Supreme Court Decision

Mille Lacs County challenges existence of Indian reservation

Mille Lacs County has filed a federal lawsuit against the Mille Lacs Band of Chippewa, claiming the tribe is not complying with a court opinion that returned reservation land to the state of Minnesota.

Claiming the Mille Lacs Indian Reservation is "long off the maps and out of public consciousness," the county filed the suit last Wednesday in U.S. District Court. The county wants the court to reaffirm what the county claims was the "disestablishment" of the reservation in a 1913 U.S. Supreme Court decision and acts of Congress.

Earlier this year, the County Board voted unanimously to pursue legal action against the band. It has set aside nearly $1 million to argue its case that the reservation, established by an 1855 treaty, has been dissolved.

County Commissioner Frank Courteau said Monday he did not know when to expect a ruling but was confident the county would prevail.

The band, which prefers to be called Ojibwe, criticized the suit and has said the federal government recognizes the reservation. That recognition came, the band says, when the band applied to put 120 acres into federal trust so it could build a wastewater treatment plant.

"The lawsuit will cost county taxpayers and the band millions of dollars that would be better spent on things like education, health care and environmental protection," Mary Al Balber, solicitor general for the band, said Friday in a news release.

The band will not comment further on the suit, spokeswoman Jennifer Hellman said Monday.

The 61,000 acres in question include the towns of Isle, Wahkon and Onamia and account for more than 26 percent of the county's tax base. The area is home to 4,000 Indians and non-Indians.

Most of the land lies just south of the band's headquarters and its Grand Casino. In total, the Mille Lacs Band has about 4,000 acres in federal trust, which means it does not have to pay taxes on it.

The state, which hasn't said whether it will favor either side, has maintained that the Mille Lacs reservation includes roughly 3,000 acres, diminished from its original size by congressional acts and court decisions.

ONLINE:

• Mille Lacs Band of Ojibwe: http://www.millelacsojibwe.org
• Mille Lacs County: http://www.co.mille-lacs.mn.us

Tribes propose 5-year harvest

Suggestion that bands may start commercial fishing concerns DNR

The Mille Lacs Band of Ojibwe and seven other Chippewa tribes in Minnesota and Wisconsin have proposed taking 100,000 pounds of walleye a year from Mille Lacs Lake between 2003 and 2007.

The bands' proposed five-year harvest plan was initially welcomed by Department of Natural Resource officials as 'reasonable.'

But a DNR official is concerned with the suggestion in the proposal that some tribes, not including the Mille Lacs Band, may start fishing commercially on the big lake.

"I thought this was a subsistence fishery," said Rick Bruesewitz, 1837 Treaty biologist for the DNR. "We're looking over the commercial fishery idea and trying to determine what it means."

More central to the bands' proposal, is a 100,000-pound tribal limit in 2003 and 2004 ó the same allocation as this year.

Then, if band members harvest at least 85 percent of that allocation, levels would rise to 105,000 pounds in 2005, 110,000 pounds in 2006 and 115,000 pounds in 2007. The increased poundage would be shared equally by the bands.

According to the Dec. 28 proposal, as submitted by the Great Lakes Indian Fish and Wildlife Commission to the DNR, the changes proposed in the new five-year plan "will provide a very limited opportunity for expansion of band harvests if the bands demonstrate the ability to utilize their existing allocations."

Curt Kalk, commissioner of natural resources for the Mille Lacs Band, said, "We designed it based on need and to get something stable in place.'

Bruesewitz responded to the proposal by saying, "We're pleased to see a rather moderate harvest declaration, but we have concerns about the commercializing aspects of it."

HARVEST RESERVE The Mille Lacs Band will still get 50 percent of the harvest, leaving the other 50 percent to be shared among the other bands.

The Mille Lacs Band has proposed to keep 25,000 pounds of their share in reserve. If any of the other bands exceed 90 percent of their individual allocations, that reserve could be tapped by mutual agreement.

What would remain for the Mille Lacs Band, Kalk said, is about how much the members harvest each year. The band just over 22,800 pound of walleye in 2001.

Kalk said this formula helps meet the desire of some bands, such as the Fond du Lac Chippewa, for a greater allocation, while it addresses the complaints of sport fishermen who say the bands' total allocation far exceeds their need.

"If the other bands show they need more, the Mille Lacs Band could give up some but we won't be taking more from the lake," Kalk said.

But the new harvest plan doesn't satisfy at least one area sports fisherman.

NOT REASONABLE Joe Fellegy, editor of the Mille Lacs Fishing Digest and a Mille Lacs Lake Advisory Association board member, took the DNR to task for calling the proposal reasonable.

"Such high tribal allocations would be terribly disproportionate and potentially very challenging for the sport fishery and its DNR managers," he said. "Good grief. With last year's band declaration of 85,000 pounds and band harvest of 45,000 pounds, the sport fishing community was in damaging controversy with walleye harvest nearly shut down."

Fellegy added, "With larger allocations and a whiff of ëcommercialization' thrown in, how can they (DNR officials) be so mellow now?"

COMMERCIAL PERMITS Bruesewitz said commercial fishing, while allowed under the U.S. Supreme Court's 1999 decision in the treaty case, could be problematic.

According to the new proposal, some bands "may revise ... their codes to permit the issuance of permits for commercial harvest during the period from March 2 to May 31."

The document continues: "The bands contemplating this change do not anticipate that it will have a material impact on the level of their harvests, but will permit their members to recoup some of their expenses in participating in the Mille Lacs Lake fishery."

Kalk said, "Commercial fishing is absolutely not something the Mille Lacs Band will be participating in."

But the bands that might sell their catch won't make much money doing so, he said.

"I've done the math. If you tried to sell all 100,000 pounds, by the time you've cleaned, fileted and marketed it, you wouldn't make $30,000. Everybody knows that," Kalk said. "Basically the bands just want to sell enough to afford to fill their gas tank to get here."

According to the proposal, the gill netting, spearing and angling regulations now in effect would not be altered for commercial fishing.

But Bruesewitz said the introduction of commercial fishing could make managing the total walleye harvest more difficult.

"Subsistence and sport fishing is driven by the demand of fishermen, not profit," he said. "While effort and the harvest will go down with the fish population, commercial fishing pressure will only increase."

Bruesewitz said the entire proposal will be reviewed and discussed with tribal biologists over the coming months.

"The majority of the plan seems reasonable. Even the commercial aspect with limits - who knows?" he said.

WASHINGTON -- Eight bands of Chippewa Indians can continue to hunt and fish on 13 million acres of public land in Minnesota without state regulation, the Supreme Court ruled today in a case that attracted the attention of tribes nationwide.

By a 5-4 vote, the court said that neither an 1850 presidential order nor Minnesota's statehood in 1858 stripped the Chippewas of the hunting and fishing privilege they received in an 1837 treaty.

``After an examination of the historical record, we conclude that the Chippewa retain the ... rights guaranteed to them under the 1837 treaty,'' Justice Sandra Day O'Connor wrote for the court.

Some Indian law experts had said the court's decision could affect the security of other Indian treaty rights. The Chippewas were supported in friend-of-the-court briefs submitted by the National Congress of American Indians, Affiliated Tribes of Northwest Indians and 32 individual tribes.

The Mille Lacs Band of Chippewa sued the state in 1990, challenging its authority to impose hunting and fishing regulations on tribal members. The federal government and seven other Chippewa bands in Minnesota and Wisconsin joined the lawsuit. Nine counties and eight private landowners intervened on the state's side.

``It's been a long case. It's been complex. But everyone has gotten their input,'' said Don Wedll, the Mille Lacs band's commissioner of natural resources.'' Every issue that could possibly be raised has been raised. The court has ruled.''

A federal trial judge ruled in 1994 that the package of rights guaranteed by the Chippewas' 1837 treaty with the United States ``continues to exist,'' and the 8th U.S. Circuit Court of Appeals agreed. Today, the nation's highest court said those courts were correct.

The 1837 treaty gave the Chippewa Indians the rights to hunt and fish ``during the pleasure of the president'' on 13 million acres it ceded to the United States. Minnesota's lawyers contended that an order President Zachary Taylor signed 13 years later took those rights away and ordered the Chippewas removed from the previously ceded lands.

``The Supreme Court has ruled. We accept and respect that decision and now it's time to look to the future,'' said Marcy Dowse, spokeswoman for the Minnesota Department of Natural Resources. ''... Mille Lacs is in really good shape right now. People should look forward to fishing on Mille Lacs.''

The Chippewas opposed the removal order, and the federal government never enforced it. The bands continued to hunt and fish in the ceded territories -- an expanse of land in central Minnesota that includes Lake Mille Lacs, one of the state's prime walleye lakes.

``It's a sad day. It's awful.'', said Gary Roach, a fishing professional from Merrifield, as he prepared his boat today for the upcoming fishing season.

``It sounded like (the Supreme Court justices) were certainly aware of the issues, and from the sound of the questions I thought it was going to go the other way,'' said Dean Hanson, owner of the Agate Bay Resort on Lake Mille Lacs. ''We will live with what the court has decided.''

O'Connor wrote that Taylor's order requiring the Chippewas' removal from the land was not authorized by federal law, and that other provisions in Taylor's order revoking the hunting and fishing rights could not stand separately.

The state's lawyers also contended that the hunting and fishing privilege free of state regulation ended when Minnesota became a state in 1858 and entered the union on an equal footing with all other states.

However, O'Connor said Indian treaty rights can be revoked only when Congress clearly states its intent to do so. The legislation admitting Minnesota into the union did not mention Indian treaty rights, she said.

``Statehood by itself is insufficient to extinguish Indian treaty rights to hunt, fish and gather on land within state boundaries,'' O'Connor wrote.

Her opinion was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Dissenting were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Writing for the four, Rehnquist said Taylor's order ending the Chippewas' treaty privileges was valid, adding, ``There is simply no principled reason to invalidate the 150-year-old executive order.''

``I'm extremely disappointed with the Supreme Court on this decision, said Sen. Dan Stevens, R-Mora, an outspoken opponent of the treaty rights. ''I don't know what they were looking at. ... The Supreme Court has opened up commercial netting.'' he said.

The case is Minnesota vs. Mille Lacs Band, 97-1337.

SUPREME COURT OF THE UNITED STATES
MINNESOTA et al. v. MILLE LACS BAND OF CHIPPEWA INDIANS et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 97—1337. Argued December 2, 1998–Decided March 24, 1999

Pursuant to an 1837 Treaty, several Chippewa Bands ceded land in present-day Minnesota and Wisconsin to the United States. The United States, in turn, guaranteed to the Indians certain hunting, fishing, and gathering rights on the ceded land "during the pleasure of the President of the United States." In an 1850 Executive Order, President Taylor ordered the Chippewa's removal from the ceded territory and revoked their usufructuary rights. The United States ultimately abandoned its removal policy, but its attempts to acquire Chippewa lands continued. An 1855 Treaty set aside lands as reservations for the Mille Lacs Band, but made no mention of, among other things, whether it abolished rights guaranteed by previous treaties.

Minnesota was admitted to the Union in 1858. In 1990, the Mille Lacs Band and several members sued Minnesota, its Department of Natural Resources, and state officials (collectively State), seeking, among other things, a declaratory judgment that they retained their usufructuary rights and an injunction to prevent the State's interference with those rights. The United States and several counties and landowners intervened. In later stages of the case, several Wisconsin Bands of Chippewa intervened and the District Court consolidated the Mille Lacs Band litigation with the portion of another suit involving usufructuary rights under the 1837 Treaty. The District Court ultimately concluded that the Chippewa retained their usufructuary rights under the 1837 Treaty and resolved several resource allocation and regulation issues. The Eighth Circuit affirmed. As relevant here, it rejected the State's argument that the 1850 Executive Order abrogated the usufructuary rights guaranteed by the 1837 Treaty, concluded that the 1855 Treaty did not extinguish those privileges for the Mille Lacs Band, and rejected the State's argument that, under the "equal footing doctrine," Minnesota's entrance into the Union extinguished any Indian treaty rights.

Held: The Chippewa retain the usufructuary rights guaranteed to them by the 1837 Treaty. Pp. 15—35. .................



26 Mar 1999
From: Tom Schlosser t.schlosser@msaj.com
Morisset Schlosser Ayer & Jozwiak, 801 2nd Ave., Ste. 1115,
Seattle, WA 98104, 206 386 5200, (206 386 7322 fax)
Our firm web page describes a lot of treaty rights cases. See http://msaj.com

The Supreme Court's March 24, 1999, full opinion in favor of Mille Lacs treaty rights can be found at http://lw.bna.com/lw/19990330/971337.htm

1. The President must have authority from Congress or the Constitution to take actions with respect to Indians. Slip Op. at 15.

2. The severability rules for dividing statutes into valid and invalid parts apply to executive orders. Slip Op. at 17.

3. The canons of construction requiring that treaties be interpreted liberally, and as the Indians understood them, still exist. Slip Op. at 20, 23.

4. Treaties ceding "all" interests in land do not necessarily abrogate use rights reserved by other treaties in those same lands unless the historical context of the treaties and the practical construction adopted by the parties suggests that intent. Slip Op. at 21-27.

5. Treaty rights must be expressly abrogated or they still exist. Slip Op. at 29.

6. Oregon Department of Fish and Wildlife v. Klamath Tribe (1985), resulted from express language in an 1864 treaty that reserved "exclusive" rights within a reservation, and does not apply to nonexclusive rights in ceded areas. Slip Op. at 27-29.

7. The contention that treaty use rights were extinguished when States were admitted to the Union is wrong. The decision in Ward v. Race Horse (1896) has been "qualified" (majority opinion) or "overruled" (dissent) by later decisions of the Supreme Court. Slip Op. at 29-32; Rehnquist dissent at 12-13.

8. The continuing effect of treaty rights does not turn on whether the words "rights" or "privileges" were used in the treaties. Slip Op. at 32.

9. If a particular treaty states that rights would continue only upon certain conditions and the happening of these conditions was "clearly contemplated" when the treaty was ratified, then those rights end when the clearly contemplated events occur. For example, the treaty in Race Horse contemplated that rights would continue only so long as the hunting grounds remained unoccupied and owned by the United States. Slip Op. at 34.

10. Although treaties use different language, reserved tribal hunting and fishing rights are subject only to reasonable and necessary nondiscriminatory state regulations adopted in the interest of conservation. Slip Op. at 31-32.