U.S. Supreme Court rules that Chippewa still have treaty rights in Mille Lacs Case
Summary of Court's decision and dissents
By Julie Shortridge
On Wednesday, March 24, the U.S. Supreme Court issued its ruling on the Mille Lacs Treaty Case, stating that "the Chippewa retain the usufructuary rights guaranteed to them under the 1837 Treaty."
But the decision came with strong opposition from some members of the Court, including Chief Justice William Rehnquist who wrote:
"The Court'sconclusion is simply wrong. The Court today invalidates for no principled reason a 149-year-old Executive Order, ignores the plain meaning of a 144-year-old treaty provision, and overrulesa 103-year-old precedent of this Court. I dissent."
Justices Clarence Thomas, Antonin Scalia, and Anthony Kennedy agreed with Rehnquist. Thomas also asserts that the State may be able to impose State regulations on Tribal hunting and fishing.
The Mille Lacs Band of Chippewa sued the State in 1990 claiming rights to hunt, fish and gather outside of state regulation in a large area of east central Minnesota which the Chippewa sold to the U.S. government in the 1837 treaty. Up to that time, no special privilege had ever been acknowledged by the State or federal government, nor requested by the Band. A settlement agreement between the State DNR and Band was voted down by the Legislature in 1993 due to strong public opposition. Since then, seven other Chippewa bands and the U.S. government joined the Mille Lacs Band as plaintiffs, and several counties and landowners joined the State as defendants. The Federal District Court and Eighth Circuit Court of Appeals ruled in favor of the Chippewa prior to the case being appealed to the U.S. Supreme Court.
The State and Chippewa bands are currently in their second year implementing a court-ordered five year Conservation Code and Management Plan, which provides for the bands to gradually increase their taking of fish and game. It is unclear what hunting, fishing and gathering the bands intend to implement after the Conservation Code and Management Plan expires in three years. "There is no guarantee beyond the fifth year as far as how many fish and deer the bands will take," said Minnesota DNR spokesperson Marcie Dowse after the Eighth Circuit's ruling in 1997.
Also in 1997 Mille Lacs Band DNR commissioner Don Wedll said the success of tribal casinos would be a factor in whether the bands implement commercial fishing, linking the bands' possible decision to whether the State opens its own casino. It's also unclear how the bands will resolve differences if some of them want to implement a commercial harvest and others do not.
The eight Minnesota and Wisconsin Chippewa bands in the lawsuit have a combined membership of approximately 24,000, less than a quarter of whom live on the reservations, and even fewer who would have an interest in hunting, fishing or gathering under the treaty. Still, the dozens or hundreds of tribal members who do want to hunt, spear and net are allowed to take up to half the fish and game on public lands in the 1837 treaty area. This will likely reduce non-Indian "bag limits," and affect the fishing tourism economy of the Mille Lacs Lake region.
The ruling was a 5-4 split decision, meaning if one justice had gone the other way, the treaty claim would have been overruled. Justices John Paul Stevens, David Souter, Ruth Bader Ginsberg, and Stephen Breyer signed on to the decision written by Justice Sandra Day O'Connor. Justices Thomas, Scalia, and Kennedy signed on as dissenters with Chief Justice Rehnquist. Thomas also wrote his own dissent.
The 1837 Treaty states: "The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the President of the Untied States." The treaty was signed by the federal government and the Chippewa 21 years before Minnesota became a State.
The ruling came down to three issues:
1) The 1850 Executive Order and whether it revoked the 1837 treaty privilege. The Executive Order issued by President Zachary Taylor states: "The privileges granted temporarily to the Chippewa Indians of the Mississippi, by theTreatyof 1837are hereby revoked; and all of the said Indians remaining on the lands cededare required to remove to their unceded lands." (Note: the "Mississippi bands" consisted of several Chippewa bands, including the Mille Lacs Band.)
2) The 1855 Treaty and whether it confirmed that the 1837 hunting, fishing and gathering privileges had been revoked. The 1855 Treaty states: "The Mississippi, Pillager, and Lake Winnibigoshish bands of Chippewa Indiansfully and entirely relinquish and convey to the United States, any and all right, title, and interest, of whatsoever nature the same may be, which they may now have in, and to any other lands in the Territory of Minnesota or elsewhere."
3) The 1858 entrance of Minnesota into the Union "on equal footing" with all other states, and whether that implied an end to special tribal privileges. The "equal footing doctrine" is the constitutional principle that all states are admitted to the Union with the same attributes of sovereignty as the original 13 states.
In summary, the majority opinion concludes:
- · That the Chippewa sold land to the United States in exchange for 20 year payments of money, goods, and the privilege to continue hunting, fishing and gathering on the land.
- · That the 1850 Executive Order by President Zachary Taylor was invalid because it was primarily a removal order and the President did not have the authority to order removal.
- · That the 1855 Treaty, in which the Chippewa relinquished "any and all right, title, and interest, of whatsoever nature" did not include special hunting, fishing and gathering privileges because they were not specifically mentioned.
- · That the 1837 Treaty is not incompatible with the "equal footing doctrine" because the Chippewa are not completely free from State regulation in implementing a treaty privilege.
- · That the 1837 Treaty privileges can be revoked by a President, now or in the future.
In summary, the dissenters conclude:
- · That the Court ignored the plain language of the treaty in making its ruling.
- · That the Chippewa sold land to the United States in exchange for 20 year payments of money and goods, and that the temporary privilege to hunt, fish and gather on the land was granted as a separate item from the land purchase.
- · That the 1850 Executive Order was legal with or without the removal portion, and was primarily an order for the Chippewa to stop hunting, fishing and gathering in the ceded territory.
- · That future Presidents acknowledged that the treaty privilege had been revoked by the 1850 Executive Order, and that the Chippewa have since then had the same rights to hunt, fish and gather in the ceded territory as other citizens of the State.
- · That when, in the 1855 Treaty, the Chippewa relinquished "any and all right, title, and interest, of whatsoever nature," it included all hunting, fishing and gathering privileges as well.
- · That "usufructuary" rights are defined in Black's Law Dictionary as "a real right of limited duration on the property of another," and therefore the Treaty privilege has always been defined and described as temporary, and was never implied to go on in perpetuity.
- · That Treaty privileges which are "temporary and precarious" do not survive after statehood.
- · Justice Thomas also asserted that the 1837 Treaty used the word "privilege," not "right," which may be significant in determining the extent of the State's authority over tribal hunting, fishing and gathering, and should be evaluated in a separate court case.