not an argument, that's simply what this case is all about.

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Justice O'Connor: Were the Indians informed about the 1850 order?

Slonim: They were told it was an order to remove.

Justice O'Connor: Is there any evidence that they got a copies of the order?

Slonim: Only the Wisconsin bands got a copy. They believed the order was for them to remove and that it was rescinded.

Justice Scalia: Just because they believed it, doesn't make it so.

Slonim: The 1850 was null and void and was rejected by the federal government shortly after it was ordered.

Justice O'Connor: The order was in two parts. There's evidence they stopped the effort to remove, but not the order to end special hunting and fishing rights.

Slonim: All the evidence is that it was only to remove. Nothing of the order held up after that.

Justice Rehnquist: They can hunt and fish the same as anyone else without treaty rights.

Justice Scalia: Revoking these special hunting and fishing rights doesn't assist in their removal. The Indians could hunt and fish to their heart's content, just like Souter could. So ending their special rights would not have coerced them to leave.

Slonim: I find the state's position incredible. The state's interpretation of the 1837 treaty, and the president's authority under that treaty, is that the president could revoke the hunting and fishing rights at any time for any reason, whether the land was needed for settlement or not. But the state says the president could not reinstate those rights at his pleasure. Why would pleasure mean only revoking and not reinstating?

Justice Scalia: Now you're hitting on something close to my own heart. Reading from the law governing the removal of judges, Article 3, Section 1 states that judges should hold office only during good behavior. Does that mean that I can come on and off the bench depending on when I'm good or bad? Or does it mean that once I have been bad and been removed from the bench, then I'm gone?

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Slonim: They [the Indians] didn't write the treaty.

Justice Scalia: But they signed it. You're saying they had no concept of someone's pleasure and what that meant? I don't believe that. I don't believe that there was no concept in their language for someone's pleasure.

Slonim: They didn't have any idea what the pleasure of a person was going to be.

Justice Scalia: Well I don't have any idea what the pleasure of a person is going to be either, but they certainly understood the concept. It's not an unusual notion. Are you saying they had no understanding of the concept at all?

Slonim: They believed the president would treat them justly.

McDowell's testimony for the

federal Justice Department (15 min.)

McDowell: The 1850 order was never executed.

Justice Rehnquist: What do you mean? It would seem to be self-executing.

McDowell: The district court found that it did not take effect.

Justice Rehnquist: We're not bound by the district court ruling.

McDowell: There's no finding that any effort was made to implement it.

Justice Rehnquist: Why should any other event have to occur? The treaty said you have this right until a certain event occurs. Once that event occurs, why would it be necessary for any other event to occur?

Justice O'Connor: How do you explain that in 1852 the Band went to Washington, D.C. to try to get the 1850 order revoked?

McDowell: They were concerned about statehood.

Justice Kennedy: You take a very cavalier attitude to President Taylor's order. I'm amazed that the federal government would take such a cavalier attitude about a president's order. How do you explain President Roosevelt's acknowledging Taylor's order years later?

McDowell: He wasn't well-informed.

Justice Breyer: What wasn't he informed about? The order basically says, "No hunting. No fishing. Go." Are you saying that if the "go" part is taken away, the "No hunting. No fishing" part also must be taken back?

McDowell: Our position is the "go" was revoked, not carried out.

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Justice Scalia: Is it your position that the pleasure of the president is an on-again, off-again thing?

McDowell: Yes. The removal was not completed, so it was off.

Justice Scalia: So if you have an irrevocable provision and attach it to a revocable one, then the irrevocable one becomes revocable?

McDowell: Yes.

Justice Scalia: I don't see how that's possible. I can see how attaching it to an invalid one would make the attached one invalid. But not what you're saying. I thought you conceded that he can't change his mind on revoking the hunting and fishing. Let's say this order was only the first part -- forget about the second part with removal -- could the president revoke it?

McDowell: It depends on how it was implemented.

Justice Scalia: I want you to answer yes or no. If the order was the first part only, could the president revoke it?

McDowell: Yes, if it had not been implemented.

Justice Souter: Are you saying the reason it's an on-again, off-again thing is because he had to do more than sign a paper, but had to communicate it and enforce it, and since he didn't do that, he never really exercised his order?

McDowell: Yes sir.

Justice Scalia: Are you saying an order of the president is not effective by its own force?

McDowell: It depends.

Justice Scalia: Some are in effect when they're written, and

some aren't?

McDowell: Yes.

Justice Scalia: And how are we supposed to know the difference? [Throwing his hands in the air]

I have never heard this

theory before.

Justice O'Connor: The 1837 treaty says: "The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guaranteed to the Indians, during the pleasure of the President of the United States." Can the president revoke that by an Executive Order?

McDowell: Yes, he could.

Justice O'Connor: But you're saying that because it was done with removal, then he could not do it because the president could not remove the Indians without their consent.

McDowell: We're saying he did not do it, not that he could not do it.

Justice O'Connor: Couldn't a president do this to make way for intended state regulations?

McDowell: But why would the federal government give hunting and fishing rights in 1854 in some parts of the Minnesota [in another treaty], and rescind them in others?

Justice Ginsburg: They'd have to hunt and fish like everyone else. The first part of the order wouldn't have taken away their sustenance. You said in your brief that the effect would be the Indians would have starved to death. But now we see that that's not the case. They could stay, but they'd be subject to the same rules as everyone else.

McDowell: But Indians weren't considered citizens at that time.

Justice Scalia: That doesn't matter. In some states non-citizens were allowed to vote. Are you saying they couldn't hunt and fish like everyone else because they weren't citizens?

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After the hearing, hundreds of people stayed gathered outside the U.S. Supreme Court building in the 68° sunny weather talking to each other and the news reporters who were plentiful.

Thompson, attorney for the landowners, said after the hearing, "Usually the federal government comes into a hearing and reminds the Supreme Court that the President is equal to the Courts and the Congress and because of the separation of powers, the court shouldn't overrule something the President does. In this case the federal government came in and said don't pay any attention to what the president did. It was quite incredible. The justices were clearly amazed."

"No Indians hunt and fish as a matter of sustenance anymore, and none of us ever heard of ceremonial or spiritual fishing until these new-age and wannabe Indians brought it up in the Mille Lacs treaty case," said Bill Lawrence, enrolled member of the Red Lake Band of Chippewa Indians and publisher of the weekly newspaper Native American Press/Ojibwe News out of Bemidji. "Red Lake is notorious for it's over-fishing where commercial netting has depleted the lake to nothing. But even there we long-ago banned spring spearing. Spring spearing is not an element of Chippewa culture or tradition. And so what if it was. It's a dumb thing to fight for. Indian people and reservations are in dire need of equal protection rights, not treaty rights."

"We've accomplished three miracles so far. The first was defeating the settlement between the state and the Band in 1993. The second was getting the landowners intervened in the case. And the third was getting the Supreme Court to review the case. The fourth miracle will be when we win a decision from the Supreme Court," said Howard Hanson, president of the Hunting and Angling Club, and primary leader of the grass-roots movement opposed to the Bands' treaty claims.

"No matter what the decision ends up being, we will respect it," said Joe Karpen, a landowner who intervened in the case. "This is where we always wanted the decision to be made. It's a victory we've brought the case to this level. Everyone kept telling us it wouldn't happen."

"No matter which way this goes, we're going to be out there spearing fish," said Tom Moulson, Chairman of the Lac du Flambeau Chippewa in Wisconsin. "They can't stop us from preserving our treaty rights. We'll just tell our children to disobey the ruling and do it anyway."

Peter Kelly, who attended the hearing as a representative of Canadian tribes, said, "We don't recognize Minnesota. We recognize the Chippewa territory, and we will continue to recognize the Chippewa territory regardless of how the U.S. Supreme Court rules."

The U.S. Supreme Court will likely issue their decision sometime between February and July of 1999. None of the attorneys involved were willing to make a prediction about what the Court may do, but many others speculate that the U.S. Supreme Court will overrule the lower courts to a greater or lesser degree. If their decision is based on the "equal footings doctrine," or Indian Claims Commission Act (ICCA) it could impact many other treaties across the nation. If their decision is based on the 1855 treaty or 1850 presidential order, rescinding the treaty hunting and fishing rights and ordering the Indians removed from the land, it will likely affect only this particular treaty claim.