supreme_court_briefs

PETER L. TESTER, MICHELLE E. BEEMAN, Assistant Attorneys General, 445 Minnesota Street, Suite 900, St. Paul, Minnesota 55101-2127, (651) 296-3044.

On July 29, 1837, the United States and thirteen bands of Chippewa Indians executed the Treaty with the Chippewa of 1837, 7 Stat. 536. Article 5 of the 1837 Treaty guarantees the bands the privilege of hunting and fishing on the lands ceded by them to the United States "during the pleasure of the President of the United States."

1. Was an 1850 Presidential Order revoking the Indians' special hunting, fishing and gathering privilege effective, where the 1837 Treaty reserved that privilege to the Indians only "during the pleasure of the President"?

2. Was a hunting, fishing and gathering privilege, reserved only "during the pleasure of the President," "temporary and precarious" and therefore extinguished under Ward v. Race Horse, 163 U.S. 504 (1896) when Minnesota was admitted to the Union on an equal footing with the original thirteen states?

3. Is language in an 1855 treaty "fully and entirely relinquishing . . . any and all right, title, and interest, of whatsoever nature . . . in and to any other lands in the Territory of Minnesota" sufficient to extinguish a previously reserved hunting, fishing and gathering privilege in an area of Minnesota?

Petitioners, defendants-appellants below, are the State of Minnesota, its Governor, Arne Carlson, and several officials of the Minnesota Department of Natural Resources. Other defendants-appellants below are nine Minnesota counties and eight private landowners who were allowed to intervene at various stages of the litigation: County of Aitkin; County of Benton; County of Sherburne; County of Crow Wing; County of Isanti; County of Kanabec; County of Mille Lacs; County of Morrison; County of Pine; John W. Thompson; Jenny Thompson; Joseph Karpen; Leroy Burling; Glenn Thompson; Gary Kiedrowski; Robert J. Edmonds; and Michael Sheff.

Respondents, plaintiffs-respondents below, are eight Chippewa Bands located in Minnesota and Wisconsin, a number of individual band members, and the United States Government: Mille Lacs Band of Chippewa Indians and four of its members, Arthur Gahbow, Walter Sutton, Carleen Benjamin and Joseph Dunkley; United States of America; St. Croix Chippewa Indians of Wisconsin; Lac du Flambeau Band of Lake Superior Chippewas; Bad River Band of Lake Superior Chippewa Indians; Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Sokaogan Chippewa Community; Red Cliff Band of Lake Superior Chippewa; Fond du Lac Band of Chippewa Indians and five of its members, Robert Peacock, Peter Defoe, Clifton Rabideaux, Herman Wise and George Dupuis. [*iii]

The Eighth Circuit opinion is reported at 124 F.3d 904 (1997) and reprinted in the appendix to the Petition for Certiorari ("PA") at 1. That opinion affirmed the following orders and rulings of the District Court, which also are reprinted in the petition appendix: Mille Lacs Band of Chippewa Indians v. Minnesota, 853 F. Supp. 1118 (D. Minn. 1994) (Mille Lacs I) (PA 351); Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784 (D. Minn. 1994) (Mille Lacs II) (PA 212); Mille Lacs Band of Chippewa Indians v. Minnesota, unreported, No. 3-94-1226 (D. Minn. Mar. 29, 1996) (Mille Lacs III) (PA 164); Mille Lacs Band of Chippewa Indians v. Minnesota, 952 F. Supp. 1362 (D. Minn. 1997) (Mille Lacs IV) (PA 74); Fond du Lac Band of Chippewa Indians v. Carlson, unreported, No. 5-92-159 (D. Minn. Mar. 18, 1996) (PA 419).

The court of appeals entered its judgment on August 26, 1997. PA 1. A timely petition for rehearing with suggestion for rehearing en banc was denied on November 17, 1997. PA 482. The petition for certiorari was filed February 17, 1998, and granted on June 8, 1998. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1).

Treaty with the Chippewa, July 29, 1837, art. 5, 7 Stat. 536 (PA 484); Treaty with the Chippewas, Feb. 22, 1855, art. I, 10 Stat. 1165 (PA 502); Act of May 11, 1858, 11 Stat. 285 (PA 515); Executive Order, President Zachary Taylor, Feb. 6, 1850 (PA 565).

This case involves a dispute between the State of Minnesota and eight Chippewa Bands (collectively the [*2] "Bands") located in Minnesota and Wisconsin over the State's authority to regulate the harvest of fish and game in a uniform, nondiscriminatory manner for all citizens within the territory ceded by the Bands to the United States in a nineteenth century treaty. The dispute arises from the Bands' assertion that the hunting and fishing privilege the Bands reserved in Article 5 of the Treaty of 1837 continues to exist and that, as a result, the State's authority to regulate those activities by Band members within the ceded territory is severely limited, and that the State is obligated to modify its regulations of non-Indians and its management of those natural resources to accommodate a defined "treaty harvest."

In the 1700s, the Chippewa Indians occupied a large area of the Northwest Territory, including much of present-day Michigan, Wisconsin and Minnesota. Different tribal subgroups, called "bands," moved into separate areas that provided resources for subsistence living. The Chippewa bands' locations in the Wisconsin and Minnesota territories became fairly permanent homelands in the nineteenth century. However, the advance of white settlement that began at the turn of that century brought tremendous changes to the area historically occupied by the Indians, changes that would required adaptation and compromise.

The Chippewas' history is similar to that reflected in other cases considered by this Court. With the continued presence of traders in the early 1800s, and the advance of lumbermen, agricultural settlers, missionaries and commercial activity along the river and lake routes, the Indians' land became the focus of competition for resources. The federal government was committed to facilitating the rapid settlement of the area and access to the substantial mineral and timber wealth.

[*3] From the time the Northwest Ordinance was adopted in 1787, the policy of the United States government was to enter into treaties with the Indians in the Northwest Territory, providing compensation in exchange for the cession of their aboriginal title to the land they occupied. PA 226. Sometimes this cession was subject to continued occupancy and exercise of hunting and fishing privileges on the ceded lands. Id. By 1830, however, because of the continuing pressure of expansion through white settlement and resource development, the federal policy was to remove the remaining Indians west of the Mississippi. PA 225-26. On May 28, 1830, Congress authorized the President to set up land districts west of the Mississippi for the Indians' removal. 4 Stat. 411 (JA 20). Congress also appropriated $ 500,000 to carry out that removal program. Id.

In 1837, Congress provided additional express authority to the Indian Department "for holding treaties with the various tribes of Indians east of the Mississippi river, for the cession of lands held by them respectively, and for their removal west of the Mississippi." Act of March 3, 1837, 5 Stat. 158 (JA 27). Following the enactment of this law, Wisconsin Territorial Governor Henry Dodge entered treaty negotiations with representatives of twelve different Chippewa bands at Fort Snelling (located in what is now Minneapolis, Minnesota). PA 229.

On July 29, the United States and the Bands executed the Treaty with the Chippewa of 1837 ("the 1837 Treaty"). PA 484. Article 5 of the Treaty, which is the sole basis for the Bands' claims in this case, contains the following key provision:

The Journal of the 1837 Treaty Negotiations describes how Chippewa spokesmen requested that the government use the Chippewa lands only for a period of years, and that the Indians retain the lands that the government was requesting on a permanent basis for hunting, fishing and other purposes. JA 70-76. In response to the Indians' negotiation inquiries, Governor Dodge explained that the government was not interested in "leasing" the land, and twice said the hunting and fishing privilege the Indians were reserving was temporary in nature. Dodge stated:

White settlement and expansion of commerce continued to increase. In response to this pressure, and despite the opposition of many Indians, the federal government remained committed to the policy of removing Indians westward throughout the 1840s. The 1848 report of the [*5] Commissioner of Indian Affairs (COIA) included Commissioner Medill's statement that

On October 11, 1849, in one of its first acts, the Legislative Assembly of the new Territory of Minnesota passed a resolution to Congress urging the removal of the Chippewas living on ceded lands east of the Mississippi to unceded lands west of the river. PA 566-68. That resolution received the endorsement of the Territorial Governor, the Commissioner of Indian Affairs. JA 673-75, 878-79, 976-77. Congress, in turn, sent the resolution on to the President. JA 674-75.

On February 6, 1850, President Zachary Taylor responded to these calls for the Chippewas' removal and for a resolution to Indian-white conflict in the region by issuing an Executive Order to accomplish two distinct objectives: (1) it expressly terminated any special hunting, fishing, and gathering privilege and (2) it ordered the [*6] removal of the Chippewas from the ceded territories. The Order provided:

The Chippewa opposed removal to such an extent that, by June 1851, the new Commissioner of Indian Affairs concluded that removal was not in the interests of the United States, and recommended that the Executive Order be modified to allow those Chippewa who so desired to remain in the ceded territories. PA 259-60. In August 1851, the removal efforts were temporarily suspended by direction of the Acting Secretary of the Interior "until the final determination of the President." JA 225. While active removal efforts were effectively ended, the 1850 Executive Order was never revoked, and no federal official even recommended revoking or modifying the portion of the Order terminating the Indians' hunting and fishing privilege.

By 1854, a new Indian policy emerged, focusing on reservations rather than removal. PA 264, 275. On December 19, 1854, Congress passed a law authorizing the President to negotiate with the Chippewa "for the extinguishment of their title to all the lands owned and claimed by them in the Territory of Minnesota and State of Wisconsin." Act of Dec. 19, 1854, 10 Stat. 598 (PA 532). The Act further directed that any new treaties must contain provisions "granting to each head of a family, in fee simple, a reservation of eighty acres of land." Id. This [*7] new "allotment" requirement showed that the new federal policy was to place the Indians on established reservations, and encourage them to become farmers. Moreover, the Act in the fourth provision of section one provided that "the laws of the United States and the Territory of Minnesota shall be extended over the Chippewa territory in Minnesota whenever the same may be ceded, and the same shall cease to be 'Indian Country' . . . ." PA 533.

On February 22, 1855, the Mille Lacs (along with other bands not parties here) agreed to the 1855 Treaty. PA 502. Article 9 contains the Bands' agreement "that they will settle down," begin farming, build homes, and educate their children. PA 512-13. The "land" provisions of the 1855 Treaty are most important here. Article 2 established the boundaries of the new reservations. PA 503-05. Article 1 then completed the exchange:

In May 1858, Minnesota was admitted to the Union as a State "on an equal footing with the original states." Act of May 11, 1858, 11 Stat. 285 (PA 515). At its first session, the new state Legislature enacted laws regulating hunting. The Legislature expressly extended the reach of [*8] those laws to Indians off their reservations. 1858 Minn. Laws, chs. XIX, XLIV (PA 569). Since that time, Minnesota has always applied its game and fish laws to Indians off the reservation just as it has applied them to other citizens. PA 298-300.

Almost a century later, beginning in 1940, the Minnesota and Wisconsin Chippewa Bands brought various claims against the federal government for, among other things, alleged fraud, misrepresentation, and inadequate compensation in the negotiation of the treaties. The Bands sought compensation for the range of rights and interests that were ceded in the treaties. The claims were first brought before the Court of Claims, PA 39, and then, after Congress created the Indian Claims Commission ("ICC") in 1946, the Bands refiled complaints with the ICC. PA 45. The ICC ultimately awarded the Bands $ 9 million collectively to resolve all claims under the 1837 Treaty. The ICC determined that this amount was necessary to compensate the Bands for the full value of the ceded lands, determined according to their "highest and most valuable uses." PA 47.

Beginning in 1990, the Bands sued the State of Minnesota and its officials challenging their authority to enforce state hunting and fishing laws against Band members within the 1837 Ceded Territory. PA 9-10. In 1993, nine counties and six private landowners intervened as defendants, and the United States intervened as a plaintiff. PA 10.

The district court divided the Mille Lacs case into two phases -- the first to address whether the 1837 privilege still existed, and its general nature, and the second to address the allocation of fish and game resources as well as the validity of particular State regulation of any continuing treaty right. PA 11. Following a Phase I trial, the court ruled that the Mille Lacs Band had a continuing [*9] privilege under the 1837 Treaty to hunt, fish and gather. PA 350. It also ruled that the privilege applies only on public lands or those private lands that are open to the general public for hunting. PA 337-38.

In ruling for the Bands, the court rejected all of the State's defenses. First, the court held that President Taylor's express revocation of the Bands' treaty privilege in his 1850 Executive Order (PA 565) was invalid because the Order was primarily a "removal" order and the President did not have authority to order removal. The court held that the revocation portion of the Order was not severable, and so also must be held invalid. PA 306-12. Alternatively, even if the revocation provision was severable, the court held that the provision of the Executive Order was still invalid on the grounds that it was inconsistent with the Indians' claimed understanding that the privilege could be revoked only if they misbehaved, that the Order violated the good faith requirement of the Northwest Ordinance, and that the Order had been repealed by implication. PA 313, 321.

The district court also rejected the State's contention that the 1855 Treaty extinguished the Mille Lacs Band's privilege in the 1837 Ceded Territory. PA 331. The court ruled that there was no explicit language within the 1855 Treaty terminating the Band's hunting and fishing privilege, and that the historical context surrounding the 1855 Treaty, and the Band's understanding of the Treaty, showed that the privilege was not extinguished. PA 322-31.

On March 29, 1996, the court ruled that six Wisconsin Chippewa Bands, who had intervened several months earlier, also had continuing rights to hunt and fish in the Minnesota portion of the 1837 Ceded Territory. PA 210. The decision was largely predicated on the district court's earlier decision in Phase I of Mille Lacs. But the court also addressed the State's new contention that the Bands' [*10] privilege was extinguished when Minnesota was admitted into the Union on equal footing with the original thirteen states. n1 It ruled that the Bands' 1837 Treaty privilege was continuing in nature, not temporary, and therefore the equal footing doctrine established in Ward v. Race Horse, 163 U.S. 504 (1896), did not apply to extinguish the privilege upon the State's admission into the Union. PA 187-89.

n1 This defense had not been raised previously with respect to the Mille Lacs Band.

At the same time the Mille Lacs case was proceeding, the State was also involved in a similar lawsuit involving the 1837 Treaty with the Fond du Lac Band. PA 14. On March 18, 1996, the district court ruled that the Fond du Lac Band also retains a hunting, fishing and gathering privilege under the 1837 Treaty; the decision was also largely predicated on the 1994 district court ruling in the Mille Lacs case. PA 457-64.

In June 1996, the district court consolidated the Phase II portions of the Mille Lacs and Fond du Lac cases. PA 14-15. Phase II addressed the allocation of game and fish resources between Band hunters and fishers and others, and also the validity of particular state regulations as applied to Band harvest. PA 15. On January 29, 1997, the district court issued an Order resolving all pending motions in Phase II of the consolidated cases. PA 74. The January 29 Order directed the entry of final judgment in the Mille Lacs case and with respect to the 1837 Treaty claim in the Fond du Lac case. PA 162.

The court's January 1997 Order resolved several disputes regarding management of the resources within the Ceded Territory. It held that state biologists may no longer unilaterally set the level of harvest ("harvestable surplus") for particular species, but rather must share that regulatory authority, permanently, with the Bands. If the parties cannot agree, the federal court will resolve the [*11] resource management issues. PA 87-101. Although the State and Bands had reached agreement on many resource regulation matters through a stipulation, the court also addressed unresolved disputes over prohibiting the "shining" of deer over bait in December, and the taking of fish in small lakes by gillnet. The Court rejected the State's arguments that these two activities should be prohibited because of specific conservation concerns over the impact on the deer and fish, holding that the "State's power to regulate Indian treaty rights is very narrow," and that the State must demonstrate that its regulation is necessary "to forestall the imminence of extinction." PA 119. The court held that the State's measures must be the "least restrictive alternatives," and the State could not even act to prevent the complete eradication of deer in a local area, if the area would be naturally repopulated from other areas. PA 119-20. Upon the Bands' adoption of their "Model Conservation Code," State officials were permanently enjoined from any action that would prevent or interfere with the exercise of the Bands' privilege to hunt, fish and gather under the 1837 Treaty except as authorized in the opinions and orders of the court. PA 158-59.

A panel of the Eighth Circuit affirmed the decisions of the district court on all grounds. PA 1. The circuit court rejected the contention that President Taylor's 1850 Order terminated the Bands' privilege, holding that the President was not authorized to issue the order, and the revocation portion of the two-part order was not severable from the remainder. The court did not address the additional grounds in the district court decision for rejecting the President's revocation of the hunting and fishing privilege. PA 29-31. The circuit court also rejected the contention that the equal footing doctrine, in this factual context, extinguished the 1837 Treaty privilege. PA 55. Finally, the Eighth Circuit agreed with the district court that the language of the 1855 Treaty was not explicit [*12] enough to extinguish the privilege reserved in the earlier treaty. PA 36-37. In doing so, it deferred to the lower court's factual findings regarding the Indians' under-standing of the treaty language. Id. n2

n2 The lower courts also addressed, numerous other issues that were not raised in the State's petition for certiorari, and so are not at issue here.

The State sought rehearing and suggested rehearing en banc, but the court of appeals denied both motions on November 17, 1997. PA 482. This Court granted certiorari on June 8, 1998.

The Eighth Circuit decision here substantially and, more important, unnecessarily encroaches on Minnesota's core sovereign function of safeguarding and regulating the use and taking of the State's game and fish resources. The lower courts here misused the rules of treaty construction to turn the key treaty provisions on their heads, interpreting "during the pleasure of" to mean "for cause," "any and all interest" to mean "only some interests," and "any other lands in Minnesota" to mean "only some other lands in Minnesota."

The Bands' hunting, fishing and gathering privilege under the 1837 Treaty was effectively terminated by any of three different events - President Taylor's 1850 Order, the 1855 Treaty (applicable here only to the Mille Lacs Band) and Minnesota's admission into the Union in 1858. However, contrary to the plain language of the two treaties and this Court's pronouncement about the effect of statehood, the district court and the Eighth Circuit held that each of these bases for extinguishment of the privilege under the 1837 Treaty was inapplicable, and that the special privilege to hunt, fish and gather, free of most state regulation, continues to this day and prevents [*13] Minnesota from exercising full sovereignty over its natural resources in three million acres of the State's prime hunting and fishing area.

Under the Treaty, the privilege of hunting, fishing and gathering in the 1837 Ceded Territory was guaranteed only "during the pleasure of the President." In 1850, President Taylor issued an Executive Order expressly revoking the temporary treaty privilege. However, the district court held that the Treaty did not actually authorize the President to revoke the privilege. Contrary to the obvious import of the Treaty's "during the pleasure of" language, the district court interpreted the Treaty provision to have an unwritten condition that the privilege could be revoked only if the Indians misbehaved. While the court purported to apply the special, liberal rules of treaty construction, in fact the court ignored the Treaty's plain language, and added the misbehavior condition even though there was not a single bit of evidence that, at the time of the Treaty, the federal negotiators or Congress understood such a condition to apply. The interpretation was based only on speculation as to what the Indians might have understood.

The Mille Lacs Band also relinquished any remaining hunting, fishing and gathering privilege in the 1837 Ceded Territory when it signed the 1855 Treaty "fully and entirely relinquishing and conveying to the United States, any and all right, title, or interest, of whatsoever nature the same may be, which they now have in, and to, any other lands in the territory of Minnesota or else-where." While this language would obviously appear to extinguish any remaining hunting, fishing and gathering privilege in Minnesota based upon the 1837 Treaty, the lower courts applied the rules of treaty construction to reach conclusions wholly at odds with the plain treaty language. Instead of "any and all right, title, and interest, of whatsoever nature the same may be," the courts found that the key language in the 1855 Treaty did not apply to [*14] some rights and interests, specifically the 1837 hunting, fishing and gathering privilege. And despite the fact that the all-encompassing relinquishment applied to rights and interests in and to "any other lands in the territory of Minnesota or elsewhere," the district court found that the provision applied to some Minnesota lands, but not those ceded in 1837. The lower courts based their interpretations on supposed historical context, even though there was no evidence that any of the parties, at the time of the 1855 Treaty, understood the relinquishment provision to be limited.

In making these interpretations, the lower courts ignored this Court's oft-repeated admonitions that, even in the context of Indian treaties, courts may not ignore the agreements' plain language and, in effect, amend the treaties. See, e.g., United States v. Choctaw Nation, 179 U.S. 494, 535 (1900). Historical evidence must be virtually conclusive to overcome "the 'almost insurmountable presumption' that arises from the statute's plain terms." South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789, 802 (1998). The historical evidence here, even if it could be interpreted to favor the Bands, was not so overwhelming as to overcome the plain treaty language.

Regarding the 1850 Presidential Order, the circuit court did not reach the interpretation issue, but instead held that the order was invalid because another provision (for the removal of the Indians) was unauthorized. The court then held that the revocation of privileges was also invalid because it was not severable. But the court's decision shows that it reversed the presumption in this Court's caselaw that a separate valid provision should be upheld unless it is evident that it would not have been enacted without the invalid provision. See Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 234 (1932). Despite its conclusion that there was an obvious reason why the President may have adopted the revocation provision on its own, the court erroneously [*15] held the provision invalid because it was not shown that the President would have adopted that provision separately.

Finally, the circuit court failed to recognize the importance of Minnesota's sovereign interest as a state. Because the treaty privilege was guaranteed only "during the pleasure of the President," it was certainly "temporary and precarious" within the contemplation of this Court's decision in Ward v. Race Horse, 163 U.S. 504 (1896), and was therefore extinguished when Minnesota was admitted into the Union on an "equal footing" with the original states in 1858. The circuit court incorrectly distinguished Ward, holding that the treaty privilege here was not temporary, precarious, or perishable, and that the limitations imposed here on the State's ability to manage its natural resources are not "irreconcilable" with Minnesota's sovereignty.

There may be some basis for the lower courts' concerns that the federal government did not treat the Indians fairly in making the 1837 Treaty. But this Court has rejected the notion that perceived injustice in the negotiation of Indian treaties should be corrected by judicially recrafting the treaty provisions. See United States v. Mille Lac Band, 229 U.S. 498, 500-01 (1913). Rather, the forum to recompense overreaching in these old treaties was the Indian Claims Commission and, as explained above, the Bands made such claims and were compensated for the entire value of the lands ceded in the 1837 Treaty. Consequently, there is no reason for the courts to struggle to avoid the obvious effect of the treaty language at issue here, or to fail to acknowledge the full scope of Minnesota's sovereignty upon admission to the Union.

I. THE 1850 PRESIDENTIAL ORDER TERMINATED ANY SPECIAL PRIVILEGE TO HUNT, FISH AND GATHER.

Article 5 of the 1837 Treaty provides: "The privilege of hunting, fishing, and gathering wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied [sic] to the Indians, during the pleasure of the President of the United States." PA 486 (emphasis added). Pursuant to this authority, on February 6, 1850, President Zachary Taylor responded to calls for a resolution to Indian-white conflict in the Minnesota Territory by issuing an executive order expressly terminating the privilege. The Executive Order provided:

The district court erroneously determined that the treaty did not authorize the President's order revoking the treaty privilege. The Bands' hunting, fishing and gathering privilege was guaranteed only "during the pleasure of" the President. Nothing else in the treaty [*17] restricts the President's discretion. There can be no serious dispute that the ordinary meaning of the phrase "during the pleasure of" in legal documents such as treaties is that the designated person or entity has the sole discretion to decide to take the contemplated action. n3 There can be no doubt that Congress, in approving the treaty, would have understood the phrase to have this meaning.

n3 See, e.g., Hynes v. Grimes Packing Co., 337 U.S. 86, 103 (1949) (reservation created by executive order "conveys no right of use or occupancy . . . beyond the pleasure of Congress or the President. Such rights may be terminated by the unilateral action of the United States . . . ."); Bishop v. Wood, 426 U.S. 341, 345-46 n.9 (1976) ("at pleasure of" means "terminable at will . . . irrespective of the quality of performance by the other party").

Nonetheless, the district court interpreted Article 5 to contain an additional, implicit, limitation on the President's authority -- that he could revoke the privilege only due to Indian misbehavior. PA 313-14. n4 Thus, the district court interpreted the key treaty phrase to mean the opposite of its normal meaning. The court essentially interpreted "during the pleasure of" to mean "terminable for cause." n5

n4 The Seventh Circuit had previously made the same holding in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 356-57 (7th Cir.), cert. denied, 464 U.S. 805 (1983). Years earlier, however, the Court of Claims had concluded that the parties' intention was that "the Indians were to have only a revocable license to use the land until the President required them to vacate it." Mole Lake Band v. United States, 139 F. Supp. 938, 940 (U.S. Ct. Cl.), cert. denied, 352 U.S. 892 (1956).

n5 See Arnett v. Kennedy, 416 U.S. 134, 181 (1974) (White, J., concurring and dissenting) (action "for cause" distinguished from "at pleasure"; "at pleasure" means "total discretion," quoting Reagan v. United States, 182 U.S. 419, 425 (1901)).

[*18] In reaching this conclusion, the district court applied the well-known special rules of construction for Indian treaties. n6 But the district court violated the first rule of treaty construction, that courts in Indian cases are

United States v. Choctaw Nation, 179 U.S. 494, 535 (1900) (emphasis added). And the Court has more recently reemphasized that the plain meaning of a treaty provision is the overriding element of treaty construction. See, e.g., South Carolina v. Catawba Indian Tribe, 476 U.S. 498, [*19] 506 (1986); Oregon Dep't of Fish & Wildlife v. Klamath, 473 U.S. 753, 774 (1985).

n6 These canons of construction generally require (1) that treaties be liberally construed in favor of the Indians, see, e.g., Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32 (1943); (2) that ambiguous expressions in treaties must be resolved in favor of the Indians, see, e.g., Carpenter v. Shaw, 280 U.S. 363, 367 (1930); and (3) that treaties should be construed as the Indians would have understood them, see, e.g., Worcester v. Georgia, 31 U.S. 515, 551-54 (1832).

The district court's conclusion that the treaty contained an unwritten misbehavior standard rests on the slenderest of reeds. The Indians did not speak English, and some observers described the government translators as incompetent. PA 229. The Bands produced expert testimony indicating that treaty concepts would have been difficult to translate into the Chippewa language, and the experts speculated that the Indians would not have understood the concept of "at the pleasure of the President." PA 230, 235, 315. The court emphasized the importance of hunting, fishing and gathering to the Indians. PA 231.

Despite the speculation of the Bands' experts and the district court, there was not an iota of evidence from the treaty negotiations that the Indians did not understand the meaning of "during the pleasure of the President." Since the Indians did not understand English, their understanding of any of the treaty provisions would have necessarily derived entirely from what someone told them. However, when the State asserted that English-speaking persons at the negotiations who were friendly to the Indians may have explained the treaty provisions to them, the court dismissed it as "speculation rather than hard evidence of actual translations." PA 315.

The treaty journal, the best evidence of what occurred at the negotiations, contains no evidence that the Indians did not understand the key treaty term or that anyone at the negotiations discussed a misbehavior standard. But the journal does indicate that the Indians were told that the privilege was temporary. Indeed, the government negotiator told the Indians: "You will be allowed, during his pleasure, to hunt and fish on [the lands]. It will probably be many years, before your Great Father [the President] will want all these lands for the use of his white Children." PA 233. In the years between the [*20] adoption of the treaty and the President's order, the federal government asserted that the Indians' reserved hunting, fishing and gathering privilege was subject to the President's discretion, as indicated by annual reports of the Commissioner of Indian Affairs. JA 138-39, 145; PA 244, 253. n7

n7 And in the century after the President's 1850 Order, many federal officials, including President Franklin Roosevelt, took the position that the Order had terminated the Indians' hunting, fishing and gathering rights under the treaty. PA 298-300.

Even viewing the historical evidence most favorably to the Bands, it was at best equivocal as to whether the Indians understood, or would have understood, the 1837 Treaty language to mean anything other than its normal meaning. And the Bands' evidence consisted of the speculation of their expert linguist and historians who had no actual knowledge of what the Indians 'understood or what was explained to them at the time they agreed to the Treaty. There was no evidence that the federal treaty negotiators, or Congress in approving the treaty, under-stood the treaty provision other than in its normal sense. Thus, the situation here is similar to that in Klamath, where the Court observed: "The historical record of the lengthy negotiations between the Tribe and the United States provides no reason to reject the presumption that the 1901 Agreement fairly describes the entire understanding between the parties." 473 U.S. at 772 (emphasis added). See also South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789, 802 (1998) (equivocal evidence of historical context of Indian reservation statute insufficient to rebut the "'almost insurmountable presumption' that arises from the statute's plain terms").

It is also significant that the President, who was authorized by the Treaty to revoke the hunting, fishing and gathering privilege, interpreted the Treaty to authorize him to do so at his sole discretion. An executive [*21] action, when executed by the President pursuant to an Act of Congress, is "supported by the strongest presumption and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Dames & Moore v. Regan, 453 U.S. 654, 668 (1981) (citation omitted). The district court's decision here was contrary to the express language of the treaty, and the historical evidence was plainly insufficient to overcome the strong presumption of validity of the President's action and his interpretation of the Treaty.

"The canon of construction regarding the resolution of ambiguities . . . does not permit reliance on ambiguities that do not exist; nor does it permit disregard of the clearly expressed intent of Congress." Catawba, 476 U.S. at 506. The language of Article 5 is plain. The only plausible meaning to ascribe to the phrase "pleasure of the President" is that the President was authorized to revoke the privilege at his discretion.

There can be no question that this is how Congress would have understood the treaty. During the mid-1800s, it was not unusual for Congress to delegate broad authority regarding Indian affairs to the President. In 1834, for example, Congress enacted Rev. Stat. § 465, 4 Stat. 738 (recodified as 25 U.S.C. § 9), which states: "The president may prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs." Moreover, Congress ratified many Indian treaties providing that the President was responsible for implementing the specific conditions and agreements in Indian treaties. Such treaties used the phrases "during the pleasure of the President," "during the pleasure of the Secretary of Indian Affairs," or "during the pleasure of the Government" to describe when and how the federal government would satisfy its responsibilities under Indian treaties. n8 The common [*22] usage of these phrases and similar ones is evidence that Congress relied upon the president and the executive branch to unilaterally determine how best to satisfy treaty obligations.

n8 Several other treaties negotiated during the 1830s contained the phrase "during the pleasure of the President." See 1833 Treaty with the Pawnee, art. 2 (JA 1946); 1833 Treaty with the Quapaw, art. 6 (JA 1933); 1832 Treaty with the Sauk and Foxes, art. 7 (JA 1938). Like the 1837 Treaty, the 1833 Pawnee Treaty used the phrase with regard to temporary hunting and fishing rights. Similarly, after 1850, Indian treaties continued to use the phrase "pleasure of the President," providing the President with discretion over a wide ranging set of responsibilities. See 1858 Treaty with the Yankton Sioux, 11 Stat. 743; 1856 Treaty with the Creek, 11 Stat. 699; 1858 Treaty with the Ponca, 12 Stat. 997; 1857 Treaty with the Pawnee, 11 Stat. 729.

See also 1862 Treaty with the Ottawa of Blanchard's Fork and Roche de Boeuf, art. 11, 12 Stat. 1287 (pleasure of the Secretary of Interior); 1805 Treaty with the Cherokee, art. 1, 7 Stat. 95 (pleasure of the government); 1819 Treaty with the Cherokee, art. 3, 7 Stat. 195 (same).

Indeed, when Congress wanted to limit or condition the president's discretion in a treaty, it did so expressly. By the time of the 1837 Treaty, Congress and the executive were well acquainted with treaties that expressly conditioned or limited Indian hunting and fishing privileges depending on, for example, the Indians' behavior. n9 No such language exists in the 1837 Treaty.

n9 For example, Article VI of the 1805 Treaty with the Wyandot, 7 Stat. 87, provides that the Indians "shall be at liberty to fish and hunt . . . as long as they shall demean themselves peaceably." Similarly, Article III of the 1818 Treaty with the Quapaws, 7 Stat. 176, states that "the said tribe or nation shall be at liberty to hunt within the territory by them ceded to the United States, without hindrance or molestation, so long as they demean themselves peaceably, and offer no injury or annoyance to any of the citizens of the United States . . . ."

Even in Indian treaties, if the meaning of language to Congress is evident, the courts should require conclusive [*23] evidence to overcome the "almost insurmountable presumption" created by the treaty's plain meaning. The historical evidence on this point did not favor the Bands. But even given its most generous assessment, the evidence was not nearly so powerful as to overcome the plain language of the Treaty.

B. The Provision Of The President's Order Revoking The Privilege of Hunting, Fishing and Gathering Is Severable From The Removal Provision.

The circuit court did not resolve the interpretation issue just discussed. Rather, it addressed the presidential order argument by holding that the provision requiring that the Indians be removed from the Ceded Territory was invalid, because the President was not authorized to order the Indians' removal without their consent. PA 27. The court then held that the revocation provision was not severable from the removal provision, so that the revocation could not stand alone. PA 31. That holding was erroneous. The appellate court reversed the presumption of severability, and held that the revocation provision could not be severed from the removal provision, even though there was no evidence that the President would not have issued the revocation portion of the order by itself.

The severability standard, for legislative acts, was established in Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 234 (1932):

[*24] (Emphasis added.) The court "should refrain from invalidating more of the statute than is necessary"; rather, "it is the duty of this court to . . . maintain the act in so far as it is valid." Alaska Airlines v. Brock, 480 U.S. 678, 684 (1987). The court of appeals here, like other circuit courts, assumed that this same standard for severability would also apply to presidential orders. PA 27; citing In re Reyes, 910 F.2d 611, 613 (9th Cir. 1990).

However, after correctly reciting the standard, the appellate court then reversed the presumption, saying, "The task before us, therefore, is to determine whether President Taylor would have issued an executive order revoking the Bands' treaty rights without also ordering removal." PA 28-29 (emphasis added). The court agreed with the district court that the overriding purpose of the order was to effect the Indians' removal from the Ceded Territory, and that the provision revoking the hunting, fishing and gathering privilege was included "to encourage removal." PA 29. And the court acknowledged that, if the goal was to obtain the Indians' removal, there was a "strong argument" that the president would have revoked the treaty privilege, even without the removal provision, in order to encourage the Indians to move to their remaining unceded lands. Id. (Indeed, one of the Bands' experts testified that the revocation provision was likely included to encourage the Indians to remove, saying the government understood there was no direct authority for removal in the treaty. JA 1098-99.) However, the appellate court asserted that "there is no evidence in the record that revocation of usufructuary rights would have been made independently of the removal mandate" (emphasis added), and then concluded: "Without evidence that the scenario we have outlined had even been contemplated, we cannot sever the revocation portion of the order . . . ." PA 29-31.

[*25] Thus, the appellate court acknowledged the obvious reason why the President would have issued the revocation order alone, even assuming the correctness of the district court's finding that the overall purpose of the order was removal. But rather than trying to preserve as much of the order as possible, and requiring a showing that the President would not have adopted the revocation provision by itself, the lower court invalidated the revocation order because there was not sufficient evidence that it would have been adopted on its own.

Moreover, even if the question had been whether the President would have adopted the revocation provision independent of the removal provision, the origins of the presidential order show that the privilege to hunt, fish and gather under the 1837 Treaty was raised as a separate concern. In September 1849, the new governor of the Minnesota Territory argued for the Chippewas' removal, saying:

JA 878. The following month, the territorial legislature approved such a resolution. PA 252. The resolution was endorsed by the territorial governor and the Commissioner of Indian Affairs. JA 673-75, 878-79, 976-77. Congress in turn, sent the resolution to the President, who issued the order in February 1850. JA 674-75; PA 253. Therefore, there was evidence to support the conclusion that the President would have issued the order revoking the temporary treaty privilege, even without the removal provision.

[*26] The Eighth Circuit erred in holding that the revocation provision of the 1850 Order was not severable. It could undoubtedly operate independently of the removal provision, n10 and the record did not show that the President would not have issued it independent of the removal provision.

n10 The fact that the two provisions of the order could operate separately, and were intended to do so, is best illustrated by the situation of the Fond du Lac Band, which did not live in the Ceded Territory, but nonetheless claimed hunting, fishing and gathering rights there under the 1837 Treaty. JA 1492-1507. Since only the revocation provision of the 1850 Order applied to the Fond du Lac Band (as well as other bands, not parties here, who were parties to the Treaty but did not live in the ceded territory), that provision had significance independent of the removal provision.

C. The 1850 Order Did Not Violate A Duty Of Good Faith, And Was Not Revoked By Implication.

The district court rejected the argument that the 1850 Order effectively revoked the Indians' hunting, fishing and gathering privilege for two additional reasons. It held that the revocation violated an obligation of "good faith" imposed by the Northwest Ordinance. PA 313, 316. And it held that the Order was repealed by implication. PA 321. n11 Each of these rulings was erroneous.

n11 Because of its ruling that the removal provision was invalid and the revocation provision was not severable, the circuit court did not reach these issues. PA 31 n.25.

The Northwest Ordinance required that "utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent . . . ." 1 Stat. 51, art. 3 (1787) (JA 16). The district court held that the President's order revoking the temporary treaty privilege violated this good faith requirement. But the Indians had conveyed [*27] their land, for compensation, in the 1837 Treaty. While the Treaty reserved the privilege of hunting, fishing and gathering, this privilege was guaranteed only "during the pleasure of President." Thus, it was the Treaty, itself an act of Congress, which resulted in the diminishment of the Indians' rights; the President simply exercised the authority clearly granted in the Treaty. Where an act of Congress subsequent to the Northwest Ordinance authorized the President's action, that action cannot be found invalid on the basis that it was inconsistent with the earlier Ordinance. See Ward v. Race Horse, 163 U.S. 504, 513 (1896). Accordingly, if the Treaty is interpreted as the State has argued above, there was no violation of any requirement of good faith.

Nor was the President's order repealed by implication. The district court cited evidence that the federal government's removal effort met resistance from the Indians, that federal officials recommended abandonment of the removal effort, that they recommended modification of the removal requirement of the order, and that the removal effort was finally abandoned. PA 255-64, 320-21. From this, the district court found that "the executive branch" intended to repeal the President's order. PA 321.

But while there was evidence that federal officials intended to suspend the removal effort, there was no evidence that the President ever revoked or modified, or even considered revoking or modifying, his order. And there was no evidence that any federal official recommended reversal of the portion of the order revoking the hunting, fishing and gathering privilege; all the discussion concerned the removal portion of the order.

It is a "cardinal rule" that repeals by implication are not favored. Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976) (rejecting implied repeal of statute). There was no basis for the district court to conclude that the provision revoking the hunting, fishing and gathering privilege was repealed.

[*28] D. There Is No Reason Here To Depart From The Plain Language Of The Treaty And The Presidential Order.

There can be little doubt here as to the result that must follow from the clear language of the 1837 Treaty and the 1850 Presidential Order. The lower courts nonetheless determined that the Indians' treaty privilege to hunt, fish and gather continues to exist, largely free of state regulation, based primarily on the liberal rules of treaty construction and, apparently, on the belief that the federal government did not deal fairly with the Indians in the making of the treaty. While concern over past injustices is wholly understandable, this Court, in another treaty case involving the Mille Lacs Band, cautioned against viewing the law to allow reformation of treaties because of perceived exploitation of the Indians:

As explained above, the Bands here filed claims with the Indian Claims Commission in the late 1940s, and ultimately received an award to compensate them for the full value of the lands ceded in the 1837 and other treaties, less amounts previously received. The value of the land, and the amount of compensation paid to the Bands, was based on the land's "highest and most valuable uses," without any deduction for a reserved hunting, fishing and gathering privilege. PA 47. On its face, such compensation was adequate to compensate the Indians for all uses of the land, including hunting, fishing and gathering. See Klamath, 473 U.S. at 773-74 (compensation for full value of land, without reduction for value of hunting and fishing rights, presumably includes those [*29] rights). Thus, to the extent that the Bands were inadequately compensated under the 1837 Treaty for relinquishing all their rights to the Ceded Territory, including the hunting, fishing and gathering privilege, the federal government appropriately made recompense through the ICC procedure. But after receiving fair compensation for the entire value of the land, the Indians should not benefit from strained application of the canons of treaty construction and perversion of the treaty's plain language to recognize continued special rights relating to the land.

Much doubt will be cast on many statutes, treaties and other important documents if the courts hold that the ubiquitous phrase "during the pleasure of" may mean "for cause." There is no ground to make such a startling holding here. Under the clear language of the 1837 Treaty and the 1850 Order, the Indians' hunting, fishing and gathering privilege temporarily reserved in the treaty was subsequently extinguished.

II. THE TEMPORARY HUNTING, FISHING AND GATHERING PRIVILEGE WAS EXTINGUISHED WHEN MINNESOTA WAS ADMITTED INTO THE UNION.

The equal footing doctrine requires that all states admitted into the Union after the original thirteen states have the same rights and sovereignty at the time of admission as the original states. See Ward v. Race Horse, 163 U.S. 504, 515 (1896); Utah Div. of State Lands v. United States, 482 U.S. 193, 196-98 (1987); Montana v. United States, 450 U.S. 544, 551 (1981). Included in that bundle of rights are the states' sovereign trust and police powers over the taking of game and fish within their borders, the "power to preserve and regulate the exploitation of an important resource." Baldwin v. Fish & Game Comm'n, 436 U.S. 371, 386 (1978). As this Court stated in Ward, the right of a state to completely regulate hunting and fishing within its borders is an essential attribute of its governmental existence. 163 U.S. at 510. Like [*30] the presumption against federal preemption of state law, the equal footing doctrine creates a strong presumption against finding that federal actions supersede the exercise of a state's trust responsibility to manage natural resources for all its citizens.

In this case, the Bands' privilege to hunt and fish under the 1837 Treaty was extinguished through application of this doctrine when Minnesota entered the Union because the privilege was, pursuant to the holding of Ward, temporary and perishable by the express terms of the Treaty.

A. Under Ward, A Treaty-based. Right Does Not Survive Statehood Where That Right Is Temporary Or Precarious.

Ward established the framework for determining whether Congress intended a pre-statehood treaty-based right to survive a state's admission into the Union. The relevant treaty provision there secured to the Bannock Indians "the right to hunt upon the unoccupied land of the United States, so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts." 163 U.S. at 507. In determining whether this right to hunt had been extinguished when Wyoming was admitted into the Union, the Court began its analysis by recognizing that the full power of the state to regulate killing of game within its borders was an "essential attribute" and a "necessary incident" of state sovereignty. Id. at 510, 516.

Next, the Court analyzed whether Congress intended the right to continue when it admitted Wyoming into the Union in 1890. The Court emphasized that there is a presumption that states are admitted into the Union with the fullest set of rights and attributes of sovereignty. The Court observed that the "equal footing" language in Wyoming's enabling act was "simply an expression of the general rule that presupposes that states, when admitted, [*31] are endowed with the powers and attributes equal in scope to those enjoyed by the states already admitted . . . ." Id. at 514-15. The Court said that Wyoming's enabling act contained no expression of an intention to continue the treaty right in the state. Id. at 515. Rather, the Act expressed Congress's intention not to continue the treaty right. Id.

The Court explained that the equal footing doctrine does not prevent the United States from creating a treaty right which would be binding upon the state on its admission into the Union:

Id. (emphasis added). The "temporary and precarious" versus "continuing and perpetual" distinction was based on the Court's balancing of two competing interests - honoring the commitments made in Indian treaties, while at the same time limiting encroachment on core areas of state sovereignty to the extent possible. The Court said:

Id. at 516. Where hunting rights were temporary, precarious and perishable, such that the treaty contemplated that the federal government could negate those rights, then the Court held that there would be a presumption that Congress intended to grant full sovereignty in that area to the newly created state and to terminate the Indians' special hunting privilege when the state was created. The presumption was that Congress intended to give new states the fullest measure of sovereignty possible, consistent with binding obligations of previous treaties.

The Court in Ward held that the Bannock Indians' rights were precarious and perishable because the treaty clearly contemplated the disappearance of the right to hunt:

Id. at 509-10. The lands in question could become unavailable for treaty exercise, either when the United States transferred title to a private party or occupied the land itself by the creation of a national reserve (such as the creation of Yellowstone Park). Id. at 510. Thus, because the ability of the Bannock Indians to exercise the rights was perishable from the very inception of the treaty, it [*33] was a temporary right that did not survive Wyoming's admission into the Union. n12

n12 In Crow Tribe v. Repsis, 73 F.3d 982 (10th Cir. 1995), the Tenth Circuit applied Ward to a treaty having nearly identical language to the treaty at issue in Ward, and rejected the argument that Ward had become outdated. The conflict between Repsis and the lower court's decision here is one of the bases for the State's Petition for Certiorari.

United States v. Winans, 198 U.S. 371 (1905), decided just nine years after Ward, illustrates the flip side of the Ward distinction. In Winans, the Court rejected the equal footing argument under the facts of that case, holding that a treaty right "of taking fish at all usual and accustomed places, in common with the citizens of the territory," 198 U.S. at 378, "was intended to be continuing against the United States and its grantees as well as against the state and its grantees." Id. at 381-82.

B. The Privilege Reserved By Article 5 Of The 1837 Treaty Was Temporary And Precarious.

The 1837 Treaty at issue here reserves the Bands' privilege to hunt, fish and gather only "during the pleasure of the President." As discussed in the previous section, this privilege is temporary and precarious by its express terms. The phrase "at the pleasure of the President" provides for the potential extinguishment or revocation of the Bands' privilege at any time. The President's authority to terminate the privilege under Article 5 is not conditioned or limited in Article 5 or elsewhere in the Treaty. Nowhere in the Treaty or in any other congressional act or authorization is the President required to seek the approval of Congress or the Bands before revoking the Bands' 1837 Treaty privilege.

Indeed, the precariousness of the Treaty privilege here is even more immediately apparent than was the case in Ward. The phrase "during the pleasure of" clearly [*34] communicates that the privilege is perishable on its face. Moreover, the federal negotiator told the Indians that the retained privilege was of limited duration, and that the President would eventually need the land for white settlers. n13

n13 Even if this Court were to rule that the President could revoke the privilege only if the Bands misbehaved, as ruled by the district court, the privilege would still be temporary and precarious for purposes of the equal footing doctrine. But the Court need not go that far here.

In this case, the Eighth Circuit distinguished Ward for two reasons. First, the court ruled that the holding in Ward applied only to rights that were tied to the United States' ownership of the land. The court of appeals then went on to conclude that, because in this case the privilege of hunting and fishing was not tied to federal ownership of the land, the principle in Ward did not apply. PA 55.

While it is true the treaty-based rights in Ward were tied to United States ownership of the land, that was merely the particular circumstance that, in Ward, made the right temporary. The focus was the temporary, rather than permanent, nature of the right. The Court stated in Ward, "Indeed, the whole argument of the [Indians] rests on the assumption that there was a perpetual right conveyed by the treaty, when in fact the privilege given was temporary and precarious." 163 U.S. at 515 (emphasis added). But the Court in Ward did not suggest that the right's dependence on federal ownership was the only circumstance that could make a treaty right temporary and precarious. Moreover, even apart from the "pleasure of the President" treaty language, the Bands' privilege to hunt, fish and gather here was temporary and perishable [*35] for essentially the same reason that such rights were determined temporary in Ward - that the privilege would be frustrated by the conveyance of the land to private parties.

In the trial court, the Bands here conceded that the treaty provided them no right of access to private lands to exercise their hunting, fishing and gathering privilege, and therefore that they could exercise their privilege only on public lands and certain private lands open to the public by operation of state law. PA 215 n.2. The trial court so held. PA 337-38, 104-05. n14 Thus, while the trial court did not hold, and the Bands do not concede, that their hunting, fishing and gathering privilege was extinguished when the United States sold land in the ceded territory to private parties, PA 335-36, it is clear that such lands became unavailable to the Indians for hunting, fishing and gathering when the lands were conveyed to private parties who do not make the lands generally open to the public.

n14 While the Bands appealed one aspect of the district court's order determining which private lands would be available for treaty hunting, fishing and gathering, they did not seek review of the circuit court's adverse ruling in this Court, PA 70-72, and they have never asserted that they may exercise their claimed rights on private lands absent consent of the landowner.

The Bands' privilege here was therefore precarious and perishable from the inception of the Treaty, for the very reason identified by this Court in Ward: the lands may become unavailable for Indian hunting, fishing and gathering simply because the United States transfers title to a private party. In Ward, this occurred because the treaty right applied only on lands "of the United States"; here, it occurred because the Treaty provided no right of access onto private land. Nonetheless, the practical result - that the land would become unavailable for Indian hunting, fishing and gathering by the unilateral and [*36] unrestrained act of the United States in transferring title to the land - is the same in each case. Moreover, the lower court's determination presents the same irony identified in Ward - that the Bands are prevented from exercising the special privilege to hunt, fish and gather by the mere conveyance of the land to private parties, who lack authority to regulate the taking of game and fish, but not by the creation of a new sovereign state that has the authority and responsibility to regulate such activities. 163 U.S. at 510.

The court of appeals' second reason for distinguishing Ward was its opinion that, even though the Bands' 1837 hunting and fishing privilege could be revoked by the President, or abrogated by Congress like any other treaty right, this did not deprive the privilege of its continuing nature. PA 55-56 n.42. Certainly Congress always has the ability to abrogate any treaty right, and this underlying possibility does not make every treaty right temporary or precarious within the contemplation of Ward. But, absent authority in the treaty, the President would not have authority to revoke a right preserved by treaty. The specific provision here allowing the President to terminate the privilege at his discretion clearly made the privilege perishable from its inception. The 1837 Treaty expressly contemplated the future disappearance of the Bands' privilege.

2. The act admitting Minnesota into the Union did not reserve treaty rights.

In 1858, Congress passed an act admitting Minnesota into the Union on "equal footing with the original States in all respects whatever." 11 Stat. 285 (PA 515). The Act is silent as to the Indians' 1837 Treaty privilege. As Ward held, the silence of an act is, in and of itself, an expression of Congress' intention to terminate treaty-based rights which were not by their very terms meant to be permanent. 163 U.S. at 515. In addition, Minnesota's Act of [*37] Admission did not contain a savings clause for treaty rights, as did some state admission acts. See Ward, 163 U.S. at 506, 515-16, 519; Tulee v. Washington, 315 U.S. 681, 683 (1942).

C. The Bands' Privilege Is Incompatible With Minnesota's Ability To Manage Its Natural Resources.

This Court has long recognized that a state has the authority to hold and manage its natural resources in trust for the benefit of all citizens in common. See Hughes v. Oklahoma, 441 U.S. 322, 338-39 (1979); Kleppe v. New Mexico, 426 U.S. 529, 545 (1976) ("unquestionably, the States have broad trustee and police powers over wild animals within their jurisdiction"); Shively v. Bowlby, 152 U.S. 1, 26 (1894) (each state has authority and responsibility for applying the public trust doctrine to trust lands and waters "within its border according to its own views of justice and policy"). The Bands' 1837 Treaty privilege to hunt and fish off-reservation outside of state law is irreconcilable with the State's ability to enforce its laws uniformly as to all persons within its jurisdiction.

Minnesota's interest in natural resource management is as important to its sovereignty as is its interest in owning and controlling the use of the beds of lakes and rivers. n15 Under the lower courts' decisions, however, Minnesota's policymaking discretion over the natural resources in almost three million acres of east-central Minnesota is sharply curtailed. The State will operate under perpetual federal court supervision to determine whether Minnesota's rules and policies must be altered to accommodate tribal treaty harvest, subject to different tribal rules and policies. Minnesota no longer will have the authority to unilaterally make management decisions [*38] regarding a wide variety of natural resource issues within the ceded territory.

n15 Cf. Idaho v. Coeur d' Alene Tribe, 117 S. Ct. 2028, 2041 (1997); Utah Div. of State Lands, 482 U.S. at 195.

Under these rulings, whenever the Bands and the State cannot agree on how to manage a particular resource, the federal court will be the final arbiter of how that resource is managed. In essence, the federal court will operate as an appellate biologist, asked to evaluate highly scientific and technical considerations related to species and land use. The court will rule in favor of the State only if the State proves that its position is based on narrowly proscribed conservation, public safety or health considerations, where conservation is defined as those restrictions necessary to "forestall the imminence of extinction." PA 119.

The district court held that, upon request of the Bands, the court will review and, if necessary, overrule, the State's determination of the harvestable surplus for a given species. PA 87-101. Some examples of the highly scientific and technical decision-making issues that already have been decided by the federal court in this case include determining if the use of gillnets in lakes under 1000 acres will result in overharvest given the intensive nature of this type of harvest in small waterbodies, PA 121-27, and determining if the shining of deer, over bait, in December, will lead to overharvest because of deer concentration in winter, thereby thwarting the State's integrated deer management plans, PA 112-21. The lower court acknowledged that, "although the State may have commendable and sound reasons for its proposed regulations [on such issues], it is nonetheless constrained by the . . . Bands' treaty rights." PA 119.

In addition to the scientific and biological decisions already made by the federal court in this case, there are many other natural resource management decisions the federal court may have to resolve in the future if a dispute arises between the Bands and the State. These [*39] decisions cover a wide variety of issues, including, but not limited to:

To comply with the lower courts' rulings, the State will have to ensure that its decisions on these issues, and many others, do not adversely affect the Bands' treaty-based privilege. If a decision will adversely affect the Bands' Treaty privilege, the State will have to modify its decision to eliminate the effect, or risk the prospect that the Bands or United States will invoke the federal court's continuing jurisdiction. If the Bands or the United States challenge the State's decision, then (as has already occurred) the federal court will have the ultimate authority to determine how Minnesota's natural resources in the ceded territory will be managed.

In addition to the grounds described above, the circuit court distinguished Ward by saying that the Bands' hunting, fishing and gathering privilege here is not irreconcilable with the State's sovereignty, as the Court in Ward concluded. PA 56-58. The circuit court cites other [*40] decisions of this Court in which the treaty rights were found to be continuing, so that the State was required to adjust its game management to accommodate those rights. See, e.g., United States v. Winans, 198 U.S. 371 (1905); Tulee. But the Court need only look at the trilogy of Puyallup cases n16 to appreciate the extent to which continuing Indian hunting, fishing and gathering privileges encroach on the State's sovereign interest in managing fish and game in a non-discriminatory manner. There can be no doubt that, as observed in Ward, the continuation of special Indian hunting, fishing and gathering privileges carves out a significant slice of the State's core sovereign interests, and requires the State to share that area of sovereignty with the Bands under the ultimate supervision of the federal court. What Ward holds is that it is presumed that Congress intended to avoid this intrusion on state interests when a new state is created, unless the federal government previously made permanent commitments to the Indians. Because the treaty here made no such binding commitment, the temporary treaty privilege was extinguished upon Minnesota's statehood.

n16 Puyallup Tribe v. Department of Game of Washington, 391 U.S. 392 (1968); Department of Game of Washington v. Puyallup Tribe, 414 U.S. 44 (1973); Puyallup Tribe v. Department of Game of Washington, 433 U.S. 165 (1977).

III. THE 1855 TREATY, IN WHICH THE MILLE LACS BAND RELINQUISHED "ANY AND ALL RIGHT, TITLE AND INTEREST" TO ALL LANDS WITHIN THE MINNESOTA TERRITORY, EXPRESSLY EXTINGUISHED ANY REMAINING HUNTING, FISHING AND GATHERING PRIVILEGE.

Finally, if the hunting, fishing and gathering privilege reserved in the 1837 Treaty was not extinguished earlier, the Mille Lacs Band's privilege under that treaty [*41] was relinquished when several Chippewa bands, including the Mille Lacs Band, signed the 1855 Treaty. n17 The applicable language of the 1855 Treaty is simple and allencompassing. The Chippewa ceded a large area of the northwest portion of the Minnesota Territory. In addition to this cession, the treaty provided:

PA 503. The import of this language for this case is self-evident: the signatory bands relinquished all right and interest in any Minnesota lands, including any remaining hunting, fishing and gathering privilege in the 1837 Treaty area. The lower courts, however, applied "interpretation" principles to conclude that the language did not mean what it said - that the parties had not meant to extinguish "any right or interest of whatsoever nature," and that contrary to the phrase "any other lands in Minnesota or elsewhere," the parties intended to impose a geographic limitation on the treaty provision. n18

n17 The Mille Lacs Band is the only plaintiff band in this case that was a party to the 1855 Treaty. Therefore, if the State were to prevail on this issue alone, the Mille Lacs Band would not have a special hunting, fishing and gathering privilege in the Minnesota portion of the 1837 Ceded Territory, but the other plaintiff bands, including the Wisconsin Bands, would.

n18 Contrary to the lower court decisions here, the Minnesota Supreme Court, in State v. Keezer, 292 N.W.2d 714, 721 (Minn. 1980), held that the 1855 Treaty extinguished the hunting, fishing and gathering privilege reserved under the 1837 Treaty.

[*42] A. This Court Previously Has Found Essentially The Same Treaty Language To Extinguish Hunting And Fishing Rights Reserved In An Earlier Treaty.

This Court has previously held that treaty language containing such an all-encompassing relinquishment of rights is effective to extinguish previously reserved hunting and fishing rights. In Oregon Dep't of Fish & Wildlife v. Klamath, 473 U.S. 753 (1985), the Klamath Indians had executed an 1864 Treaty ceding "all their right, title and claim to all the country claimed by them," and received a 1.9 million-acre reservation and the exclusive right of fishing and gathering within the reservation. Id. at 755. Then, in a 1901 agreement, the Klamaths agreed to "cede, surrender, grant, and convey to the United States all their claim, right, title and interest in and to" approximately a third of the 1864 reservation in exchange for monetary compensation. Id. at 760. The 1901 Agreement contained no language expressly referring to hunting and fishing rights, and further provided in a savings clause that "nothing in this agreement shall be construed to deprive [the Tribe] of any benefits to which they are entitled under existing treaties not inconsistent with the provisions of this agreement." Id. at 760-61. In 1982, the Klamaths sued the State of Oregon, claiming a continued right to hunt and fish on the land ceded in the 1901 Agreement and arguing that the 1901 Agreement did not extinguish those rights.

Reversing the lower courts, this Court held that language ceding "all claim, right, title, and interest in and to" land also extinguished any special hunting and fishing rights reserved on those lands, and should not be ignored in the face of purported ambiguity surrounding the Indians' understanding of the cession. 473 U.S. at 765-66. Rejecting the tribe's argument that express reference to hunting and fishing is necessary to extinguish such rights, this Court said that silence with regard to the [*43] preservation of off-reservation hunting and fishing rights does not show an intent to preserve the previously reserved rights. Rather, the silence "is consistent only with an intent to end any special rights of the Tribe outside the reservation." Id. at 773 n.23. This conclusion is particularly noteworthy given the presence of the "savings clause" in the 1901 Agreement, which provided a basis for the Tribe's argument that it had intended to preserve hunting and fishing rights separate from the land cession. There is no similar "savings clause" in the 1855 Treaty here.

In this case, the Eighth Circuit distinguished Klamath's strong extinguishment mandate almost entirely on the single assertion that the rights in Klamath were exclusive and on-reservation rights, whereas the privilege at issue in this case was a non-exclusive and off-reservation privilege. PA 39. Contrary to the Eighth Circuit's conclusion, however, this Court in Klamath directly addressed the impact of the "all right, title and interest" language to off-reservation hunting and fishing rights. The Court explained that, because the land ceded by the Klamath Tribe was no longer part of the reservation, the off-reservation rights claimed by the Tribe were somewhat comparable to the off-reservation rights reserved in the Treaty construed in Puyallup Tribe v. Department of Game of Washington, 391 U.S. 392 (1968), and United States v. Winans, 198 U.S. 371 (1905). See Klamath, 473 U.S. at 764-65 n.15. This Court then added, "Our inquiry, therefore, is whether a special right, nonexclusive but free of state regulation, was intended to survive in the face of language of the 1901 Agreement ceding 'all . . . right . . . in and to' the ceded lands." Id. at 764-65 (omission in original). The Court concluded that no such special right survived such language. The Court later reiterated that its decision applied to off-reservation rights: "The present [*44] case, however, involves the necessarily precedent question whether any off-reservation rights were intended to be preserved at all." Klamath, 473 U.S. at 769 n.20. n19

n19 In Klamath, the land ceded under the 1901 Agreement was no longer reservation land. Therefore, any exercise of hunting and fishing rights on that land in the modern era would have changed from exclusive, on-reservation harvest, to shared, off-reservation harvest. The Court started its analysis with the cession language in the 1864 Treaty, where the Tribe ceded "all their right, title, and claim" to a described 22 million acre area. As the Court put it, "that general conveyance unquestionably carried with it whatever special hunting and fishing rights the Indians had previously possessed in over 20 million acres outside the reservation." Id. at 766 (emphasis added).

The Court's analysis and conclusion in Klamath is extremely compelling for the analysis of the 1855 Treaty language here. Both agreements have similar phrases conveying "all right, title and interest" of the Indians. Both agreements surrender the Indians' rights "in and to" the land. But the 1855 Treaty at issue here contains several phrases, beyond those in the Klamath agreement, demonstrating the sweeping nature of the relinquishment of rights. The treaty includes the words (1) "fully and entirely," (2) "relinquish and convey," (3) "any and all" right, title or interest, (4) "any other lands," and (5) "in the Territory of Minnesota or elsewhere." PA 503. If the language in Klamath was sufficient to extinguish previously reserved hunting and fishing rights (even in the face of a savings clause), then even more clearly the words of the 1855 Treaty (and the lack of a savings clause) are sufficient to extinguish such rights here.

B. Available "Historical Context" Is Insufficient To Overcome The 1855 Treaty's Plain Language.

The Eighth Circuit primarily based its conclusion that the 1855 Treaty did not extinguish the Chippewas' privilege in the 1837 Ceded Territory on limited historical [*45] evidence that suggested the Indians understood the 1855 Treaty as only involving a sale of land to the government and did not intend to surrender the special hunting, fishing and gathering privilege. The court noted that "Chippewa representatives also indicated during negotiations that they would continue to hunt, fish, and gather after the Treaty was negotiated," and that the "Chippewa complained to federal officials that state enforcement of game regulations violated their rights under the 1837 Treaty." PA 36. The district court also concluded that the key provision of the 1855 Treaty quoted above was intended only to convey any rights the Bands may have had in other lands, not described in the treaty, to the north and west of the ceded lands. PA 285-88.

This abbreviated discussion of the evidence regarding the signatories' intent in 1855 is an insufficient basis to disregard the clear, all-encompassing treaty language. While some evidence might be interpreted to support the Bands' views, there is abundant evidence that the Treaty's actual language fit the historical context of the time. The Treaty's negotiation was part of an overall shift in federal policy from removing the Indians from eastern lands to consolidating Indians on reservations. The reservations were defined geographic areas where the Indians were expected to establish, and would be guaranteed, permanent homes. The objective of these treaties, which the Indians understood, was to permit faster white settlement but, at the same time, to preserve for the Indians a traditional homeland where they could permanently reside and presumably acquire the habits and skills of farmers.

The context of extinguishment was reflected in the goals of the Chippewa leaders. During the 1855 Treaty negotiations, Chippewa Chief Hole-in-the-Day, one of the main treaty negotiators, stated that the Indians' survival lay in trying to accommodate the Euro-American civilization that had engulfed them. He advocated for the money [*46] and tools to allow the Indians a chance to stay on their land by adopting the agricultural ways of the whites, rather than continuing the Indians' past subsistence existence. During the treaty negotiations, Hole-in-the-Day made numerous statements about abandoning the old ways and moving forward as white citizens. n20

n20 Hole-in-the-Day told Commissioner of Indian Affairs Manypenny, "We do not know we will be alive tomorrow; but my great wish and desire is to improve the conditions of the Chippewa nation, and make them live like the whites." JA 302. Later in the negotiations, Hole-in-the-Day complained that the proposed payments by the United States were insufficient "to give us a start, and enable us to support ourselves while preparing to live like the whites." JA 335. He explained that the Chippewa "do not live outside, but within your nation. We are your friends . . . . We want to give ourselves up to your government. We want to cease to be Indians, and become Americans. We want to be citizens, and to have the right to vote. All we desire is to imitate the whites, and to follow their example." JA 338-39. The chief stated that "the Country is getting scarce of game, and we cannot get along without changing our habits. We have tried the old system, and found it wanting. We should therefore try a new one." JA 348. Additionally, he stated that he had studied the Treaty's provisions and concluded that "the Indians have given away all, and leave themselves no alternative but to work." JA 349.

The other 1855 Treaty articles amplify this broader context for the cession. In exchange for complete relinquishment of rights by the signatory bands, the Indians were secured permanent reservations in the Minnesota Territory. PA 503-06. In recognition of the Bands' anticipated shift to "living like the whites," Article 9 contains the Bands' agreement

PA 513. Article 3 included payments of money to the Bands for goods, payments of debts, road construction and "improvement and welfare of [the] Indians," as well as a quantity of land "to be ploughed and prepared for cultivation in suitable fields." PA 507-08. Article 4 permitted the Bands to "employ their own farmers, mechanics, and teachers." PA 510.

As a natural extension of the government's reservation policy and the Indians' cession of all other interests, Congress's intent was clearly to subject all of the Chippewa's off-reservation activities to plenary state regulation. As explained earlier, the Act authorizing the negotiations for the 1855 Treaty provided that the "laws of the United States and the Territory of Minnesota shall be extended over the Chippewa territory in Minnesota whenever the same may be ceded, and the same shall cease to be 'Indian Country.'" 10 Stat. 598 (PA 533). The fact that the 1855 Treaty did not reserve a hunting, fishing and gathering privilege in the lands ceded in that Treaty is also consistent with the view that the federal government intended the Chippewas to have that privilege on the reservations established in the Treaty, but not outside them. Minnesota's Legislature understood and agreed with this goal; one of the first Acts passed in 1858, the first year of statehood, was to set hunting seasons; that Act expressly applied those seasons to Indians hunting off their reservations. 1858 Minn. Laws, chs. XIX, XLIV (PA 569-72). n21

n21 Again, the extinguishment of the reserved rights did not mean the Indians could not fish and hunt off the reservations, but that such activity must be done pursuant to territorial and, later, state law.

[*48] In rejecting the argument that the 1855 Treaty extinguished all prior interests in the 1837 Ceded Territory, the district court cited the 1855 Treaty transmittal letter from Commissioner Manypenny stating that, in addition to the described tract of land ceded by the three signatory bands, the cession included some rights or interests in other lands held by two of the bands "in common with other Indians in Minnesota." PA 285-86. The transmittal letter largely recites the treaty language, and does not provide any further limitation as to the geographic area in which those additional rights were surrendered. The district court concluded, however, that Manypenny must have been indicating that the additional interests relinquished were only those held in lands in the northwest portion of the Territory, PA 287. This is not supported by any statement of Manypenny or any other government official. While Manypenny correctly reported that the treaty cession would include any lands to which the three bands might make claim of title, there is absolutely nothing in Manypenny's statements or elsewhere to contradict the plain language of the treaty - that the bands were relinquishing all interests and claims to any land in Minnesota, except for the reservation. By imposing the geographic limitation on the Treaty language, the lower court implied an additional treaty provision that was not only found nowhere in the agreement, but simply contradicted the actual terms of the Treaty.

The court of appeals also observed that, in several other treaties, the United States specifically included language revoking hunting, fishing and gathering rights reserved in earlier treaties, so that the omission of an express reference to such rights in the 1855 Treaty indicates that the government did not intend to revoke such rights. PA 36-37. The simple response, of course, is that the 1855 Treaty did not need such a specific provision, [*49] because it contained the all-encompassing relinquishment language described above.

As explained above, this Court has held repeatedly that historical context evidence must be essentially conclusive in order to overcome clear treaty language. If anything, the historical context evidence here supports the State's position, that the treaty language extinguished the previously reserved privilege to hunt, fish and gather free of most state regulation. But, in any event, consistent with this Court's observation in Klamath, "the historical record of the lengthy negotiations between the [Indians] and the United States provides no reason to reject the presumption that the . . . Agreement fairly describes the entire understanding between the parties." Klamath, 473 U.S. at 772. See also South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789, 802 (1998) (historical evidence must "rebut the 'almost insurmountable presumption' that arises from the statute's plain terms"); United States v. Minnesota, 270 U.S. 181, 201 (1926) (examining language of instant 1855 Treaty ceding described tract of land: "courts can no more go behind it for the purpose of annulling it in whole or in part than they can go behind an act of Congress").

The language of the 1855 Treaty could not be more clear in extinguishing all rights and interests, including the reserved hunting, fishing and gathering privilege, in all lands in Minnesota including the 1837 Territory. This result is compelled not only by the Treaty's plain language and this Court's many plain language decisions, but also by Klamath.

For the foregoing reasons, the decision of the Eighth Circuit Court of Appeals should be reversed.
August 1998

Stephen G. Froehle, Esq., 7588 Jeanne Drive, Line Lakes, Minnesota 55014, (651) 784-2693.

GARY E. PERSIAN, ESQ. Counsel of Record, Randy V. Thompson, Esq., PERSIAN, MacGREGOR &, THOMPSON, 1530 International Centre, 900 Second Avenue South, Minneapolis, Minnesota 55402, (612) 339-6733.

Attorneys for Respondents John W. Thompson, Jenny Thompson, Joseph N Karpen, LeRoy Burling Glenn Thompson. Gary M. Kiedrowski, Michael Sheff and Robert L. Edmonds.

The petition addresses whether "the privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, . . . guarantied to the Indians, during the pleasure of the President of the United States" contained in an 1837 treaty with the Chippewa, art. 5, 7 Stat. 536 (PA 486), continues to exist. The questions presented are:

1) Whether the privilege was effectively revoked by the 1850 Presidential Order of President Zachary Taylor, which states "the privileges granted temporarily to the Chippewa Indians, . . . by the Fifth Article of the Treaty . . . of July 1837 . . . are hereby revoked" (PA 565).

2) Whether the 1837 treaty privilege was extinguished by the 1855 treaty, 10 Stat. 1165, whereby the Chippewa agreed to "fully 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" (PA 503), under this Court's holding in Oregon Dept. of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985).

3) Whether the 1837 treaty privilege was extinguished when Minnesota was admitted into the union on an equal footing with the original thirteen states pursuant to its Enabling Act of May 11, 1858, 11 Stat. 285 (PA 515).

The caption lists all Petitioners in No. 97-1337, all of whom were defendants at the district court level and appellants at the Eighth Circuit Court of Appeals. The caption does not include two other petitioner groups (Nos. 97-1357; 97-1356) who were defendants along with the State of Minnesota at the district court level, and appellants with the State Petitioners at the Eighth Circuit Court of Appeals. The two additional petitioner groups, aligned here as Respondents, include:

The August 26, 1997 panel decision of the Eighth Circuit (PA 1-73) n1 is reported at 124 F.3d 904 (Mille Lacs V). Final judgment was entered at the district court by way of a January 29, 1997 Opinion (Mille Lacs IV, PA 74) which is reported at 952 F.Supp. 1362. The four district court opinions relevant to the questions presented by the Petition are: Mille Lacs I (PA 351-418), reported at 853 F.Supp. 1118; Mille Lacs II (PA 212-350), reported at 861 F.Supp. 784; Mille Lacs III (PA 164-211), unreported; Fond du Lac (PA 419-481), unreported.

n1 References herein to "PA" are citations to the Appendix which was filed with the State of Minnesota's Petition. "JA" refers to the Joint Appendix accompanying the State's brief on the merits.

References herein to "LA" refer to the Landowners' Appendix filed at the Eighth Circuit level by these Respondents.

The Court of Appeals entered its judgment on August 26, 1997 (PA 7). A timely Suggestion for Rehearing En Banc was denied by a 7 to 2 vote on November 17, 1997 (PA 482). On June 8, 1998 this Court granted the State of Minnesota's Petition for Certiorari, n2 invoking jurisdiction under 28 U.S.C. § 1254(1).

n2 These Respondents are eight landowners who filed a separate Petition (No. 97-1357) which is pending.

U.S. Const. amend. X (PA 483); Treaty of July 29, 1837, art. 5, 7 Stat. 536 (PA 486); Treaty of Feb. 22, 1855, 10 Stat. 1165 (PA 502-514); Act of Feb. 26, 1857, 11 Stat. 166 (PA 517-521); Act of May 11, 1858, 11 Stat. 285 (PA 515-516); Act of Dec. 19, 1854, 10 Stat. 598 (PA 532-534); Act of Sept. 30, [*2] 1850, 9 Stat. 944 (PA 522-527); Act of Feb. 27, 1851, 9 Stat. 570 (PA 528-531); Executive Order of President Taylor, Feb. 6, 1850 (PA 565); Minnesota Territorial Resolution of 1849 (PA 566-568).

In July, 1837, near Fort Snelling, Minnesota, Ojibwe n3 Bands gathered to treat with the United States. This was not their first treaty. n4 The 1837 treaty negotiations were attended by at least 1,000 members of the Bands, their leaders, representatives of government, traders, and missionaries (JA 45, 1062; PA 230). The tribal leaders and the United States officials would meet in council, and then break so the Indians could confer among themselves and their allies. (JA 45, 49-50). In addition to the official interpreters, numerous persons in attendance were bilingual (JA 1060-64) including traders, persons of mixed race (then commonly called half breeds), and missionaries. The Bands first offered to lease the lands to the United States n5 but this offer was rejected by Wisconsin Territorial Governor Henry Dodge who countered:

1837 Treaty Journal (JA 73-74). The next day, on July 28, 1837, Governor Dodge stated:

Id. (JA 78). One missionary in attendance later suggested problems if removal was attempted "before five years" (JA 99). This missionary understood that the time would come when the President would revoke the privilege, and the Chippewa would be required to remove to their unceded lands (JA 99).

n3 "Ojibwe" is the traditional name for the "Chippewa." The Department of Interior currently uses the term "Chippewa," as do the Bands in their official name designations.

n4 In 1825 these Ojibwe entered into the Treaty of Prairie du Chien, 7 Stat. 272, a treaty designed to separate the hunting lands of the Dakota and Ojibwe to reduce continuing warfare between them by separating them geographically. For nearly 200 years prior, these Bands were in contact with French and British groups (PA 223).

n5 (JA 1065); 1837 Treaty Journal (JA 71). This 60 year proposed lease, with the United States to renegotiate with the Tribe's children, is evidence of the Ojibwe's knowledge and sophistication in land conveyance (JA 1065-66).

When revoking the privilege in the 1850 Executive Order, President Taylor referred to the privilege as "temporary" (PA 565). Whether "temporary," "probably many years," until wanted "for the use of" white settlers n6, "five years," or even the rejected "sixty years" of lease, the passage of 160 years has long ago passed all these measures of duration. There is no evidence or suggestion whatsoever in the 1837 Treaty Journal that the President's authority to revoke the treaty privilege was limited by an Indian "misbehavior" standard or a requirement of Chippewa removal. (JA 45-93, 1624, 968, 978, 989).

n6 Virtually all public domain lands in the 1837 ceded territory in Minnesota have been conveyed out of the public domain by the United States and most public land in the territory, including the Mille Lacs Band trust lands, were once privately owned (see JA 928-930).

[*4] The idea that the land use privilege would go on forever is undermined by the statements of Chief Flatmouth:

The Chippewa language was able to convey the 1837 treaty's plain meaning that the privilege lasted "as long as the President allows or as long as the President permits" (JA 1185-86). The language contained separate word combinations for "forever" and "perpetual" (JA 1177-78). While in isolation, "guarantee" might mean "to set firm" (JA 1179), if the meaning of the "guarantee" in the 1837 treaty was translated in conjunction with "during the pleasure of the President" there would be "probably hundreds" of words available to translate the concept (JA 1179-80) such as "promised for a time," "until the President says" (JA 1179-87), or "some time of a limited duration" (JA 1192-93). No record exists of how the 1837 treaty was translated into Ojibwe (JA 1169).

On February 6, 1850 President Taylor issued an Executive Order specifically revoking the 1837 treaty privilege (PA 565). Congress passed legislation in September of 1850 and February of 1851 appropriating funds to carry out the Order (9 Stat. 944, 9 Stat. 570 [PA 525, 530]). There is no record of any subsequent executive order rescinding the 1850 Order (JA 1054, 1113; PA 263). In the 1950s, the Fond du Lac and Wisconsin Bands participated in Court of Claims litigation and filed pleadings with the Court claiming:

1. "A temporary right to remain in the [1837] ceded area during the pleasure of the President was granted to [*5] these Indians. This right was terminated by Executive Order of February 6, 1850. No other action was required to terminate this temporary right" (JA 572).

3. "This privilege of hunting, fishing and remaining in the ceded areas (granted to these Indians temporarily) was terminated by Executive Order of February 2, 1850 . . . ." (JA 570).

Nevertheless, the district court stated that, "the evidence shows that the only reason that the 1850 Executive Order included language extinguishing the hunting, fishing, and gathering privilege was to facilitate removal of the Chippewa . . ." (PA 310). The Circuit Court concluded that "there is no evidence that revocation of usufructuary rights would have been made independently of the removal mandate" (PA 29-30). n7

n7 The Circuit Court did not address the district court's conclusions that removal had been suspended, and that privilege revocation required Indian misbehavior. (See fn. 21, infra)

The 1837 treaty was negotiated in the aftermath of the constitutional debate and crisis n8 regarding state sovereignty over Indian tribes. President Andrew Jackson's forceful support of the 1830 Indian Removal Act, fueled by the states' assertion of [*6] sovereign control over Indian tribes and lands within a state's borders, collided with Chief Justice John Marshall's decisions in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) and Worchester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); (JA 952). Against the background of this great national debate in the early 1830s, Congress ratified the 1837 treaty which purchased land while providing the Chippewa with a privilege revocable by the President. (JA 1446). If the 1837 treaty privilege was not subject to state regulation, then the privilege revocation by President Taylor in 1850, in view of Wisconsin's statehood in 1848 and Minnesota's formation as a territory in 1849, resolved a sovereignty issue of constitutional implication.

n8 "These laws led to a conflict among the Cherokee Nation, the State of Georgia, the United States Supreme Court, and the President that became one of the greatest constitutional crises in the nation's history."

Felix S. Cohen, Handbook of Federal Indian Law, at 81 (1982); see also 2 C. Warren, The Supreme Court in United States History, 189 (1923).

The record contains substantial evidence of valid reasons for the 1850 Order's revocation of the privilege stemming from federal land alienation policies, which drove federal Indian policy (JA 1411, 1925, 1430-31). The President authorized all land sales and issued all federal land patents (JA 1408; 933; 1911-14). n9 The 1850 Executive Order was issued "to remove the occupancy and use rights that had been temporarily granted to the Chippewa in 1837 . . . to facilitate selling the public domain by removing any aboriginal claims to the title to such lands . . ." (JA 1925-26) so lands could be sold and settlement encouraged. The survey, sale, and patent process was inconsistent with, and terminated, the treaty privilege. (JA 1049-50, 913, 926-27). An April 20, 1837 Opinion of the Attorney General of the United States confirms that the issuance of land patents terminated any pre-existing Indian use rights (JA 40-41).

n9 The land patent granted by President Cleveland in 1895 to one of these Landowners' predecessor in title with respect to property in the 1837 territory, expressly provided: "TO HAVE AND TO HOLD the same, together with all the rights, privileges, immunities and appurtenances of whatsoever nature, thereunto belonging, unto the said John Colson and his heirs and assigns, forever." (PA 549) (emphasis added).

The Executive Order of 1850 revoking the privilege was entirely consistent with the 1837 treaty negotiations. The Chippewa were told that it would "probably be many years, [*7] before your Great Father will want all these lands for the use of his white Children." (JA 78). The population of Wisconsin had increased one thousand percent between 1840 and 1850 n10. The survey and sale process had already begun in Minnesota (JA 914-18), and settlers would want to purchase land knowing that any privilege given the Indians to hunt, fish and gather wild rice was at an end. (JA 936, 1055, 1305-06, 1393-94, 1443).

n10 In 1830, the Territories of Wisconsin and Minnesota had a population of about 5,000. By 1840 there were 31,000 people in the Wisconsin Territory. Between 1840 and 1850, Wisconsin's population increased from 30,945 to 305,391 (JA 1524). The 1840s were a watershed period for Minnesota's settlement. From 1849 to 1858, Minnesota's non-Indian population exploded to 150,000. (JA 1441, 1449-50).

The land survey and sale process was a core function of the Presidency in the 1800s, and represented, along with the military, the furthest reaches of federal power. The land survey and sale process drove federal Indian policy, not the reverse. (JA 1411, 1430-31, 1925, 1393-94). The Minnesota Territorial Legislature passed a resolution October 24, 1849 asking the President to revoke the 1837 hunting and fishing privileges "to ensure the security and tranquility of the white settlements . . ." (PA 567). Territorial Governor Ramsey toured Minnesota, gathering information on conflicts between white settlers and the Chippewa, before traveling to Washington to lobby President Taylor to issue the Executive Order. (JA 1132-36). No record exists of President Taylor's reasons for issuing the 1850 Executive Order (JA 1139). These facts support the President's decision to revoke the privilege: (a) resolution of sovereign control issues; (b) reducing settler/Indian conflicts; (c) facilitating the survey and sale of the lands; and (d) expanding American settlement.

The authorizing statute for the 1855 treaty, 10 Stat. 598, called for the "extinguishment of [Chippewa] title to all of the lands owned and claimed by them in the Territory of Minnesota and State of Wisconsin" (PA 532). The Act provided that "the laws of the United States and the Territory of Minnesota shall be [*8] extended over the Chippewa Territory in Minnesota whenever the same may be ceded, and the same shall cease to be 'Indian country' . . . ." 10 Stat. 598 (PA 533). The Mille Lacs Band entered into the 1855 treaty, 10 Stat. 1165 (PA 502), and accepted a reservation while agreeing that the Chippewa would settle in one place, cultivate the soil, open farms, build houses, and educate their children (PA 513). The Chippewas' lead negotiator, Hole-In-The-Day, was convinced that the Chippewa would live in poverty if they did not change their habits and ideas of acquiring wealth (JA 301). During the 1855 treaty negotiations, he stated:

By Article 1 of the 1855 treaty the Indians "fully and entirely relinquish and convey . . . any and all right, title and interest, of whatsoever nature . . . which they may now have in . . . Minnesota or elsewhere" (PA 503) (emphasis added). The Circuit Court found that the absence of a specific reference in the 1855 treaty to the relinquishment of the 1837 treaty privilege meant that the federal government did not intend to extinguish the hunting and fishing privilege by the 1855 cession and neither the federal government nor the Bands understood the 1855 treaty to have that effect (PA 35-36).

[*9] On February 26, 1857, Congress authorized the people of the Territory of Minnesota to form a constitution and state government, 11 Stat. 166 (PA 517). On May 11, 1858, Congress acted as follows:

The Acts admitting Minnesota as a State into the Union are silent on any limitations on the power and sovereignty of the State of Minnesota to regulate the taking of fish and game by all persons, as a result of the treaty of 1837.

In 1889 Congress passed the Nelson Act, 25 Stat. 642 (PA 535), calling for the cession and relinquishment of all Chippewa reservations in Minnesota except for White Earth and Red Lake. The consent of the Chippewa Bands was obtained, and the cessions were approved by the President on March 6, 1890 (JA 389-493). During the Nelson Act negotiations on October 4, 1889 with the Mille Lacs Band, U.S. Commissioner Henry Rice was asked about off-reservation hunting.

President Franklin Roosevelt, on March 1, 1938, wrote to the Bad River Chippewa Band confirming that the 1850 Order revoked the 1837 treaty privilege (letter at PA 575). In 1946 Congress enacted the Indian Claims Commission Act, 60 Stat. 1049 (PA 550) which created a Commission with exclusive jurisdiction (PA 378-79) and powers to resolve all Indian claims against the government once and for all. n11 Through their tribes, these Bands filed claims at the Indian Claims Commission alleging interference with their 1837 hunting and fishing privilege, later amending their Petition to include claims for all unconscionable consideration under the 1837 treaty. n12 The hunting and fishing privilege at issue was part of the consideration for the 1837 cession, and in 1974 these Chippewa Bands were awarded over nine million dollars in damages by the Commission (PA 383) for their 1837 treaty claims (See Petition [pending] in No. 97-1357).

n11 (PA 379); See Otoe and Missouria Band of Indians v. United States, 131 F.Supp. 265 (Ct. Cl. 1955), cert. denied, 350 U.S. 848 (1955) (legislative history of effort to pass ICCA); Navajo Tribe of Indians v. State of New Mexico, 809 F.2d 1455 (CA10 1987); United States v. Dann, 470 U.S. 39 (1985); United States v. Pend Oreille Public Utility Dist. No. 1, 926 F.2d 1502, 1508 (CA9 1991).

n12 Western Shoshone National Council v. Molini, 951 F.2d 200 (CA9 1991) (Indian Claims Commission proceeding barred subsequent treaty based hunting and fishing claim).

The Landowners submitting this brief intervened in this action as representatives of individuals who own lands and businesses in the twelve county Minnesota portion of the 1837 ceded territory. Tracing the title to their lands to patents issued [*11] by the United States or Minnesota, these Landowners depend upon or are impacted by a multimillion dollar hunting and fishing tourism industry. Landowners seek to preserve and protect the quality of Minnesota's natural resources so that they can be equally shared for the benefit of all residents of Minnesota.

This action was initiated by Chippewa Bands who seek to reestablish an off-reservation hunting and fishing privilege, based upon the 1837 treaty, that was extinguished in the 19th Century.

The treaty privilege, granted when the Chippewa ceded the lands in question, permitted the Chippewa to continue to hunt and fish "during the pleasure" of the President (PA 486). The Chippewa were told that it would "probably be many years, before your Great Father will want all of these lands for the use of his white Children." (JA 78). This privilege was revoked in 1850 by an Executive Order (PA 565) issued by President Taylor pursuant to the authority explicitly delegated by Congress. Congress affirmed President Taylor's Order by twice appropriating funds to carry out its terms. (PA 522, 528).

To eliminate any doubt regarding Chippewa claims to this Minnesota land, when the Chippewa made additional cessions in the 1855 treaty, the United States negotiated an additional provision containing the "express language of cession" whereby the Chippewa ceded all interest in and to land of any kind or nature whatsoever in the State of Minnesota. (PA 502, 503). During the 1889 Nelson Act negotiations, the Mille Lacs Band was told that off-reservation hunting was subject to the laws of the Legislature of Minnesota. (JA 471-72). These decisions were reaffirmed numerous times by federal officials. n13 President Franklin Roosevelt's letter in 1938 carefully reviewed the terms of the 1837 treaty (7 Stat. 536) and the 1850 Executive Order of President Taylor before advising the Chippewa that these

Numerous Presidents supported the land survey and sale process, and granted patents to citizens providing the purchasers with "all the rights, privileges and immunities . . . forever." (PA 549). The opinions below reject the decisions of the two Presidents who addressed the issue, substituting a judicial judgment for the decision expressly reserved to the President in the 1837 treaty. The lower courts ignored this Court's directive that when decision making is committed to the discretion of the President by statute, "judicial review of the President's decision is not available." Dalton v. Specter, 511 U.S. 462, 477 (1994).

The lower courts voided the President's 1850 Order by holding that the President could not order the Chippewa to remove from the lands they had ceded except by complying with the 1830 Removal Act. (PA 24-27). The 1830 Removal Act (JA 20) did not apply because the Bands did not exchange lands, and were ordered to relocate to unceded Chippewa lands which remained both east and west of the Mississippi. The portion of the 1850 Executive Order revoking the 1837 privilege is supported by a reason other than removal of the Chippewa -- the Order is self-justified because it resolved the core issue in this suit: which sovereign controls the use of natural resources in the 1837 ceded territory.

When Minnesota became a state in 1858, the Enabling Act was silent on the 1837 privilege, eliminating any special hunting and fishing right under the equal footing doctrine. Ward v. Race Horse, 163 U.S. 504 (1896). The 1837 privilege, characterized by President Taylor as "granted temporarily," was so "precarious" that it had been revoked by Executive Order and relinquished by the 1855 treaty, even before Minnesota's Enabling Act in 1858. (PA 515).

[*13] The decisions below conflict fundamentally with this Court's precedents. If not reversed, this case foreshadows the rewriting of Indian treaties whereby hunting and fishing rights are transformed into an exemption from regulation that restricts on a piecemeal basis a State's sovereignty over its lands. The lower courts failed to apply the plain, unambiguous language of the treaties and statutes; substituted judicial decision making for the discretion expressly reserved to the President; and diminished Minnesota's sovereignty 140 years after her admission to the Union on an equal footing "in all respects whatever." The temporary 1837 hunting, fishing and gathering privilege, revoked, relinquished and repealed in the 19th Century, cannot serve to enjoin Minnesota's sovereignty today.

I. THE FEDERAL COURTS LACK JURISDICTION AND PLAINTIFFS' CLAIMS SHOULD BE DISMISSED WITH PREJUDICE.

On August 13, 1946 Congress enacted the Indian Claims Commission Act, 60 Stat. 1049 (1946)(PA 550-564), creating a Commission with broad and exclusive jurisdiction to hear claims arising under treaties, laws, executive orders, takings, and for unfair and dishonorable dealing. (PA 550-551). Since these claims of the Chippewa accrued prior to 1946, the federal courts lack jurisdiction under § 12 of the ICCA.

60 Stat. 1049, Sec. 12 (PA 555; see PA 378-9). Contrary to suggestion (PA 378) this portion of the ICCA was never repealed.

[*14] These Chippewa Bands were on notice of the claims prior to 1946, confirmed by their Court of Claims pleadings. (JA 569, 570, 572, 1521). n14 In 1938 President Roosevelt wrote to the Bad River Chippewa confirming that the 1850 Executive Order (PA 486) had revoked the 1837 treaty privilege (letter at PA 575). n15

n14 Mille Lacs Band members were arrested for hunting violations in the Minnesota portion of the ceded territory in 1931 (Landowner Trial Exh. 9, LA 2746 [conviction of John Davis]; LA 10053, JA 1240).

n15 In 1920 the Commissioner of Indian Affairs (COIA) advised, "Minnesota can regulate hunting and fishing by the Indians on lands outside of their respective reservations" (JA 1792). In 1939, the COIA said that, "outside their reservations, however, they are subject to the State Laws" (JA 1836; same, 1938 Assistant COIA opinion (JA 1832). See, Department of Interior's 1924 and 1932 circulars [Bands must follow state game laws off-reservation] (JA 1798, and 1809-10; see also, JA 1790, 1792, 1794, 1799, 1801-03, 1827-28; comprehensive analysis by Newell, (JA 1864-1900)).

Congress has forever barred the federal courts or any other forum from hearing these claims. Without negating President Taylor's 1850 Executive Order revoking the privilege, the Bands cannot prevail against the state. The Bands cannot create federal jurisdiction n16 by suing the state to accomplish indirectly what they cannot accomplish directly -- negating an Executive Order. These Chippewa pursued a remedy from the Indian Claims Commission, and they were awarded Nine Million Dollars for their 1837 treaty claims (PA 383).

n16 These landowners made this argument at the district court (PA 378-379) and circuit court (Opening Circuit Court Brief of Thompson, et al., p. 23) and it was raised in their Petition (Pending) (Docket No. 97-1357). Jurisdiction can be raised at any time, even sua sponte. United States v. Corrick, 298 U.S. 435, 440 (1936); McGrath v. Kristensen, 340 U.S. 162, 167 (1950); State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 530 (1967); Ford Motor Co. v. Dep't of Treasury, etc., 323 U.S. 459, 467 (1945); Glidden Co. v. Zdanok, 370 U.S. 530, 535-536 (1962); Wheeling & Lake Erie v. Public Util. Comm. P.A., 141 F.3d 88, 92 (CA3 1998).

[*15] II. THE 1850 EXECUTIVE ORDER BY THE PRESIDENT OF THE UNITED STATES REVOKED THE 1837 HUNTING AND FISHING PRIVILEGE.

A. The Plain Language of the 1837 Treaty Controls Its Interpretation in the Absence of an Ambiguity.

Article 5 of the 1837 treaty language expressly delegates power to the President to determine the duration of the hunting and fishing privilege granted the Chippewa.

(PA 486). The lower courts did not find a textual ambiguity in this treaty language. n17 Despite unambiguous treaty language, the District Court held that the "first rule is that Indian treaties must be construed as the Indians understood them." (PA 301, 193, 102). The Circuit Court held: "We look first at the interpretation understood by the Bands." (PA 36).

n17 The Bands' ethno-historian McClurken also testified, "there probably was no deception at the 1837 treaty [negotiations]." (JA 579)

The long standing rule, forcefully repeated, is that in the absence of textual ambiguity, the plain meaning of treaty language controls. Indian understanding cannot be utilized to remedy a perceived injustice if it is contrary to the plain meaning of the treaty.

Oregon Dept. of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 774 (1985).

Indian treaties are the equivalent of a federal statute for interpretation purposes. n18 When the words of a statute are unambiguous, the "cardinal canon" of determining the plain meaning "is also the last," and "judicial inquiry is complete." Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-254 (1992) (citing, Rubin v. United States, 449 U.S. 424, 430 (1981)).

n18 1 R.Rotunda & J. Nowak, Treatise on Constitutional Law, Substance and Procedure 2d, § 6.7, at 516 (1992).

This plain meaning rule is compelled by Congress' plenary power in Indian affairs. Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 83-84 (1977); United States v. Alcea Band of Tillamooks, 329 U.S. 40, 47 (1946); Mille Lacs I (PA 405). The plenary power of Congress is destroyed if Indian understanding, or a court's "mere interpretation" controls over the plain meaning of a treaty, since the will of Congress, plainly expressed, will not be given full force and effect. Choctaw & Chickasaw Nations, 179 U.S. at 533.

Negonsott v. Samuels, 507 U.S. 99, 104 (1993) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570 (1982)).

The plain meaning of Article 5 of the 1837 treaty can be broken into three parts for analysis.

The phrase "during the pleasure of" simply, clearly and unambiguously meant the grant of an "at will" power to the President to revoke the privilege. n19 For example, this Court has held that an:

Hynes v. Grimes Packing Co., 337 U.S. 86, 103 (1949). De Haro v. United States, 72 U.S. (5 Wall.) 599, 627 (1866) holds that a license is a privilege "revocable at the pleasure of the party making it." (emphasis added) President Taylor "revoked" the privilege. (PA 565). See, Harris v. Gillingham, 6 N.H. 9, 23 Am.Dec. 701, 702 (1832) (grant of permission was a "license to occupy it, at least during the pleasure of the owner"); See also, [*18] Minneapolis Mill Co. v. Minneapolis & St. Louis Ry. Co., 53 N.W. 639, 641 (Minn. 1892) ("[a] licensee is conclusively presumed, as a matter of law, to know that a license is revocable at the pleasure of the licensor . . ."). This analysis of the 1837 treaty privilege as a "revocable license" is not new. Mole Lake Band v. United States, 139 F.Supp. 938, 940 (Ct. Cl. 1956), cert. den., 352 U.S. 892. n20

n19 Andrew Jackson in 1817 wrote urging Congress to use its power over Indians to legislate "to prescribe their bounds at pleasure . . .", precisely what the 1837 treaty accomplished. Francis Paul Prucha, American Indian Treaties, The History of a Political Anomaly, 153 (1994) (citing Jackson's correspondence).

n20 "License is defined as a relationship between two or more persons with respect to the use of a tract of land, in which there is nothing more than a revokable privilege by one of them to be upon the land, . . ."

Thompson on Real Property, Thomas Edition, § 64.02(a), at 7 (Thomas ed. 1994)(emphasis added).

B. An Examination of the Historical Context Confirms Congress' Intent was Consistent with the Plain Meaning of the 1837 Treaty.

The relevant historical context confirms that the 1837 treaty provided for a temporary privilege, or license, revocable at the will of the President. The record of treaty negotiations contains an explanation of the privilege from the chief negotiator for the United States, Wisconsin Territorial Governor Henry Dodge:

Governor Dodge's careful explanation that the Chippewa's use would be "permitted" and "allowed" fairly explains a permissive license. De Haro, 72 U.S. at 624-25. Dodge's statement occurred just after Flatmouth described how the [*19] Chippewa gave a "privilege [to whites] . . . of cutting timber on some of their lands," showing this concept of temporary permission was understood. (JA 77).

Dodge's statement demonstrates three salient points. First, the duration was finite, and its length uncertain: "probably be many years." Second, the Great Father alone would make the decision as to when the privilege would end: "during his pleasure." Third, when he decided, the President would prefer the settlement interests of his "white Children" when he revoked the hunting and fishing privilege. This is what occurred. (See, Newell, JA 943-962, 976-991) n21

n21 The district court found that the Indians' understanding of the 1837 treaty was modified by assurances allegedly given to the Wisconsin Bands during the 1842 treaty negotiations (JA 1066; PA 242). The fundamental error of finding a "misbehavior" standard for revocation in the 1837 treaty from the 1842 treaty (PA 242) originated from United States v. Bouchard, 464 F.Supp. 1316, 1349 (W.D. Wis. 1978) aff'd in part and rev'd in part sub nom. Lac Courte Oreilles Band v. Voigt, 700 F.2d 341, 356 (CA7 1983) (LCO I), cert. denied, 464 U.S. 805 (1983). The 1842 treaty, not at issue in this litigation, applies to upper Michigan and Wisconsin. Nothing from the 1842 treaty modifies the 1837 treaty's terms. The trial court erroneously relied upon the flawed analysis from Bouchard and LCO I (PA 304). The 8th Circuit's decision never reaches this issue.

"Removal" and "misbehavior" also arose even later from the Mille Lacs Band's argument, based on an 1863 treaty, that the Band was entitled to damages resulting from settlement of certain parts of their reservation prior to the 1889 Nelson Act's (25 Stat. 642 [PA 535]) reservation cession (JA 1901-02); United States v. Mille Lacs Band of Chippewa Indians, 229 U.S. 498, 33 S.Ct. 811, 813 (1913).

The understanding of the Nation's Chief Executive relatively contemporaneous to the Treaty is "clear evidence of the understanding at the time." Hagen v. Utah, 510 U.S. 399, 420 (1994). n22 When President Zachary Taylor issued his Executive Order in 1850 revoking the privilege, he referred to it [*20] as "granted temporarily." (PA 565). Congress ratified President Taylor's 1850 Order by appropriating funds to carry out its terms. (PA 525, 530).

n22 See, Rosebud Sioux Tribe v. Kniep, 430 U.S. 584, 602 (1977) ["unarnbiguous, contemporaneous, statement by the Nation's Chief Executive."].

C. The President's 1850 Executive Order Revoking the 1837 Treaty Privilege was Effective, and Judicial Review is Not Available.

On February 6, 1850, President Zachary Taylor issued his Executive Order as follows:

(PA 565). President Taylor's Executive Order also revoked the hunting rights granted the Chippewa by the 1842 treaty, and ordered all Indians remaining on the lands ceded to remove to their unceded lands. (PA 565).

President Taylor's 1850 Order revoking the hunting and fishing privilege was expressly authorized by Congress in the 1837 treaty.

[*21] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952) (Jackson J. concurring). While citing to the Youngstown standard for challenging an executive order, the lower courts found (1) that the President lacked authority to revoke the hunting and fishing privilege because (2) he lacked authority to remove the Chippewa from their ceded lands. (PA 23-27). This analysis, based upon the 1830 Removal Act, 4 Stat. 411 (JA 20), is both erroneous as to the Removal Act and misplaced as to the 1837 treaty.

No limitations were placed by Congress on the President's power to revoke the Chippewas' privilege under the 1837 treaty - the President could revoke at his pleasure. Separation of powers mandates that the judiciary exercise restraint and deference to the political branches of government regarding Indian treaties. Choctaw & Chickasaw Nations, 179 U.S. at 532-6. The President was delegated the authority to decide in his discretion when the privilege would end, and the 1850 Executive Order is not unconstitutional. Judicial restraint requires that the inquiry end if the President's Order is constitutional. Congress delegated to the President, not the courts, the power to determine the duration of the privilege.

Dalton v. Specter, 511 U.S. 462, 477 (1994). This is particularly true in Indian affairs where Congress exercises plenary power.

D. The 1830 Removal Act Cannot Void the President's Action Pursuant to the 1837 Treaty.

Mille Lacs V, (PA 24) (citing 1830 Removal Act)(emphasis in original). The lower courts determined the 1837 treaty wasn't a removal treaty (PA 21, n. 18, JA 1018), but still required President Taylor to comply with the 1830 Removal Act to revoke the 1837 privilege.

Congress, by passage of the 1830 Removal Act, did not bind itself or the President to only one methodology for future land acquisition from the Indians. A later treaty, or act of Congress, can modify a former statute. n23 Numerous other treaties were negotiated during this time period that were not subject to the 1830 Removal Act. Cohen, p. 79, n. 143 ("treaties were concluded . . . to reduce the size of [tribes'] ancient domains . . .") The President had authority from the 1837 treaty to remove the Chippewa to their unceded lands (JA 1069-70, [*23] 1077-79) and Congress ratified the 1850 Order by subsequent appropriations. (PA 525, 530).

n23 The Last in Time doctrine holds that a later treaty modifies or supersedes a prior Act of Congress, and vice versa. In re Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620-621 (1870); Edye v. Robertson, 112 U.S. 580, 597-599 (1884); Ward v. Race Horse, 163 U.S. 504, 511 (1896).

The 1830 Removal Act n24 was designed to provide authority for the conveyance of lands west of the Mississippi in exchange for lands where Indians now resided. (JA 1048). Moreover, the lands "west of the river Mississippi" which were to be exchanged with the Indians under the Removal Act were lands not part of a "state or organized territory, and to which the Indian title has been extinguished . . ." 4 Stat. 411. The Chippewa ceded lands in 1837 and 1842, but in 1850 retained contiguous, unceded lands both west and east of the Mississippi. n25 (JA 621).

n24 The common name "Removal Act" for 4 Stat. 411 is a misnomer which perhaps influenced the erroneous analysis below. By its own terms and preamble, the Act should be referred to as the 1830 Land Exchange and Removal Act. Congress used the preamble containing these two key features in its description at 25 U.S.C. § 174.

n25 Documents of United States Indian Policy, 79 (Francis Paul Prucha ed., 2d ed. expanded 1990) (citing, Indian Commissioner Medill, Annual Report of the Commissioner of Indian Affairs, Nov. 30, 1848).

The 1850 Order did not implicate the 1830 Removal Act because there was no exchange of lands. The President ordered that the Chippewa "remove to their unceded lands" (PA 565). Consent was obtained by the 1837 treaty by which the Chippewa agreed that they would enjoy a privilege to hunt, fish and gather wild rice upon the lands ceded during the pleasure of the President. A necessary corollary of this treaty language is that the Bands would lose their "permission" for occupancy and could be ordered to remove when the President revoked the privilege. (See, JA 954-55).

Wilcomb E. Washburn, 3 The American Indian and the United States: A Documentary History, 2169 (1973); (see JA 20). This error is compounded when the Circuit Court cites selectively from President Jackson's 1829 State of the Union Message without acknowledging the companion policy to removal. The following quote begins with the sentence from the Circuit Court's opinion (PA 24) and concludes with the companion policy omitted in the circuit court's analysis:

[*25] 1 The State of the Union Messages of the Presidents, 1790-1966, at 310 (Fred L. Israel ed., 1966) (emphasis added); see, Cohen, pp. 81-83. n26

n26 "Amendments [to the 1830 Removal Act] were defeated that would have guaranteed the Indians protection from the states and adherence to treaty rights until removal was completed."

One of two things must be true: either the 1837 treaty granted the Chippewa a hunting and fishing privilege subject to state regulation; n27 or, President Taylor had a valid reason, other than removal, to revoke the 1837 privilege -- resolution of the sovereignty conflict between Minnesota and the Chippewa.

n27 See, (JA 1445-47); Klamath, 473 U.S. at 768-69; Kennedy v. Becker, 241 U.S. 556, 562 (1916).

The privilege was revoked, under authority of the 1837 treaty, to eliminate any claim that there existed special hunting and fishing rights for the Chippewa that were not subject to territorial/state regulation. n28 Revocation furthered the policy which drove the 1830 Removal Act, and avoided the grave constitutional crisis of Worchester v. Georgia, 31 U.S. (6 Pet.) 515. (JA 952).

n28 Jackson's source for state regulatory control over the Indians was the equal footing doctrine. Id., State of the Union Messages at 309. Compare, Martin Van Buren's second State of the Union Message in 1838 where he states: "By the treaties made and ratified with . . . the Chippewas . . . during [1837] the Indian title to 18,458,000 acres has been extinguished . . ." Id. at 510-11.

E. The President Had Numerous Reasons to Revoke the Privilege in 1850, and His Policy Choices Must be Upheld.

(PA 29). If a "strong argument" can be made that supports the Executive Order by the President, the burden of persuasion on the Bands becomes nearly insurmountable under Youngstown, 343 U.S. at 635-37. See, Dalton v. Specter, 511 U.S. 462 (1994).

If there was no authority to remove the Indians under the 1837 treaty, as the Circuit Court found, then the President's ability to revoke the privilege at his pleasure cannot depend upon removal. To avoid this infirmity, the Circuit Court professed that there was no other reason to issue the 1850 Executive Order except removal.

Under Youngstown and Dalton, the policy reasons for the 1850 Order are not reviewable by the court, because that substitutes the court's judgment for a President's decision expressly authorized by Congress. Deference to the President, the reality of 19th Century communications, and the nature of the political process, means wide latitude must be given by the courts to a President acting upon information communicated to him from the American frontier.

These facts were available to President Taylor in 1850. The Minnesota Territorial Legislature passed a resolution requesting revocation of the privilege. (PA 566). Territorial Governor Ramsey and COIA Brown presented information to the President on Indian depredations (JA 1132-36; 1052), and Commissioner of Indian Affairs Medill provided information on settlement pressures in Wisconsin (PA 244). n29 Even if the [*27] Minnesota Legislature, Ramsey, and Medill were wrong, it doesn't matter. The President was entitled to act to eliminate the privilege in an area that would soon be subject to increased settlement. The President eliminated the privilege because he reasonably anticipated that settlement would bring settlers into conflict with the Chippewa over the utilization of natural resources and the use of the land. (JA 1412, 1637, 1443, 1130-32). For example, the Chippewa killed two lumbermen over the construction of a dam built in 1849 at the mouth of the Rum River at Lake Mille Lacs which was flooding wild rice crops. (PA 269, JA 1197).

The 1837 treaty did not require Indian misbehavior for the President to revoke the privilege. (JA 1624). See, n. 21, supra. Settlement pressures in 1850 were accelerating due to advances in transportation from railroad technology. (JA 1442). The hunt or "chase" was incompatible with settlement (JA 1279-80; 1442-44; LA 10703-05, 10707). The survey and sale process was entering the 1837 ceded territory and land sales accelerated after 1850. (JA 1397-99, 1400-01). The Chippewa, four and five years after the 1850 Order, took reservations to save some lands for themselves in the face of advancing white settlement. (PA 490, 502). Only fifteen years after the 1850 Order, whites were encroaching on the Mille Lacs reservation, and by 1889 the United States wanted the rest of the Minnesota reservations. (PA 295-96).

To claim that there were no settlement pressures in 1850 denies the course of history. (JA 1430-31, 1437-42). Historical settlement alone sufficiently validates the 1850 Order of the President revoking the privilege.

(Squires [JA 1400]; "patents . . . were created by the federal government . . . to colonize . . . Minnesota." [JA 1402]).

[*28] Patenting the land eliminated the privilege as each parcel was sold. (JA 1409-10, 1414-16). Consider the April 1837 Opinion of the Attorney General of the United States:

The settlement process extinguished the privilege. See Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin (LCO II), 760 F.2d 177, 182 (CA7 1985).

State v. Keezer, 292 N.W.2d 714, 721, fn. 10 (Minn. 1980), cert. denied, 450 U.S. 930 (1981). Patents issued by the President, granting all rights and privileges forever, revoked the 1837 treaty privilege as an additional expression of the President's [*29] pleasure. n30 (See n. 9, supra; PA 549). The advantage of the 1850 Order was that it cleared the privilege from all ceded lands. The 1850 Order's purpose of encouraging settlement was not illegal or unconstitutional, and was contemplated by the 1837 treaty.

n30 "The President was given enormous power in the land alienation process." (JA 1407-08; 1906-22).

The Circuit Court acknowledged a strong argument could be made that the President would have issued the revocation order in 1850 without the removal provision in order to encourage the Bands to remove from the ceded territory. Despite this, the Circuit Court concluded that the revocation portion of the Order could not be severed from the removal provision because the only purpose of the Order was to mandate removal (PA 28-29). This analysis fails to recognize that the 1850 Executive Order can be severed into distinct provisions:

One reason for ordering removal in 1850 arose from the 1842 treaty which provided "for the right of hunting on the ceded territory . . . until [the Indians] were required to remove by the President . . ." (PA 242). The 1837 treaty did not require removal for privilege revocation. (JA 145).

A compelling reason why the revocation portion of the Order can be severed from the removal portion is simply this: of the twelve Bands signatory to the 1837 treaty, the majority [*30] resided outside of the 1837 ceded territory. (PA 487-89; JA 1618, 131-33, 621). An Order for revocation of the 1837 hunting and fishing privilege, even without removal, cleared both resident and non-resident Chippewa claims, demonstrating that the removal portion of the Order can be severed. n32 The analysis is the same for severing an Executive Order as severing a statute. Matter of Reyes, 910 F.2d 611, 613 (CA9 1990).

Champlin Rfg. Co. v. Corporation Comm'n, 286 U.S. 210, 234 (1932). The removal component of the Order can be dropped because the President could revoke the privilege independent of ordering removal; in fact, he did precisely this by revoking the privilege for Chippewa Bands residing outside the 1837 ceded territory.

n32 For these same reasons, the trial court's findings, which the Circuit Court did not reach, that removal was suspended and that the federal government changed its policy in the 1850s from a removal policy to a reservation policy, granting the Chippewa Bands reservations under the 1854 and 1855 treaties, are irrelevant. No Executive Order repealed the President's Order revoking the 1837 treaty privilege (PA 401-02; JA 1113, 1117).

The revocation portion of the 1850 Executive Order is expressly authorized by the 1837 treaty, constitutional and fully operative as law. The severability standard here mirrors the analysis from Dalton v. Specter, 511 U.S. 462, and judicial review of the President's authority exercised pursuant to an express delegation from Congress ends at this point.

Act of Dec. 19, 1854, 10 Stat. 598 (PA 533). By extending territorial law over former Indian Country, Congress expressly revoked any Chippewa interests and sovereign control over the ceded lands. Congress' intent was carried out in the 1855 treaty using the "express language of cession." n33 The 1855 treaty, after conveying a specific tract of land, eliminates every possible interest of the Chippewa in and to lands in Minnesota or elsewhere:

Treaty with the Chippewa, 10 Stat. 1165 (1855), Art. 1 (PA 503, thorough review by Newell, JA 992-1007).

n33 Solem v. Bartlett, 465 U.S. 463, 469, n. 10 (1984); Klamath, 473 U.S. 768, n. 19.

The Klamath decision affirmed United States v. Minnesota, 466 F.Supp. 1382, 1385 (D. Minn. 1979), aff'd sub nom. Red Lake Band of Chippewa Indians v. Minnesota, 614 F.2d 1161 (CA8 1980), cert. denied, 449 U.S. 905 (1980). Both cases held that the express language of cession is "precisely suited" to extinguish all hunting and fishing rights or privileges. The Circuit Court ignored their own precedent in Red Lake, even though Red Lake cites to what the United States told the Mille Lacs Band in 1889: off-reservation hunting is "a matter for the Legislature of the State to determine." See supra, pp. 10-11; United States v. Minnesota, 466 F.Supp. 1387.

The Circuit Court attempts to distinguish Klamath on the basis that the 1855 treaty language was not "explicit" (PA 36) in revoking the 1837 privilege. Klamath rejected the need for a specific reference to the hunting and fishing privilege given the express language of cession. Klamath, 473 U.S. 763-64, 768. The Circuit Court stated the test backwards. The proper test is whether the hunting and fishing privilege was explicitly reserved at the time all interests were conveyed by the express language of cession. Id. 772-73.

The Eighth Circuit erroneously limited Klamath to exclusive on-reservation rights versus non-exclusive off-reservation rights. (PA 39). Exclusive on-reservation rights are subject to a more stringent extinguishment test than a non-exclusive, temporary, off-reservation privilege. Both exclusive rights and non-exclusive privileges are interests in or to land, and are eliminated by the express language of cession. Klamath, 473 U.S. 768.

[*33] Klamath, 473 U.S. at 768-769 (citing, Kennedy v. Becker, 241 U.S. 556 (1916)).

C. The 1837 Treaty Privilege is an Interest in or to Land, Not an Immunity or Regulatory Right.

No flaw is greater than the attempt by the Bands to recast this hunting, fishing and gathering privilege from an interest in or to land, to a "regulatory right" (PA 333-34) contrary to this Court's decisions in Kennedy v. Becker, 241 U.S. at 562, and Klamath, 473 U.S. at 753. The Klamath Tribe's Supreme Court brief argued "[a] Right To Hunt And Fish Free Of State Regulation May Exist Apart From An Ownership or Possessory Interest In The Land" (JA 1852). This argument, rejected by Klamath, has found new life in Mille Lacs.

The 1855 treaty relinquished "all interests in and to land." To avoid Klamath, the District Court adopted an analysis that this treaty privilege must be something new, a regulatory right or immunity from law (PA 333-34). This is the same argument advanced by the Klamath Tribe to the United States Supreme Court:

(Klamath Tribe's Brief, JA 1859 (emphasis added)). That argument was wrong then, and it is wrong now.

[*34] The Klamath Tribe's brief relied upon a 1976 Law Review Article by Thomas Lund entitled, "Early American Wildlife Law," 51 N.Y.U.L. Rev. 703 (1976) (JA 1853) to support the argument that the Klamath Tribe could cede all of their interests in and to land, and still retain a "regulatory" right. In this case, Professor Thomas Lund testified as a "wildlife law" expert that the 1837 privilege to hunt, fish and gather wild rice was not an interest in land, but rather was a freedom from state law, except for state trespass law. (PA 332).

Menominee Indian Tribe of Wisconsin v. Thompson, 943 F.Supp. 999, 1018 (W.D. Wis. 1996) (emphasis added). The common law n34 establishes that a right to hunt and fish is an interest in or to land. (JA 1410-11).

n35 Kennedy v. Becker, 241 U.S. at 562; State v. Mallory, 83 S.W. 955, 959 (Ark. 1904) ("The cases all hold that [a right to take game] is a right inhering in the soil, and not a mere right to prevent the invasion of the possession of the owner."); Hanson v. Fergus Falls Nat'l Bank, 65 N.W.2d 857 (Minn. 1954); Webber v. Lee, 51 L.J.Q.B. 485 (1882).

n36 See pp. 18-20, supra; "Such a revocable privilege is an 'interest in land' . . ." 4 Richard R. Powell & Patrick J. Rohan, Powell on Real Property, § 34.25, at 34-300 (1998). "A license is revocable by any manifestation of the licensor's intent to end it . . . . A license ends on the . . . conveyance of the servient estate by the licensor" Id. at 34-301 to 34-303. (See, JA 1409-10).

[*35] A privilege to hunt and fish can be held separate from land ownership, but that argument is a diversion. Klamath, 473 U.S. at 765-66. Full fee title includes all rights, "assets to land," and profits a prendre, including a privilege to hunt and fish. (JA 1526; Real Estate Appraiser Hanson, JA 1529-31; Historical Geographer Squires, JA 1409-11). A privilege to hunt, fish and gather wild rice [a "profit" of the land], is an interest in or to land. Compare, (JA 1197). South Dakota v. Yankton Sioux Tribe, 522 U.S. , 118 S.Ct. 789 (1998) holds that a tribe lacks regulatory and adjudicatory authority over lands that have been sold. Once all interests in and to land were conveyed by the 1855 treaty, the 1837 treaty privilege was also conveyed and lost.

The Circuit Court found that neither the United States nor the bands intended to revoke the hunting and fishing privilege by the 1855 treaty because the 1837 treaty privilege was not specifically mentioned in the 1855 treaty or its journal. The same finding by the Ninth Circuit in Klamath was insufficient given the express language of cession. Id., 473 U.S. at 763-64, 768.

Choctaw Nation of Indians v. United States, 318 U.S. 423, 432 (1943)(emphasis added).

It is untenable to claim that the United States did not intend to eliminate the 1837 treaty privilege by the 1855 treaty given the directive from Congress in the 1854 Authorizing Act that the ceded land would cease to be "Indian Country" (PA 533), [*36] coupled with the express language of cession in the 1855 treaty (PA 503).

Providing traps and guns to the Chippewa in the 1855 treaty is irrelevant to determining whether the Chippewa would hunt and fish without regard to state law. The Chippewa could continue to hunt and fish on the reservation, and they would be able to hunt and fish off reservation in accordance with state laws and regulations. (See, Menominee, 943 F.Supp. at 108; JA 1198) [both Indians and non-Indians hunted and fished after 1855].

(PA 513). n37 Unquestionably, the 1855 treaty relinquished any claims based on the 1837 treaty privilege.

"COIA Manypenny . . . So long as the red man relies upon the precarious subsistence afforded by the chace[sic], so long he will remain ignorant of the advantage of industry and civilization -- so long will the Indians decrease and diminish in numbers. Let them but once learn to depend upon the cultivation of the earth for their support, and education, improvement and independence will follow; and then they can accomplish for themselves all that excited their wonder and admiration on their way to Washington.

[*37] IV. THE 1837 TREATY PRIVILEGE WAS EXTINGUISHED NO LATER THAN 1858 WHEN CONGRESS PASSED LEGISLATION ENABLING MINNESOTA TO JOIN THE UNION ON AN EQUAL FOOTING WITH THE ORIGINAL THIRTEEN STATES.

A. Congress Did Not Intend the 1837 Treaty Privilege to Operate as an Immunity from Future State Laws.

The injunction entered by the lower courts diminishes Minnesota's sovereignty by exempting Band members from Minnesota's laws regulating the manner of harvest. The lower courts approved a separate Conservation Code of 117 pages (excluding protocols) for Chippewa hunting and fishing under a different conservation standard. n38 The Band Code allows for longer seasons, larger limits, and different methods of harvest. This necessitates changes in the State's regulatory scheme, disrupting the state's natural resources management practices, and usurping its management and police powers. n39 Put simply, the State has been ordered to accept co-management authority with the Bands in a twelve county area, as enforced and supervised in perpetuity by the federal court.

n38 In order for Minnesota to include a regulation in the Band Hunting and Fishing Code, it had to "put forth specific evidence establishing why the regulation is a measure 'to forestall the imminence of extinction'" (Mille Lacs IV, PA 119) (emphasis added) (citing, United States v. Oregon, 718 F.2d 299, 305 (CA9 1983)).

n39 In order for Minnesota to enforce a public health and safety regulation against the Bands, the State must affirmatively demonstrate that the regulation meets a three part test. (PA 345).

The district court departed from established principles by refusing to classify the 1837 privilege as a real property interest. The trial court held "a sovereign [the United States] could [*38] convey an exemption from regulation . . .," and "its ability to regulate taking of the wildlife it owns." (PA 333-34) (emphasis added). n40 North American Comm. Co. v. United States, 171 U.S. 110 (1898) held that the "regulation [of seal fisheries] involved the exercise of power as sovereign and not as a mere proprietor. Such governmental powers cannot be contracted away . . . ." Id. at 137. Compare, Ward, 163 U.S. at 511-12, 514.

n40 While finding the United States could convey this "regulatory privilege" to wildlife it owned, the trial court simultaneously agreed that "Minnesota owns wildlife in trust for all its citizens." (PA 333, n. 22). See, discussion of wildlife "ownership" in Crow Tribe of Indians v. Repsis, 73 F.3d 982, 989-90 (CA10 1995), cert. denied 517 U.S. 1221 (1996); see also, Ward v. Race Horse, 163 U.S. at 507; State v. Rodman, 59 N.W. 1098 (Minn. 1894); State ex rel. Ohsman & Sons Company, Inc. v. Starkweather, 7 N.W.2d 747 (Minn. 1943).

The trial court found that the United States ceded its power to regulate wildlife to the Chippewa, a holding without precedent. If true, the Chippewa are exercising powers and immunities from the United States, implicating profound constitutional issues under the equal footing doctrine and Tenth Amendment. Congress did not intend to grant its sovereign abilities and a regulatory exemption to the Chippewa. n41 (JA 1446). Indian land cessions impact the scope of regulatory authority. n42 The Bands understood that land cession treaties specified that the party owning the land would regulate land use. n43 See, note 4, infra and 1825 Treaty of Prairie du Chien, art. 5, 7 Stat. 272.

n41 See, JA 1445-46; Solicitor for the Dept. of the Interior (Vol. 54, Decisions of the Department of the Interior, p. 418, 1934, JA 1814-18).

n42 In South Dakota v. Yankton Sioux Tribe, 522 U.S. , 118 S.Ct. 789 (1998), the Court concluded that the tribe lacked regulatory and adjudicatory authority over former reservation lands that had been sold.

n43 As non-citizens in 1837, after the land sale, Band members did not hold the privilege to hunt and fish at all, absent the 1837 treaty privilege. (JA 1211-12); Elk v. Wilkins, 112 U.S. 94, 123 (1884).

[*39] When Congress intended to exempt Bands from the application of future state law, the federal government included a specific statement to that effect in the treaty. The Cherokee and Choctaw moved from Georgia and Mississippi to lands which were not part of an organized territory n44, pursuant to the 1830 treaty which provided:

7 Stat. 333-334 (1830) (as cited in, Choctaw Nation v. Oklahoma, 397 U.S. 620, 625 (1970)). (See pp. 24-25, supra, for forces surrounding this treaty.)

n44 The Choctaw and Cherokee moved to what became the State of Oklahoma 76 years later, 34 Stat. 270 (1906).

B. The Treaty Privilege was Temporary, and Even if Deemed a Regulatory Privilege, It Cannot Survive Statehood and Restrict Minnesota under Ward and Repsis.

Any "regulatory privilege" must be intended by Congress to be permanent in order to restrict the subsequent state. Ward v. Race Horse, 163 U.S. 504 (1896); Crow Tribe of Indians v. Repsis, 73 F.3d 982 (CA10 1995).

(Treaty with the Crow Indians of May 7, 1868, art. 4, 15 Stat. 649) This language "contemplated the disappearance of the [*40] conditions specified in the treaty and was thus temporary" and extinguished by statehood. Repsis at 988.

The 1837 treaty text said the privilege would last "during the pleasure of the President". "The most probative evidence . . . is of course the statutory language . . . ." Hagen v. Utah, 510 U.S. at 411. In 1850, President Taylor specifically referred to the 1837 privilege as "granted temporarily" (PA 565). This 1850 decision by the President, given the powers delegated in the 1837 treaty, transformed the privilege to "temporary" for the equal footing doctrine, regardless of the nature of the privilege previously. Compare, Hagen, 510 U.S. at 420. The language "during the pleasure of the President" is permissive (JA 78) and more temporary and precarious n45 than the treaty language at issue in Repsis and Ward, which is conditional. n46

n45 So precarious it had been revoked by Executive Order (PA 565) prior to statehood.

n46 (Ethno-historian Clifton analyzed the 364 ratified Indian treaties. (JA 1622). The 1837 treaty is one of thirteen treaties which created a "permissive" limitation on hunting and fishing rights. (JA 1626). Othertypes include conditional (JA 1623-26) and, most common, time certain (JA 1623).

There were three express conditions for the continued hunting right in the Repsis treaty. Game must be found on the lands, peace had to subsist, and there had to be unoccupied lands of the United States. In contrast, the discretion granted to the President in the 1837 treaty was not conditioned by anything. In Ward, Congress contemplated that there would no longer be "unoccupied lands" of the United States in the future, so the right was temporary. The analysis ended there. Ward did not require that either of the other two conditions would end or be met. This is a highly salient point for this case. If it was anticipated that any of the conditions, imposed by the trial court, for cessation of the 1837 treaty privilege would occur, the [*41] privilege is temporary and did not bind the future state regardless of other conditions. n47

n47 Ward and Repsis stand for the proposition that conditional treaties grant temporary rights. The district court conditioned privilege revocation on misbehavior (PA 314) based on "Indian understanding." The trial court's "misbehavior" condition for revocation is indistinguishable from "as long as peace subsists" from the Ward and Repsis treaties.

Relying erroneously upon the 1842 treaty negotiations, the district court found "that it would be a long time until they were removed and they could remain on their lands for an indefinite time" (PA 242). Whether the years between 1837 and 1850 was "a long time" is irrelevant, since a "long time" is still temporary. Moreover, the finding that the privilege was "indefinite" means it was temporary. n48

n48 Twisdale v. Womack & Martel, 148 So.2d 21, 23 (Fla. 1962) ("indefinite" found to be more synonymous with temporary than with permanent and contemplates the condition to end at an unpredictable time); Savage v. S. Dist. Co., 228 S.W.2d 122, 124 (Tenn. App. 1949) ("indefinite" meant terminable at will); Cline v. Southern Ry. Co., 96 S.E. 532, 538 (S.C. 1918) ("indefinite" does not mean perpetual but uncertain as to time); Com. ex rel. Green v. Court of Over & Terminer & Quarter Sessions, Erie County, 106 A.2d 896, 897 (Pa. Super. 1954); Atha v. Atha, 6 N.W.2d 897, 898 (Mich. 1942).

These Chippewa Bands were told the privilege would end when the "Great Father will want all these lands for his white Children" (JA 78). Minnesota's statehood meets this condition of wanting all the lands for citizens. Ward, 163 U.S. at 509-10. Whether "probably many years" (JA 78) or "remain . . . for many years" (PA 314) or "indefinite" (PA 242), each is dispositive as to the temporary nature of the privilege under Ward and Repsis since the parties "contemplated disappearance of the conditions specified." Repsis at 988. n49

[*42] The Bands' understanding that the privilege would end at settlement is also dispositive as to the temporary nature of the privilege. Discussing the claim of these Bands to hunt and fish on private land under the 1837 treaty, the Seventh Circuit stated:

Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt (LCO I), 700 F.2d 341, 365, n.14 (CA7 1983). "They could continue to use the land outside their reservations for hunting and so forth until the time came when their using it would impede occupation by white settlers." Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin (LCO II), 760 F.2d 177, 224 (CA7 1985). "We regard 'settlement' by non-Indians as being synonymous with 'private' ownership," (LCO II), 760 F.2d at 183.

These findings from LCO establish settlement n50 as a condition for cessation of the privilege contemplated by the parties. At most, the 1837 privilege was conditional, hence temporary, ending on statehood under Ward and Repsis.

n50 State v. Keezer, 292 N.W.2d 714, 721, n.10 (Minn. 1980); (Squires, JA 1413-1414, 1407); "The privileges granted in 1837 were temporary . . . [and] depended on when the ceded lands were demanded by non-Indians . . ." (Squires, JA 926-27, 933-36).

C. The Treaty Privilege Was Abrogated by the Subsequent Statute Creating Minnesota as a State, Because Minnesota's Sovereignty Was Not Expressly Limited.

If a state's sovereignty can be constrained by a "regulatory" privilege, the limitation must appear in the state's enabling [*43] legislation. n51 Congress never provided in Minnesota's Enabling Act, 11 Stat. 285 (PA 515) that the temporary privilege would limit Minnesota's sovereignty. Federal statutes and treaties are constitutional equivalents and subsequent statutes can modify earlier treaties. n52 In order for Congress to abrogate Minnesota's sovereignty, an express statement in its enabling legislation was required because Minnesota came into the Union on equal footing with other states. Under the "last in time" n53 doctrine, the Enabling Act is a subsequent Act of Congress abrogating the 1837 privilege.

n51 "The rights of the State are to be determined by the act of admission rather than by any prior declaration by Congress of its purpose in respect to certain lands." Minnesota v. Hitchcock, 185 U.S. 373, 391 (1902). Given the trial court's finding that the 1837 privilege is not an interest in or to lands (PA 331-34), Winans' discussion of a "continuing" "right in the land" surviving statehood is inapplicable. Id. 198 U.S. at 381-84.

n52 "That 'a treaty may supersede a prior act of Congress, and an act of Congress supersede a prior treaty,' is elementary," Ward v. Race Horse, 163 U.S. at 511 (1896) (citing, Fong Yue Ting v. United States, 149 U.S. 698 (1893); In re Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621). Ward discussed whether a treaty right intended to last in perpetuity could bind a future state even if not contained in the enabling act, but this issue was not decided. Id., 163 U.S. 515.

n53 "Acts of Congress passed after the date of the treaty, the Court [in Whitney] held, control over the treaty terms." I R. Rotunda & J. Nowak, Treatise on Constitutional Law, Substance and Procedure 2d, § 6.7, at 516 (1992) (citing, Whitney v. Robertson, 124 U.S. 190, 194 (1888)). This is because "treaties as well as federal statutes are the supreme law of the land. . . ." Id. at 515. "The last expression of the will of the sovereign controls." Id. at 516.

"Abrogation of a state's Eleventh Amendment immunity turns on an express statement of intent by Congress and a constitutionally valid exercise of power." n54 Chavez v. Arte [*44] Publico Press, 139 F.3d 504, 506 (CA5 1998) (emphasis added) (citing, Seminole, 517 U.S. at 55-56). Idaho v. Coeur d' Alene Tribe of Idaho, U.S. , 117 S.Ct. 2028, 2034 (1997) explained that Seminole Tribe of Florida v. Florida, 517 U.S. 44, 71, n. 14 (1996) "held that Congress, in the exercise of its power to regulate commerce with Indian tribes, may not abrogate state sovereign immunity." Abrogation of Minnesota's police powers, protected by the equal footing doctrine and Tenth Amendment, must be subject to this same standard. Congress was not empowered by treaty to grant the Chippewa an "exemption from . . . state game laws" which would continue after statehood, stripping Minnesota "of an essential attribute of its governmental existence," without an express provision in the Enabling Act (PA 515). Ward, 514 U.S. at 514-16.

n54 U.S. v. Lopez, 514 U.S. 549, 551 (1995) (Gun-Free Zone Schools Act "exceeds the authority of Congress" to regulate commerce under U.S. Const. Art. I, § 8, cl. 3); City of Boerne v. Flores, U.S. , 117 S.Ct. 2157 (1997) (even though Congress has broad enforcement powers under § 5 of the Fourteenth Amendment, those powers are not unlimited).

The lower courts erroneously adopted the Bands' argument that any restraint on state power flowing from a federal treaty is constitutional and preempts the state's sovereign powers.

Printz v. United States, U.S. , 117 S.Ct. 2365, 2379 (1997). The issue is whether the federal government has clear preemptive power when faced with competing sovereign interests and powers of the state. While Congress has plenary power over Indian tribes, it does not exercise plenary power over states.

"This court has never sanctioned explicitly a federal command to the states to promulgate and enforce laws and [*45] regulations." New York v. United States, 505 U.S. 144, 161 (1992). "Later opinions of ours have made clear that the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs" Printz, 117 S.Ct. at 2380. As interpreted and enforced by the district court, art. 5 of the 1837 treaty serves as a federal command n55 that the State adopt and implement new laws, and Minnesota must share co-management authority over natural resources with the Chippewa on lands within Minnesota's jurisdiction. n56 (LA 7633-35, 7637). This requires Minnesota to allow hunting and fishing by some Indian citizens under a separate code (LA 7453-7660), adjust its other game laws, and oversee the implementation of two sets of laws contrary to Printz and New York.

n55 When negotiating the Band Hunting and Fishing Code, the State did not do so "voluntarily," but pursuant to the standard mandated by the district court. (PA 344-45). The state stipulated with the Bands that under the court imposed "conservation necessity" standard that the Band's code met the court imposed standard. The Circuit Court found no offense to Minnesota's sovereignty. (PA 58).

n56 For example, in Wisconsin in response to planned Chippewa treaty harvest, the state has reduced daily walleye limits for non-Band anglers by 50 to 60 percent. (LA 8184).

In re Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1870) held that an 1868 federal statute taxing liquor and tobacco superseded an 1866 treaty exempting the Cherokee from taxation.

[*46] Id. at 621. Similarly here, it would be "out of place" for the Court to read a limitation on the State's police power into Minnesota's Enabling Act.

When the United States intends to reserve regulatory power within a future state, an explicit exception is made in the enabling legislation. Wyoming's Enabling Act, 26 Stat. 222 (1890), reserved Yellowstone Park from state regulation prior to statehood:

When Oklahoma was admitted into the Union on an equal footing with the original states, this was "conditioned on its disclaimer of all right and title to lands 'owned or held by any Indian, tribe, or nation'" ( Choctaw, 397 U.S. at 627 (citing, 34 Stat. 270 (June 16, 1906)). See also, Ward, 163 U.S. at 511-514. No language in Minnesota's Enabling Act restricts its regulatory power in the 1837 cession area.

D. Minnesota's Right of Dominion and Sovereignty Are Not Diminished by the 1837 Treaty on Lands Within Minnesota's Jurisdiction.

Ward v. Race Horse controls the disposition of this case because its reasoning informs and illuminates the fundamental issues now before this Court.

Jurisdiction, sovereignty and the power to control and regulate have a geographical component -- for the State and the Bands. Just as the Bands are immune from the State's laws on [*47] reservation lands established by treaty, "an essential attribute of [a State's] governmental existence" is sovereignty and jurisdiction over all the territory within her limits. Ward, 163 U.S. at 512, 516. Ward teaches that even if Congress could "restrict a new State in any of its necessary attributes as an independent government [or] inhibit or diminish its perfect equality with the other [states]," that diminishment of a State's sovereignty on its own lands will not occur without a clear expression of Congressional intent. Ward, 163 U.S. at 512, 515 [citing Withers v. Buckley, 61 U.S. (20 How.) 84, 97 (1857)].

When silent on limitations on the future State's powers, the Enabling Act "not only contains no expression of the intention of Congress to continue the [treaty right] in question in the State, but, on the contrary, its intention not to do so is conveyed by the express terms of the act of admission." Ward, 163 U.S. at 515. Here, the 1837 treaty privilege was repealed not only because of the conflict with the equal footing doctrine, but also because the privilege conflicts with the express terms of admission: "equal footing . . . in all respects whatever." (PA 515); Ward, 163 U.S. at 513-14.

To the trial court's finding that by virtue of the 1837 treaty the United States "conveyed its ability to regulate the taking of wildlife it owns" or "conveyed an exemption from regulation" (PA 333-34), Ward has two responses. First, the "jurisdiction . . . by the Federal government, before formation of the new State, was held temporarily and in trust for the new State . . ." Ward, 163 U.S. at 511-12. Since held in trust, the Federal jurisdiction passed to the State under the equal footing doctrine, at least if not expressly reserved in the Enabling Act. See also, Utah Div. of State Lands v. United States, 482 U.S. 193 (1987) and Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845).

Second, the claim that the federal government could "exempt . . . from state game laws each particular piece of land" the United States owns within a state is defeated by the equal footing doctrine. Ward, 163 U.S. at 514; Repsis, 73 F.3d at 990. The same result is compelled here. The trial court fashioned a [*48] "regulatory exemption" from Minnesota's game laws on all "public" lands and waters. This piecemeal regulatory scheme is defeated because Minnesota was not admitted "with diminished governmental authority" on public lands in the 1837 ceded territory. Ward, 163 U.S. at 515.

Sound public policy and constitutional reasons support a decision that under the equal footing doctrine the 1837 treaty privilege was repealed, giving Minnesota full rights of dominion and sovereignty over the lands and waters within her borders.

For the foregoing reasons, the judgment below, holding that the 1837 treaty privilege continues to exist, should be reversed and the injunction against the State dissolved.

Attorneys for John W. Thompson, Jenny Thompson, Joseph N. Karpen, LeRoy Burling, Glenn Thompson, Gary M. Kiedrowski, Michael Sheff and Robert L. Edmonds

Attorney at Law, 1110 S. Capitol Way, Suite 225, Olympia, WA 98501, (360) 357-3104.

JEFFREY EDHLAD, Isanti County Attorney, 555 18th Ave. S.W., Cambridge, MN 55008, (612) 689-2253.

JOHN CARLSON, Pine County Attorney, 315 Sixth St., Courthouse, Pine City, NM 55063, (320) 629-6781.

DONALD F. RYAN, Crow Wing County Attorney, 326 Laurel St., Courthouse, Brainerd, NM 56401, (218) 828-3952.

CONRAD FREEBERG, Morrison County Attorney, Morrison County Government Ctr., 213 SE 1st Avenue, Little Falls, NM 56345, (320) 632-0190.

WALTER KAMINSKY, Sherburne County Attorney, 13880 Hwy. 10, P.O. Box 318, Elk River, NM 55330-1692, (612) 241-2565.

BRADLEY C. RHODES, Aitkin County Attorney, 209 2nd Street N.W., Aitkin, MN 56431, (218) 927-7347.

MICHAEL JESSE, Benton County Attorney, 531 Dewey St., Box 129, Foley, MN 56329, (320) 968-6254.

JENNIFER FAHEY, Mille Lacs County Attorney, 635 2nd Street S.E., Milaca, MN 56353, (320) 983-8305.

NORMAN LOREN, Kanabec County Attorney, 18 Vine St. N., Courthouse, Mora, MN 55051-1351, (320) 679-2870.

1. Was the President's 1850 Order effective to revoke the Indians' hunting, fishing and gathering privilege where the 1837 Treaty provided the privilege continued only "during the pleasure of the President"?

2. Did language of the 1855 treaty "fully and entirely relinquishing . . . any and all right, title, and interest, of whatsoever nature . . . in and to any other lands in the Territory of Minnesota" extinguish any remaining hunting, fishing and gathering privilege in Minnesota?

3. Was a hunting, fishing, and gathering privilege, reserved only "during the pleasure of the President," extinguished when Minnesota was admitted to the Union on an equal footing with the original thirteen states?

The "Minnesota counties" of Aitkin, Benton, Sherburne, Crow Wing, Isanti, Kanabec, Mille Lacs, Morrison and Pine, are counties in an area of mid-Minnesota ceded to the United States under Treaty with the Chippewa of 1837 (7 Stat. 536). They were established around the time of Minnesota statehood in 1858.

The State of Minnesota and officials charged with conservation management and enforcement were the original defendants (collectively "Minnesota"). The "Minnesota Counties" intervened in the district court proceeding.

The original plaintiffs below are the Mille Lacs Tribe and some members and officers. We refer to them collectively as "Mille Lacs." They were later joined by the United States.

The Fond du Lac Tribe of Minnesota separate case against state officials was consolidated but did not include the State or United States.

Later intervenors (after decision in "Phase I") were the six Bands from Wisconsin: St. Croix Chippewa Band, Lac Du Flambeau Band, Bad River Band, Sokaogon Chippewa Community, Red Cliff Band and Lac Courte Oreilles Band. These latter Bands are referred to below as the "Wisconsin Bands." [*iii]

The opinion of the Eighth Circuit, reported at 124 F.2d 904 (1997) is Petition Appendix (hereafter PA) 1. It affirmed Mille Lacs Band of Chippewa Indians v. Minnesota, 853 F. Supp. 1118 (D. Minn. 1994) (PA 351); Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784 (D. Minn. 1994) (PA 212), and other district court orders reprinted at PA 74, 164, and 419.

The court of appeals opinion was entered August 26, 1997, PA 1. A timely petition for rehearing was denied on November 17, 1997, PA 482, and Petitions for Certiorari filed February 17, 1998, and granted July 8, 1998. A separate Counties' petition, No. 97-1356, is still pending.

3) The Treaty with the Chippewa of July 29, 1837 (7 Stat. 536), reprinted as PA 484; the Treaty with the Chippewa of February 22, 1855 (10 Stat. 1165), reprinted at PA 502, and the Executive Order of President Zachary Taylor of February 6, 1850, reprinted at PA 565.

The case was commenced in 1990 by the filing of a complaint by the Mille Lacs Band against the State of Minnesota and its conservation officials. This was nearly a century and a half after the President Taylor's 1850 Order Revoking the 1837 Treaty privilege, and the 1855 Treaty which further ceded all Chippewa interests in lands in Minnesota. The Mille Lacs sought a declaration that 1837 Treaty hunting and fishing "rights" continued and an injunction to prohibit Minnesota from enforcing state laws.

[*3] These "Minnesota counties" of Aitkin, Benton, Sherburne, Crow Wing, Isanti, Kanabec, Mille Lacs, Morrison, and Pine intervened. They are all in the area affected, that is; the 1837 Treaty area.

The two principal interests of the Counties were law enforcement and their substantial ownership of public lands, on which the Bands asserted a right to access, hunt and fish without compliance with state (or county) laws.

The Counties feared (correctly) that these interests could be especially affected: "Even if the Band's rights under the 1837 Treaty are limited to public land, a resulting depletion in fish and game stocks . . . ." Mille Lacs Band of Chippewa Indians v. Minnesota, 989 F.2d 994, 998 (8th Cir. 1993). n1 The Counties' responsibility for local law enforcement is similarly aggravated by requiring enforcement against their citizens to restrict harvest in favor of Band members.

n1 This decision granted the Counties intervention, after denial by the District Court.

Finally, the Counties also seek to protect "local and individual interests . . ." since their citizens' way-of-life and economic base were viewed as threatened. Mille Lacs, 989 F.2d at 1001.

The Counties' area of Minnesota was acquired n2 by the United States under a cession Treaty with the [*4] Chippewa of 1837, which provided that "The said Chippewa nation cede to the United States all that tract of country within the following boundaries. . . ." (7 Stat. 536, Petition Appendix (hereinafter PA) 484.)

The treaty proceedings extended over ten days in July 1837, and were attended by more than 1000 Indians, including Chippewa chiefs from eleven Bands, several of whom are recorded speaking and negotiating on behalf of the Indians. Treaty Journal starts at Joint Appendix (hereafter JA) 45.

There were several official interpreters, with at least four directed to make translation between English and Chippewa. Journal, JA 64-65. Reflecting the relative sophistication of the Chippewa "various branches of which" had negotiated numerous treaties, n3 members of the huge Chippewa contingent included numerous persons also capable of interpreting. Traders, missionaries, and Chippewa family members, many bilingual, were part of the throng present, and most were on the Chippewa "side." Nearly fifty Chippewa chiefs and warriors ultimately signed the treaty.

n3 The President's 1849 Report to Congress stated the Chippewas were: "party to no less than twenty nine treaties." JA 145.

Consistent with his instructions from the United States, Governor Henry Dodge (ex officio, Superintendent of Indian Affairs) first told the Indians that he was to "purchase a small part of your country . . . not valuable for its game, and not suited to the culture of corn. . . ." Journal, JA 45. The Chippewa were to retain other lands [*5] to the north and west. (See Map of Chippewa cessions 1837-1855, JA 956, reprinted hereto as App. 1.)

An Indian spokesman and chief, Ma-ghe-ga-bo, first expressed reluctance to sell the lands permanently and proposed the alternative of a sixty-year lease of the lands. Journal, JA 73.

The United States negotiator (Governor Dodge) expressly rejected this proposal and any result other than outright sale of the land. He explained specifically that any continued use of the area by the Indians was to be temporary:

1837 Treaty Journal Proceedings, JA 73-74 (emphasis added indicating language ultimately incorporated into the Treaty). The Treaty Council was adjourned until the next day, allowing the Chippewas to consider this demand and consult among themselves and their advisers. Journal, JA 73-74.

Reconvening at noon another chief, Flat Mouth (Aish-ke-bo-gi-ko-zhe), acted as spokesman for the Chippewa and immediately repeated the request the Indians be allowed to continue to remain on these lands: "Our children are willing to let you have their lands. . . . [but] There is some game on the lands yet; & for that reason also, we wish to remain upon them, to get a living." Id., JA 75-79.

[*6] Governor Dodge responded on behalf of the President: "You will be allowed, during his pleasure, to hunt and fish on them. It will probably be many years, before your Great Father will want all these lands for the use of his white Children." Id., JA 78-79 (emphasis added indicating Treaty language).

Dodge later made clear that the proposed payment and benefits was to be "In full consideration for that part of your country which I wish to buy from you." Id.

Though the minutes only show a small part of the proceedings, they clearly reflect that the limiting phrase "during the pleasure of the President" was proposed, translated and discussed during treaty discussions.

The Treaty was ratified by Congress, and the payments and other services were provided and accepted by the Chippewa.

Settlement from across the Country, and around the World, continued to accelerate into the Minnesota territory and into the areas in question. In 1849, Minnesota became a Territory pursuant to Congressional authorization with statehood expected soon. Increasing "civilization" of the area is also reflected in the fact two of these counties were established that same year.

By September, 1849, the Governor of the new Minnesota Territory, Alexander Ramsey, proposed revocation of the privilege to separate the Indians from the settlers. "He argued 'much complaint is made by the settlers about Sauk Rapids, Swan River [etc.] as to the demoralizing effect of the privilege given the Chippewas, in the Treaty of 1837, to hunt and fish upon the lands ceded by [*7] said Treaty.'" Quoted at Mille Lacs, 861 F. Supp. at 802, PA 250.

One of the first acts of the new Minnesota Territorial Legislature was a formal petition to the President for revocation of the hunting/fishing privilege:

The responsible United States officials made similar recommendations, e.g., the 1849 Report of the Commissioner of Indian Affairs noted that "longer residence [of the Chippewa on the 1837 ceded lands] is incompatible with the tranquility and interest of our citizens, who suffer annoyance and loss from their depredation." Pl. Ex. 84, JA 142.

The President and these officials were already dealing with territorial government and expected statehood would soon be granted, with the sovereignty the equal footing doctrine required. This legal understanding underlies the acts of these officials.

[*8] President Zachary Taylor responded by issuing an Executive Order expressly revoking the treaty privileges:

There is no record of any later Congressional or Presidential action to reinstate the revoked privilege.

In 1854, Congress passed another targeted Act authorizing treating with the Chippewa "for the extinguishment of the title of the Chippewa Indians to the Lands owned and claimed by them." Act of December 19, 1854, 10 Stat. 598, PA 532. The Act directed the President to clear title to lands and to include provision providing reservations for the Chippewa (further authorizing the grant to each adult or head of a family 80 acres of these reservations). The Act made no mention of hunting or fishing. Indeed, it provided:

In 1855, representatives of the Chippewa travelled to Washington, D.C. to negotiate this new treaty. They met with a United States delegation, including Indian Commissioner Manypenny, who was implementing the new federal "reservation" policy. The 1855 Treaty was negotiated in a ten-day period from February 12-22, 1855. (Entire Journal is JA 297-356.)

The Chippewa were addressed by Commissioner Manypenny himself who told them that the purpose of these treaty negotiations was the sale of their remaining land in Minnesota (except for the new reservations):

Each Chippewa chief and negotiator repeated this understanding during the negotiations. The main Chippewa spokesman Chief Hole-in-the-Day (Pa-goona-keezhig) replied, "Your words strike us in this way. They are very short. 'I want to buy your land.' These words are very expressive - very curt." JA 304.

[*10] Another Chippewa chief Flatmouth said, "It appears to me that I understand what you want, and your views from the few words I have heard you speak. You want Land." Journal, JA 309.

The negotiations largely focused on the location of the reservations, the number of acres being sold and the price to be paid the Indians per acre.

A dramatic change was underway and was understood by both sides during the 1855 negotiations. The Chippewa way of life had to change, and this new reservation policy would implement that necessary change. Commissioner Manypenny repeatedly urged the Chippewa to "live like whites."

Hole-in-the-Day, the Chippewa chief, made several speeches admiring the achievements he saw in Washington and indicating that the Chippewa must become more like Whites. "We want to dress like whites. We envy them their comfortable clothing. We want to adopt their habits and customs, and desire to have the means to accomplish it."

On February 21, 1855, Hole-in-the Day stated another important reason the Chippewa must abandon the "chase" as a way of life: "The country is getting scarce of game, and we cannot get along without changing our habits. We have tried the old system, and found it wanting. We should therefore try a new one." Journal, JA 348.

The 1855 Treaty, 10 Stat. 1165 (PA 502), also reflected the failure of the "old system" in that the Chippewa were already deep in debt less than 20 years after the 1837 Treaty had cleared those debts.

[*11] At the 1855 negotiations, the Chippewa delegates sought advice from territorial delegate Henry Rice and even asked him to speak for them. Rice's statements on their behalf reflected the same understanding:

In Article 1 of the 1855 Treaty the Chippewa not only ceded the remaining Chippewa lands in northern Minnesota but also ceded all other interests in other lands:

[*12] Article 2 established the several regional reservations for the Chippewa bands, including a Mille Lacs reservation. That reservation area was selected by the representatives of the Mille Lacs Band (as was true of each Band's reservation).

The change in the Chippewa way of life is also reflected in the treaty provision that instead of wandering in the chase, the reservations were to be the "permanent homes of the said Indians." (Article 2). The treaty also provided that the President may assign the reservations in blocks of 80 acres to an adult or head of a family. (Article 2) PA 505-506.

Treaty of 1855, Art. 9, PA 513. Provisions were added to enable this transition including construction of roads, farm land to be "ploughed and prepared for cultivation" and farmers and blacksmiths to teach the Chippewa. Art. 3-4, PA 506-511.

Commissioner Manypenny directed or negotiated more than 40 treaties as Commissioner of Indian Affairs during this period, most implementing the new reservation policy (which the Court of Appeals accurately referred to as "Manypenny's reservation policy," PA 289).

[*13] The "removal" this policy accomplished was not removal to the west but removal from ceded lands to permanent reservation homes. Each band here consented to this process - and indeed selected its own reservation "permanent" home.

The subsequent history of the Mille Lacs Reservation is also found in this Court' s United States v. Mille Lacs, 229 U.S. 498 (1913).

Minnesota became a state in 1857 "on an equal footing with the original states." Act of May 11, 1858, 11 Stat. 285 (PA 515). n4

n4 There was no disclaimer provision for Indian lands as in some Western states admissions acts. ( Contrast Tulee v. Washington, 315 U.S. 681, 683 (1942).

Increasing pressures on wildlife, because of populations, market demand and more efficient weaponry, had long been recognized, even back in 1837 when the U.S. negotiators had referred to the lands as "not valuable for game." By 1855, Chief Hole-in-the-Day had expressed concern over diminishing wildlife: "The county is getting scarce of game." JA 322. This problem was also perceived by the fledgling state. The first session of the state legislature passed the first Minnesota conservation laws and expressly applied such laws to Indians when off reservation. PA 569-575.

Enforcement of these state conservation laws was slowly extended to "remote" areas such as the area around Lake Mille Lacs. Contemporaneous newspaper articles note the policy being explained to Indians and non-Indians alike by "game wardens." See Counties' [*14] Exhibits, JA 526-528, especially The Little Falls Transcript, March 9, 1894 (Counties' Ex. 26) (Game Warden orders Indians and non-Indians to stop killing game and fish for sale during off season); Weekly Transcript, August 3, 1894 (Counties' Ex. 9), JA 509. As the articles indicate, this was controversial because all inhabitants of the counties - not just Indians - were accustomed to unrestricted hunting and fishing.

(Further history of official explanations to the Chippewas that state laws applied to their off-reservation hunting and fishing will be discussed as part of argument.)

Through the decades at the end of the Nineteenth Century and into the Twentieth Century, the Chippewas made numerous petitions to the United States for grievance or payments. n5 None alleged that any 1837 Treaty hunting and fishing rights continued (discussed infra, pp. 38-39).

n5 These petitions are separate from the special Court of Claims statute discussed in United States v. Mille Lacs, supra, and the treaty claims, under the Indian Claims Commission Act, PA 45-52, for which $ 24 million was later paid.

The ultimate official consideration of this claim was by a later President, Franklin Roosevelt, n6 who directly responded to a Chippewa claim that special fishing and hunting rights still continued: "the special hunting and fishing privileges temporarily reserved . . . by the abovementioned [*15] treaties [the 1837 and 1842 Treaties] were revoked by the order of the President." Letter from President Franklin Roosevelt to Whitebird, PA 576. This understanding generally continued until this case and the U.S. belated intervention in 1993.

n6 His administration was generally favorable to the tribes and each of these bands is organized pursuant to legislation it promoted (Indian Reorganization Act, of June 18, 1934. 48 Stat. 984, 25 U.S.C. 461 et seq.).

Final confirmation of the change in livelihood for the Chippewa is found in Congress' adoption of the Indian Gaming Regulatory Act (hereafter IGRA), 25 U.S.C. § 2701, et seq., and the negotiation of casino Gambling Compacts with all these Bands. The Casinos provide employment for any band member desirous of working there, and millions of dollars in annual profits to each Band.

The Petitioner State's description is accurate, but the following additions are relevant and important.

The Counties' intervention was prompted by special interests and a view of the State's interest different from those of the State officials herein. Indeed state officials had negotiated a settlement under the threat of this litigation, but "the Legislature did not approve it after a spirited public campaign." Mille Lacs, 861 F. Supp. at 840, PA 212 at 349.

The Counties' intervention was originally denied by the district court (per Judge Diane E. Murphy, 140 F.R.D. 390). On appeal, the Counties were ordered intervened. ( Mille Lacs, 989 F.2d 994.)

Some of the counties have substantial land ownership, and the orders below are specific that those lands - even where the counties had obtained them from private [*16] owners - were subject to the Band claims. 861 F. Supp at 836, PA 119. Indeed, because the harvest of game animals is calculated based on total production in the area but only public lands are accessible to Band hunters, there is real likelihood of over-harvest caused by this concentration of effort. The district court noted this "localized depletion" PA 117, but held state conservation laws cannot be enforced unless "the State put forth specific evidence establishing why the regulation is a measure 'to forestall the imminence of extinction." PA 119.

In this Court, the Counties also have raised an additional Question Presented (pending in companion Petition No. 97-1356) based upon the "moderate living doctrine" enunciated by this Court in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n., 443 U.S. 658, 670 (1979). Each Band here owns and operates a gambling casino pursuant to IGRA. Indeed, the two Minnesota Bands have two such casinos each (with profits into the tens of millions a year). The Counties' sealed Appendix in the Court of Appeals includes the proof from the trial court; Expert Reports based on records from the casinos to show that the millions of dollars in profits provide each Band employment and total casino revenues which far exceed the "moderate income" of their neighbors as defined in federal statute. 42 U.S.C. § 5302(20)(A). Under this Court's moderate living doctrine, the tribal allocation (now up to 50%) should be reduced or confined to subsistence and ceremonial harvest. In the event the Court concludes the treaty privilege was extinguished, as argued below, this further question presented need not be addressed.

The President of the United States had both constitutional and statutory authority to revoke the privilege which the 1837 Treaty limited in duration "during the pleasure of the President." Other acts of Congress delegated plenary authority to the President in such matters of Indian affairs.

The Indians consented to the resulting removal from the ceded lands by agreeing to the 1837 Treaty and accepting its benefits and agreement in later treaties to cede all remaining interests and go to reservations established as "permanent homes."

The 1830 Removal Act allowing Indian tribes to choose to trade their lands east of the Mississippi for other lands west simply does not apply since no such trade was ever proposed to or made with the Chippewas.

The court is bound by the explicit revocation of the treaty privilege by Presidential Order and may not look behind it. A district court does not have jurisdiction to overturn such a Presidential Order 144 years later. If reviewed, the 1850 Order of the President was (is) valid for two reasons. There was abundant "cause" for the revocation in depredations by hunting Indians and real and threatened conflicts with settlers. The President also acted with knowledge of the equal footing doctrine, which generally requires a new state receive unencumbered sovereignty over natural resources and submerged lands (such as Mille Lacs Lake). It was national policy to encourage settlement into this area and create states, and the revocation advanced that policy.

[*18] The later 1855 Treaty in which the Indians agreed to "fully and entirely relinquish and convey . . . any and all right, title or interest, of whatsoever nature . . . in, and to, any other lands in . . . Minnesota" extinguished any (arguably) remaining treaty claim. This Court previously held such language extinguishes all remaining claims including hunting and fishing. Oregon Dep't of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985). The authorizing act for that treaty specifically provided that the laws of Minnesota would henceforth apply and all ceded areas cease to be "Indian Country."

The Court has also held a state's police powers over such important matters as conservation of resources vest upon statehood under the equal footing doctrine and are protected by the Constitution. Courts should be reluctant to construe acts of the President (or Congress) to derogate constitutional rights of the States. Only express, permanent federal grants may derogate the state's authority, and such grants in derogation of states must be justified by real national exigency. Neither exists here. The court's order enjoining the State from enforcement of its conservation laws while requiring the State to restrict other citizens is beyond a court's jurisdiction (and relief barred by the 10th and 11th Amendments).

I. Treaties, Statutes and Presidential Orders Must Be Implemented in Accordance with Their Clear Language.

This Court has repeatedly held "courts cannot ignore plain language that, viewed in historical context and given a fair appraisal, clearly runs counter to a tribe's later claims." Klamath, 473 U.S. at 774.

The clear meaning of treaties and Executive orders cannot be overlooked to remedy alleged historical wrongs:

Ruling in an earlier claim by the Chippewa, United States v. Mille Lacs Band of Chippewa Indians, 229 U.S. 498 (1913), this Court noted that clear agreements must be enforced by courts:

Where the meaning is clear on its face, it cannot be overridden by application of other canons of construction which protect Indian interests:

Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 555 (1987), emphasis added.

II. The President Had Broad Constitutional and Statutory Authority in Treaty Making and Indian Affairs.

The court(s) below simply did not consider the full scope of the President's authority in the subject area of Indian affairs at this time. We start with constitutional sources of Presidential power, then address the statutes (including treaties).

The Executive power of the President is founded, of course, in Article II and includes an element of inherent [*21] or "implied" power, in addition to any authority delegated by Congress. (Laurence H. Tribe, American Constitutional Law (2d ed. 1988) § 4-2 at 211).

Professor Tribe generally discusses the President's authority in context of foreign affairs. The authority of the President in Indian affairs is analogous during the historical period in question. n7 There are two constitutional reasons. First, major policies in both areas were determined through the President's shared article II "power, by and with the consent of the Senate, to make treaties . . ." U.S. Const. art. II, § 2.

n7 Until Congress abolished treaty-making with Indians in 1871, Act of March 3, 1871, 16 Stat. 566.

In addition to the President's constitutional responsibility to assure "laws be faithfully executed," the President is also made "commander-in-chief of the army . . . of the United States" by Article II § 2. Indian affairs were administered by the Army through most of this historical period.

Thus, the President acted in a dual role, explicitly authorized by the Constitution, to negotiate and to administer Indian treaties. The President exercised this broad authority with the frequent express approval of Congress (and its funding) prior to 1871 (see n. 7.) as necessary to accommodate our Nation's westward expansion while laying the legal foundation for new states - each with equal footing sovereignty.

A constitutionally shared power may be delegated by Congress to the President "more broadly than it could where its (Congress' delegated) power as enumerated in [*22] Article I defines the totality of federal authority." (Tribe, p. 212, citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)).

In the early Nineteenth Century, Congress also explicitly delegated power over Indian affairs to the Executive, e.g., Act of June 30, 1834 (now 25 U.S.C. § 9); section 17 of which provided:

So complete was this delegation of authority to the Executive that the Ninth Circuit noted of this statute:

United States v. Eberhardt, 789 F.2d 1354, 1359 (9th Cir. 1986), emphasis added (upholding federal regulation of on-reservation fisheries).

[*23] Another leading historian of United States Indian Affairs, in his most recent book, has similarly noted the broad discretion of the President:

Other acts of Congress authorized the President to treat to extinguish the Indians' claims to the land, and even remove them entirely, e.g., in the 1837 Appropriation Act, Congress had provided funding for treaties:

Act of March 3, 1837, 5 Stat. 158, JA 36. Thus, Congress specifically authorized treating for cession of these lands and even authorized treaties for removal west of the Mississippi. Congress did not require both be done at the same time - or at all with these tribes (in the same Appropriations Act for Creek and Seminole tribes only removal was funded). Indeed, a separate section of the same Act also funded a survey to "ascertain . . . whether [*24] vacant lands (west of Mississippi) be sufficient to accommodate the tribes remaining east of said river." JA 37. As this section of the Act notes, the area was Sioux country, and it was not ultimately deemed advisable to move Chippewa into this area.

The 1837 Treaty provided for cession and later removal from the ceded lands but not for removal west. It is not invalid for that reason, of course. The Chippewas were not removed west because the lands west were occupied by hostile tribes (Sioux) which the United States had sought to separate from the Chippewa for years. (See, e.g., the "Great Treaty" at Prairie duChien, Kappler 2:250, dividing the Sioux and Chippewa, "and other Indians.")

The President, with authority to totally extinguish Indian "title," had the lesser-included power to allow a temporary privilege and direct that any such privilege could be limited in duration. Barring some exigency, the equal footing doctrine placed limits on what the President could - or would - carve out of the sovereign interests held in trust for states.

Any question of Presidential authority to revoke the privilege is resolved by the fact that Congress ratified the Treaty of 1837, including the explicit "during the pleasure of the President of the United States" qualifier. The Indians had consented to this condition by signing the Treaty of 1837, after it was explained to them.

The Indians' acceptance of all benefits under the same treaty also works to bar them from challenging any part of the 1837 Treaty. They cannot disavow or retroactively change the Treaty in order to retain a privilege ratified as temporary and convert it to permanent.

[*25] It is long too late to remake the bargain struck, and a district court the wrong place (or branch of government) to do so: "The Indians, no less than the United States, are bound by the plain import of the language . . . [which] conferred upon the Mille Lacs many very substantial advantages." United States v. Mille Lacs, 229 U.S. at 508.

Given Congress' express desire to quiet title in order to open new lands for settlement, ultimately for new states, it is not surprising that Congress confirmed such authority in the President who would administer the process of granting these lands from the public domain to settlers (and share in Congress' power to grant statehood).

The district and circuit courts erroneously held that the 1837 Treaty created "rights" which the President had no power to revoke. However, the President has constitutional powers in this area, which Congress had confirmed in (now) 25 U.S.C. § 9 and confirmed through ratification of the Treaty of 1837.

III. The 1850 Presidential Order Was Within the Scope of His Authority Confirmed by Congress.

The actions and orders of a President of the United States, as duly elected Chief Executive, are entitled to a "presumption of regularity" in the courts. AGFE v. Reagan, 870 F.2d 723 (D.C. Cir. 1989). When the President acts pursuant to an express or implied authorization from Congress, the Executive action is supported by the strongest presumptions of validity. Dantes & Moore v. Regan, 453 U.S. 654, 668-669 (1981).

[*26] Thus, the only basis for finding President Taylor's 1850 order invalid is if he acted "in contravention of the will of Congress." Id. The adopted policies of Congress included cession of Indian land, removal of Indians from ceded land, encouraging settlement and private ownership of the land, and ultimately statehood. The President's Order was consistent with all these policies.

After the Order of 1850, no steps were taken in Congress to countermand the President's 1850 Order revoking the privilege, reflecting that the Order was consistent with the policy of Congress. The courts do not have power to reverse this policy; the judiciary is:

The "Record" before the President documented problems which justified the 1850 Order revoking the privilege. Settlers were often troubled by actions of Indians hunting and gathering in the 1837 area. The problems ranged from Indians stealing food to Indians killing of [*27] settlers' livestock while "hunting." Some confrontations became violent, even fatal.

These concerns were communicated by and through Minnesota's Governor and its new Territorial Legislature. The same concerns (and recommendation for revocation) were communicated directly by the BIA Commissioner (quoted, p. 7 above).

The President reasonably concluded on that "Record" that it was no longer his "pleasure" that the "temporary" treaty privilege continue. Peaceful relations between settlers and Indians might best be assured by eliminating such practices in the ceded area. Hunting, especially with modern weaponry, had the real potential to result in life-threatening conflict.

The President's 1850 Order also served to advance the national policy of encouraging settlement into Minnesota, quickly leading, as expected, to a new state.

The United States' Circuit Court Brief made a telling concession, by admitting that the Chippewas in 1837 knew that they could continue to hunt and fish only:

The "Record" before the President supports his determinations that the Indians were "disturbing settlers" and "interfering with settlement and use of the ceded land."

(quoted in 861 F. Supp. at 803, PA 253). The COIA went on to note that the Chippewa:

The President received from the Minnesota Territorial Legislature a resolution to the same effect:

This written "Record" before the President was supplemented by other reports of problems from the Territory. [*29] The district court characterized these problems in politically correct terms:

861 F. Supp. at 827, PA 315-316. n8 The latter references are to thefts of settlers' produce and food ("expectation food be shared") or killing their livestock ("animals in the field constituted game").

The actual testimony was not only that the Indians did not share settlers' privacy concerns but that their actions threatened and disturbed settlers to deter settlement:

[*31] These conflicts became exacerbated as more settlers included immigrants with even less understanding of frontier (or Indian) ways. From 1849 to statehood in 1858, Minnesota's non-Indian population was exploding from 4,000 to 150,000. Direct Examination of Hofsommer, JA 1448.

Before going to Washington at the end of 1849 to make recommendations to the President which included revoking the privileges, Governor Ramsey had toured the area and heard the concerns of settlers: "He was on an information-gathering tour." Counties' Cross of Bands' Expert, JA 1132.

Trial exhibits include contemporaneous correspondence reporting Indian depredation committed against settlers or missionaries and their property or livestock. Ex. D-17-19, 21-22. Even the Bands admitted below that "The most common complaint against Indians on the frontier involved the killing of livestock, . . . ." Wisconsin Bands' Eighth Circuit Br. at 51. The killing of livestock was a matter of particular importance to settlers as the livestock were not only hard to come by but an important source of survival. It occurred while Indians were "hunting" in their ceded areas, and revocation of the privilege was one remedy.

From the President's perspective the "native point of view" could not be the only consideration; there were other national interests to consider. The interests of settlers were surely one consideration, since the Government was holding out the promise of land to entice these settlers from across the Country (or around the World).

[*32] V. A Court Does Not Have Jurisdiction to Overturn the 1850 Order of the President.

A district court does not have jurisdiction to undertake review of an Executive Order of the President of the United States (especially 144 years later). The propriety of the President's 1850 Executive Order is a nonjusticiable political question.

Here the courts below reviewed the actions of the President and held he did not have authority to revoke the privileges or did so improperly. That the President was "arbitrary and capricious" or "in excess of his authority" would be the present-day Administrative Procedures Act standard (5 U.S.C. § 701, et seq.) We have shown above the President was justified even applying these current standards. Further, this Court has held that an Order of the President of the United States is not subject to such challenge in the courts:

[*33] There is no grant of jurisdiction to the courts to review or rescind the President's Order here, nor was there any such in 1850.

Indeed the authority from this Court was to the contrary. In the Nineteenth Century, courts strictly respected the constitutional doctrine of Separation of Powers. The nonjusticiability of "political" decisions by the President had been confirmed one year before the 1850 Order in Luther v. Borden, 48 U.S. (7 How.) 1 (1849). (See, also, Mississippi v. Johnson, 4 Wall. 475 (1867), further discussed infra).

The "political question" doctrine was much later articulated in Baker v. Carr, 369 U.S. 186 (1962). That decision expressed the standards a court should apply to determine nonjusticiability:

Baker, 369 U.S. at 217. These considerations militate against court review of President Taylor's 1850 Order. [*34] There is a "textually demonstrable constitutional commitment of the issue to a coordinate political department;" the United States President is charged by Article II with treaty making and as Commander-in-Chief, with implementing.

There are no "judicially manageable standards for resolving . . . [this controversy]." The privilege here expressly lasted only "at the pleasure of the President." Such treaty language provides no standards for a court to apply unlike (arguably) other treaties with explicit language of duration. n9

n9 E.g., later 1864 Chippewa treaty discussed in United States v. Mille Lacs, supra, provided reservations "so long as they shall not . . . molest the persons or property of the Whites." 229 U.S. at 502.

The Circuit Court reached a different policy conclusion from that of Presidents Taylor and Roosevelt which shows "a lack of respect due coordinate branches."

This Court had confirmed that courts did not have jurisdiction to review such actions of the President in Mississippi v. Johnson, 4 Wall. 475 (1867). The question there, as here, was the jurisdiction of a court to review a President's discretionary acts. The Court resoundingly (and unanimously) rejected the case.

The Court would have dismissed a challenge to the President's Order in 1850. This is still the correct result.

There has only been one comparable challenge against a President who terminated treaty provisions (with a foreign nation). This Court held federal courts did not have jurisdiction to review the action of the President in Carter v. Goldwater, 444 U.S. 996 (1979) (granting certiorari and directing lower court to dismiss complaint).

In that case, the Court of Appeals had upheld the President's action with relevant analysis:

This Court granted certiorari and ordered the case dismissed. Four justices viewed the question as "political" and therefore non-justiciable. Carter, 444 U.S. at 1002. One dissenting justice would have held the court did have jurisdiction and upheld the President as within his constitutional authority.

[*36] A recent decision of this Court also confirms that dismissal of the case is required. In Dalton v. Specter, 511 U.S. 462 (1994), the Defense Base Closure Act provided the President had absolute discretion to decide "whether to approve or disapprove." Dalton, 511 U.S. at 465. Similar discretion is conferred under the 1837 Treaty where the privilege was to continue only "during the pleasure of the President."

In Dalton, as here, the challengers had sued others, instead of the President. Ultimately, the lower courts:

Here, the courts below also curiously "transmuted" this case into one considering the reviewability of a Presidential decision (Order of 1850).

Mille Lacs, 861 F. Supp. at 828, PA 212, at 316-317. The Circuit Court in a footnote agreed that court review of Presidential orders was appropriate. Fn. 20, PA 23 (rejecting Counties' arguments as to unreviewability).

VI. The Circuit Holding Conflicts with the Interpretation of the President and of the Federal Agency Charged with The Implementation of Indian Policy.

This Court has very recently reiterated the need to "take note of the contemporary historical context and subsequent congressional and administrative references. . . ." South Dakota v. Yankton Sioux, 66 U.S.L.W. 4092, 4098 (January 26, 1998).

The most important contemporary evidence is the very language of the President's 1850 Order which referred to the privilege as "temporary" and expressly revoked. This Order, along with the recommendation of the Commissioner of Indian Affairs and of the Territorial Governor which preceded revocation are most probative of the official understanding at the time. E.g., the 1849 COIA had stated the Chippewa:

As the "contemporaneous view of the Executive Officer responsible for administering the statute," President Taylor's interpretation is "entitled to very great respect." [*38] Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 254 (1985). Accord Watt v. Alaska, 451 U.S. 259, 272-273 (1981). (See, also, Yankton Sioux, supra, at 4099, quoting Rosebud Sioux v. Kniep, 430 U.S. 584 (1977) at 602, relying on a Presidential Proclamation as "an unambiguous, contemporaneous statement by the Nation's Chief Executive, of a perceived disestablishment.")

A long history of Federal Executive and Congressional conclusion that there was no continuing treaty privilege here was documented. The explicit conclusion by President Franklin Roosevelt, PA 576, is only the most dramatic example.

Even the Chippewa did not make contrary assertions. Numerous petitions were sent by the Chippewa to the United States through the 19th Century and after state conservation laws had been adopted and were being enforced off reservation. None of these petitions asserted that the Chippewas had any continuing right to hunting or fishing based on the 1837 Treaty.

In 1889, during the Nelson Act negotiations, a Chippewa chief asked U.S. Representative Rice whether any special fishing or hunting privileges remained: "Another thing - about the wild animals. If an Indian wishes to go outside the reservation to hunt deer, will he be allowed to do so in the hunting season?" Rice replied that:

In this Century, inquiries made to the Commissioner of Indian Affairs were meticulously culled from archives and summarized by expert historian (Newell). Note that the Office of Indian Affairs was the federal administrative agency with direct authority over the subject.

[*40] In 1913, the Commissioner of Indian Affairs (COIA) concluded state laws "apply with like force to the Indians." JA 1790.

In 1926, a similar COIA noted it was necessary to comply with state law on ceded lands (cited 861 F. Supp. 784, 821 (D. Minn. 1994) (PA 299-300).

In 1929, the Assistant Commissioner responded there was "no treaty . . . whereof . . . the Chippewas . . . of . . . Minnesota have the right to hunt or fish on land ceded . . . without observing state game laws." JA 1803.

The same year, the Indian Commissioner concluded Indians were subject to state game laws. (Id. at Vol. 25, p. 8001.)

In 1934, the COIA concluded an off-reservation hunting citation to an Indian was valid (under state game laws). (Cited at 861 F. Supp. at 821, PA 300.)

A later President of the United States, Franklin Roosevelt, reached the same conclusion. PA 576. Surely acting with the advice and research of responsible officials, he specifically held that the 1837 Treaty privilege had been revoked by the 1850 Order of a predecessor President (quoted above, pp. 14-15.)

These consistent conclusions that no hunting/fishing privilege exists, from the federal agency charged with implementing Indian affairs, are entitled to "considerable deference." Andrus v. Idaho, 445 U.S. 715, 729 (1980). Accord National R.R. Passenger Corp. v. Boston & Main Corp., 503 U.S. 407, 417 (1992).

[*41] This documents over a century of official understanding which was only politically reversed in 1993 when the United States belatedly joined this case.

Others who acted in reliance upon this understanding there was no special privilege include the settlers, landowners and citizens of these Counties. This Court has noted the "contemporary historical evidence" should be considered, to avoid a "conclusion [which] would seriously disrupt the justifiable expectations of the people living in the area." Hagen v. Utah, 510 U.S. 399, 421 (1994). These justiciable expectations should not now be disrupted by rewriting history and the treaties.

VII. The Treaty of 1855 "Quit Claim" of All Interests Extinguished Any Remaining Privileges.

Article 1 of the 1855 Treaty included a land cession, which, along with payments, provided consideration for reservations "for the permanent homes of the said Indians." The Bands further agreed in the last sentence of Article 1 to:

The 1855 Chippewa Treaty was transmitted to the Senate for ratification by Commissioner Manypenny, who summarized that the Chippewa "cede and convey . . . all the lands owned and claimed by them, in that territory, and whatever right or interest they may have in other lands in [*42] common with other Indians, there or elsewhere." Letter, COIA Manypenny to Secretary of Interior McClelland dated February 23, 1855, emphasis added.

The court below ruled the last "quit claim" sentence of Article 1 had no effect. Instead, the circuit court now held that express reference is required to extinguish usufructuary privileges: "The 1855 Treaty is void of explicit language extinguishing the Band's usufructuary rights. . . ." This conflicts directly with this Court's holding in Oregon Dep't of Fish & Wildlife v. Klamath Tribe, 473 U.S. 753 (1985) that such language extinguished hunting and fishing rights.

The Eighth Circuit Court had also held in 1980 that this same language extinguished the rights of the Chippewa to hunt and fish from earlier treaties. Red Lakes Band of Chippewa Indians v. Minnesota, 614 F.2d 1161 (8th Cir. 1980) (per curiam), cert. denied, 449 U.S. 905 (1980). (It is a mystifying omission that the Circuit Court here overlooked its own controlling precedent.)

Several years after the Eighth Circuit's 1980 Red Lakes decision, the Ninth Circuit in Klamath Tribe v. Oregon Fish & Wildlife Dep't, 729 F.2d 609 (9th Cir. 1984), had also held that the (Klamath) Tribe's hunting and fishing rights continued to exist even after a similar cession where there was no express reference to extinguishing hunting and fishing. n10

n10 (Here, the district court relied on Lac Courte Oreilles Band v. Voigt, 700 F. 2d 341 (7th Cir. 1983), which in turn had relied on this same Ninth Circuit Klamath decision.)

[*43] To resolve the conflict between circuits, this Court granted certiorari in Klamath and held that, by ceding "all their right, title, and claim," an Indian tribe conveys "whatever special hunting and fishing rights the Indians had previously possessed." Klamath, 473 U.S. at 766 and see n.23, p. 773. The Eighth Circuit below did not follow the ruling of this Court (or its own precedent).

The effect of the Circuit decision here is also to give no effect to the last sentence of Article 1. The Circuit Court conclusion disregarded Canons of statutory construction: "[It is] an elementary canon of construction that a statute should be interpreted so as not to render one part inoperative." Colautti v. Franklin, 439 U.S. 379, 392 (1979). One should give effect to all of the words. See, e.g., Harrison v. Fortlage, 161 U.S. 57 (1896).

VIII. The Equal Footing Doctrine Requires That No Temporary Right or Privilege Survives Statehood.

The principal purpose of these treaties was to extinguish Indian claims to prepare the way for settlement of the ceded lands and eventually for statehood.

The Minnesota Admission Act expressly recites the constitutional requirement that Minnesota shall be "admitted into the Union on an equal footing with the original States in all respects whatever." Act of May 11, [*44] 1858, 11 Stat. 285 (PA 515). n11 Thus, the State of Minnesota has constitutionally-vested ability to enforce conservation laws uniformly as to all persons within their jurisdiction. This power is further protected in states by the Tenth Amendment.

n11 There was no disclaimer in favor of Indian lands as found in Acts for some Western states.

The constitutional equal footing doctrine has been most often applied in the context of state ownership of submerged lands. E.g., Pollard's Lessee v. Hagan, 3 How. 212 (1845). It has been recently restated by this Court: "[A] State's title to these sovereign lands arises from the equal footing doctrine and is 'conferred not by Congress but by the Constitution itself.'" Idaho v. Coeur d' Alene Tribe of Idaho, 117 S. Ct. 2028, 2041. (1997), quoting Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 374 (1977).

Historically, the state's "ownership" includes more than submerged lands and was often articulated as including "ownership" of the very fish and wildlife. Geer v. Connecticut, 191 U.S. 519 (1896). "Many of the early cases embrace the concept that the states had complete ownership over wildlife within their boundaries . . ." Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371 (1978).

The strict "title" theory of wildlife was rejected in Douglas v. Seacoast Products, Inc., 431 U.S. 265, 283 (1977): "Neither the States nor the Federal Government . . . has title to these creatures. . . ." Id. at 284. The court continued its recognition of "the importance to its people that a [*45] State have power to preserve and regulate the exploitation of an important resource," Id. at 284.

Baldwin, 436 U.S. at 386. See, also, Chief Justice Burger concurring: "whether we describe this interest as proprietary or otherwise is not significant." Baldwin, 436 U.S. at 392.

These state sovereignty interests over natural resources are protected by the equal footing doctrine and then by the Tenth Amendment once statehood is achieved.

The relief granted here was threatened but rejected in Coeur d'Alene. After that tribe's quiet title action was dismissed, the tribe sought injunctive relief to:

[*46] The court noted the historical antecedents of "the principle which underlies the equal footing doctrine" and interests therein protected, e.g., "the right of fishing in a port or rivers are in common." Id. at 2041, quoting Institutes of Justinian, Lib. II, Tit. I, § 2 (T. Cooper transl. 2d ed. 1841). Any granted rights are subject to "the public right, jus publicum, of navigation and fishing." Id. at 2041, citing Shively v. Bowlby, 152 U.S. 1 (1894), emphasis added.

Under the "equal footing" doctrine, the United States holds beds of navigable waters and fish and wildlife resources in trust for future states. There is a strong presumption against any pre-statehood grant impinging upon the future state absent "some international duty or public exigency." Shively, 152 U.S. at 49-50. Any intent to depart from this constitutional trust for a future state must be "definitely declared or otherwise made very plain." This is true even where Indian claims are involved. United States v. Holt State Bank, 270 U.S. 49, 55 (1925); see also Montana v. United States, 450 U.S. 544, 552 (1981); Utah Div. of State Lands v. United States, 482 U.S. 193, 197-98 (1987).

The 1837 Treaty provision for temporary privilege did not "definitely declare or otherwise make plain" an intent to grant rights in derogation of the trust for the future state of Minnesota. Rules of treaty construction favoring Indians do not overcome the presumption against such a pre-statehood grant. See Montana, 450 U.S. at 552-56.

The state's interest in protecting its natural resources as to off-reservation activities, is as strong for tribal members' conduct as it is for others'. See, e.g., Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49 (1973) ("absent express federal law to the contrary, Indians going beyond reservation boundaries have been held generally subject to nondiscriminatory state law otherwise applicable to all citizens of the State").

State wildlife laws may even be enforced as to Indians within a reservation where necessary for conservation. Puyallup Tribe v. Dep't of Game, 391 U.S. 391 (1968); Puyallup Tribe v. Dep't of Game, 433 U.S. 165 (1977), especially n. 15 at 176.

Where natural resources are involved, the presumption of state jurisdiction over off-reservation activities is especially important today. Increasing public use of those resources raises the very real potential of over-exploitation. The court below approved separate tribal and State regulation but this Court has long rejected this approach. "Such a duality of sovereignty instead of maintaining in each the essential power of preservation would in fact [*48] deny it to both." New York ex rel. Kennedy v. Becker, 241 U.S. 556, 563 (1916).

This Court considered an off-reservation hunting provision of the Fort Bridger treaty argued to displace state law in Ward v. Race Horse, 163 U.S. 504 (1896). The question was "whether the treaty made by the United States with the Bannock Indians gave them the right to exercise the hunting privilege . . . within the limits of the State of Wyoming in violation of its laws." Id. at 507.

The answer the Court said, "will be made plain by an appreciation of the situation existing at the time of the adoption of the treaty, of the necessities which brought it into being and of the purposes intended to be by it accomplished." Id.

The Ward off-reservation right was "intended to be of limited duration" (163 U.S. at 515). While no reference was made to the right's termination upon statehood, that conclusion flowed naturally by the general understanding that tribal members' off-reservation activities would be subject to the same laws as others. As previously noted, Minnesota's first legislative acts reflected the same understanding, applying conservation laws off-reservation (infra, p. 13).

As in Ward, the lower court's ruling results in an irreconcilable conflict between the treaty and the Minnesota Statehood Act.

This Court has often held that treaties must be construed to uphold the sanctity of the public faith but this:

For the foregoing reasons, this Court should reverse the judgment of the Eighth Circuit below.

Brief of Citizens Equal Rights Alliance as amicus curiea for petitioners August 6, 1998

LANA E. MARCUSSEN, BRIAN A. THOMAS, 401 N. 31st Street, Suite 710, P.O. Box 7176, Billings, Montana 59103-7176, (406) 255-7191.

1. Whether a treaty provision that gives Indian bands the right to hunt and fish "during the pleasure of the President" created only temporary rights which are extinguished when a state is admitted to the Union on equal footing with the original 13 states.

2. Whether a treaty ceding to the United States "all right, title and interest of whatsoever nature" in previously ceded territory constitutes express abrogation of hunting and fishing rights reserved in a previous treaty under the Supreme Court's holding in Oregon Dept. of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985).

3. Whether the President acted within the scope of his congressional authority when he revoked the Indians' rights to hunt and fish under a treaty that only guaranteed those rights "during the pleasure of the President of the United States." [*ii]

Counsel for a party did not author this brief in whole or in part. No person or entity, other than the Amicus Curiae, its members, or its counsel made a monetary contribution to the preparation and submission of this brief.

The Citizen's Equal Rights Alliance (CERA) is a non-profit association of INTEREST OF THE AMICUS CURIAE.

The Citizen's Equal Rights Alliance (CERA) is a non-profit association of American citizens, incorporated and licensed under the laws of the State of New Mexico and headquartered in Santa Fe, New Mexico. CERA's interest in this lawsuit arises from CERA's advocacy of the principle that all people should be treated equally, whether Indian or non-Indian. In this sense, CERA's interest mirrors that of Petitioners. The Chippewa Bands' position that they are entitled to the reinstatement of treaty rights, voiding the application of state police power authority to regulate hunting, fishing and gathering rights, regulations applicable to all other state citizens, violates the principle of equal rights under law. This amicus brief supports the position of the Petitioner, State of Minnesota, Docket No. 97-1337.

Beginning in 1971, the United States laid siege to the lawful authority of the States of Minnesota and Wisconsin. On behalf of different bands of Chippewa Indians, the United States brought a series of lawsuits designed to reinstate Indian treaty rights deemed extinguished by all parties from the 1890's to 1970. Mille Lacs is the latest in this line of challenges; only the most recent seeking to recreate the hunting, wild rice gathering and fishing rights. So far, the United States has participated in more than six suits in Minnesota and Wisconsin, each of which sought to displace the regulatory powers of those states to administer the hunting, gathering and fishing rights on state and private lands.

[*4] As recently observed by this Court, Minnesota is not a public lands state with vast amounts of federal land available for tribal uses, in trust or otherwise. Ultimately, because of Minnesota's special heritage, the term "reservation" is inappropriately attached to the land claimed by the Mille Lacs Band. These lands are property over which State jurisdiction would be divested. The divestiture is accomplished by little more than a strawman purchase by a middleman subsidiary of the federal government. Ultimately, lands entrusted pursuant to 25 U.S.C. § 465 are owned by the United States in trust for the tribe. The transfer of title to the United States on behalf of the tribe is nothing more than an attempt to artificially permit an unconstitutional racial classification.

The means by which this occurs is left unresolved, except its consequences are clear: the State of Minnesota may not regulate. The nature of the federal ownership status of these purchased and donated lands is undefined by either the IRA or the courts. If the trust lands qualify as "Indian country," the lands are not only removed from state taxation, but from state jurisdiction, effectively recreating a reservation of public land from land wholly private. This power was never anticipated by the Framers of the Constitution, and only inserted between the Articles and Clauses upon the finding of an eternal emergency.

The contradiction between the State and the new-found "reservation" of the Mille Lacs Band of the Chippewa Indians is most troubling because Congress has already spoken on this subject. The purchased lands, purported to be restored, are wholly within the original boundaries of the reservation expressly terminated by the [*5] Nelson Act. Nelson Act of 1889, ch. 24, 25 Stat. 642. The United States, in response to the Petitioners, has suggested that the pre-Statehood reservation (though extinguished) leaves an indelible mark on the real property, rendering it forever susceptible to reinstatement of reservation status, regardless of the admission of the State.

This Court, though facing a similar argument just last Term, did not address the federal contentions. In Cass County, Minnesota v. Leech Lake Band of Chippewa, this Court addressed the question of evading Congressional processes; holding only that the Congressional process to place the lands into trust status could not be avoided by the Executive Branch. Now, the United States magnifies the demand placed, seeking to merge "restored" treaty powers to its "trust" powers for the Indian tribes. The potential result of allowing strawmen purchases threatens the viability of States, and challenges the People's protection from tyranny.

The Amicus Curiae press their argument that the involuntary deprivation of state jurisdiction is unconstitutional, as first outlined in the brief submitted in [*2] support of granting the petition for certiorari. That brief challenged the authority of the Courts of the United States to reinstate treaty rights deemed extinguished or terminated for eighty years when doing so deprived a State of its jurisdiction. This brief argues for the application of the constitutional process for federal land acquisition against the process outlined in the Indian Reorganization Act (IRA), 25 U.S.C. § 461 et seq.

The argument primarily analyzes the complications created by the "trust lands" provisions of the IRA as rendered by the Court of Appeals for the Eighth Circuit acting through Judge Murphy. Although the Mille Lacs reservation was terminated, the United States and the Court of Appeals for the Eighth Circuit have continually disassociated treaty rights from the reservation, thereby claiming that wholly defunct treaty rights could reemerge, fully effective whenever the United States places lands back into "trust" status under 25 U.S.C. § 465. Their conclusion relies on the presumption that constitutional authority exists allowing the United States to recreate "territory" in a fully-admitted State of the Union. Further, this conclusion relies on the lesser presumption that this power is delegable to the Secretary of Interior in the Executive Branch and enforceable in the courts of the United States.

Congress, even if it were able to do so, has never acted directly to restore the Mille Lacs reservation. This point should have, but does not, end the discussion, because it begs a question. It seems rudimentary, but uncertain in the law of this Court whether federal jurisdiction is a necessary predicate to Property Clause jurisdiction. In short, whether Congress can restore to an [*3] Indian Tribe now-extinguished usufructuary rights to land over which there has existed State jurisdiction. These lands are no longer in its Property Clause jurisdiction. The only claim to such power must rely on Congress' "ability" to reestablish territorial jurisdiction within the four corners of a State.

This brief will also address the other potential source of authority - the power to establish "Indian country" within a State. Even if, by implication, the Property Clause contains such powers, other clauses of the Constitution question the viability of such a power. Finally, even assuming this power impliedly exists under the Property Clause, and the asserted power does not violate any other clauses of the United States Constitution, the power cannot be delegated to the Executive Branch to exercise.

The Mille Lacs decisions of the Eighth Circuit conflict with the decisions of this Court. Compare South Dakota v. Yankton Sioux Tribe, 118 S.Ct. 789 (1998); South Dakota v. Bourland, 508 U.S. 679 (1993); with Mille Lacs Band of Chippewa Indians v. State of Minnesota, 861 F.Supp. 784 (D. Minn. 1994) (Opinion by Judge Murphy now sitting on the Court of Appeals for the Eighth Circuit); Mille Lacs Band of Chippewa Indians v. State of Minnesota, 853 F.Supp. [*6] 1118 (D.Minn. 1994) (same). This Court has held that the extinguishment of Indian lands is also an extinguishment of Indian Treaty claims. South Dakota v. Yankton Sioux Tribe, 118 S.Ct. 789 (1998); South Dakota v. Bourland, 508 U.S. 679 (1993). The Nelson Act is the Minnesota version of the General Allotment Act of 1887, ch. 119, 24 Stat. 388, §§ 5 and 6. Further, this Court has recently addressed and applied the plain meaning of the Nelson Act, an interpretation which wholly applies to this case. See Cass County, Minnesota v. Leech Lake Band of Chippewa, 118 S.Ct. 1904 (1998). Under the Leech Lake analysis, the reservation in its entirety was terminated, thereby terminating all ancillary treaty rights attached to the land. By definition, usufructuary treaty rights are attached to the land, and thus, it follows, were terminated.

Based on a doctrine without basis in common law or history, the federal government has invented long-dead rights under the remarkable doctrine of "trust lands." The only claim that the usufructuary treaty rights still exist is the crude bootstrapping adventure engaged by Judge Murphy. First, the tribe reacquires land since disposed of and then applies to have it placed in trust. Second, the tribe and federal government discover treaty rights that can be remarried to an otherwise divorced plot of land. Finally, based on only a small initial purchase (and entrusting), the tribe reclaims active jurisdiction over all of the land originally within the reservation boundaries, claiming it to be "Indian country." The argument trespasses on logic: it necessarily prepresumes that choate usufructuary treaty rights could survive inchoate for more than 75 years. This asserted power is no more [*7] credible than the Secretary of Interior purporting to reinstate Indian lands within extinguished reservation boundaries; the consequences of which are equally severe.

DISPOSAL OF THE TERRITORIES PROTECTS FEDERALISM; A POWER TO REINSTATE TERRITORIAL LAND STATUS THREATENS FEDERALISM: THIS COURT SHOULD REINSTATE A PROCESS THAT DEMANDS THE FIRST AND PREVENTS THE SECOND.

Congressional power over territorial lands was meant to be temporary. As the Constitution provides, "Congress shall dispose of the Territories . . ." U.S. Const., Art. IV, Sec. 3, Cl. 2. The principle mandating disposal has long been upheld by this Court. See U.S. v. Midwest Oil, 236 U.S. 459 (1915); Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845); U.S. v. Gratiot, 39 U.S. (14 Pet.) 525 (1840). In other areas, Congress itself recognized the temporary nature of its regulatory authority. See Federal Land Policy Management Act of 1976 (FLPMA), 43 U.S.C. § 1701 et seq. Additionally, this Court recently required specific Congressional action to create permanent reservations in a state. Alaska v. United States, 117 S.Ct. 1888 (1997); see also New Mexico v. Watkins, 969 F.2d 1122 (D.C.Ct.App. 1992) (affirming in part, and on Property Clause grounds, 783 F.Supp. 633 (D.D.C.1992)).

Congress expressly terminated a number of smaller Chippewa reservations, the Mille Lacs reservation included, with the Nelson Act. See Cass County, Minnesota v. Leech Lake Band of Chippewa, 118 S.Ct. 1904, 1907 (1998). [*8] The State of Minnesota accepted jurisdiction and exercised full jurisdiction over formerly Chippewa lands under the Nelson Act until 1971 when, in a case of first impression, a federal district court erroneously divorced Indian title and usufructuary rights. Leech Lake Band of Chippewa v. Herbst, 334 F.Supp. 1001 (D.Minn. 1971). The final resolution of the status of a large number of minor reservations in Minnesota came to a screeching halt when a tribe could resist state regulation on seemingly state-jurisdiction lands. The creation of a federal trust for the benefit of the Indians was the illogical leap designed to stymie the private use of private property. In short, through the creation of an otherwise undefined trust, the federal government used its agents to turn private property into public property without first making reparations.

To acquire jurisdiction over the Respondent's claim, sitting as District Judge, Judge Murphy impliedly determined the tribal treaty rights to be "reserved rights." Based on an original jurisdiction decision, the Judge relied on an 1837 Treaty to defeat Eleventh Amendment defenses to an action under 42 U.S.C. § 1983. Judge Murphy mutated choate (but extinguished) treaty rights into inchoate (but lingeringly viable limitations on private title to land within the now-defunct reservation boundaries) "reserved rights" reverting to the federal government. Mille Lacs Band of Indians v. State of Minn., 853 F.Supp. at 1124 (citing Arizona v. California, 460 U.S. 605, 613-14 (1983)). A reserved right is not a real property right, but rather a limited right attached to federal lands. The lands at Mille Lacs are allotted and purchased lands placed back into trust status under 25 U.S.C. § 461 and [*9] § 465. The District Court's "logic" is that the "entrusting" of the land reactivates nascent rights that merged with the unity of title which occurred on the disposal of land. The Treaty rights could not have survived the disestablishment of the reservation under the Nelson Act. But, if the Treaty rights did survive disestablishment they cannot be claimed as reserved rights because the federal land status was still terminated.

The reasoning of Herbst is illustrative of the larger problem inherent with "trust" lands: there is no natural limit to its breadth. The law has no natural limits because the power relied upon is not contained in any specific clause of the Constitution. The IRA itself does not state any constitutional authority upon which it relies. The IRA is not limited in its powers against the states, and in fact, by means of § 465, can serve to extinguish a State, inverting the Property Clause one-directional process. Finally, in Sec. 3 of the IRA, the Act purports to delegate to the Secretary of the Interior a power to undispose property. The notion that a citizen could give what he (or she) does not have is made no less preposterous by involving the government rather than the citizen. Once relinquished, federal jurisdiction cannot simply be recaptured from the State.

The United States enacted the IRA in 1934 at the height of the New Deal, amidst a plethora of acts claiming "emergency" authority. Because of the times, economic collapse and threats to pack the Court with sympathetic jurists figuring prominently, it was deemed acceptable to combine Article I and Article II constitutional powers with the Property Clause powers. See, e.g., Ashwander v. T.V.A., 297 U.S. 288 (1936); Cincinnati Soap v. [*10] United States, 301 U.S. 308 (1937); Steward Machine Co. v. Davis, 301 U.S. 548 (1937). The sense of personal and social emergency weakened the resolve to limit the branches to their separate powers. Acts premised on emergencies were found constitutional. Most of the New Deal was passed as "temporary emergency" provisions with due consideration for the exigencies of the times - the IRA was the product of a different purpose altogether. The IRA was an assertion of a new kind of power, an unlimited trust power to preserve Indian tribal lands. It is this "trust" that makes the Property Clause authority a permanent territorial power.

The Property Clause was only intended to be a temporary power. This is demonstrated by the preceding clause of the Constitution, the Statehood Clause. U.S. Const., Art. IV, Sec. 3, Cl. 1. Congress is required to make States from territories. The Framers only viewed the Northwest Territory, of which Minnesota was a part, as the area into which the United States would expand. The Northwest Ordinance of 1787, passed under the Articles of Confederation, established the then-applicable rules for admission as states and the protection of the rights of the People of the Northwest Territory. The Northwest Ordinance also expressly protected the rights of the Indian tribes. It also prohibited slavery in the Northwest Territory. Ultimately, the Northwest Ordinance constitutes Congressional cognizance of this temporary power in the federal government.

The Chippewa Bands of Minnesota and Wisconsin have argued that the Northwest Ordinance still protects their rights in this case. The Eighth Circuit agreed, stating that the Northwest Ordinance of 1787 was still in effect. [*11] Both the Chippewa and the Court of Appeals for the Eighth Circuits ignore the fact that the Northwest Ordinance was held to be without legal effect by this Court. Scott v. Sandford, 60 U.S. (19 How.) 393, 452 (1857). Because of the Court's intent to preserve the institution of slavery, Scott deliberately mutated the Property Clause. Chief Justice Taney's invention was necessary because the Framers intended to abolish slavery as an institution and constructed a structure to ensure that result. Ultimately, Chief Justice Taney confronted and supplemented the constitutional process for disposal of federal property and the individual rights within the territories. Scott, 60 U.S. at 432.

The pre-Scott and post-Scott Property Clauses construct two different Property Clause processes. The first process was designed by the Framers. The second works to preserve slavery. In a seemingly well-intentioned effort, the Court of Appeals for the Eighth Circuit has applied both processes and given the Chippewa the benefit of both. Ultimately, the Judge Murphy revisionist history gives the tribes access to Court without strictly applying the Constitution in full. A government not accountable to its charter is government within which the judicial has merged with the executory. See generally Clinton v. City of New York, 118 S.Ct. 2091 (1998).

The pre-Scott Property Clause process mandates a one-directional transfer of property. The very restrictive process forces the creation of states from territory. U.S. Const., Art. IV, Sec. 3, Cl. 1. Further, the process guarantees a republican form of government to exist in the new states. U.S. Const., Art. IV, Sec. 4. It specifically distinguishes between states and territories to prevent the use [*12] of territorial powers in the sovereign states. Once a State exists, the United States can only acquire real property within the State with state approval. See U.S. Const., Art. I, Sec. 8, Cl. 17; see also American and Ocean Insurance Companies v. Canter, 26 U.S. (1 Pet.) 511 (1828).

The post-Scott Property Clause process limits the Northwest Ordinance to the Northwest Territories, and thereby carefully evades the original intent of the Constitution. Scott, 60 U.S. at 432-53. This very carefully drafted rhetoric twists history to its purpose while disposing of all limitations on the power to acquire territory. Id. at 441-43. By applying the processes incompletely, the Eighth Circuit has improperly allowed the acquisition of territory to be "discretionary" in the Congress and delegable to the Executive. Id. at 449. This rationale created a new power not specifically contained anywhere in the Constitution, and a process seemingly without limitation.

All three questions presented in this appeal flow from the creation of this "discretionary" unlimited power. To understand the full perversion of the proper constitutional process by Chief Justice Taney, one must examine the Framers process for the acquisition of territory and its administration. In 1828, Chief Justice Marshall had opportunity to describe the Framers' original intent for the Property Clause. See generally, American and Ocean Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511. The Canter Court explained the property acquisition process: acquiring territory by conquest or treaty; creating the territory; and admitting it as a state of the union. The Court finds that, in territories, the Congress is exercising the powers of both the national and state governments. Further, that the act of granting statehood formally separates these [*13] powers. Of course, in exercising the combined powers prior to Statehood, the Congress would be limited to only those acts compliant with the remainder of the Constitution.

The post-Scott process destroys the necessary distinction between the war powers used to acquire property and the territorial power used in managing it. See Canter, 26 U.S. at 540. The post-Scott process allows the Congress to act in response to any perceived "emergency" and to do so forever. In contrast, the pre-Scott process uses the full Constitution to separate the powers of the state and general government carefully keeping the war powers confined to the acquisition of territory stage. As described by the Canter Court, the execution of the treaty of peace or cession is a formative event. The execution of such treaties brings the territory under the jurisdiction of the Constitution, ending the use of the actual war powers. The domestic recognition of this ending is when the territory receives its Organic Act from the Congress. However, because the Organic Act combines both national and state powers, it does not end the territorial power over the land.

By converting the acquisition of territory into a discretionary authority, Scott allows the full operation of territorial war powers in a state. Because there is no basis for this discretionary authority, the Constitution seems to contain no structural limits to the doctrine's effect. In fact, the only limit remaining is the principle that the territory acquired must be held in trust for all citizens on an equal footing with all other citizens. The creation of this limited "equal footing" trust proposed to replace the structural limitations of the pre-Scott Property Clause [*14] process. Ultimately, Justice Nelson's prescient analysis has proven correct. Scott, 60 U.S. at 463-65. For all practical purposes, the IRA has recreated slavery within States by relying on a discretionary territorial war power to acquire property.

The IRA trust land provisions all contain one thing in common: they convert tribal title into federal. When the United States acts to shift title from the tribes to the general government, the United States exercises the Property Clause. To do so, the federal government must first expand the much-misunderstood term "domestic dependent nation." The common misperception is that "domestic dependent nation" is a status that exists independent of territorial jurisdiction. The misperception principally derives from not reading the three early Property Clause opinions in conjunction. See Cherokee Nation v. Georgia, 31 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Canter, 28 U.S. 511. For the three opinions to be consistent, the Court must have meant that the Indian tribes have ceded all of their territorial jurisdiction short of the right of occupancy to the United States. If this is the case, the residuum of sovereignty remaining to the tribes exists at the discretion of Congress. The determination of when to dispose of the land would end the separate status of the Indian Tribes.

Further, for the tribe to retain any residual sovereign authority, the United States must preserve the territorial land status of the lands. This understanding of Cherokee Nation and Worcester is most crucial, because the discretion to eternally retain the territorial status was plainly limited by the Canter holding. By reading Cherokee Nation and Worcester in conjunction with Canter, Congress did [*15] not create tribal sovereignty, but rather allowed it to remain until the territory became a State. Applying this understanding to the matter presently before this Court, when the lands were disposed at Mille Lacs under the Nelson Act, the inherent tribal sovereignty of this Chippewa Band was terminated and their residual treaty interests extinguished.

The IRA does not depend on the pre-Scott Property Clause process, but rather the post-Scott affirmative power. The IRA works to extend Indian sovereignty and the associated federal authority beyond the boundaries of territorial status land and against the lawfully created States. As justification for the creation of the racially-classified trust, the IRA relies on a declaration that creating the trust is in the public interest. The distinction between the public interest and the private interest is one not drawn by the IRA. The irony is that the IRA, enacted after the Civil War, indirectly relies on pre-Civil War precedent as authority for evading judicial review.

The Taney Court could not merely create an alternative Property Clause process; it needed to prevent Article III courts from challenging the propriety of the new process. The Supreme Court relied on a distinction between enforcement of private and public rights in Article III courts to set the foundation for Scott's process. Only one year before Scott, in Murray's Lessee et al. v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 283 (1856), the Supreme Court drew this distinction. The Court held that

Murray's Lessee et al. v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 283 (1856). Scott uses this enhanced definition of jurisdiction over property to require the Congress to allow the taking of slaves as private property into a territory. Scott, 60 U.S. at 451. The IRA mirrors this now-defunct theory of absolute immunity: it uses the public agent, namely the Secretary of Interior, to acquire public property; the lands are taken in the title of the United States in the public interest, preventing judicial review of the IRA and its assumed powers including a newly created form of tribal sovereignty.

As the foundation to its use of the condemnation power at the outbreak of the Civil War, the Lincoln Administration appropriated slaves to end the institution of slavery. See generally War Powers by William Whiting (43 ed.), Preface and Chapter 1. The condemnation power served as an active war power and relied on the Murray's Lessee distinction coupled with the post-Scott discretionary trust. The Lincoln condemnation efforts relied extensively on the General Welfare Clause and ultimately served to institutionalize the connection between the war powers and the General Welfare Clause. Therefore, any declaration of emergency leading to reactivation of the war powers allows the power assumed in the IRA to reconstitute beyond judicial review. Ultimately, by doing so, it renders the national government completely unaccountable for any use of this power.

The public interest of the highest order is the preservation of the Constitution itself. The most efficacious tool [*17] for ensuring the lasting viability of the Constitution is its application in its entirety. By creating specific political processes which make the government accountable to the people as a whole, the preservation is assured because the individual rights and freedoms, privileges and immunities are equally guaranteed. "Emergency" acts like the IRA, purporting to outlast the federal interest in territorial land status avoid the original Property Clause process of disposing of territories, creating states, purchasing federal enclaves and guaranteeing republican government. This process was designed to protect the federalism concept because in carefully compartmentalizing divided powers, individual rights would not be unduly trampled even when an emergency arose.

In one sweeping act, the IRA dispensed with this concept and the safeguards were thrown out; a new kind of national interest was declared to remedy past wrongs to specific groups. The end of frontier settlement converted the "civilizing" drive westward into a federalization of domestic law. Rather than provide for the equality of rights for all, the IRA purported to expiate collective guilt by retaining racist classifications. In more recent years, the expiation of national guilt included the discovery of federal interests in land, water, air, noise and the use of these newfound interests to negatively impact private rights. On May 14, 1998, President Clinton continued this effort to expiate guilt by Executive fiat, demonstrating the virtually unlimited ability to eradicate constitutional safeguards by the creation of an affirmative Indian trust power. E.O. 13, 083; E.O. 13, 084.

It is important to note that the Secretary of Interior is not acting in a fiduciary capacity in placing lands into [*18] trust under the IRA any more than the President is using these new Executive Orders for the benefit of the tribes. The Secretary is acting as a public agent executing the precept of Congress which is the IRA and is not accountable to the tribes in any capacity. The Secretary is protected by the fullest war powers sovereign immunity. The IRA while calling the lands "trust" lands is actually just recreating territorial land status in a state without constitutional authority. If Congress amended or repealed the IRA, what is the legal recourse of the Indian tribes? If the lands are acquired under the Property Clause, the Indian tribes have no recourse whatsoever. The Indian tribes just serve as the political justification for allowing this dangerous power to be asserted. If the Court strikes down the IRA trust lands provisions as not being an enumerated power to restore lands to territorial status in a state, the court can order the lands purchased by the tribes restored to the tribes in fee simple with compensation because the government had no authority to "take title" to private property and convert it to public use without just compensation.

This assertion of the creation of a power which has no authority under the Constitution is no different than the creation of the line-item veto act by Congress. Clinton v. City of New York, 118 S.Ct. 2091. The limitations placed upon the Spending Clause by the political accountability test challenge this assertion of power. Printz v. United States, 117 S.Ct. 2365 (1997); New York v. United States, 505 U.S. 144 (1992). The Court need defer to Congress no longer in determining a limit to recreating territory and thereby extending Indian country. Kiowa Tribe v. Manufacturing Technologies, Inc., 118 S.Ct. 1700 (1998). The only [*19] difference between the Line Item Veto Act and the IRA is the age of the Acts: the veto act was new; the IRA is over 60 years old.

Further counseling against deference to an unidentified Congressional power is the multiplicity of Congressional efforts to sever its responsibility for the actions of Indian tribes. In 1968, Congress passed the Indian Self-Determination and Indian Civil Rights Acts. Both create suspect classifications by setting a racial group apart. See Indian Self-Determination Act, 25 U.S.C. § 450 et seq.; Indian Civil Rights Act, 25 U.S.C. § 1301-03; compare Adarand Constructors v. Pena, 115 S.Ct. 2097, 2113 (1995) (holding that "all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny."). This Court should carefully consider the actions of Congress in light of its unavoidable Constitutional obligations and limitations. A direct application of these limitations requires demonstration of more than collective guilt for the federal actions to remain permissible. Adarand, 115 S.Ct. at 2113.

This Court, before adopting the accountability test, dealt a significant blow to the constitutionality of the IRA. See Northern Pipeline Co. v. Marathon Pipeline Co., 458 U.S. 50 (1981). By reasserting Article III separation of powers, and reinstating Canter as the proper process of the Property Clause, the Court disrupted the analysis of Chief Justice Taney and William Whiting. The concurring opinion of Justices Rehnquist and O'Connor actually questioned the doctrine distinguishing between private and public rights. Northern Pipeline, 458 U.S. at 89. This analysis holds Congress and the Executive accountable [*20] for this disastrous policy which has taken advantage of the Indian people and which stands at the brink of destroying federalism.

ALL NATIONAL PUBLIC INTERESTS FLOW FROM, AND ARE DEFINED BY, THE CONSTITUTION AND ITS AMENDMENTS.

The post-Scott Property Clause process allowed the national government to engage in a logical fallacy. The Roosevelt New Deal inverted the premise of a national interest contingent on a national emergency with the presumption that certain emergencies have no date after which the emergency passes. By inverting the contingency of the national interest, the Roosevelt administrations created an emergency by finding a national trust needful of formation. Thus, by engaging in circular reasoning, as long as the administrations could discern a need for a trust, they could find an emergency, and thus leave the matter unreviewable in the post-Scott paradigm.

Within a Constitutional structure with national interests separate from policy interests, the structure mandates a heirarchy of national interests. These interests are, by definition, those that could not be achieved on a local level. The heirarchy must first start with structural preservations. Therefore, the foremost inquiry is whether a national action is consistent with that preeminent national interest. As recently observed by this Court, vigilant judicial review safeguards the Constitutional [*21] structure and thereby provides protection to the individual rights. Clinton v. New York, 118 S.Ct. 2091 (Kennedy, concurring).

The national government expanded in the late 1890's to the idea of creating social programs to service the general welfare. The authority to create social programs exists under the General Welfare/Spending Clause. The acts creating the social programs are subject to judicial review to ensure that the structure of the Constitution and the rights of the People under the Amendments are not infringed. A trust declared to be in the national interest by act of Congress or Executive Order is subject to judicial review. The judicial review authority is in the evaluation of whether the act is within the limited enumerated powers as defined by the Constitution and its Amendments. It is irrelevant to this constitutional analysis how great the public interest is supposed to be.

The equal footing doctrine was the post-Scott surrogate for Canter-style structural protection of the Constitution. The equal footing doctrine remains flawed and almost inapplicable in the modern era because it does not reflect the Civil War Amendments. Protecting states' rights is a far simpler standard for Congress to meet than protecting each individual's right to equal protection as required by the Fourteenth Amendment. Admitting states on an equal footing allows far more discretion in the Congress than requiring the equal protection of all citizens in the territory of the United States. Since two Property Clause processes have been running simultaneously, it was impossible to apply the Civil War Amendment standards without confronting the dual system.

[*22] This Court has known of the inconsistent processes for many years. The most evident demonstration of that is in DeCoteau v. District County Court, 420 U.S. 425 (1975). DeCoteau presented the Court with an opportunity to apply the post-Scott Property Clause process used in Arizona v. California, 373 U.S. 596 (1963). The purpose of the invitation was to allow the restoration of "Indian country" jurisdiction after the disestablishment of the reservation. This Court wisely declined to do so. The DeCoteau Court impliedly reinstated the pre-Scott process, but did so without supplanting the post-Scott process. After DeCoteau, the Supreme Court reinforced the extinguishment line of cases with Montana v. United States, which adhered to the Canter model. Montana v. United States, 450 U.S. 544 (1981). Oregon Dept. of Fish and Wildlife v. Klamath Indian Tribe, follows this line and stands in sharp contrast to the Eighth Circuit ruling in this case. Oregon Dept. of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985). Shortly thereafter, the Supreme Court reinforced the post-Scott process line of cases with Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987).

Finally, after over a decade of legal imprecision, the Supreme Court of the United States determined that a dominant analysis needed to be chosen. See generally A-1 Contractors v. Strate, 117 S.Ct. 930 (1997). The A-1 Contractors Court recognized that two different case line analyses existed and chose the dominant one, but without assaying reconciliation of the two. Id. at 934-940. The Court chose to make Montana's reasoning the dominant consideration when comparing state and tribal jurisdiction over non-Indians. Id. at 936. The A-1 Contractors opinion noted [*23] the difference between the case lines but assumed that the two processes can be reconciled. Id. at 939.

After A-1 Contractors, but before last Term's cases, the Eighth Circuit seized on the murkiness in the law to continue its attack on Minnesota jurisdiction. The Eighth Circuit relied on the distinction between public interest treaty rights (or reserved rights) and the mere local loss of state regulatory jurisdiction of private rights to press home the attack. Until the premise of national interests in benefitting specific racial categories (at the expense of their individual Constitutional rights) is finally dispensed with, the Secretary of the Interior and judges like Diana Murphy will continue to deny individual rights within and without reservations.

The most recent Term's cases makes clear the structural threats implicit in two simultaneous Property Clause processes. South Dakota v. Yankton Sioux Tribe, 118 S.Ct. 789 (1998); Alaska v. Native Village of Venetie, 118 S.Ct. 948 (1998); Kiowa Tribe v. Manufacturing Technologies, Inc., 118 S.Ct. 1700 (1998). Despite the limiting of the definition of Indian country and reaffirming the disestablishment cases, this Court declined to limit the sovereign immunity of the Kiowa tribe on off reservation activities. Instead, the Court deferred to Congress. Rather than apply the terms of the Constitution and the pre-Scott process to protect citizens of the United States from tyrannical government, the Supreme Court of the United States acquiesced in the denial of the equal protection of the laws.

As the Kiowa dissent pointed out, it was appropriate for the Court to impose a limit on tribal sovereign [*24] immunity to on reservation activities. Id. at 1707. The effort to allow Congress to clarify its Indian policy on tribal sovereign immunity, demonstrates the fear of the Supreme Court of the United States in having another opinion to protect individual rights overturned by legislation. Until this Court limits the power of Congress to legislate for the Indian tribes "in the public interest" it will not be able to enforce its Art. III responsibilites to protect the People. By not formally addressing the racially-discriminatory "public trust" problem created by the IRA, this Court leaves Congress free to preemptively alter the Court's rule. See, e.g., Duro v. Reina, 495 U.S. 676 (1990).

Until this Court defines the process - in favor of slavery or against it - to be applied, the Legislative and Judicial Branches will remain mired in a separation of powers debate. The Indian policy of the IRA is based on preserving slavery as rationalized in Scott v. Sandford. See Elk v. Wilkins, 112 U.S. 94 (1887). To preserve the rights of the People, this Court must adhere to Chief Justice Marshall's Property Clause process. American and Ocean Insurance Companies v. Canter, 26 U.S. (1 Pet.) 511. Once freed of the post-Scott shackles, Congressional Acts premised on Article I powers become subject to the Constitution's plain terms. See, e.g., Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097. Adarand applied to the IRA leaves Sections 3 and 5 unconstitutionally race-based, thus preventing private lands owned by individual Indians and Indian tribes from being transferred to the United States to reinstate territorial land status to remove state jurisdiction.

The IRA creates a racial classification. As declared by the IRA, it is declared to be in the national interest to [*25] keep the Indian tribes separate and distinct from all other people of the United States. In exchange for providing discretionary entitlements, the IRA denudes Indians of their Constitutional rights as established by the Naturalization Act of 1924, 8 U.S.C. § 1401. Though there may be a policy favoring creating classes of citizens, there is no national welfare gleaned from the bitter harvest: the Civil War was fought to prevent the establishment of such a discriminatory national policy.

To the extent that the entitlement to federal monies represents legislation for welfare, the IRA initiates a system which does so premised on racial classifications. Only someone who qualifies as a Native American is eligible for receipt of any of these monies for land acquisitions. The only cognizable difference between the IRA-based treatment of Indians and slavery is that the agent of discrimination wears a federal, not state, badge of authority. As this Court has recently had opportunity to emphasize, the State and National governments both must offer the equal protection of laws to all citizens, and racial classifications will be evaluated under the most restrictive standards. Adarand Constructors, 115 S.Ct. at 2113.

The logic behind affirmative action programs is the same as that behind the creation of permanent trusts for the benefit of racial groups. Just as affirmative action programs are susceptible to Adarand-based challenges, so must "national interest" trusts like that contained in the IRA. The IRA's assertion of an overriding public interest to justify its reverse discriminatory effect against the majority of the people is affirmative action at its most [*26] dangerous. Such a program can "protect" the People out of their Constitutional rights.

After the passage of the IRA and the host of Roosevelt New Deal "temporary" emergency acts, a number of predecessor trusts were converted from practical enclaves to federal "property." Once converted, the argument ran, the authority to regulate shifted from Enclave Clause precedent to the post-Scott Property Clause power. By shifting the land from an agreed-upon purpose for which the State and National government bargained, the federal interest transformed into an eternal trust. Once identified, the trust created a permanent emergency, barring appropriate judicial review. Restoring the premise of this transformation to the pre-Scott process leaves the jurisdiction over the land clarified and the public purpose assured. This jurisdictional clarification is wholly consistent with this Court's recent effort in A-1 Contractors.

From 1971 to date, the United States has nibbled away at the rights of Minnesota and Wisconsin citizens. From 1934 to date, the United States has devoured the rights of citizens in Western states. By converting the nature of real property to "trust" land; by depriving Indian tribes of their ownership of land; by converting the jurisdiction of the State to the jurisdiction of tyranny - in such little nibbles have Constitutional safeguards been broken down. With such small exchanges have the rights of free people been converted into transitory entitlements.

[*27] Inviolable rights have been deprived, and it is this Court's duty to restore them. Only by making all people equal under the Constitution can a legacy of abuse and neglect be redeemed, and only by restoring the pre-Scott Property Clause process can this be achieved. Only by holding the Government accountable to its charter and to its constituents can all citizens of this Union be free of relentless encroachment by a federal government with limitless appetite.

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION IN SUPPORT OF PETITIONERS, LANDOWNERS

Pursuant to Supreme Court Rule 37, Pacific Legal Foundation (PLF) respectfully moves to file the attached brief amicus curiae. n1 Consent to file this brief has been granted orally by counsel for the United States, the State of Minnesota, the landowners, the Minnesota Counties, and the Mille Lacs Band of Indians. The letters of consent received have been lodged with the Clerk of this Court. Requests for consent to file the amicus curiae brief were made to the other parties, but as of the date of filing this brief, no responses have been received.

n1 Pursuant to Supreme Court Rule 37.6, amicus curiae affirms that no counsel for any party in this case authored this brief in whole or in part; and furthermore, that no person or entity made a monetary contribution specifically for the preparation or submission of this brief.

Pacific Legal Foundation has participated in numerous cases before the United States Supreme Court involving the protection of private property rights. PLF attorneys were counsel of record in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Suitum v. Tahoe Regional Planning Agency, 117 S. Ct. 1659 (1997), and PLF participated as amicus curiae in Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470 (1987); First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); and Dolan v. City of Tigard, 512 U.S. 374 (1994), to name but a few.

Amicus seeks to augment the argument in the parties' briefs by arguing that if there are any remaining Chippewa usufructuary rights, the federal government has taken them and the only appropriate remedy for the taking is just compensation. No injunction should issue where such a remedy at law exists, specifically where the equities between the parties weigh heavily in favor of innocent private landowners. In particular, PLF is concerned that the Eighth Circuit's decision ignores the serious harm an injunction will work on innocent property owners.

For the foregoing reasons, PLF requests this Court to grant its motion to file the attached amicus curiae brief.

ROBIN L. RIVETT, Pacific Legal Foundation, 2151 River Plaza Drive, Suite 305, Sacramento, California 95833, Telephone: (916) 641-8888, Facsimile: (916) 920-3444.

* BRENT D. BOGER, * COUNSEL OF RECORD, Pacific Legal Foundation, 10800 NE 8th Street, Suite 325, Bellevue, Washington 98004, Telephone: (425) 635-0970, Facsimile: (425) 635-0196.

The interest of Amicus Curiae, Pacific Legal Foundation (Amicus), is set forth in the preceding motion.

In this case, the Mille Lacs Band of Chippewa Indians (Band) has won an injunction from the district court and Eighth Circuit that prohibits the State of Minnesota from enforcing its hunting and fishing regulations against the Band. The court granted the injunction based on an 1837 Treaty which gave the Band a temporary right to hunt and fish on lands the Band had ceded to the federal government. Even though the injunction technically applies only to the State of Minnesota, it significantly interferes with the rights and reasonable expectations of third parties, especially private landowners. The lower courts did not take this impact into account. Had they done so, the lower court would have recognized that the appropriate remedy to enforce any remaining usufructuary rights is compensation for the Chippewa Indians and not injunctive relief.

For more than 150 years, the private landowners in the Mille Lacs area and their successors have put their lands to use based on their reasonable belief that the Mille Lacs Band of Chippewa Indians' claims of hunting, fishing, and gathering [*2] rights no longer existed. These rights, temporarily granted under an 1837 Treaty, were terminated in 1850 by an Executive Order of the President of the United States. Mille Lacs Band of Chippewa Indians v. State of Minnesota, 124 F.3d at 914. The United States government promoted this belief when it asserted over and over again that the 1837 Treaty rights had been terminated. Despite the United States government now recanting its position, its past actions created and promoted the wide-held understanding that the Indians no longer had unique hunting, fishing, and gathering rights. The government held the land open for the public to settle, transferred land it represented as having clear title, and encouraged settlers to invest their sweat and income to make the land productive and valuable.

Not until 1990 did the Band belatedly bring this action to enforce their dormant hunting and fishing rights under the 1837 Treaty. The Band argues that its treaty rights never actually terminated, and contrary to years of expressing a contrary position, the United States sided with the Band in complete disregard for the impact its position had on the private landowners. As presented more fully below, the Band, the United States, and now the lower courts have placed all the burden of resurrected treaty rights on the innocent landowners. This is inappropriate under the facts of this case.

In 1837, the United States government and representatives of 12 bands of Chippewa Indians negotiated a treaty which ceded Indian ownership of certain lands in the Upper Midwest to the United States in exchange for money, goods, and supplies. Mille Lacs Band of Chippewa Indians v. State of Minnesota, 124 F.3d at 909-10. The treaty granted the Band the temporary privilege of hunting, fishing, and [*3] gathering n1 in the ceded territory "during the pleasure of the President of the United States." 124 F.3d at 910.

In 1850, President Zachary Taylor issued an Executive Order which revoked the temporary privileges allowed in the 1837 Treaty. 124 F.3d at 914. Nothing more was said until five years later, when the United States signed a new treaty with the Chippewa.

This 1855 treaty gave to the Chippewa certain reservation land and provided that the Chippewa

Mille Lacs Band of Chippewa Indians v. State of Minnesota, 861 F. Supp. 784, 815 (D. Minn. 1994).

The 1855 Treaty was a confirmation of President Taylor's 1850 order revoking the Chippewa hunting, fishing, and gathering rights to further the United States government's policy to promote settlement of Minnesota and the West. Act of Congress, March 3, 1837; State Appellate Appendix to the Eighth Circuit Court of Appeals at 312. To further this policy, the government issued land patents conveying clear title to settlers reserving no Chippewa usufructuary rights. See, e.g., patent issued to landowner's predecessor in interest, John Colson, Landowner's Trial Exhibit 13, A. Vol. 10 at 2911.

Development and use of the lands ceded under the 1837 and 1855 Treaties have gone forward ever since the President's 1850 Executive Order. See Landowner's Appendix to the Eighth Circuit at 10955. Much of that development relied on [*4] the fish and game resources on the ceded lands which fostered the investment and construction of many hunting lodges in the Mille Lacs area. These businesses have long been important recreational resources for the general public. In fact, annual tourism spending directly related to hunting and fishing in the ceded area is estimated at $ 34,620,000. Landowner's Appendix to the Eighth Circuit at 10948.

After approximately a 100-year dormancy, the issue of what remained of the Chippewa's "usufructuary" rights surfaced in a 1960 adjudication of rights before the Indian Claims Commission. A purpose of the Indian Claims Commission was to give Indians compensation if their property had been taken without just compensation. 60 Stat. 1049 § 2. The Act also gave the Commission authority to consider all equitable claims an Indian tribe or band may have against the United States. Id. Yet any remedy was limited to compensation. Id. The Chippewa filed a claim with the Indian Claims Commission which awarded the tribe $ 9,000,000 more than originally received for the ceded lands. The award was calculated to pay them for the highest and best use of the land. 124 F.3d at 924.

Nevertheless, 140 years after President Taylor revoked their usufructuary rights, the Band and some of its individual members filed this action against the State of Minnesota seeking to enjoin the State from enforcing its hunting and fishing regulations against Band members on lands they had ceded to the State under the 1837 Treaty. Several Minnesota counties and landowners intervened in the action to protect their rights.

The United States district court granted the requested relief and enjoined the State of Minnesota from enforcing its hunting and fishing regulations against members of the Chippewa tribe on ceded public lands and on private lands that their owners had kept open to the public. The Eighth Circuit [*5] affirmed the district court and this Court granted the State of Minnesota's Petition for Writ of Certiorari.

The Eighth Circuit opinion below is Mille Lacs Band of Chippewa Indians v. State of Minnesota, and is set forth at 124 F.3d 904 (8th Cir. 1997).

The State of Minnesota, the counties, and the landowners argue that the 1850 Executive Order, the subsequent 1855 Treaty, the Act admitting Minnesota to the Union as a State, n2 and the Indian Claims Commission award of $ 9,000,000 terminated the Chippewa usufructuary rights on ceded lands. Amicus, however, will not repeat the parties' arguments. Instead, Amicus will demonstrate that injunctive relief is not an appropriate remedy to vindicate Chippewa treaty rights.

n2 Minnesota, like all states, was admitted to the United States "on equal footing with the original states in all respects," and there was no reservation or exception made for the usufructuary rights temporarily allowed to the Chippewa. 124 F.3d at 926. Since those rights existed only during the pleasure of the President, they were "temporary and precarious" and terminated upon the admission of Minnesota to the Union. Ward v. Race Horse, 163 U.S. 504, 507 (1896).

Three principles of equity dictate against injunctive relief in this case. First, injunctive relief should not issue when an adequate remedy at law is available. Even if the Band's treaty rights were not completely terminated by the 1850 Executive Order, the 1855 Treaty, the Minnesota Statehood Act, and the Indian Claims Commission award, the federal government, nevertheless, has taken them. The Band has an adequate remedy in the form of compensation from the United States government for any taking of its usufructuary rights. This Court and Congress have approved of this remedy in other cases where the United States government improperly [*6] abrogated an Indian treaty right and enforcement of the improperly abrogated treaty right would adversely affect the rights of third parties.

Second, before a court issues injunctive relief, equity requires the court to consider the harm to the parties. Consideration of the harms in this case should preclude the issuance of an injunction. Stopping the State from enforcing its fishing and hunting regulations will seriously harm the economic and business interests of the innocent landowners.

Finally, laches precludes relief where a party delays bringing an action to enforce a right and the delay prejudices others. This doctrine applies here because the Band delayed bringing this action for 140 years even though it knew about Minnesota's interpretation of its rights under the 1837 Treaty and knew that Minnesota enforced state hunting and fishing laws inconsistent with Band usufructuary rights. The Band's delay has severely prejudiced landowners who have developed and invested in their property under the belief that the Band would not be asserting any residual treaty claims.

It is a fundamental principle of long standing that a request for an injunction will not be granted as long as an adequate remedy at law is available.

[*7] National Farmers Union Insurance Companies v. Crow Tribe of Indians, 471 U.S. 845, 856 n.22 (1985). Thus, a court should not grant injunctive relief for the Band if an adequate legal remedy exists.

A. If the Mille I acs Band's Usufructuary Rights Survived the 1850 Executive Order and the 1855 Treaty, Then the Wrong the Band Seeks to Remedy by This Action Is the United States Government's Taking of Those Rights

The record in this case shows that the United States government issued land patents that purported to convey unreserved title in ceded Mille Lacs Band lands to many landowners. In making these conveyances, the United States did not reserve any aboriginal rights. For example, the land patent given to one of the current landowner's predecessors in title provided:

Landowner's Trial Exhibit 13, A. Vol. 10 at 2911. Such land patents issued without reservation of any rights are inconsistent with the continuation of any Mille Lacs Band usufructuary rights. When the United States government issued these land patents, it transferred the fee simple estate, which is the highest estate in land. Cornelius J. Moynihan, Introduction to the Law of Real Property, 33-35 (1979). The fee simple estate authorized the lands' permanent, exclusive, physical occupation by their new owners which made it impossible for the Band to possess any longer, much less, enjoy its usufructuary rights. See, e.g., Kaiser Aetna v. United States, 444 U.S. 164, 176 [*8] (1979) (the right to exclude others is one of the most essential sticks in the bundle of rights that are commonly characterized as property).

The United States' issuance of patents without reservation of any Band amounts to the government authorizing the physical occupation of private property (Band's usufructuary rights) which constitutes a taking:

The government's action in this case is also similar to the action taken in Whitney Benefits, Inc. v. United States, 926 F.2d 1169 (Fed. Cir. 1991), cert. denied, 502 U.S. 952 (1991). There, by enactment of the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201, et seq., Congress prohibited a mining company from exercising its right to mine a particular coal deposit, because the coal was located in an alluvial valley floor Congress deemed necessary to protect. In essence, Congress appropriated the coal for its own purposes which the Court found to be a taking.

This case is no different conceptionally. By conveying unrestricted ownership of the ceded land to settlers along with the right to exclude all others, including Band members, from gaining access to the land to hunt and fish, the government appropriated the Band's usufructuary property rights for what it considered a more important purpose. It packaged these rights with all other rights embodied in fee ownership as an [*9] incentive for settlers to move into Minnesota. Such an appropriation is a taking.

B. The Band Has a Legal Remedy for the Taking It Claims to Have Suffered: Compensation

Compensation, not injunctive relief, is the remedy for a taking. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 314 (1987). n3 This remedy has been successfully sought a number of times by tribes. See Yankton Sioux Tribe of Indians v. United States, 272 U.S. 351 (1926); United States v. Sioux Nation of Indians, 448 U.S. 371 (1980); and Shoshone Tribe of Indians of the Wind River Reservation in Wyoming v. United States, 299 U.S. 476 (1937). Compensation is the appropriate remedy here as well.

n3 The record shows that a monetary value can be placed on the 1837 Treaty right to hunt, fish, and gather on ceded Chippewa land. Landowner's Appendix to the Eighth Circuit at 10955. Thus, there is no difficulty in arriving at a dollar figure to compensate the Band.

The mechanism for seeking compensation is readily available. The Band can seek compensation and money damages from the United States in federal claims court under 28 U.S.C. § 1505, n4 which provides:

n4 Individual Native Americans deprived of treaty rights can sue in federal district court or the claims court under the Tucker Act. See 28 U.S.C. § 1346(a)(2) (federal district jurisdiction for claims under $ 10,000).

See, e.g., Hurley v. Kincaid, 285 U.S. 95, 104 (1932) (holding that if government action "does constitute . . . a taking, the complainant can recover just compensation under the Tucker Act in an action at law" (citation omitted)).

C. Compensation Is Not Only an Available Legal Remedy, It Is the Proper Remedy

This case, of course, does not represent the first time a branch of the United States government has been called upon to balance Indian treaty rights against landowner rights. On most occasions where the rights are in conflict, both the judiciary and legislative branches have endorsed a compensation remedy.

1. This Court Has Approved a Compensation Remedy Rather Than Injunctive Relief to Enforce an Indian Treaty Right

A tribe's right to take fish and game is a compensable property right under the Fifth Amendment. Grand Traverse Band of Chippewa and Ottawa Indians v. Director, Michigan Department of Natural Resources, 971 F. Supp. 282, 288 (W.D. Mich. 1995). To protect this property right, this Court has approved just compensation as a remedy where United States government conduct has frustrated Indian treaty rights. For [*11] example, in Yankton Sioux Tribe of Indians v. United States, 272 U.S. 351, the Sioux Tribe sought monetary damages for the government's taking of a rock quarry and transferring it to private parties. This Court upheld the lower court's award of monetary relief to the Sioux Tribe. Id. at 359. With regard to its decision on the remedy, the Yankton Court expressed its concerns for the plight of innocent landowners:

Id. at 357. The Court concluded that, since the Tribes were entitled to a judgment in their favor but a return of the lands to the Tribes was impossible, the Tribes were "entitled to just compensation as for a taking under the power of eminent domain." Id. at 359.

As in Yankton, courts regularly tailor remedies to the problems at hand. Monetary relief representing fair value is "just compensation" and constitutionally is the equivalent of tangible or real property. See, e.g., United States v. 564.54 Acres of Land, 441 U.S. 506, 510 (1979); Olson v. United States, 292 U.S. 246, 255 (1934); United States v. 131.68 Acres of Land, 695 F.2d 872 (5th Cir.), cert. denied, 464 U.S. 817 (1983) ("the government must, and need do no more than, put the owner in 'as good a position pecuniarily as if his property had not been taken.'" Id. at 875 (quoting Olson v. United States, 292 U.S. at 255)).

In another case, United States v. State of Minnesota, 270 U.S. 181 (1926), the United States sought cancellation of land patents given to the State of Minnesota. The lands subject to the patents should have been reserved for the Chippewa. [*12] This Court ruled in favor of the government and the Chippewa. It ordered the patents canceled "unless the state has sold the lands, and in that event [the United States] is entitled to recover their value." 270 U.S. at 206. While this Court did not specifically address why lands sold to others were not canceled, prejudice to third parties and the availability of an alternative compensation remedy undoubtedly provided the basis.

Such judicial tailoring of an appropriate compensation remedy also took place in United States v. Sioux Nation of Indians, 448 U.S. 371, where the Supreme Court addressed tribal claims that the Tribe was entitled to the return of land sold by treaty. Under the Fort Laramie Treaty of 1868, the United States had originally promised that the Sioux reservation, including the Black Hills (and basically all of South Dakota west of the Missouri River), would be set aside for the absolute and undisturbed use and occupation of the Sioux. Id at 375-76. The treaty also provided that no cession of land would occur without three-fourths approval of the adult male Sioux. Id. at 376. After the discovery of gold in the Black Hills, the United States wanted to trade the Sioux the Black Hills for subsistence rations. Although only 10% of the adult male Sioux approved the new treaty, Congress enacted the agreement anyway, thereby abrogating the Fort Laramie Treaty. Id. at 381-83. The Court held that, because the government had acquired the land dishonestly and unfairly, the amount paid for the Black Hills had to be construed as an abrogation of the original treaty. The action of Congress in abrogating the treaty

Once the abrogation was established, the United States was required to pay the Indians just compensation for the taking of the Black Hills. Id. at 423-24. The Indians could not reclaim the Black Hills -- even though the United States acted in bad faith -- because the land had already been settled and was put to other uses. Under these circumstances it was impossible, unreasonable, and impractical to award the Black Hills back to the Sioux. Id. at 377-78. See also Shoshone Tribe of Indians v. United States, 299 U.S. 476 (United States government ordered to pay Shoshone compensation for illegally moving Arapaho onto Shoshone lands). n5

n5 Lower courts have declined to issue injunctions where innocent landowners are injured. For example, United States v. Imperial Irrigation District, 799 F. Supp. 1052, 1069 (S.D. Cal. 1992) (district court refused to enforce an injunction against private property owners because "an injunction would render useless thousands of acres of cultivated farmland to the detriment of innocent farmers who are blameless in this lawsuit and who have worked hard to cultivate desert lands"; monetary relief awarded).

In the case at bar, many of the affected landowners innocently acquired their property which had, as a critical component of its value, the availability of fish and game. Some invested in lodges and resorts where guests came to hunt and fish, reasonably expecting that the State of Minnesota would regulate the taking of fish and game to ensure an adequate supply for future generations. Other property owners opened their land for public hunting with the same expectations and in reliance upon the United States government's representation over 150 years that no Chippewa usufructuary rights remained.

[*14] Should this Court decide these rights were never acquired by the treaty, it has, nevertheless, become impractical and unreasonable to recognize them now as they have been taken by the government's authorization of private party occupation. Rather than disrupting the status quo by enjoining the State from enforcing its needed regulations and concomitantly injuring private landowners, this Court should instead direct the Band to refile its claim in the Court of Federal Claims where it can seek an award of monetary damages from the federal government. See Preseault v. Interstate Commerce Commission, 494 U.S. 1, 12-14 (1990).

2. Congress Has Recognized That a Compensation Remedy Is More Appropriate to Enforce Indian Treaty Rights Than Injunctive Relief

Oregon Department of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985), is very similar to the case at bar. This Court addressed the question of whether a tribe, which had ceded territory to the United States under a valid agreement, still retained a special right to hunt and fish on the lands free of state regulation. Even though the Court found that the tribe did not retain any special rights, id. at 763-64, it proceeded to address the appropriateness of the remedy Congress provided for a survey error that had improperly excluded certain land from the Klamath reservation. Id. at 756-57. This Court reasoned that the federal purchase of the improperly excluded Indian land was necessary to settle conflicts between the Indians and rapidly increasing numbers of settlers who had moved into disputed reservation lands. Rather than restore the lands excluded, due to the survey error, to the tribe -- an option which would have left intact the tribe's exclusive right to hunt and fish on those lands -- Congress chose [*15] to remove the excluded lands from the reservation entirely, leaving them open for all citizens' use and to compensate the tribe for a taking. Id. at 771-72.

Such reasoning was earlier embodied in statute when Congress adopted the Indian Claims Commission Act. Act of 1946, Chapter 959, 60 Stat. 1049 (1946). The Act created an Indian Claims Commission to "hear and determine . . . claims against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians." Section 2. The Act provided relief for:

Significantly, although the Act allowed equitable claims, it provided only for monetary relief. See 60 Stat. 1049 § 2 (providing for the method of determination of the amount of relief). Congress had a reason to limit the relief to payment of compensation: the unfair impact on innocent landowners of making them pay for past wrongs of the United States government. As the District Court of the District of Columbia [*16] noted in applying a law which required the Secretary of the Interior to propose legislative solutions to all Indian claims that the Secretary decided not to litigate:

Covelo describes a congressional awareness of how litigation decisions could be unfair to third parties who purchased property without knowledge of Indian treaty claims. Covelo also noted that Congress was aware that the United States was complicit in bringing about unfair transfers from Indians. Both of those problems are present here. As demonstrated above, the injunction harms innocent third party landowners. Also, the federal government caused this harm when it transferred ceded land without any warning to the innocent settlers and purchasers that their property may still be subject to some unsettled claims.

Accordingly, this Court should direct that any remedy to enforce the Band's treaty claims must be limited to federal compensation.

Before an injunction can issue, the court must balance the equities between the parties. Burford v. Sun Oil Company, 319 U.S. 315, 345 (1943). A principle consideration of whether to grant injunctive relief is "whether the harm to the plaintiff outweighs any harm threatened by the injunction." Savage Industries, Inc. v. Savage Arms, Inc., 43 F.3d 714, 719 n.8 (1st Cir. 1994).

To be sure, courts have issued injunctions after balancing the equities but, even on the few occasions courts have issued injunctive relief to enforce an Indian treaty right, they have still provided equitable protections to those who may be adversely affected. For example, in State of Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 686 (1979), this Court allowed Indian tribes to take only as much fish as necessary to achieve a moderate living.

More recently, the Ninth Circuit in United States v. State of Washington, 135 F.3d 618, 640 (9th Cir. 1998), fashioned an injunction to minimize its impact on landowners. The issue was whether specific tribes still had shellfishing rights on state tidelands. The circuit court found rights to exist but still balanced the equities by prohibiting the tribes from benefiting where the landowners had improved the shellfish beds. The United States v. Washington court also limited the time, place, and manner of gathering on unimproved beds. However, in this case, the Eighth Circuit employed no equitable considerations. It should have.

[*18] A. The Landowners Are Innocent Because the United States Government Represented that the Treaty Rights Are Terminated

Amicus agrees with the state, counties, and landowners that the 1850 Presidential Executive Order and the later 1855 Treaty in which the Chippewa again ceded their lands in exchange for reservation land lawfully terminated the Mille Lacs Band's usufructuary rights. However, even if the order and subsequent treaty did not lawfully terminate those rights, they did have one effect: they created an unmistakable reasonable expectation in the landowners that their lands were free of Chippewa usufructuary rights.

When President Taylor terminated the usufructuary rights in 1850, the United States government had a policy promoting Western settlement and expansion of the nation. Act of Congress, March 3, 1837, 5 Stat. 158, State Appellate Appendix to the Eighth Circuit at 312. In order to promote settlement, all prior claims had to be extinguished so that land could be conveyed to the new settlers. Id.

From the 1850's until it took a contrary position in this litigation, the United States government supported this policy and consistently acted as though the Band's usufructuary rights had been terminated. For example, in 1938, President Roosevelt stated that "the hunting, fishing, and gathering privileges guaranteed by the 1837 and 1842 Treaties had been revoked by the 1850 executive order." State Appellate Appendix to the Eighth Circuit at 511.

The record below also shows on many other occasions the United States government expressly told both new settlers and the Chippewa that the hunting and fishing privileges were terminated on ceded lands, and that Chippewa hunting was subject to state law. See Opening Brief of Appellant Counties to the Eighth Circuit Court of Appeals at 12-14 and Opening [*19] Brief of Landowner/Appellants John W. Thompson to the Eighth Circuit Court of Appeals at 24.

Consistent with the government's representations, the United States government issued land patents which did not show any reservations of Indian hunting or fishing rights. As the Minnesota Supreme Court has noted,

State of Minnesota v. Keezer, 292 N.W.2d 714, 721 n.10 (Minn. 1980). Thus, the private landowners of ceded Chippewa land are in all respects innocent of any wrongdoing.

B. The Innocent Landowners Reasonably Relied on the Representations of the United States Government and Will Suffer Serious Injury if an Injunction Is Upheld

The landowners heavily relied on the United States' representations. Based upon the expectation that they had clear title to their property, they developed a substantial tourism industry based on hunting and fishing. Landowner's Appendix to the Eighth Circuit at 10948. They invested their lives and money in it.

The record shows that the impact of an injunction on these landowners and the tourism industry is severe. The landowners' economist testified about the extent of the impact on this industry if the Chippewa are given unrestricted hunting rights. He testified that allowing a treaty harvest would cause an annual loss in sales to the tourist industry of $ 17,310,000 and 863 full-time jobs. Landowner's Appendix to the Eighth [*20] Circuit at 10948. The economist also testified that there would be a $ 41,290,000 loss in property values. Id.

Later, other property owners relied on the United States government's representations and commercially developed their property. For example, some of the landowners developed commercial timber operations. Much of this land is subject to the Minnesota Tree Growth Tax Law. Minnesota Statute § 270.31, et seq. Under Section 270.38 subd. 1, a property owner may apply to place his forest land under the Tree Growth Tax Law. The application must agree that

Under the lower court's rulings, Band members may exercise their rights only on public lands and private lands open to public access. Since the forest lands under the Minnesota Tree Growth Tax Law are open to the public, Band members may hunt and fish on them free from state regulations.

When landowners applied to put their property under the Minnesota Tree Growth Tax Law, they did so with the expectation that the public's access for taking fish and game from those lands would be limited by Minnesota wildlife conservation regulations. The landowners did not expect that putting their lands under the Minnesota Tree Growth Tax Law would subject them to unlimited tribal access that could seriously conflict with commercial timber operations. Yet, under the district court's ruling, that is exactly what will happen; these landowners will be unprotected as the state may not limit the Band's access for hunting and fishing.

[*21] Why not just remove these lands from the tree growth tax law? In order to take the lands out of the Minnesota Tree Growth Tax Law, the property owners must apply to the local government or the State of Minnesota. If the application is granted, the property owner will have to pay back taxes and penalties for up to ten years of the time the property was under the Minnesota Tree Growth Tax Law. Thus, landowners with Minnesota Tree Growth Tax Law property can only protect themselves from unregulated hunting access if they pay a substantial penalty. Minnesota Statute § 270.38 subd. 5.

None of these landowners would have invested in their developments had they known that the Chippewa had a right to commercially harvest fish and game on and near their property free of state regulation. Now they are threatened with severe economic hardship because of their reliance on United States government representations and the inaction of the Chippewa. Landowner's Appendix to the Eighth Circuit at 10948. A court of equity should not issue an injunction under these circumstances.

THE BAND SHOULD BE BARRED UNDER THE EQUITABLE DOCTRINE OF LACHES FROM ENFORCING ITS USUFRUCTUARY RIGHTS

Under the doctrine of laches, a court should not grant injunctive relief if a party unreasonably delays bringing an action for an injunction and causes prejudice to another party. Creswill v. Grand Lodge Knights of Pythias, 225 U.S. 246, 260-61 (1912). "To prove laches, a party asserting the defense must show (1) lack of diligence by the party against whom the defense is asserted and (2) prejudice." Southside Fair Housing Committee v. City of New York, 928 F.2d 1336, 1354 (2d Cir. 1991); Tri-Star Pictures, Inc. v. Leisure Time Productions, [*22] 17 F.3d 38, 44 (2d Cir. 1994) (laches bars injunctive relief where a plaintiff unreasonably delays in commencing an action).

Here, the Band is belatedly claiming a right which it had apparently accepted as no longer existing. For example, the State of Minnesota has been enforcing its fishing and hunting regulations against Band members on ceded lands for more than 100 years. See Opening Brief of Landowner/Appellants John W. Thompson to the Eighth Circuit at 4 and 24. Yet the Band did not seek injunctive relief until 1990. It could have done so much earlier. In 1960, the Band made a claim to the Indian Claims Commission for monetary compensation for abrogation of its treaty rights. It received $ 9,000,000 for the highest and best use of its ceded lands but never raised any arguments for injunctive relief or additional compensation for the usufructuary rights it now claims still to possess. If the $ 9,000,000 did not compensate for these usufructuary rights, why did the Band fail to seek additional relief?

In reliance on the Band's inaction, Mille Lacs area landowners made substantial commercial and residential investments. For example, they built hunting lodges that must have a reasonable supply of fish and game to attract patrons and survive. The landowners would never have developed their properties in this manner had they known the fish and game could be depleted by the Band. The Band and its members easily could have prevented the landowners' prejudice had they used the Indian Claims Commission opportunity to seek additional compensation or had they brought a separate legal action for enforcement of their treaty rights (if any) prior to private landowners' investments. They never did. Consequently, the Band's action for injunctive relief should [*23] have been, and still should be, dismissed under the laches doctrine. n6

n6 In United States v. Washington, 135 F.3d at 637, the Ninth Circuit held that laches cannot apply to defeat Indian treaty rights. The circuit court based its decision on this Court's decision in Board of Commissioners of Jackson County v. United States, 308 U.S. 343, 351 (1939). In Board of Commissioners, the United States government asserted an Indian claim against a county government that had improperly collected taxes from the tribe. This Court based its decision on the general unavailability of equitable defenses against the United States finding that, "state notions of laches and state statutes of limitations have no applicability to suits by the Government, whether on behalf of Indians or otherwise." In reaching this holding, Board of Commissioners relied on United States v. Minnesota, 270 U.S. 181. In that case, this Court considered whether an action substantively brought by the tribes rather than by the United States is subject to laches. This Court's implicit conclusion was that if the tribes bring the action, equitable defenses such as laches are available. 270 U.S. at 194-95. Here, the action is substantively brought by the tribe and, accordingly, laches should apply.

The Eighth Circuit affirmed the district court's injunction against the State of Minnesota preventing it from enforcing its fish and game regulations. This injunction permits members of the Mille Lacs Band of Chippewa Indians to substantially interfere with the property rights of innocent, long-time private landowners in the Mille Lacs area. However, this Court and Congress have recognized that injunctive relief under such circumstances is inappropriate. Therefore, if this Court finds that any treaty rights still exist, it should reverse the [*24] Eighth Circuit's approval of injunctive relief and instead direct the Mille Lacs Band of Chippewa Indians to seek compensation from the federal government in the Court of Federal Claims.

Stephen G. Froehle, Esq., 7588 Jeanne Drive, Lino Lakes, Minnesota, 55014, (651) 784-2693
GARY E. PERSIAN, ESQ., Counsel of Record, Randy V. Thompson, Esq., PERSLAN, MacGREGOR &, THOMPSON, 1530 International Centre, 900 Second Avenue South, Minneapolis, Minnesota 55402, (612) 339-6733
Attorneys for Respondents John W., Thompson, Jenny Thompson, Joseph N., Karpen, LeRoy Burling, Glenn Thompson, Gary M. Kiedrowski, Michael Sheff and, Robert L. Edmonds [*i]

These Landowners intervened in this action as representatives of individuals who own lands and businesses in the twelve county Minnesota portion of the 1837 ceded territory, and who are the intended beneficiaries of the 1837 and 1855 treaty cessions, and the Executive Order revoking the privilege.

The Briefs by the Chippewa Bands and the United States attempt to rewrite a straightforward history in which the Chippewa ceded land and reserved a temporary privilege to hunt, fish and gather wild rice during the pleasure of the President. That temporary privilege was revoked by Presidential Order, relinquished by the 1855 treaty, and terminated by Minnesota's admission to the Union. The multiplicity of facts and novelty of arguments advanced by the Bands are compelled by the lack of a single, compelling argument from the plain language of the controlling documents. n1 Contained within 2,000 pages of the Appendix before this Court are excerpts from hundreds of pages of Band expert reports, including: a linguist's report on the likely translation of treaty language, without any record of the translation n2; and a law professor, testifying as a [*2] "wildlife law" expert, who claims that the drafters of the 1837 treaty created a privilege unknown to the common law (JA 1208).

n1 To write around the plain language of these documents, the Chippewa Bands and the United States have filed 204 pages of briefs in support of 481 pages of lower court decisions. Surely, nothing should be so complex to explain a thirty-eight word (one sentence) 1837 privilege, a one half page Presidential Order revoking the privilege, and the single sentence language of cession from the 1855 treaty (PA 486, 565, 503).

References to "PA" are citations to the Appendix which was filed with the State of Minnesota's Petition. "JA" refers to the Joint Appendix. "LA" refers to the Landowners' Appendix filed at the Eighth Circuit.

n2 The linchpin to the Bands' entire case is the conjecture of a linguist who is not fluent in Ojibwe (JA 1168) and admittedly not qualified to be an interpreter himself (JA 1194). The linguist Nichols speculated that the most likely translation of the treaties would have been an attempt at a direct word-for-word equivalent even though there is no record of what Ojibwe terms were used during the 1837 or 1855 treaty negotiations (JA 1169). Nichols admitted many translations other than a word-for-word attempt were possible (JA 1187), since some of the interpreters were probably fluently bilingual in English and Ojibwe and knew the language better than the linguist (JA 1189). The linguist admitted that if any of these interpreters had attempted to translate the meanings and concepts of the treaties rather than just direct word-to-word equivalents, the meanings and concepts could have been translated and understood by the Chippewa (LA 9491-92).

The Landowners submit that if the Court looks beyond the plain, unambiguous language of the 1837 treaty, that examination must begin with the Treaty Journal (JA 45-93). If the Treaty Journal, and the subsequent federal action taken pursuant to the treaty, are consistent with the language of the treaty, judicial inquiry is at an end. The Chippewa were told at the 1837 treaty negotiations that they would be "permitted" and "allowed" during the President's pleasure to hunt and fish on the ceded lands. It would "probably be many years, before your Great Father will want n3 all these lands for the use of his White Children." (JA 78). Thirteen years later, acting pursuant to the power expressly delegated by Congress in the treaty, President Taylor revoked the privilege. Thus, the 1837 treaty, the 1837 Journal, and the actions of the President, are consistent with each other.

n3 The privilege would be revoked when the lands were wanted, the term used by the Treaty Journal, not when the President demonstrated a "need" for the lands as the Bands argue.

The exclusive forum for perceived injustice from an Indian understanding that differs from the plain language of the treaty was the Indian Claims Commission. 60 Stat. 1049 (1946) (PA 550-564; see LA 1005-1033); see also, Landowners' (Thompson et al.) Opening Brief, pp. 13-14; Catawba Indian Tribe of South Carolina v. United States, 982 F.2d 1564, 1568-69 (Fed. Cir. 1993). The Indian Claims Commission determined that damages were the sole remedy, not an injunction that voids a [*3] Presidential Order, undoing the settled rights of non-Chippewa citizens, the State of Minnesota, and its political subdivisions. See, Navajo Tribe of Indians v. State of New Mexico, 809 F.2d 1455, 1460-61, 1464-65, 1467 (CA10 1987). Consistent with the Constitution, a state simply cannot be deemed to have ceded its sovereignty by way of Indian understanding that allegedly differs from the plain, unambiguous language of the treaties, Executive Order, and the Enabling Act.

The United States argues that because it intervened in this action, the Indian Claims Commission Act (ICCA) is inapplicable to this suit because the Act only barred claims against the United States.

First, the claims barred by Section 12 are those made "on behalf of any Indian tribe. . ." (60 Stat. 1049, § 2, PA 550). The United States admits that it has participated in this action "on behalf of the Bands." (U.S. Brief at p. 48, n. 24). An action on behalf of an Indian tribe is barred by the ICCA. Second, the United States fails to address the Landowners' argument that the Chippewa cannot create federal jurisdiction by suing the state to accomplish indirectly what they cannot accomplish directly--negating an Executive Order through judicial action. The jurisdictional barrier, by its language, does not depend upon the alignment of the parties, but whether the suit challenges the actions of the United States. This action is precisely the type of attack on the actions of the federal government that were foreclosed by the ICCA in order to assure that the rights of all were settled with finality. Moreover, the remedy sought here is a remedy prohibited by the Indian Claims Commission, rescinding an Executive Order to reestablish a privilege. These Chippewa Bands were awarded nine million dollars for their 1837 treaty claims without setoff or reduction for any retained hunting and fishing privilege (PA 383). See, Oregon Dept. of [*4] Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 773-74 (1985).

II. THE EXPRESS LANGUAGE OF CESSION FROM THE 1855 TREATY CEDED ANY HUNTING AND FISHING PRIVILEGE.

In 1849, lumbermen had built a dam on the Rum River near its source at Lake Mille Lacs which flooded the wild rice crops of the Mille Lacs Band. In a February, 1855 clash between the lumbermen and the Chippewa, three were killed (PA 269). In his February 16, 1855 letter Territorial Governor Gorman hastily writes:

Whatever value there is in this February, 1855 letter is undercut by what Governor Gorman writes four months later to Chief Little Hill on June 4, 1855.

(PA 271). The dam was built in 1849, and President Taylor's revocation Order was issued in 1850. Gorman's statement that when the dam was built the Indians had no rights there except to hunt and fish is consistent with privilege revocation. n4 Gorman [*6] simply doesn't mention the 1850 Order of President Taylor, meaning that his view of the effectiveness of the Presidential Order is unknown as well as immaterial. The payment to the Chippewa to settle the wild rice loss in the summer of 1855 occurred because the wild rice beds were then in the newly created Mille Lacs Reservation (PA 271-72, n. 13).

n4 The Mille Lacs Band, and the District Court, placed great reliance upon the Gorman letter as demonstrating that the 1837 privilege still existed at the time of the 1855 treaty negotiations, despite the obvious errors and inconsistencies in the February, 1855 letter. Contrast the reliance upon Gorman's letter with the standard applied to President Franklin Roosevelt's March 1, 1938 letter (PA 575) confirming that the 1850 Order revoked the 1837 privilege. President Roosevelt and numerous COIA letters (JA 1792; 1836; 1832; 1798; 1809-10) were dismissed because "there is no evidence that the authors had considered all of the background relevant to treaty interpretation." (PA 300).

While U.S. treaty negotiator Manypenny discusses a possible land claim of two Bands to the north and west of the 1855 cession, Manypenny leaves no doubt in his letter of transmittal to Secretary of the Interior McClelland that Article 1 of the 1855 treaty resolves far more than that claim:

By eliminating all interests in or to lands of whatsoever nature, the 1855 treaty fulfilled the Authorizing Act's purpose. Whether or not revocation of the 1837 treaty privilege was specifically discussed in 1855 is beside the point. The 1855 treaty negotiations do not reflect any discussion or agreement to reestablish the privilege in light of the 1850 Order's revocation of the 1837 privilege n5. Silence on this critical point is fatal to the claim that the privilege survived the express cession. Klamath, 473 U.S. at 768; see, Cass County, Minnesota v. Leech Lake Band of Chippewa Indians, U.S. , 118 S.Ct. 1904, 1910 (1998). A fair reading of these documents is that the Chippewa agreed their sovereignty would be reduced to the area of their new reservations. See, New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335, n. 18 (1983) ("tribal sovereignty contains a 'significant geographical component'").

n5 The 1851 telegram "suspended" removal, but no document revoked the 1850 Order or even attempted to suspend or cancel 1837 privilege revocation (JA 1054, 1113, 1121-22). That the Chippewa sent a delegation in June 1852 to Washington, D.C. to lobby President Fillmore to rescind the 1850 Order, and were unsuccessful (Driben, LA 2400), demonstrates a lack of "belief" the privilege had been restored.

The Mille Lacs Band argues that they would have starved to death if the 1837 treaty privilege to hunt and fish off the reservation was lost before or after the 1855 treaty. n6 This argument does not explain how the Pillager and Lake [*8] Winnibigoshish Bands, who lived on the Leech Lake Reservation (map at JA 1883) in the 1855 cession area, could have survived since no hunting and fishing privilege was preserved in 1855 for the off-reservation lands contiguous to their reservations. Compare, Klamath, 473 U.S. at 761. The Bands also ignore the annual payments and numerous items provided to assist them in agricultural pursuits (1854 Treaty, Art. 4 and 5, PA 493-94; 1855 Treaty Art. 3, 4 and 9, PA 506-13). Repeatedly, the Chippewa negotiators agreed that their future depended upon securing reservations, abandoning the old ways and embracing the methods of the American civilization that was engulfing them (PA 513; JA 302, 335, 338-39, 348, 349).

n6 The United States argues that the Chippewa were assured during the 1854 negotiations that the reservations did not confine them and they had the privilege to go out and hunt whenever they had a mind to (United States Brief at p. 19). The problem with that argument is that it is the interpretation of the 1854 treaty negotiations advanced by the Chippewa nine years later at the 1863 Treaty Council (PA 274), and doesn't support the argument that the Indians could hunt without regard to state law. See, Statement of H. Rice to Mille Lacs Band (JA 471-72).

The Mille Lacs Band points to the Treaty with Chippewas of Sault Ste. Marie, 11 Stat. 631 (August 2, 1855), for the proposition that a subsequent treaty is required to specifically mention the previous treaty fishing provision in order to revoke it. The underlying June 16, 1820 treaty (7 Stat. 206) granted a "perpetual right of fishing at the falls of St. Marie's." Id. When negotiating the later treaty, Manypenny addressed this right specifically because that was the singular purpose of the later treaty. n8 The fact that on rare occasion subsequent treaties [*9] specifically mentioned earlier treaty hunting and fishing rights when terminating those rights does not stand for the proposition that if those subsequent treaties had used the sweeping, express language of cession, the result would not have been the same.

n8 This example actually demonstrates why the broad cession language of the 1855 Chippewa Treaty (PA 503) didn't relinquish only the lands north and west of the 1855 cession area. If that was the only goal Manypenny would have used a specific description as he did at Sault Ste. Marie.

The Mille Lacs Band is forced to concede that the 1855 treaty language before this Court does "encompass" the 1837 hunting and fishing privilege if "the 1837 privilege is a 'right to' or 'interest in' lands." (Mille Lacs Brief at p. 21). This concession demonstrates that all of the Band's 1855 treaty arguments are unavailing unless the 1837 privilege can be reclassified as something other than an interest in or to lands.

The Mille Lacs Band is reduced to arguing that even though the 1855 treaty eliminates "any and all right, title, and interest, of whatsoever nature the same may be. . .in and to" the lands (PA 503), that language does not "extinguish 'interests related to lands' or 'rights which may be exercised within a particular geographic area.'" (Mille Lacs Brief at p. 24). This sweeping [*10] language of cession is sufficient to eliminate all interests regardless of how the language is parsed.

The Mille Lacs Band, citing to Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977), suggests that the 1837 privilege is more like a federally issued hunting and fishing license, not a real property license. The Bands claim to have obtained a "federal hunting and fishing permit" which is "independent of any interests in land" but which "preempt inconsistent state regulations." (Mille Lacs Brief at pp. 22-23). n9 A hunting and fishing permit, far from preempting, is specifically issued subject to the state's police powers. Douglas is contrary to the Band's argument, holding "a federal license. . .does not immunize [against]. . .the normal incidents of local police power" and "federal licensees are 'entitled' to the same 'privileges' of fishery access as a State affords to its residents or citizens." Id., 431 U.S. at 278, 281, quoting Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 447 (1960) and Act of Dec. 31, 1792, 1 Stat. 287, codified in 46 U.S.C., c.2, § 251. The Mille Lacs Band's argument reveals its true nature: it is the repackaged "regulatory right" argument from the Klamath Tribe's brief n10 (JA 1859; Landowners' Opening Brief at pp. 33-34). Ultimately, this approach would undo a century of Indian [*11] law. United States v. Winans, 198 U.S. 371 (1905) holds reserved usufructuary rights to be interests in or to land. Menominee Indian Tribe of Wisconsin v. Thompson, 943 F.Supp. 999, 1018 (W.D. Wis. 1996); see also, Kennedy v. Becker, 241 U.S. at 562; State v. Mallory, 83 S.W. 955, 959 (Ark. 1904). n11 If the 1837 privilege was granted subject to federal control, in the nature of a hunting and fishing permit, then the power to regulate that hunting and fishing activity passed to the State of Minnesota upon statehood.

n9 The Band uses the example of "the right, in common with the citizens of the United States, to travel upon all public highways" to show no interest in or to land. (Mille Lacs Brief, p. 23-24). Actually, this "right" would be in the nature of a license or easement. But the example is more telling in unintended ways. The Band surely could not "self-regulate" its members' public highway activities under a different highway code, or claim a federal highway "permit," preempting state traffic laws. Non-exclusive, off-reservation hunting and fishing privileges, like other privileges in common with citizens, create no interests greater than citizens and are fully subject to all state regulations.

n10 Alternatively, the Mille Lacs Band's claim must be that Indian sovereignty was relinquished to obtain a previously unknown federal hunting and fishing permit that preempts state police power under the Commerce Clause contrary to Douglas v. Seacoast Products. See, Section III.A, p. 13, infra.

n11 The argument that the privilege creates something other than an interest in or to land was advanced by "wildlife law" expert Dr. Thomas Lund who claimed that the 1837 privilege created something unknown to the common law (JA 1208). The privilege was subject to state trespass law, but Lund could not explain why it was subject to one state law but not any others (JA 1200-01). Dr. Lund admitted that a monopoly to harvest fish or game is an interest in land, unlike the 1837 privilege, but claimed that giving the privilege prevented the granting of a monopoly (JA 1201-03). Not only was Lund's argument advanced to this Court in support of the Klamath Tribe's claim of a "regulatory right" (JA 1853; 1859) and rejected by this Court, but it has been rejected as a "fallacy" in Menominee Indian Tribe, 943 F.Supp. at 1018.

As a privilege to hunt and fish upon ceded lands, the privilege was valuable because it gave non-citizen Indians the same privilege to hunt and fish as citizens (JA 1211-12). This temporary privilege was never intended to be free from equal state regulation, because it would have given the Indians greater rights than U.S. citizens, the intended beneficiaries of the United States land purchase. This result was inconceivable. (JA 1445-46). The United States concedes that as a practical matter the "1837 Treaty did not provide the Chippewa with any greater rights, in 1837 or in 1855, than were possessed by non-Indian residents of the ceded territory." (U.S. Brief at p. 29). Meanwhile, the Chippewa argue that the privilege provides "special" rights. (Mille Lacs Brief, p. 26). This Court should return to its holding in Kennedy v. Becker that a privilege to hunt and fish is non-exclusive and subject to state regulations applicable to all citizens. Whether denominated a profit a [*12] prendre or a revocable license, the 1837 privilege was an interest in or to land which did not survive the 1855 treaty.

III. THE CHIPPEWAS' CLAIM IS BARRED BY MINNESOTA'S ENABLING ACT, THE EQUAL FOOTING DOCTRINE, THE TENTH AMENDMENT AND FEDERALISM.

n12 The equal footing issue was properly before and considered by the Circuit Court as to all Bands (PA 52, n. 40).

n13 Hughes v. Oklahoma, 441 U.S. 322 (1979); Johnson v. Gearlds, 234 U.S. 422 (1913); United States v. Forty-three Gallons of Whiskey, 93 U.S. 188 (1876); Perrin v. United States, 232 U.S. 478 (1914).

The Property Clause only authorizes Congress to "impose laws upon them [territories]. . . so long as they remain in territorial condition." n14 In 1837 and 1858 Congress intended n15 [*13] that any "exemption from regulation" (PA 333-34) flowing from the 1837 treaty privilege would end upon statehood. While the Property Clause may now allow Congress "to protect wildlife on the public [federal] lands" n16 in the face of state law allowing the slaughter of certain federally protected animals (Kleppe at 545), it does not afford Congress the power to immunize Band members from the application of Minnesota's nondiscriminatory state hunting and fishing laws regarding the harvest of all species.

n14 Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 230 (1845) (as cited in, Utah Div. of State Lands v. United States, 482 U.S. 193, 196-7 (1987)). The power to regulate territorial lands is temporary and expires on statehood. Shively v. Bowlby, 152 U.S. 1, 57-58 (1894); see, Pollard's, 44 U.S. at 221, 223-25; American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511, 542 (1828); United States v. Winans, 198 U.S. 371, 378 (1905).

n15 The United States acknowledges that the "touchstone" of the test under Ward v. Race Horse, 163 U.S. 504 (1896) is "the intent of the Congress" (U.S. 42). The only testimony in this case regarding Congress' intent, is that Congress never would have intended for the Chippewa Band members to hold hunting and fishing privileges superior to those of American citizens (JA 1445-46).

Hughes held that when regulating fish and game a state could not constitutionally forbid the export of minnows from Oklahoma because of the impact on interstate commerce. The Commerce Clause is irrelevant to this action because it does not, and cannot, serve to limit a state's police power regarding intrastate activities including: manner of harvest, management of the species, seasons, limits, and safety regulations at issue.

In Johnson, the Court upheld federal laws regulating the liquor trade with Indians against conflicting Minnesota law for two key reasons. The first was because, "the state has no police power over Indian commerce." Johnson, 234 U.S. at 430. The second was due to Art. VII of the 1855 treaty, 10 Stat. 1165 (PA 512) which provides that federal liquor laws which "have been or may be enacted. . .shall continue and be in force. . .until otherwise provided by Congress." 10 Stat. 1165 (as cited in, Johnson, 234 U.S. at 435). n17 In contrast, the state regulations at [*14] issue here fall squarely within police powers and do not concern commerce with the Chippewa. In addition, there is no plain statement in the 1837 treaty that the hunting and fishing privilege would continue until a subsequent affirmative act by Congress.

n17 The preemptive power of U.S. Const., Art. I, § 8, cl. 3 was at its zenith in Johnson. The "federal statute forbidding the introduction of intoxicants into the Indian country, was one demanded by the highest considerations of public policy. . ." Dick v. United States, 208 U.S. 340, 354 (1908). In Forty-three Gallons, the Court recognized that the test to determine if the state was bound by a pre-statehood treaty provision was "if the contracting parties had power to incorporate it in the treaty of 1863." Id. at 196 (emphasis added).

n18 "The question of implied repeal depends on the relative potency of state police power and the federal interstate commerce power." Johnson at 431. Therefore, even the Bands' suggested issue is determined by balancing the Tenth Amendment's protection of state sovereignty against any valid constitutional basis for a federal grant of immunity from future state law. Under this balancing test, the treaty privilege must give way to the state's regulatory plan because an exemption would require the Court "to pile inference upon inference in a manner that would bid fair to convert Congressional authority under the Commerce Clause to a general police power of the sort retained by the States." United States v. Lopez, 514 U.S. 549, 567 (1995).

n19 The United States' allegation is also counter to the representations made by the Chippewa during the 1837 treaty negotiations that, "you have been told our country is not good to cultivate. It is false. There is no better soil to cultivate than it. . ." (JA 72).

The United States attempts to distinguish Ward by pointing out that Wyoming territory had been organized before the treaty in Ward was ratified (U.S. Brief at p. 45, n. 22). The United States then erroneously contends that the Minnesota portion of the 1837 ceded area did not become a territory until after ratification of the 1837 treaty. When the 1837 treaty was [*16] ratified, the entire 1837 ceded territory, including the part now in Minnesota, was part of the Wisconsin Territory which had been formed April 20, 1836 (5 Stat. 10).

The only expert testimony regarding Congress' intent as to the duration of the 1837 privilege repeats President Taylor's proclamation that the privilege was "temporary" (JA 1446; see PA 565). n20

n20 The Chippewa claimed they could not be removed "for a considerable time" (St. Croix Brief at p. 8) anticipating that the privilege, even if tied to removal, would end and thus was temporary under Ward.

n21 "Conservation" was defined by the trial court as regulations necessary "to forestall the imminence of extinction." (PA 119); Landowners' Opening Brief, p. 37, n. 38.

n22 "[A] state must demonstrate that its regulation is reasonable and [a] necessary conservation measure. . ." Klamath, 473 U.S. at 780, n. 4 (dissent)(citing, Antoine v. Washington, 420 U.S. at 207, n. 11; and Tulee v. Washington).

n23 Further, the agreement at issue in Antoine only referred to lands which had retained their tribal character and were never patented to private ownership. See, Antoine, 420 U.S. at 207, n. 11. In the instant case, the Bands claim the ability to go on lands owned by public entities, most of which were at one time patented to private land owners.

n24 Tulee is inapplicable here because in Tulee the Bands argued that by the Yakima treaty "the Indians were given a right in the land. . . ." (LA 8546) which was "a profit a prendre" (LA 8549). The Chippewa claim the 1837 privilege is not an interest in or to land. "It sometimes may be proper to interpret the treaty as conferring a right or privilege which was intended to be subject to state law" (Tulee brief, JA 1844).

[*18] IV. THE COURT SHOULD NOT TAKE JUDICIAL NOTICE OF THE MATERIALS LODGED BY THE CHIPPEWA BANDS BECAUSE THEY DO NOT MEET THE REQUIREMENTS OF FED. R. EVID. 201.

The last minute effort of the Chippewa to present a onesided picture of the treaty harvest's impact in Wisconsin, based upon the materials authored by the Bands and their allies, should not be countenanced. See, 1 McLaughlin, Weinstein's Federal Evidence, 2d Ed., pp. 201-8 to 201-107 (1998). The impact of the treaty harvest was an issue below where substantial evidence was admitted demonstrating that there will be a negative impact on thousands of other citizens as a result of Chippewa treaty harvest of up to fifty percent of the fish and game in this twelve county area. The Bands rely upon a comment of a Wisconsin tourism director in a publication authored by one of the Band's expert witnesses n25 (Bad River Brief, p. 21). The expert testimony of the Landowners' economist concludes, after exhaustive study, that there has been millions of dollars of damage to the tourism industry and property values in Wisconsin as a result of the treaty harvest (Dr. J. Peterson, LA 222). The economist's opinion is that the first year of full treaty harvest in Minnesota will cause damages in excess of 58 million dollars (LA 10948).

n25 The Bands' Lodging relies heavily upon a book authored by Ronald M. Satz who filed an expert report for the Fond Du Lac Band in the District Court (File No. 5-92-159) dated October 30, 1994 (Plaintiff's Exh. 50 to Fond Du Lac Band's Response to Defendant's Motion for Summary Motion Regarding the 1850 Order and 1837 Treaty).

"At present, judicial notice is being applied almost exclusively to the findings of physical sciences when the probabilities of accuracy are high." Weinstein, p. 201-99. The lodged materials are not verifiable, are subject to reasonable dispute based on evidence in the record, and are not submitted to support the proposition that in 1837 there was a reasonable [*19] basis and social need for Congress to immunize Band members from future state hunting and fishing laws. n26

n26 The Brandeis brief in Muller v. Oregon, 208 U.S. 412 (1908) was designed to demonstrate that there was a reasonable basis for legislation limiting the number of hours a woman may labor due to the [then accepted] inherent weaknesses of women as compared to men. Weinstein's Federal Evidence, § 201.21[3][b], p. 201-94, 95.

Stephen G. Froehle, Esq. 7588 Jeanne Drive Lino Lakes, Minnesota 55014 (651) 784-2693

GARY E. PERSIAN, ESQ. Counsel of Record Randy V. Thompson, Esq. PERSIAN, MacGREGOR & THOMPSON 1530 International Centre 900 Second Avenue South Minneapolis, MN 55402 (612) 339-6733

Attorneys for John W. Thompson, Jenny Thompson, Joseph N. Karpen, LeRoy Burling, Glenn Thompson, Gary M. Kiedrowski, Michael Sheff and Robert L. Edmonds

JOEL S. JACOBS, Deputy Attorney General, 1300 I Street, Suite 125, P.O. Box 944255, Sacramento CA 94244-2550, Telephone: (916) 445-8178, Fax: (916) 327-2319.

1. Whether a treaty provision giving Indian bands the right to hunt and fish "during the pleasure of the President" creates only temporary rights that are extinguished when a State is admitted to the Union on an equal footing with the original 13 States.

2. Whether a treaty ceding to the United States "all right, title and interest of whatsoever nature" in previously ceded territory abrogates hunting and fishing rights reserved in the previous treaty under the rule set forth in Oregon Department of Fish and Wildlife v. Klamath Indian Tribe.

3. Whether the President acted within the scope of his authority when he revoked Indian hunting and fishing rights that had been guaranteed by treaty "during the pleasure of the President of the United States." [*ii]

The States represented in this brief have a trust responsibility, arising from their sovereignty, for the management of their fish and wildlife. Experience shows the difficulties in successfully filling this role in an increasingly complex and hostile environment. The health, and very existence of many species of fish, plants, and wildlife are in jeopardy, and state fish and game programs are the front line of defense. Effective preservation requires a deep scientific understanding of how each element of an ecosystem functions, and how it affects other elements; it also requires the balancing of competing policy goals.

Stewardship for these resources is difficult enough without the complications added by the decision below. The lower court opinions unnecessarily foster a second program for the management of fishing, hunting, and gathering; one administered by a district court that will be the ultimate arbiter of the necessity for, and reasonableness of, a given regulation. This program uneasily exists within the State, but not as part of it. State fish and game managers will have to make their decisions mindful of unquantified Indian rights to the same resource. In the event of disagreement, the final decision will be made not by resource experts, but by the court.

This scheme - so antithetical to the federal system - is unnecessary, undesirable, and inconsistent with the intent of Congress and the Executive, as well as the decisions of this Court.

Under our constitutional scheme, the federal government bears a duty to the States to respect their sovereignty, and to refrain from ceding away those lands and resources that make up that sovereignty unless international obligations or public exigency require.

The natural resources at issue here passed to the States [*2] when they became sovereigns. The original thirteen States acquired them at the time of independence. Later States acquired them under the constitutional equal footing doctrine, not by the grace of Congress. All States hold these resources in trust for all their people.

Congress held these resources in trust for the future States. While it could make pre-statehood conveyances of them, this Court has exercised a presumption against such grants, and required that they must be made in the clearest and most unequivocal terms. The treaty at issue in this case reserved for the Bands the privilege of hunting, fishing, and gathering wild rice "during the pleasure of the President" throughout lands the Indian tribes ceded to the federal government. That language does not satisfy the rigorous standard requiring an unequivocal expression of intent to defeat Minnesota's sovereign interest in the resources.

Instead, the treaty between Congress and the Bands defined the rights in transitory terms, and Congress made no other provision for rights that would survive Minnesota's admission to statehood. The Court should not imply a reservation of tribal hunting and fishing rights into the act admitting Minnesota to the Union. See Ward v. Race Horse, 163 U.S. 504, 511 (1896). Respondents attempt to distinguish Ward by noting that the treaty language there is different from the language here. This attempt at distinction is unpersuasive: the language describing the rights in this case anticipates termination of the rights, just as the treaty language in Ward did. Thus, even if the terminating condition is different (occupation of unoccupied lands in Ward, presidential termination here), in both cases the rights are temporary rights that do not exist after admission to statehood.

This rule, under which courts do not infer Congressional intent to interfere with state sovereignty over their fish and wildlife, was intended to prevent serious intrusions into States' difficult policy judgments. Such intrusions not only interfere with the crucial work of state resource conservation [*3] agencies, they also place the courts in a policymaking role. The concurrent micromanagement of fish and wildlife by State, tribal band, and federal court established by the decisions below is inherently troublesome, inconsistent with the decisions of this Court, and anathema to the federal system.

Independent of the effect of Minnesota's admission to the Union, the Bands by treaty gave up the usufructuary rights they seek to protect here, along with "all right" in lands they ceded. Though respondents argue that "all right" does not mean "all right," this Court previously rejected respondents' argument in the context of almost identical treaty language. Oregon Dep't of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985). There, the Court relied on a number of grounds, but central to its decision was the plain language of the treaty. The treaty language here is just as plain. As a result, the Bands' usufructuary rights were extinguished even prior to statehood. n1

n1 This brief does not address the question presented concerning interpretation of the presidential order; petitioners' brief amply discusses that issue.

I. THE STATES' INTEREST IN MANAGING FISH AND GAME IS A CORE ATTRIBUTE OF THEIR SOVEREIGNTY

A. The Original Colonies Acquired Their Fish and Wildlife as an Attitude of Sovereignity, and the Other States Entered the Union on an Equal Fooling with the Original States

These rights include the power to regulate the public fisheries and other wildlife. Id. at 413-414.

These sovereign state powers were extended to newly admitted States under the equal footing doctrine. Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 230 (1845). Therefore, the original and later-admitted States alike exercise police power over their natural resources and, insofar as they are capable of ownership, dominion over them in their sovereign capacity on behalf of the people. Geer v. Connecticut, 161 U.S. 519, 522-28 (1896), overruled on other grounds, Hughes v. Oklahoma, 441 U.S. 322 (1979); see also Ex parte Maier, 103 Cal. 476, 483, 37 P. 402 (1894).

This power to manage and regulate fish and wildlife resources is an attribute of sovereignty that can be traced to Greek and Roman law. Geer, 161 U.S. at 522-23. The authority to control and regulate the taking of game existed in England "from the earliest time," and the colonies were vested with this power, "as a trust for the benefit of the people." Id. at 527-29; accord Lacoste v. Dep't of Conservation, 263 U.S. 543, 549 (1929).

The principle that underlies the equal footing doctrine and the strong presumption of state ownership is that navigable waters uniquely implicate sovereign interests. And throughout the doctrine's lengthy history, from the time of Justinian, Bracton, and the Magna Carta, the fisheries have been an integral part of the doctrine. Idaho v. Coeur d' Alene Tribe of Idaho, 117 S. Ct. 2028, 2041 (1997).

States do not have title to fish and wildlife in the conventional sense, so as to defeat commerce clause inhibitions, Hughes v. Oklahoma, 441 U.S. 322 (1979). Still, their power to regulate those resources remains unquestioned:

B. Fish and Wildlife, Like the Navigable Waters of a State, Are Held in Public Trust on Behalf of All the People

Wild animals, fish, and other natural resources are held by the State in its sovereign capacity, for the common benefit of all the people. Lacoste, 263 U.S. at 549. This Court has long acknowledged the power and responsibility of States to regulate the fisheries within their borders on behalf of their people. McCready v. Virginia, 94 U.S. 391, 394-95 (1876). The fisheries are directly part of the States' public trust interest in its navigable waters: "The State holds the propriety of its soil for the conservation of the public rights of fishery thereon, and may regulate the modes of that enjoyment so as to prevent the destruction of the fishery." Smith v. Maryland, 59 U.S. (18 How.) 71, 75 (1855); see also Phillips Petroleum Co. v. Mississippi & Saga Pet., 484 U.S. 469, 476 (1988).

The protection of wildlife within a State "is peculiarly within the police power, and the State has great latitude in determining what means are appropriate for its protection." Lacoste, 263 U.S. at 552.

The States' public trust interest in their wildlife gives them not only the right to manage this resource on behalf of all their people, but also an affirmative duty to do so. [*6] As a fiduciary, the States may bring actions and recover damages for injuries to the trust res, whether it be water or the fish or animals dependent on it. Maryland Dep't of Natural Resources v. Amerada Hess Corp., 350 F. Supp. 1060 (D. Md. 1972); In re Steuart Transportation Co., 495 F. Supp. 38, 40 (E.D. Va. 1980).

C. The Federal Government Holds These Resources in Trust for the Future States; While Congress May Make Pre-statehood Reservations, Its Intent to Do So Must Be Expressed in the Most Clear and Unequivocal Terms

Congress has the power to commit these resources prior to statehood when it becomes necessary "to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several States, or to carry out other public purposes appropriate to the objects for which the United States hold the Territory." Shively v. Bowlby, 152 U.S. 1, 48 (1894). Its intention to do so, however, must be expressed in clear and unequivocal terms. The consistent scheme for such resources is that they shall not be granted away "unless in case of some international duty or public exigency (italics added)," and are held for the future State "for the purpose of being ultimately administered and dealt with for the public benefit by the State." Id. at 50.

Such reservations are "not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain." United States v. Holt State Bank, 270 U.S. 49, 55 (1926). They require a showing (1) that Congress clearly intended to include the lands at issue in the grant or reservation, and (2) that Congress affirmatively intended to defeat the future State's title. Utah Div. of State Lands v. United States, 482 U.S. 193, 202 (1987).

A State's dominion over navigable waters is "so identified [*7] with the sovereign power of government that a presumption against their separation from sovereignty must be indulged, in construing either grants by the sovereign . . . or transfer of sovereignty itself." United States v. Oregon, 295 U.S. 1, 14 (1935). This canon of construction applies even when Indian tribes are involved. See Holt State Bank, 270 U.S. at 49.

This Court recently applied its accepted rule of construction to the Big Horn River and concluded that at the time of the treaties, no "public exigency" existed "which would have required Congress to depart from its policy of reserving ownership of beds under navigable waters for the future States." Montana v. United States, 450 U.S. 544, 556 (1981); n2 see also Wisconsin v. Baker, 698 F.2d 1323, 1334-35 [*8] (7th Cir.), cert. denied, 463 U.S. 1207 (1983). It reached this conclusion notwithstanding treaties setting apart reservation lands "for the absolute and undisturbed use and occupation" of the Tribe, and providing the Tribe did "not surrender the privilege of hunting, fishing, or passing over any of the tracts of country" referred to in them. Montana, 450 U.S. at 553. Congress' recognition in the 1837 treaty of certain privileges "subject to the pleasure of the President" does not show an intent to defeat the State's assumption of sovereignty.

n2 The Ninth Circuit recently held that the equal footing doctrine had been applied only to navigable waters, and not to fishing rights. See United States v. Washington, 135 F.3d 618, 632-33 (9th Cir. 1998). That court ignored the cases applying the doctrine to other natural resources. See, e.g., Ward v. Race Horse, 163 U.S. 504 (1896); Menominee Tribe of Indians v. United States, 391 U.S. 404, 411 n.12 (1968). It additionally ignored the conceptual contradictions of its appreach, given the more general cases (cited above) holding that States have sovereign interests in fish and wildlife, just as they have sovereign interests in navigable waters. Fisheries, for example, are an inherent part of the trust in which navigable waters are held. See Smith v. Maryland, 59 U.S. (18 How.) 71 (1855); see also United States v. Pend Oreille Pub. Util. Dist. No. 1, 926 F.2d 1502 (9th Cir.), cert. denied, 502 U.S. 956 (1991) (mere dependence on river insufficient to establish tribal ownership absent evidence United States intended to include riverbed in reservation). Washington also cited Winans in support of its contention that presumption of the equal footing doctrine did not apply to hunting and fishing rights. In fact, Winans' statement that Congress can create permanent rights, 198 U.S. at 383, is entirely consistent with the doctrine, as is Winans' determination that the language defining anadromous fishing rights created a permanent easement, 198 U.S. at 381.

The Eighth Circuit in this case applied the doctrine (though it found the presumption to have been overcome), and Respondents do not challenge the application.

II. THE BANDS' USUFRUCTUARY RIGHTS BECAME SUBJECT TO FULL STATE REGULATION UPON MINNESOTA'S ADMISSION TO THE UNION IN 1858

The equal footing doctrine compels a conclusion that Congress did not intend the Bands' usufructuary rights to be immune from ordinary state regulatory authority upon Minnesota's admission to the Union. Congress had the power to reserve the usufructuary rights to the Bands free from state regulation beyond statehood, but did not exercise that power by an express permanent reservation.

A. The Bands' Usufructuary Rights Were Extinguished by Minnesota's Admission in 1858 Because Congress Neither Created Permanent Usufructuary Rights at the Time of the Treaty, nor Reserved Such Rights to the Bands in the Act of Admission

The federal government, in drafting the 1837 treaty, did not include language indicating that the rights would survive statehood, or more generally, that the rights were intended to be permanent in the sense of being immune from the ordinary application of state law. Cf. United States v. Winans, 198 U.S. 371, 380-81 (1905) (language providing for [*9] contingencies of future ownership of land made anadromous fishing rights continuing against United States and grantees, and State and grantees). Nor did Congress include any language in the act of admission that could plausibly be read as reserving the usufructuary rights to the Bands. Cf. Ward v. Race Horse, 163 U.S. 504, 511 (1896) ("The act which admitted Wyoming into the Union, as we have said, expressly declared that the State should have all the powers of other States of the Union, and made no reservation whatever in favor of the Indians."). Thus, under Ward, with statehood came the right to regulate the Bands' hunting and fishing in the same manner as those of non-Indians -- a principle reflected by this Court's holding that "absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State." Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49 (1973).

Although the central equal footing question is whether Congress explicitly reserved permanent usufructuary rights for the Bands, respondents have argued that the rights were not intended to be "temporary." Notably, respondents have identified no treaty language suggesting that the rights were intended to be permanent. Instead, they have attempted to distinguish the treaty language in this case and the treaty language in two other cases reaching different results. Ward v. Race Horse, 163 U.S. 504 (1896); Crow Tribe of Indians v. Repsis, 73 F.3d 982 (10th Cir. 1995), cert. denied, 517 U.S. 1221 (1996).

In fact, Ward and Repsis are directly on point, even if it is possible to point to differences in their facts. In both of those cases, as here, the rights in Ward and Repsis were temporary because the treaty creating the rights anticipated events that would terminate the rights. In Ward and Repsis, the event was occupation of public lands; here, it was a presidential revocation. That the extinguishing events were different does not change their character as extinguishing [*10] events, and does not make their rights any less temporary.

Respondents have attempted to distinguish Ward and Repsis on the basis that the rights were tied to the United States' ownership of the lands. Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904, 927 (8th Cir. 1997). According to respondents' analysis, since the rights concerned "unoccupied lands of the United States," one would naturally assume that the rights in Ward and Repsis would disappear at such time as the lands were no longer lands "of the United States," i.e., at admission. Id.

If anything, the rights here are even more "temporary" than the rights in Ward and Repsis. In those cases, the courts inferred from the use of the word "unoccupied" that the rights would terminate when the unoccupied lands became occupied. Here, no inference is necessary: the rights exist only "during the pleasure of the President." Ward and Repsis are controlling.

The Seventh Circuit examined the same rights at issue here, and determined that they were not permanent. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 355 (7th Cir.), cert. denied, 464 U.S. 805 (1983).

Finally, the impermanent nature of the rights under the 1837 Treaty distinguishes this matter from United States v. Winans, 198 U.S. 371 (1905). There, this Court concluded that an 1855 treaty with the Yakima Nation was intended to reserve to the tribe an easement over privately owned lands to reach and to fish from "usual and accustomed places." In so concluding, the Court construed the treaty as "imposing a servitude upon every piece of land as though described therein" and as "foreseeing and providing for" the "contingency of the future [private] ownership of the lands." Id. at 381.

Here, in contrast, respondents claim no comparable easement over private land; they instead recognize that landowners may close their property to hunting and fishing activities generally and that tribal members are bound by [*11] such determination. The situation is thus strikingly similar to that in Ward, where the Court commented upon the anomaly of an argument that, "after [land] had become subject to state authority, admits that the privilege would cease by the mere fact that the United States disposed of its title to any of the land, although such disposition, when made to an individual, would give him no authority over game, and yet that the privilege continued when the United States had called into being a sovereign State, a necessary incident of whose authority was the complete power to regulate the killing of game within its borders." Ward, 163 U.S. at 510. In sum, unlike Winans, this is not a situation in which "the United States, while it held the country as a Territory, . . . created rights which would be binding on the States." Winans, 198 U.S. at 383. n3

n3 Winans is also distinguishable because, unlike this matter, it did not involve the question of state regulatory authority over the exercise of off-reservation fishing or hunting rights. See Winans, 198 U.S. at 384. The Court held only that the 1855 treaty right "fixed" in "usual and accustomed" fishing locations "such easements as enables the right to be exercised." Id.; see also New York ex rel. Kennedy v. Becker, 241 U.S. 556, 563-64 (1916) (relying on Winans for the holding that, although treaty reserved "a privilege of fishing and hunting upon the granted lands in common with the grantees, and others to whom the privilege might be extended," such privilege was subject to "that necessary power of appropriate regulation, as to all those privileged, which inhered in the sovereignty of the State over the lands where the privilege was exercised").

B. Implementation of the Usufructuary Rights Conflicts with State Sovereignty

This case presents a patent conflict between usufructuary rights and state sovereignty. The Bands have become the primary rulemaking and enforcement authority for their own off-reservation hunting and fishing. See Mille Lacs Band of Chippewa Indians v. Minnesota, 952 F. Supp. 1362, [*12] 1367 (D. Minn. 1997) (Bands governed by their own Conservation Code). The district court enjoined Minnesota from enforcing against the Bands various state laws, laws that Minnesota in its sovereign judgment believes are important. See id. at 1379-82 (prohibiting on shining deer in December); id. 1382-84 (limitations on gillnetting). The district court required Minnesota to justify its regulations by proving they were necessary "to forestall the imminence of extinction." Mille Lacs, 952 F. Supp. at 1382. The excruciating and minute analysis of each specific conservation measure illustrates both the magnitude of this impingement on Minnesota's sovereignty and its impracticability.

The existence, within a State, of two concurrent resource management programs, one tribal and one state administered, subject in the event of disagreement or inconsistency to the final decision of a federal judge, is unworkable and unnecessary.

Nondiscriminatory state regulations applied to Indians outside of Indian country are presumed valid "in the absence of express federal law to the contrary (internal quotation marks omitted)." Klamath, 473 U.S. at 765 n.16; Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973); Salt River Pima-Maricopa Indian Community v. Yavapai County, 50 F.3d 739, 740 (9th Cir. 1995); United States v. Washington, 520 F.2d 676, 684 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). The Court has held repeatedly that Indian hunting and fishing rights are subject to state regulations of general applicability. See Puyallup Tribe v. Department of Game, 391 U.S. 392, 398 (1968); Kake Village v. Eagan, 369 U.S. 60, 75 (1962); New York ex rel. Kennedy v. Becker, 241 U.S. 556, 563-64 (1916).

Even the cases upon which respondents have relied allow that tribal usufructuary rights must be subject to state regulation. Winans was careful to explain that, in holding that the United States had reserved usufructuary rights for the Indians, it was not holding that a State was without power to regulate the exercise of the rights:

It rejected, however, the State's argument that it could charge license fees, because a stated purpose of the license fees was to raise revenue for the state government. 315 U.S. at 685. n4

n4 Some lower courts have read the Tulee language to authorize greater judicial oversight of regulations than Tulee intended. As noted previously, Tulee distinguished between regulation that only managed resources, and regulation that served other purposes, such as revenue. The Tulee language should not be read to require courts to make policy decisions about what steps are necessary for the conservation of a resource. Nor should "conservation" be construed as the equivalent of "non-extinction." Once a court has determined that a regulation is directed at resource management rather than some other goal, it should not make policy determination of optimal resource levels or the effectiveness of alternate regulatory regimes.

To add additional dimensions to judicial review of state resource regulations is to assign a policymaking role to the courts for which they are not well equipped. This Court [*14] and lower courts have repeatedly eschewed policymaking roles. See, e.g., Missouri v. Jenkins, 495 U.S. 33 (1990) (ordering a specific tax levy to facilitate school desegregation not an appropriate judicial action); Rhode Island Handicapped Action Committee v. Rhode Island Pub. Transit Auth., 718 F.2d 490, 497-98 (1st Cir. 1983) (state and federal administrators, rather than judges, "are charged with devising the nuts and bolts of transportation programs for the handicapped"); National Coal Ass'n v. Marshall, 510 F. Supp. 803, 805-06 (D.D.C. 1981) (case non-justiciable because court would be required to make benefit eligibility determinations, and otherwise manage federal benefits programs).

III. THE MILLE LACS BAND'S USUFRUCTUARY RIGHTS WERE EXTINGUISHED EVEN PRIOR TO ADMISSION TO STATEHOOD

The Mille Lacs Band and Congress agreed in the 1855 Treaty that the Bands would convey "all title, and interests right, . . . in, and to any other lands in the Territory of Minnesota or elsewhere." Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904, 920 (8th Cir. 1997). The Bands argue that somehow "all right" does not encompass usufructuary rights, basing their argument on some of the surrounding historical circumstances. This contention is contrary to the plain meaning of the 1855 Treaty. While a court may examine evidence of Indian understanding of a treaty to the extent that the treaty contains ambiguous terms, courts should not substitute their sense of Indian intent for the plain terms actually agreed to. Choctaw Nation v. United States 318 U.S. 423, 432 (1943) ("But even Indian Treaties cannot be rewritten or expanded beyond their clear terms to remedy a claimed injustice or to achieve the asserted understanding of the parties.").

This Court recently considered treaty language essentially identical to the treaty language in this case, and found that [*15] language to be clear, notwithstanding evidence of a contrary understanding held by the Indians who were parties to the treaty. Oregon Dep't of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985). There, a 1901 agreement between the Klamath Tribe and the United States provided that the tribe would "cede, surrender, grant, and convey to the United States all their claim, right, title and interest in and to" land erroneously excluded from the tribe's reservation. The Court determined that, although this language did not explicitly address usufructuary rights, it should be read to surrender such rights. The Court explained that the language of the 1901 Treaty unambiguously ceded all rights:

The Mille Lacs Band's focus on extrinsic evidence of the parties' contemporaneous understanding of the treaty language, [*16] and rejection of the plain meaning of that language, is thus at odds with Klamath.

Several other courts reached conclusions similar to Klamath's based on similar language. E.g., Red Lake Band of Chippewa Indians v. Minnesota, 614 F.2d 1161 (8th Cir. 1980), cert. denied, 446 U.S. 905 (1980) "The decision below threatens the reliance of states and tribes on Klamath and will likely open up jurisdiction disputes with regard to disestablished and diminished reservations thought long settled."; State v. Thompson, 355 N.W.2d 349 (S.D. 1984).

Under our federal system, the States are trustees of their navigable waters and their fish and game. They hold these resources for all of their people, and bear both the power and responsibility as trustees to manage and preserve them effectively. These resources are an inherent attribute of their sovereignty.

For these reasons, this Court has been properly reluctant to attribute to Congress any intent to defeat States' stewardship. The traditional test should be applied to the treaties, executive order and acts of Congress at issue here. The result will be to restore that balance to the federal system given it by the drafters of the Constitution and allow Minnesota to manage its resources for all of its people.

DANIEL E. LUNGREN, Attorney General of the State of California
RODERICK E. WALSTON, Chief Assistant Attorney General
RICHARD M. FRANK
JAN S. STEVENS *, Assistant Attorneys General

* Counsel of Record
JOEL S. JACOBS, Deputy Attorney General, 1300 1 Street, Suite 125, P.O. Box 944255, Sacramento CA 94244-2550, Telephone: (916) 445-8178, Fax: (916) 327-2319

HUBERT H. HUMPHREY III, Attorney General, State of Minnesota
JOHN L. KIRWIN, Assistant Attorney General, Counsel of Record
PETER L. TESTER, MICHELLE E. BEEMAN, Assistant Attorneys General, 445 Minnesota Street, Suite 900, St. Paul, Minnesota 55101-2127, (651) 296-3044
Counsel for Petitioners [*i]

I. THE BANDS' TEMPORARY HUNTING, FISHING AND GATHERING PRIVILEGE WAS EXTINGUISHED UPON MINNESOTA'S STATEHOOD.

The State's opening brief explained that the Bands' temporary hunting, fishing and gathering privilege was extinguished when Minnesota was admitted to the Union in 1858. This Court held in Ward v. Race Horse, 163 U.S. 504 (1896) that, when a treaty grants Indians a right that is temporary and precarious and would encroach on a traditional area of state sovereignty, and the admission act does not specifically preserve the treaty right, then that right ends when a new State that includes the affected area is admitted to the Union. The policy underlying Ward is that Congress intends to vest in the new State the full range of sovereignty traditionally held by States. Indeed, this Court has held that the Constitution requires Congress to convey the full available sovereignty to the new State, rather than withholding it. See Coyle v. Smith, 221 U.S. 559 (1911).

The policy and holding of Ward are directly applicable here. The 1837 Treaty reserved the Indians' privilege only during the pleasure of the President. After the adoption of the Treaty, the federal government had at its disposal the ability [*2] to fully regulate hunting, fishing and gathering in the ceded territory, since the President could terminate the privilege at his pleasure. Under Ward, when Minnesota was admitted to the Union in 1858, the federal government conveyed this traditional area of state sovereignty - the ability to regulate hunting, fishing and gathering - to the State rather than retaining it. Under Coyle, Congress was required to convey the available sovereignty to the State.

The federal government contends that Congress did not intend that the Treaty privilege be temporary, and that the context of the treaty in Ward was different from that of the Treaty here. The government asserts that, at the time the Ward treaty was negotiated, it was understood that the ceded land "was destined to be occupied and settled by the white man." (U.S. Br. at 44, quoting from Ward, 163 U.S. at 509.) But the context of the 1837 Treaty here made it equally clear that the ceded land would eventually be needed for settlement by non-Indians. Indeed, Territorial Governor Dodge told the Indians during the negotiations that "it will probably be many years before your Great Father will want all these lands for the use of his white Children." JA 78. And the annual reports of the Commissioner of Indian Affairs between 1837 and 1850 described the privilege as temporary. See, e.g., JA 138-39, 145, 147.

The 1837 Treaty privilege was both temporary and precarious - temporary because it was specifically contemplated that it would end and precarious because it existed only at the pleasure of the president. Moreover, as explained in the State's opening brief, it was also precarious for essentially the same reason that the right in Ward was precarious - because sale of the land to private parties could defeat the exercise of the right.

Respondents argue that Congress's act in granting statehood to Minnesota was insufficient to terminate the temporary treaty privilege because, they assert, Congress's intention to abrogate Indian treaty rights must be clear and plain. But the Court's equal footing decisions are obviously an exception [*3] to the general principle, creating a contrary presumption in certain matters relating to the powers of newly created States. Thus, the Court has repeatedly recognized a presumption that submerged lands were not reserved for Indian tribes, but rather that the federal government reserved title to such lands for the benefit of future States. See, e.g., Montana v. United States, 450 U.S. 544, 552-54 (1981); id. at 567-69 (Stevens, J., concurring) (stating presumption prevails over normal treaty construction principles). Express indication that such lands were conveyed or reserved to the tribes is required to overcome the presumption that the lands were held in trust for the future States. Id. at 554. Likewise, under Ward, where the Indians' treaty rights are temporary and precarious at their inception, it is presumed that Congress intended not to continue those rights after statehood, but to instead vest that area of sovereignty in the new State.

Respondents assert that this Court rejected Ward's holding nine years later in United States v. Winans, 198 U.S. 371 (1905). But Winans was fully consistent with Ward, and in fact was based on the temporary/permanent distinction made in Ward. This Court in Winans held that, based on the particular treaty language, the right "was intended to be continuing against the United States and its grantees as well as against the state and its grantees." 198 U.S. at 381-82. n1 In another [*4] equal footing decision just six years after Winans, Coyle v. Smith, 221 U.S. at 576, the Court cited Ward's equal footing holding (including its factual context) with approval.

n1 Similarly, in Winters v. United States, 207 U.S. 564, 577 (1908), the Court rejected the appellants' equal footing argument, apparently because the treaty contemplated that the retained water rights would be permanent. Arizona v. California, 373 U.S. 546, 597-98 (1963), cited by the amicus Indian groups, did not involve an equal footing argument. In that case the federal government reserved water rights after Arizona's statehood, and the Court held that the government had the authority to do so under the Commerce and Property Clauses of the Constitution. Id.

Respondents' other arguments that Ward has been rejected are likewise erroneous. In four cases cited by Respondents, treaties provided that federal laws prohibiting liquor sales in Indian Country would apply to ceded, nonreservation lands adjoining the lands where the Indians would continue to reside. See United States v. 43 Gallons of Whisky, 93 U.S. 188 (1876); Dick v. United States, 208 U.S. 340 (1908); Perrin v. United States, 232 U.S. 478 (1914); Johnson v. Gearlds, 234 U.S. 422 (1914). Each of these decisions relies on the enumerated constitutional power of the federal government to regulate commerce with Indians. See, e.g., 43 Gallons, 93 U.S. at 197; Perrin, 232 U.S. at 482-85; Johnson, 234 U.S. at 438-40. The decisions do not undercut Ward. They merely recognize that, regardless of treaty provisions or a State's admission to the Union, and notwithstanding the general authority of the State to regulate the sale of liquor, the federal government is authorized under the Indian Commerce Clause to regulate sales of liquor on or near Indian Country.

Respondents also assert that two decisions concerning the federal grant of "school lands" to the State of Wisconsin demonstrate that temporary treaty rights are not extinguished by statehood. See United States v. Thomas, 151 U.S. 577 (1894); Wisconsin v. Hitchcock, 201 U.S. 202 (1906). These are not equal footing cases, i.e., the Court did not determine what rights were implicitly bestowed upon the State upon admission to the Union. Instead they involved a conflict between Wisconsin's 1846 enabling act that specifically granted the State section 16 of every township for the use of [*5] schools, and an 1854 Treaty that granted certain Indian bands reservations in Wisconsin consisting of three entire townships. The Court rejected the State's claim that it had gained title to the sixteenth sections, even within the Indian reservations. The ultimate basis for these decisions was best articulated in Minnesota v. Hitchcock, 185 U.S. 373 (1902), where the Court noted that the enabling act was worded in future, rather than present, terms - that the school sections "shall be granted." Id. at 392. The Court then said:

Id. at 400-01. Minnesota v. Hitchcock was cited as authority for the decision in Wisconsin v. Hitchcock. See 201 U.S. at 215. Neither the latter decision nor Thomas in any way undercuts the equal footing holdings of Ward and Coyle. n2

n2 While Thomas and Wisconsin discuss continuing rights of occupancy under an 1842 treaty, that was not the ultimate basis for the decisions. If it were, Wisconsin would not have gained title to any of the sixteenth sections throughout any of the 1842 ceded territory, rather than just the reservations. And if the Indian right of occupancy under the 1842 Treaty had prevented specific federal disposition of land in the ceded area, the government would have been precluded from patenting any of the land throughout the entire ceded territory (not just the reservations) to private parties. But this was clearly not the case.

To illustrate the first aspect, core sovereign authority, Amici point to Coyle v. Smith, 221 U.S. 559 (1911), where this Court held that the equal footing doctrine invalidated a provision of Oklahorna's enabling act prohibiting the State from moving the site of its capital for seven years. However, Amici's claim that the right to regulate hunting and fishing is less important and less central to a State's sovereignty than the right to choose the site of the state capital has no basis. In Coyle, this Court said that Congress could not impose a limitation on state power as a condition of statehood, if Congress could not directly impose the same condition after statehood based on one of the federal government's enumerated powers. Since nothing in the Constitution allowed Congress to dictate the location of the capital of an existing State, Congress could not accomplish the same thing by attaching a condition to Oklahoma's enabling act. See 221 U.S. at 573-74.

But the federal government likewise has no general authority to regulate hunting and fishing. n3 If a State's enabling act provided that the State would have no authority to regulate the taking of game and fish, and that this authority would instead remain with the federal government, that condition would undoubtedly be invalid for exactly the reason identified in Coyle: the federal government may not choose to retain to itself a traditional area of state sovereignty, rather than vesting it in a newly created State. Indeed, the Court cited and relied upon Ward in reaching its holding in Coyle. See 221 U.S. at 576. Amici cannot explain their contention that location of the state capital is more important to state [*7] sovereignty than regulation of the State's natural resources, nor do they explain their assertion that ownership of submerged lands "go[es] to the heart of representative government" (Br. of Amici National Congress at 15 n.9), while regulation of natural resources does not. This Court has recognized, more recently than Ward, "the importance to its people that a State have the power to preserve and regulate the exploitation of" wildlife. Baldwin v. Fish & Game Comm'n, 436 U.S. 371, 386 (1978).

n3 There is no wildlife clause in the federal Constitution. Instead, the federal government may make limited laws relating to hunting and fishing only pursuant to a specifically enumerated power. See, e.g., Kleppe v. New Mexico, 426 U.S. 529, 540 (1976) (Property Clause); Missouri v. Holland, 252 U.S. 416, 435 (1920) (federal government could enact Migratory Bird Treaty Act under Treaty Clause, where important national interest could be protected only in concert with a foreign power).

In any event, Amici's argument is beside the point. Ward and Winans recognize that under some circumstances the federal government may, before the creation of a State, make a binding treaty with the Indians that will limit an area of the State's traditional sovereignty for the benefit of Indian tribes. These cases also make clear, however, that this will occur only where the treaty right is permanent from its inception - where the federal government has bound itself to continue such right. n4

n4 The State recognizes, of course, that Congress may also create a binding treaty right that would limit state sovereignty when it approves a cession of Indian land after statehood.

[*8] It is the court, not the State, which has the ultimate authority to determine where the conservation-necessity line is. The district court ruled, over the State's objection, that the "State and the Bands shall attempt to reach consensus on harvestable surplus determinations . . . but may seek resolution of disputes regarding such determinations from the Court." PA 161; see also PA 100-01. Thus the State must share sovereign decisionmaking with the Bands, subject to the court's oversight.

Equally important, the court has limited the range of the decisions the State may make over fundamental natural resource and land use decisions. Most fundamentally, the court's decision overrides the State's decision to provide broadest access to available resources by providing equal opportunity to interested persons to hunt and fish. And the court's decision limits the State's ability to establish the hunting and fishing methods and game population levels it believes most appropriate, or to withdraw game in certain areas from harvest altogether (e.g., by establishing parks and refuges) to accommodate other interests, such as the public's desire to see wildlife in its natural habitat. There can be no serious dispute that the State's normal range of decisionmaking about natural resource and land use management is changed substantially by the imposition of these rights, and federal court authority to enforce them. If this were not true, then this whole litigation has been about nothing.

Respondents assert that the State stipulated to most of the provisions of the district court's final natural resources management order, so that the State's sovereignty has not been impaired. But the State entered the stipulation process and made the various agreements as a result of the lower court's determinations that the State must share decisionmaking with the Bands, that certain types of state laws enacted through the State's normal political processes may not be enforced against Band members and that "the State's power to regulate Indian treaty rights is very narrow." PA 119; see also PA 344-46. And the State made such agreements subject to [*9] appeal of the court's order that the privilege still exists. JA 1735. To suggest that the State made such agreements "voluntarily" wholly ignores the reality of the situation.

Under these ground rules, the State and the Bands stipulated that a number of state laws and rules, previously applicable to all who hunted and fished in Minnesota, could not be enforced against Band members. PA 80. Even so, the trial court determined that the State had not gone far enough in relinquishing its authority to regulate the taking of fish and game. The Bands applied to the district court, which ruled that several additional state laws and rules could not be applied to Band members, even though, the court observed, "the State may have commendable and sound reasons for its proposed regulations." PA 119; see generally PA 112-27.

The State has not sought this Court's review of these subsidiary rulings. The State's point here is different - that the imposition on the State of continued rights under the 1837 Treaty significantly encroaches on Minnesota's core sovereign function of regulating the taking of wildlife and administering its lands in an evenhanded manner for the benefit of all its citizens. The Bands assert that the implementation of the federal court's orders has gone relatively smoothly in Minnesota and, in recent years, in Wisconsin. n5 It is to the credit of these States and their citizens that the rule of law has prevailed without major incident. But this should not obscure the fact that the federal court's orders have overruled the policy judgments of state lawmakers in both States as to how to best regulate their natural resources, and that these officials comply under compulsion.

n5 The Bands have lodged with the Court certain documents, not part of the record in this case, attempting to demonstrate that the implementation of Indian treaty rights in the two States has been trouble free. The State objects to the lodging of these documents. Given the opportunity. Minnesota and Wisconsin would present a somewhat different picture of their attempts to regulate natural resource and land use, subject to the Bands' court-ordered rights. But this is not the time or the place to make a factual record on such issues.

The Bands' 1837 Treaty privilege was also permanently terminated by President Taylor's 1850 Order that, no one disputes, expressly provided for the revocation of the privilege. The Respondents offer a number of arguments that the President's order was not effective to extinguish the privilege. None of these arguments has merit.

Though they now assert that the "off again, on again" interpretation is the Treaty's "plain meaning" (see St. Croix Br. at 25-27, 32), neither these Bands nor any other have previously proposed this interpretation in this case or any earlier litigation. To the contrary, at the urging of the Bands, the district court here determined that "the 1837 treaty authorized termination of the usufructuary privilege only if the Indians were to 'misbehave.'" PA 303-04 (emphasis added); see also PA 314. The Bands did not appeal this determination but rather, in their circuit court brief, acknowledged the President's ability to "terminate," "revoke" and "cancel" the privilege under the Treaty, albeit only for misbehavior. (See Wisc. Bands 8th Cir. Br. at 36, 45-49.) In the Lac Courte [*11] Oreilles litigation concerning the Wisconsin portion of the 1837 Treaty area, none of the Bands suggested that the President's authority was only to suspend the privilege, rather than terminate it. See Lac Courte Oreilles Band v. Voigt, 700 F.2d 341, 361 (7th Cir. 1983) (court agrees with Bands' argument that 1837 Treaty "authorized termination of the [privilege] only if the Indians misbehaved"). As long ago as 1954, the same Bands asserted in litigation against the federal government: "This privilege of hunting, fishing and remaining in the ceded area (granted to these Indians temporarily) was terminated by Executive Order of February 2, 1850." JA 570 (emphasis added). After more than 50 years of litigation, see JA 555, during which scores of attorneys have represented the Bands and not discovered the "off again, on again" meaning, the Bands now claim this meaning is "plain."

The United States' brief does not concur in this novel interpretation. Instead, the government states that the Treaty "identified the circumstances in which the privilege would terminate," and the President "alone was vested with the power and discretion to determine whether the privilege should end." (U.S. Br. at 42 (emphasis added).) The context of the reserved privilege here, confirmed by Governor Dodge's statement to the Indians that, in probably many years, the President "will want all these lands for the use of his white Children," shows that it was contemplated that the privilege would terminate. n6

n6 And the Bands' off again, on again interpretation could not sensibly work with their interpretation that the hunting, fishing and gathering privilege could only be terminated for Indian misbehavior. See St. Croix Br. at 46-47. Do they suggest that the President would suspend it while they were misbehaving, and then reinstate it when their behavior improved?

The Bands also argue that the Indians did not understand at the time they entered the 1837 Treaty that it gave the President sole discretion to terminate the privilege, but rather that they understood that the President would not revoke it without good cause, or unless they misbehaved. They assert [*12] that there were problems interpreting the Treaty provisions for the Indians. Aside from current speculation by the Bands' witnesses, however, there was absolutely no evidence that the Indians who negotiated the Treaty did not understand that the President had sole discretion to revoke the privilege, or that they understood he could do so only for Indian misbehavior or other good cause.

Governor Dodge told the Bands during the negotiations that the government "will read it by articles, so that every word may be clearly conveyed and understood by you." JA 88. The Bands' expert linguist stated that some of the interpreters at the negotiations were likely fluently bilingual in the Chippewa language and English. JA 849. He agreed that interpreters could have explained to the Indians that they would be allowed to hunt, fish and gather in the ceded area as long as the President allowed. JA 1184-86, 1192-93. There was not a single bit of evidence that this was not explained to the Indians.

Likewise, there was not even a sliver of evidence that the Indians understood during the Treaty negotiations that the President would revoke the Treaty privilege only for Indian misbehavior, or that he needed any reason to terminate it. Respondents cite evidence related to a different treaty (the 1842 treaty) concerning a different area, negotiated five years later.

The one piece of evidence the Bands cite describing Indian understanding at the time of the Treaty is a letter from Missionary William Boutwell who attended the Treaty negotiations at the Indians' request. See JA 98. But Boutwell's letter indicates a full understanding that the President could terminate the Indians' privilege at his discretion. He said, "They are to receive their annuities for 20 years, but can remain on the lands only during the pleasure of the Pres." JA 99. He stated that the Indians "know nothing of the duration of a man's pleasure," and suggested that the Indians would be upset if required to remove in less than five years. Id. [*13] (emphasis added). Thus, Boutwell suggested no misunderstanding about whether the President could end the privilege at his discretion, but only that the Indians would be upset if it were ended too soon.

Other correspondence in the 1837-40 period shows that the Indians and the missionaries who attended the negotiations on their behalf understood immediately after the Treaty that the Indians' privilege, and perhaps their occupancy of the land, could soon be terminated by the President. See, e.g., JA 959-62, 1502-03.

Where the language of the Treaty is plain, and would have had an obvious meaning to the Senate which approved it, that plain meaning should be overcome only by compelling evidence that the Indians understood something different. There is no such evidence here. The only contemporaneous evidence showed that the Indians knew that the privilege was temporary, and existed at the will of the President. There is no non-speculative evidence to contradict the Treaty's plain meaning.

Indeed, the record does show that some of those behind the removal/revocation effort sought personal monetary or political advantage. But the record also shows that the Indians were creating problems with respect to non-Indian settlers and that many persons advocated revocation and/or removal for these and other reasons. An 1843 report of the Commissioner of Indian Affairs recommended removal of the Indians for their own good, because of the effects of liquor. JA 652. [*14] The same year, Indians destroyed lumbermen's dams in the ceded area. JA 707. (Recall that the initial purpose of the Treaty had been to obtain access to the lumber on the lands.) The first calls from Wisconsin for removal of the Indians from ceded lands arose because the Indians sometimes took food from farmers' fields and orchards and killed their livestock. JA 649. In 1846, Wisconsin's territorial governor advocated removal as a solution to his State's "Indian problem." JA 668. (Three-quarters of the 1837 Treaty area is in Wisconsin.) A Band expert observed that relations between Indians and settlers were "occasionally interrupted by violence." JA 1495. The Chippewa chiefs themselves conceded in 1851 that "some of our countrymen have had trouble with the whites." JA 227. There were ample reasons, that appeared reasonable in 1850, for President Taylor to revoke the Treaty privilege and to seek to remove the Indians from the territory. There has been no suggestion that he acted in bad faith.

But, more importantly, it is not for the courts to determine whether the President had good enough reason to terminate the privilege in February 1850. As the United States correctly observes, "He alone was vested with the discretion to determine whether the privilege should end." (U.S. Br. at 42.) In Dalton v. Specter, 511 U.S. 462, 476 (1994), this Court said: "How the President chooses to exercise the discretion Congress has granted him is not a matter for our review." The Bands contend that this holding does not apply, because of the government's obligation to act with good faith towards the Indians. But where the Treaty, agreed to by the Indians and approved by the Senate, committed that decision solely to the President without any standard, Dalton's reasoning applies fully. The Court cannot review the President's "good faith," i.e., the adequacy of his reasons, without violating the separation of powers.

Respondents contend that the removal portion of the Order would have become effective only if the federal government had acted to enforce it. But unlike the removal portion of the Order, the provision revoking the hunting, fishing and gathering privilege did not require, or contemplate, any federal action to implement it. Rather, the Order provided that the "privileges granted temporarily to the Chippewa . . . of hunting, fishing and gathering . . . are hereby revoked." PA 565 (emphasis added). This provision was self-effectuating upon its issuance.

There is no evidence that the President, or even any lower federal official, purported to rescind the revocation of the privilege. Nor could the President have done so even if he wished. Once the privilege was extinguished, the President had no authority to create a binding privilege in favor of the Indians without the approval of Congress. Certainly the executive branch could choose to allow Indian hunting, fishing and gathering within federal territories, and even to provide the Indians supplies to assist them in such activities in federal territories or States. But the executive branch had no constitutional authority to unilaterally create a privilege of hunting, [*16] fishing and gathering that would restrict the authority of a future State to regulate such activities. n7

n7 The Bands incorrectly assert that the State has never denied that the President had the power to rescind the privilege revocation. The State made precisely this point in its Eighth Circuit Reply Brief at 14.

From the time the privilege was revoked in 1850, until 1945, the record is replete with statements by federal officials, including the President himself in 1938, that the Indians' right to hunt, fish and gather was terminated for one or more of the reasons asserted by the State here. n8 Over this time, Respondents cite only three contrary statements by federal officials. One is a somewhat oblique statement by the territorial governor in 1855. See JA 295-96. While one interpretation is that he thought the Indians' 1837 Treaty privilege continued to exist, there is no indication that he was aware of the events of five years earlier, nor is there confirmation of his views by other federal officials. The other two statements were those of a United States Attorney in 1897 and the Commissioner of Indian Affairs in 1928. JA 531-33, 545-46. It is apparent that neither was aware of the 1850 Order. After these statements, for a number of years the federal government frequently and uniformly took the position that the privilege under the 1837 Treaty was no longer effective. It was not until 1947, when the Indians sought additional compensation from the federal government, that the government adopted its current position that the privilege was not terminated. (U.S. Br. at 22.) This position, first adopted to avoid financial responsibility, deserves little weight.

n8 See, e.g., PA 575; JA 471-72, 547-48, 1789, 1792, 1794, 1796-98, 1799, 1801-02, 1803, 1804-05, 1806-07, 1808-10, 1823-30, 1832, 1835, 1874-76, 1892-99. Moreover, during this time, the State of Minnesota did enforce its game and fish laws against Indians hunting in the ceded territory, beginning at least by the late 1800s. PA 298-300.

The 1837 Treaty privilege was unquestionably revoked by the President's 1850 Order. That revocation was never rescinded, nor could it have been.

Respondents contend that, to the extent the President issued the revocation portion of the Order to encourage removal, or to address Indian/settler conflicts, the revocation alone would not have achieved that purpose, because the Indians could have remained in the country and could have continued to hunt, fish and gather (since the federal government did not regulate such activities at that time). It is difficult to say what federal officials understood regarding those matters in 1850. But the Bands' own experts, the Bands in their brief to the circuit court, and the United States in its brief here, agree that the President issued the revocation Order to encourage removal. JA 675, 1026, 1100; Wisc. Bands 8th Cir. Br. at 17, 33-34; U.S. Br. at 26. Assuming that the President's goal when he issued the Order was to encourage the Indians to move, it is most likely that he would have issued the revocation portion separately, even if he could not have issued the removal portion. The Bands' expert agreed that this was true. JA 1100-01.

Since there was no reason to conclude here that President Taylor would not have issued the revocation portion of the Order separately (and indeed there was evidence to show that he would have), the lower court erred in not severing that provision and upholding the validity of the revocation.

[*18] III. THE 1855 TREATY EXTINGUISHED THE MILLE LACS BAND'S 1837 TREATY PRIVILEGE.

One of the Respondent Bands, the Mille Lacs Band, was party to an 1855 Treaty in which the Band "fully and entirely relinquish[ed] . . . 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." PA 503. The clear effect of this language is to extinguish any privilege the Band may have had to hunt, fish and gather in the 1837 Treaty area.

Respondents assert that the 1837 Treaty privilege is not a right, title or interest in land. But their right to use the natural resources on essentially their own terms derives from their "Indian title" to the land. Accordingly, when the bands, in the first sentence of Article I of the 1855 Treaty (not the provision at issue here), agreed to cede a specific tract of land to the federal government, they did so in the following language: "The . . . Indians hereby cede, sell, and convey to the United States all their right, title, and interest in, and to, the [described] lands." PA 502 (emphasis added). That treaty did not reserve any right or privilege to hunt and fish on the ceded land. All would agree that, by this language, the bands relinquished any special rights to hunt, fish and gather in the 1855 ceded territory. See Oregon Dep't of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 766 (1985) (cession of all "right, title, and claim" to ceded area "unquestionably carried with it whatever special hunting and fishing rights the Indians had previously possessed" in the area). Prior to the cession of the lands, the Indians' rights regarding the lands were those of both an owner and a sovereign (subject, of course, to the overall sovereignty of the United States). See Spalding v. Chandler, 160 U.S. 394, 402-03 (1896). When the Indians sold the lands to the United States, any special Indian right to determine conditions of hunting, fishing and gathering, by them or anyone else, was extinguished. Both their [*19] ownership and sovereignty over the land were terminated. No one would dispute this proposition. n9

n9 If Respondents' assertion that Indian hunting, fishing and gathering rights are not interests and claims in and to the land were correct, the provision of the 1837 Treaty temporarily reserving the privilege of hunting, fishing and gathering to the Indians would have been unnecessary. Their special right to hunt, fish and gather would have continued even without such a provision. But no one contends this is the law.

The Indians' pre-cession land interests are different from those of a private landowner. A private landowner's interest in his land generally includes the ability to determine access to the land, but not to determine conditions for hunting and fishing. That right belongs to the sovereign. The temporary interest retained by the Bands in the 1837 Treaty was a remnant of their Indian title over the land. The Mille Lacs Band relinquished this in the 1855 Treaty.

This Court's decision in Klamath strongly supports the State's position. Respondents correctly point out that Klamath recognizes that Indians may have special hunting and fishing rights, reserved by treaty, that are separate from the ownership of the land. See 473 U.S. at 765-66. There is no doubt that the Bands here ceded ownership of the land in 1837. But this does not mean that the temporary hunting, fishing and gathering privilege was not a right and interest in and to the land.

Respondents also note that the factual context in Klamath was not identical to that here - that the agreement there, where the Indians agreed to "cede, surrender, grant, and convey . . . all their claim, right, title and interest in and to" land, applied to a portion of the Indians' reservation that they were selling to the United States, and not to land that had been previously sold. Notwithstanding this difference, the importance of Klamath for this case is the Court's conclusion that "the normal construction of the words used in the 1901 Agreement unquestionably would encompass any special right to use the ceded lands for hunting and fishing." 473 U.S. at 768. [*20] That conclusion applies equally here. In the 1855 Treaty, the Mille Lacs Band relinquished any remaining privilege.

PETER L. TESTER MICHELLE E. BEEMAN Assistant Attorneys General 445 Minnesota Street, Suite 900 St. Paul, Minnesota 55101-2127 (651) 296-3044

Attorneys for Respondents Mille Lacs Band of Chippewa Indians, Arthur Gahbow, Walter Sutton, Carleen Benjamin and Joseph Dunkley

Did the 1855 treaty cession of "all right, title and interest . . . in, and to . . . lands" abrogate the Mille Lacs Band's guaranteed privilege to hunt, fish and gather within the territory ceded in the 1837 treaty, where, after a careful examination of the historical record, the district court found that neither party to the 1855 treaty intended the treaty to extinguish usufructuary rights guaranteed by earlier [**2] treaties? [*ii]

Respondent Mille Lacs Band of Chippewa Indians submits this brief to address the petitioners' argument that the 1855 treaty abrogated the Mille Lacs Band's 1837 treaty hunting, fishing and gathering privilege. n1 Pet. Br. at 40-49. As petitioners' brief acknowledges (at 41, n.17), this argument affects only the rights of the Mille Lacs Band [**6] because the other respondent bands were not parties to the 1855 treaty. We show that the 1855 treaty was intended and understood by the parties to extinguish all of the Chippewa's remaining land claims, but was not intended or understood to affect the 1837 treaty hunting and fishing privilege, which existed independently of any right to or interest in the lands ceded in that treaty.

n1 The Band refers the Court to the briefs of respondents St. Croix Band et al. and Fond du Lac Band et al. for responses to petitioners' other arguments.

A. In 1837, the United States and the Chippewa entered into a treaty involving the cession of Chippewa lands in present-day Wisconsin and Minnesota lying north of the boundary between Chippewa and Sioux territory established in the 1825 Treaty of Prairie du Chien. n2 1837 Treaty with the Chippewa, [*2] 7 Stat. 536 (PA 484); see App. JA 956 (App. A attached) for boundaries of 1837 cession. The Chippewa survived in this territory by hunting, fishing and gathering, and by planting crops such as corn and squash. PA 221. Fish and game were abundant and there was no shortage of land open to hunting and fishing [**7] by the Chippewa or to the handful of pioneering American settlers who had entered the territory. PA 221-23, 334.

n2 The 1825 Treaty of Prairie du Chien established boundaries among indigenous groups occupying territory west of Lake Michigan. 7 Stat. 272 (Aug. 19, 1825). The boundary line dividing Chippewa from Sioux territory to the south started at the Chippewa River in present-day Wisconsin, extended generally northwest through Minnesota to the Red River of the North along the present-day border between Minnesota and North Dakota, and then proceeded north along the Red River to its confluence with the Goose River (between Fargo and Grand Forks). See map at Joint Appendix ("JA") 621. No boundary was established north or west of this point, although it was later learned that the Pillager and Red Lake Chippewa had claims to these northwestern areas. See Petition Appendix ("PA") 287.

The 1837 treaty negotiations are described in great detail in the district court's findings. PA 229-34. The Chippewa agreed to sell the lands desired by the United States, but insisted on reserving "the privilege of making sugar from the trees, and getting their living from the Lakes and Rivers, as [**8] they have done heretofore." PA 233; JA at 75. Governor Dodge responded that he would "make known to your Great Father, your request to be permitted to make sugar, on the lands; and you will be allowed, during his pleasure, to hunt and fish on them." PA 233; JA 78. Accordingly, in Article 1 of the 1837 treaty, the Chippewa bands "cede[d] to the United States all that tract of country encompassed within [defined] boundaries" (see App. A attached), while Article 5 provides:

n3 In an 1842 treaty, the Chippewa ceded additional lands in Wisconsin and the upper peninsula of Michigan while again reserving hunting and fishing rights on the ceded lands. 1842 Treaty with the Chippewa, 7 Stat. 591, see App. A attached.

[*3] In 1847, the Commissioner of Indian Affairs proposed a new treaty with the Chippewa to acquire two tracts of land immediately west of the 1837 cession for resettlement of the Winnebego and Menominee Indians, [**9] and to obtain a cession of the Chippewa's remaining lands east of the Mississippi. PA 244; see App. A attached. The Commissioner also hoped to maintain the fiction that all remaining Chippewa lands belonged equally to all Chippewa bands, despite the fact "that different bands claim the exclusive title to different portions of it." PA 245-46. The Commissioner's instructions were accompanied by a memorandum and map describing the lands ceded by the Chippewa in 1837 and 1842 and those to be acquired from them in the proposed treaty. JA 131-33. The memorandum describes a line on the map, JA 133 (App. B attached), running from the headwaters of the Mississippi north to the Canadian border, which was "the Eastern line of the country represented to be claimed by certain bands of Chippewa termed 'Pillagers.'" JA 131-32 (emphasis added). The map designates land in northern Minnesota as "Chippewa Country" but shows no western boundary on the "Chippewa Country" or the lands claimed by the Pillagers. App. B attached. The district court found that continued uncertainty about the nature and full extent of Chippewa land claims in this area led to the broad cession language in the 1855 treaty. PA [**10] 285-88; see pp. 10-11 below.

The 1847 treaty negotiations were conducted by Isaac Verplank and Henry Rice, a major fur trader. n4 PA 246. The negotiations were largely a failure because no lands east of the Mississippi were obtained and the negotiators were unable to maintain the fiction of a single Chippewa nation, as the Chippewa insisted that the consideration for the cession must go disproportionately to the bands who had actually used the ceded lands. PA 246-47; App. A attached.

n4 By 1855, Rice was the Minnesota Territory's delegate to the House of Representatives and he played a major role in the planning and negotiation of the 1855 treaty. PA 276, 281-82.

[*4] As noted by the district court, the Commissioner's 1848 and 1849 annual reports continued to advocate the purchase of Chippewa lands east of the Mississippi and explained that the Chippewa owned or possessed lands that included the headwaters of the Mississippi River and extended north to the border with Canada and west to the Red River. PA 286-87; see also JBA 105, 118-19 and App. A attached. n5 The Commissioner's 1850 report added that "the Red lake bands and the Pillagers claim, by title of conquest and [**11] actual possession, a large tract of country lying west of [the] Red River." PA 287; JA 187 (emphasis added).

n5 JBA refers to the Joint Band Appendix filed by the Mille Lacs and Wisconsin Bands in the court of appeals.

B. On May 1, 1854, the House of Representatives debated a bill "to provide for the extinguishment of the title of the Chippewa Indians to the lands owned and claimed by them in the Territory of Minnesota and the State of Wisconsin." PA 272; JA 248. The bill's House sponsor explained that it would authorize a new treaty to extinguish the Indians' title "to the lands which they own in the Territory of Minnesota and to a small portion in the State of Wisconsin." n6 JA 249. During the subsequent Senate debate, the Chairman of the Senate Committee on Indian Affairs explained that the bill prescribed that "the Indians shall not be removed from the territory, but shall be placed upon individual reservations," and "reserve[d] to them those rights which are secured by former treaties." 23 Cong. Globe, 33rd Cong., 1st Sess. 1403-04 (June 15, 1854) [*5] (emphasis added). The bill passed the House but was tabled by the Senate until December 1854. PA 272, 275. [**12]

n6 The "small portion" refers to strip of land along the Minnesota-Wisconsin border that had been excluded from the 1842 treaty cession as a result of a surveying error. Earlier in 1854, the Wisconsin legislature had memorialized the President and Congress to extinguish the Indians' title to "a tract of land about three-fourths of mile in width . . . lying along the boundary line between the state of Wisconsin and the territory of Minnesota, within said state of Wisconsin." JA 246-47.

Although the bill had not passed the Senate, on August 11, 1854, Commissioner of Indian Affairs George Manypenny wrote to Indian Agent Henry Gilbert instructing him to initiate treaty negotiations with representatives from the Chippewa bands residing between the Mississippi River and Lake Superior in order to acquire "all the country [the Chippewa] now own or claim in the territory of Minnesota, the State of Wisconsin or elsewhere," except for land that would be used to establish reservations. PA 273; JA 264. Manypenny enclosed the 1847 treaty instructions and the map (App. B attached), which showed the extent of Chippewa country and the Pillager land claims extending west to the Red River and [**13] beyond. JA 265, 267. On August 12, 1854, Manypenny supplemented these instructions, instructing Gilbert that if the location of the Chippewa reservations made the provisions for farmers, blacksmiths and other services in former treaties of no use, he should insert in the new treaty a provision "cancelling . . . these provisions." n7 PA 273; JA 269. Manypenny did not suggest the cancellation of hunting and fishing rights reserved in earlier treaties. PA 273.

n7 For example, Article 2 of the 1837 treaty provided for the payment of non-Indian farmers and establishment of three blacksmith shops at points to be designated by the government. PA 485.

The 1854 treaty was signed in September by those Chippewa bands residing in the vicinity of Lake Superior and along the Mississippi River. 1854 Treaty with the Chippewa, 10 Stat. 1109 (PA 490). For unexplained reasons, the Mille Lacs Band was not a party to the 1854 treaty despite its use of a portion of the territory ceded by that treaty as a hunting ground. PA 273. On October 17, 1854, Agent Gilbert transmitted the treaty to Commissioner Manypenny with an explanatory letter. PA 273; JA 270. According to Gilbert, the Mississippi Chippewa [**14] bands refused to sell their remaining lands "on any terms," and there was "much jealousy [*6] and ill-feeling" between the Mississippi and Lake Superior bands. PA 273; JA 271. Gilbert solved these problems by persuading the Chippewa to establish a boundary line between the Lake Superior and Mississippi bands, convincing the Mississippi bands to relinquish their claims to the lands occupied by the Lake Superior bands, and then inducing the Lake Superior bands to cede their title to the United States. PA 273; JA 271-72; see App. A attached (for boundaries of 1854 cession). Payment for the cession included "two hundred guns, one hundred rifles, five hundred beaver traps, [and] three hundred dollars worth of ammunition." PA 494. Article 2 established reservations for the signatory bands within the 1837, 1842 and 1854 cessions. PA 491-92. The 1854 treaty does not contain a provision abrogating hunting and fishing rights secured by earlier treaties, but instead, in Article 11, establishes new treaty hunting and fishing rights in the territory ceded in the treaty. PA 495.

The district court found that preservation of off-reservation hunting and fishing rights was not inconsistent [**15] with Commissioner Manypenny's policy of establishing reservations. PA 289. Many of the more than 40 treaties negotiated during Manypenny's tenure expressly reserve the Indians' right to hunt and fish off-reservation, n8 and only one, the 1855 Treaty with the Chippewa of Sault Ste. Marie, 11 Stat. 631, expressly extinguished an off-reservation hunting, fishing, or gathering right, and that followed destruction of a fishery by a government canal project. PA 289. The Chippewa were told by treaty negotiator Henry Gilbert in 1854 that the reservations "were not to confine us all together to live upon them--that we should have the privilege of going out of [them] whenever we had a mind for hunting purposes." PA 274; JA 381.

n8 See, e.g., Treaty with the Nisqually, Puyallup, etc., 10 Stat. 1132 (1854); Treaty with the Dwamish, Suquamish, etc., 12 Stat. 927 (1855);Treaty with the S'Klallam, 12 Stat. 933 (1855).

[*7] On December 8, 1854, Manypenny forwarded the 1854 treaty, along with Gilbert's October 17 letter, to Secretary of the Interior McClelland. PA 275; JA 283. He recommended that the Secretary delete two objectionable provisions, relating to payments to be made to certain [**16] chiefs, but expressed no concern about the 1854 treaty's reservation of hunting and fishing rights on ceded lands. n9 PA 275; JA 283. The Senate passed the bill regarding extinguishment of Chippewa title to their remaining lands on December 17, 1854, and the President signed it on December 19. PA 275, 532. On December 20 the President forwarded the 1854 treaty to the Senate without change, and the Senate ratified it on January 10, 1855. PA 275; JA 282.

n9 Commissioner Manypenny never indicated that the hunting and fishing provision conflicted in any way with the "extinguishment of Indian title," which was the primary object of the 1854 and 1855 treaties. JA 1361-62 (Newell Cross Examination)

C. On December 17, 1854, the day the Senate passed the authorizing legislation discussed above, Henry Rice, then Minnesota's territorial delegate to Congress, notified Commissioner Manypenny of the bill's passage and recommended that a treaty be negotiated in Washington with the Mississippi, Pillager and Lake Winnibigoshish bands. n10 PA 276. According to Rice, those bands

n10 The "Mississippi" bands occupied lands along the Mississippi River near the Crow Wing agency, while the "Pillager and Lake Winnibigoshish bands" resided in the vicinity of Leech Lake at the headwaters of the Mississippi. See App. A attached (for location of geographical references).

n11 Rice's description reflects the information and the map provided to him with the 1847 treaty instructions. JA 131-33 and App. B attached. See p. 3 above.

On January 4, 1855, Commissioner Manypenny wrote to Territorial Governor Willis Gorman, directing him to have a Chippewa delegation brought to Washington for negotiations "respecting their claims to lands in Minnesota." PA 276; JA 288. Following Rice's advice, Manypenny asked Gorman to send "'Hole in the Day' and six other principal chiefs of the Chippewa Indians of the Mississippi" and, if possible, "'Flat Mouth' and two other chiefs of the Pillagers and the principal and two other chiefs of the bands near Lake [Winnibigoshish]. [**18] " PA 276; JA 288. Manypenny did not ask Gorman to inform the Chippewa that the negotiations would involve the extinguishment of the 1837 treaty hunting and fishing privilege or ask him to send the other Chippewa bands who hunted and fished in the 1837 ceded territory. PA 277.

The 1855 treaty was negotiated between February 12 and 22, 1855. PA 277. Hole-in-the-Day served as spokesman for the Mississippi bands and Flat Mouth was the principal spokesman for the Pillager and Lake Winnibigoshish bands. PA 277-78. Commissioner Manypenny represented the United States. PA 278. The Mille Lacs delegation arrived at some point after the start of the proceedings, but no statement is attributed to them until after the treaty was signed. PA 277-78. All discussions were conducted through interpreters. PA 278. Commissioner Manypenny observed that

The district court found that the Chippewa understood that the purpose of the treaty was the sale of their remaining [**19] lands in northern Minnesota and repeated this understanding during the negotiations. PA 279. For example, at one point the Pillager representative, Flat Mouth, remarked: "It appears to me that I understand what you want, and your views from the few words I have heard you speak. You want land." PA 279; JA 309 Commissioner Manypenny's response did nothing to alter this understanding:

[*10] The treaty was signed on February 22, 1855. Article 1 contains two sentences. The first cedes a defined tract of land:

[*11] In support of its finding, the district court cited Commissioner Manypenny's February 23, 1855, transmittal letter to Secretary of the Interior McClelland, which states:

The district court found that the Chippewa would have understood the treaty language to extinguish their remaining [*12] land claims, not their treaty hunting and fishing rights. PA 324. The words "relinquish and convey to the [**23] United States, any and all right, title, and interest, of whatsoever nature the same may be," have no Chippewa equivalent, and any attempt to translate them literally would have had no meaning in Chippewa. PA 284; JA 857-62 (Report of Dr. Nichols). The most likely translation of this language would have indicated that the Chippewa were ceding all of their remaining lands in the same way that they had ceded portions of their lands in 1837, 1842 and 1854, but "would not have been understood to affect the hunting, fishing, and gathering provision in the 1837 treaty." PA 284; JA 861-62.

Article 2 of the 1855 treaty reserved lands for the "permanent homes" of the Indians. PA 503-04. The Mille LacsReservation was established on the southern shore of Mille Lacs Lake, within the 1837 ceded territory, and in close proximity to the Band's traditional fishing grounds and wild ricing areas. PA 283; see also JA 749-750 (Report of Dr. Cleland); JA 1368-69 (Newell Cross) and App. A attached (for location of Mille Lacs Lake). Article 3 provides the consideration for the land cession, including "guns, traps &c." as well as gunpowder, lead and gilling twine. PA 283, 509. Article 9 provided that the [**24] Chippewa would

[*13] D. While the 1855 negotiations were underway in Washington, a controversy was brewing in Minnesota over a lumbering dam on the Rum River, just south of Mille Lacs Lake and within the 1837 ceded territory. PA 269; see App. A (for location of Rum River). The Mille Lacs Chippewa threatened to tear out the dam because it was flooding their wild rice crops. PA 269. On February 16, 1855, Governor Gorman wrote to Commissioner Manypenny to notify him about the conflict and explained that the Mille Lacs Band had "no other treaty interests [in the pertinent area] except hunting and fishing." n12 PA 270; JA 295-96 (emphasis added). Although the correspondence reached Commissioner Manypenny after the 1855 treaty was signed, the Commissioner never wrote back to suggest that the 1855 treaty extinguished the Band's [**25] hunting and fishing right. Instead, a compromise was brokered in July 1855 in which the lumbermen agreed to compensate the Band for the loss of its rice crop. PA 271 and n.13.

n12 Gorman reiterated this point in a letter to the Chippewa, but insisted that they had no right to remove the dam because it was on ceded lands. PA 271.

About two weeks after the treaty negotiations concluded, the Chippewa again met with Commissioner Manypenny in Washington. The parties agreed that the annual payments required under the treaty would be made in early September, to avoid disruption of fall fisheries. PA 289-90; JA 751-52 (Report of Dr. Cleland). Commissioner Manypenny encouraged the Chippewa to continue trapping and selling furs, and gave no indication that these vocations would be affected by the 1855 treaty. PA 290, JA 751.

Although Minnesota first enacted fish and game regulations in the year of its admission, the district court found that it did not begin to enforce such laws systematically until 1892. PA 298. The court found that Chippewa repeatedly protested, [*14] claiming these enforcement efforts violated their rights under the 1837, 1842 and 1854 treaties. PA 326; see also [**26] JA 1804. Notwithstanding complaints from non-Indians about Chippewa off-reservation hunting and fishing, there is only a single instance, in 1926, approximately 70 years after the treaty was signed, in which federal officials even arguably suggested that the 1855 treaty affected the Chippewa's right to hunt and fish under the 1837 treaty. n13 PA 299-300; JA 543-44.

n13 The 1926 letter suggested that Article 5 of the 1837 treaty was "modified" by the 1855 treaty to the extent that the lands in question were "within any of the land ceded" in 1855. JA 543-44.

The district court also found that throughout the latter half of the 19th and the early part of the 20th century, the Mille Lacs Chippewa continued to hunt and fish in the 1837 ceded territory, despite the efforts of some in state government to either confine them to their reservation or have them removed to the White Earth Reservation in northwestern Minnesota. PA 292-98. Moreover, the United States affirmatively supported Chippewa off-reservation hunting, fishing and gathering, by supplying guns, traps, fish nets and other gear, and agreeing to make annuity payments at times that would not interfere with these activities. [**27] PA 293. Although Mille Lacs Chippewa have long since "settle[d] down in the peaceful pursuits of life," the trial testimony of three Band members demonstrated that they continue to hunt, fish and gather for subsistence and to sustain their cultural and religious life. PA 220, 326.

II. Procedural Background.

In August 1990, the Mille Lacs Band and four of its members filed a complaint against the petitioners alleging that enforcement of State fish and game laws violated the Band's rights under the 1837 treaty. PA 214-15. The petitioners' answer raised the 1850 executive order and 1855 treaty as affirmative [*15] defenses, but did not raise the Minnesota Admission Act or the equal footing doctrine. PA 216. The district court divided the litigation into phases: the first to determine the existence, nature and scope of the right, and the second to address implementation of the right. PA 217-18. In 1993, following the Minnesota state legislature's rejection of a settlement agreement signed by the Band and State executive officials, nine counties and six private landowners intervened as defendants and the United States intervened as a plaintiff. PA 72, 217.

The Phase [**28] I trial occurred over three weeks in June and July 1994, during which the district court heard extensive live testimony and received into evidence hundreds of exhibits. PA 218. Upon review of this extensive evidentiary record, the district court made detailed findings regarding the historical circumstances surrounding the negotiation of the 1837 and 1855 treaties as well as the issuance and subsequent repeal of the 1850 executive order. PA 220-301. Based on comprehensive findings of fact (PA 272-301), the district court concluded that "neither the United States nor the Chippewa intended to extinguish in the 1855 treaty the usufructuary privilege guaranteed by the 1837 treaty." n14 PA 331. The district court ruled that the Mille Lacs Band's 1837 treaty hunting and fishing rights continued to exist, but also held that these rights could only be exercised on land open to public hunting and fishing because the 1837 treaty did not provide the Chippewa with any rights of access. n15 PA 334, 337-38. After Phase II proceedings, the district court entered final judgment in 1997. PA 158-64.

n14 The petitioners disingenuously characterize the district court's discussion of the evidence as "abbreviated." Pet. Br. at 45. lronically, their petition for certiorari took the district court to task for its "elaborate recital of evidence" regarding the 1855 treaty. Cert. Pet. at 19.

n15 The district court also rejected, on three separate grounds, the petitioners' 1850 executive order defense. PA 304-21.

[*16] The Eighth Circuit affirmed the district court's Phase I decision in its entirety. PA 72. With respect to the petitioners' 1855 treaty defense, the court of appeals concluded "that the district court's factual findings regarding the intentions of the parties to the 1855 Treaty are well supported" and not "clearly erroneous." PA 37. The court of appeals' conclusion was based on

In the first sentence of Article 1 of the 1855 treaty, the Chippewa ceded lands within a defined boundary, and in the second sentence they ceded "any and all right, title and interest . . . in, and to any other lands" in Minnesota or elsewhere. PA 503. This language does not extinguish the Mille Lacs Band's 1837 treaty privilege for the following reasons. First, because the 1837 treaty privilege provides no right of access [**30] to land, it is not a "right to" or "interest in" land. Rather, like a modern-day hunting or fishing license, it guarantees the Chippewa a non-exclusive privilege to engage in the specific activities of hunting and fishing on lands and waters otherwise open to the public. No one would contend that a modern hunting or fishing license conveys an interest in land, and the 1837 privilege did not do so either.

Second, even if the 1837 privilege technically might be characterized as a right to or interest in land, the 1855 treaty cannot be construed based on the technical meaning of its words to learned lawyers, but must be interpreted according to the [*17] sense in which the language would have naturally been understood by the Indians. Based on repeated statements of government officials before, during, and after the treaty negotiations, the Chippewa understood that the treaty extinguished all of their remaining land claims, but not the special hunting and fishing privilege guaranteed by the 1837 treaty. Any ambiguities in the treaty language should, moreover, be resolved in the Indians' favor.

Third, the district court found that there was no evidence that either party to the 1855 [**31] treaty intended to extinguish the Chippewa's 1837 treaty hunting and fishing rights. Instead, the parties intended that the 1855 treaty would extinguish all of the Chippewa's remaining land claims. The evidence considered by the district court included: (1) the 1854 treaty which preserved the 1837 treaty privilege of the other bands party to this case and established new hunting and fishing rights across millions of acres of northeastern Minnesota; (2) the 1854 authorizing legislation which mandated the extinguishment of all Chippewa land claims, but was expressly intended to reserve rights secured by former treaties; (3) the record of the 1855 treaty negotiations which contains extensive reference to the cession of Chippewa lands but no mention of treaty hunting and fishing rights; (4) Commissioner Manypenny's treaty transmittal letter which identifies the specific land claims the government intended to extinguish by the second sentence of Article 1 but which contains no hint that this language was intended to abrogate the 1837 treaty privilege; and (5) the Chippewa's dependence on hunting and fishing which makes it inconceivable that the Mille Lacs Band would have consented to a [**32] cession of a special treaty hunting and fishing privilege without any discussion.

The facts of this case thus diverge sharply from those in Oregon Dep't of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985), where the Court held that an exclusive, onreservation [*18] hunting and fishing right was ceded when a tribe relinquished all of its rights and interests in and to reservation land. Here, by contrast, the broad land cession language in the 1855 treaty does not encompass, and was not intended to encompass, the non-exclusive 1837 treaty privilege of hunting, fishing and gathering on the lands and waters of the 1837 ceded territory--a privilege which exists independently of any interest in the lands themselves.

THE 1855 TREATY DID NOT EXPRESSLY ABROGATE THE MILLE LACS BAND'S 1837 HUNTING AND FISHING PRIVILEGE.

Relying on Klamath, the petitioners assert that the language of the second sentence of Article 1 of the 1855 treaty would "obviously appear to extinguish" the Mille Lacs Band's hunting and fishing rights under the 1837 treaty. Pet. Br. at 13. With no analysis, they ask the Court to accept their interpretation [**33] of the treaty language as "self-evident." Id. at 41. We show that the petitioners' interpretation is not self-evident, and that under this Court's prior cases, including Klamath, the 1855 treaty language does not constitute an express abrogation of the Mille Lacs Band's 1837 treaty privilege.

A. The Petitioners Disregard the Chippewa's Natural Understanding of the Treaty Language.

n16 The facts of this case are unlike Klamath, 473 U.S. at 772, where the Indians could speak and understand English and were represented by attorneys.

The district court's findings respecting the "sense" in which the words of the 1855 treaty "would naturally be understood by the Indians," do not support the proposition that the interpretation of the treaty language advanced by the petitioners would have been "self-evident" to the Chippewa. Pet. Br. at 41. Expert testimony established that the pertinent treaty language does not have a Chippewa equivalent and could not have been translated literally into Chippewa. PA 284, 324; JA 857-62 (Report of Dr. Nichols). The most likely translation of the language would have been the Chippewa equivalent of "relinquish and transfer to the United States the lands." PA 284. This translation would not have conveyed any "sense" that the treaty relinquished of the 1837 treaty privilege, but instead would [**35] have "convey[ed] only that the Chippewa were giving up their remaining lands." n17 PA 284, 325. Because the [*20] petitioners' interpretation of the 1855 treaty language ignores the Chippewa's natural understanding of the language, it was properly rejected.

n17 Notably, the petitioners offered no evidence at trial about the Chippewa understanding of the second sentence of Article 1. Moreover, the petitioners' historian conceded that the second sentence of Article 1 was never specifically discussed in the treaty negotiations. JA 1369 (Newell Cross-Examination).

Even when read according to its technical legal meaning, the second sentence of Article 1 does not unambiguously extinguish the Mille Lacs Band's 1837 treaty privilege. The 1855 treaty neither mentions the 1837 treaty privilege nor provides a fixed sum payment for an alleged cession of the privilege. Cf. South Dakota v. Yankton Sioux Tribe, 522 U.S. , 139 L. Ed. 2d 773, 787 (1998). This is in sharp contrast to language drafted by Commissioner Manypenny a few months later in the Treaty with the Chippewa [**36] of Sault Ste. Marie, which expressly revokes fishing rights reserved in an earlier treaty and provides compensation for the cession. 11 Stat. 631 (Aug. 2, 1855) ("The said Chippewa Indians surrender to the United States the right of fishing at the falls of St. Mary's and of encampment, convenient to the fishing ground, secured to them by the treaty of June 16, 1820"). n18 Commissioner Manypenny's [*21] failure to use here the kind of unambiguous language of cession used in the 1855 Sault Ste. Marie and other treaties strongly suggests that the government did not intend to abrogate the 1837 treaty privilege and by itself justifies a careful examination of all the historical circumstances to determine the intent of the parties. Choctaw Nation, 397 U.S. at 631 (rejecting a similar "plain meaning" argument where "the United States was competent to say the 'north side' or 'bank' of the Arkansas River when that was what it meant, as it had in [an earlier] grant to the Cherokees"); see also Hagen v. Utah, 510 U.S. 399, 412 (1994) (absence of language providing definite payment for alleged reservation diminishment "requires us to examine all the circumstances [**37] surrounding the opening of a reservation").

n18 The court of appeals noted that similar express language has been used to revoke other usufructuary rights. PA 36-37. The 1830 Sauk and Fox treaty provided for the use of ceded lands for hunting and other purposes by "such . . . Tribes as the President may locate thereon." 7 Stat. 328. To extinguish that right, the 1837 Sauk and Fox treaty contains a specific "cession[] . . . of all the right to locate, for hunting or other purposes, on the land ceded in the first article of the treaty of July 15th, 1830," in addition to a general cession of "all interest or claim by virtue of the provisions of any treaties." 7 Stat. 543. The 1846 Winnebego treaty pays "forty thousand dollars for release of hunting privileges, on lands adjacent to their present home," in addition to a payment of $ 150,000 for "the land." 9 Stat. 878. The 1865 Middle Oregon treaty provides that "the right to take fish, erect houses, hunt game, gather roots and berries, and pasture animals upon lands without the reservation set apart by the treaty aforesaid--[is] hereby relinquished," and provides compensation "for the relinquishment" of these rights.14 Stat. 751.

The petitioners argue that the kind of unambiguous language contained in the Sault Ste. Marie treaty was unnecessary here because the 1855 Chippewa treaty contains "all-encompassing relinquishment language." Pet. Br. at 48-49; but see n.18 above (discussing 1837 Sauk and Fox treaty). However, the 1855 treaty cession of all "right, title and interest . . . in and to . . . lands" does not "encompass" the 1837 hunting and fishing privilege unless the 1837 privilege is a "right to" or "interest in" lands. The petitioners provide no analysis to show that it is such a right or interest, and a review of the essential attributes of the privilege shows that it is not.

The lower courts held--and petitioners agree--that the 1837 treaty privilege secures no right of access or entry to lands. n19 PA 70, 337-38; see Pet. Br. at 35. Instead, the 1837 [*22] treaty guarantees that the Chippewa can engage in the protected activities of hunting and fishing in areas otherwise open to public hunting and fishing. PA 71, 337-38; see alsoLac Courte Oreilles Band v. Wisconsin, 775 F. Supp. 321, 323-24 (W.D. Wis. 1991). The rights secured by the 1837 treaty are thus akin to those secured [**39] by a federal hunting and fishing permit, see, e.g., 16 U.S.C. § 704 (permits allowing the taking of migratory birds), or the federal fishing privileges granted pursuant to the long-standing vessel licensing statutes analyzed in Douglas v. Seacoast Products, 431 U.S. 265 (1977). Such federal licenses have been held to provide "the 'authority . . . to carry on' the licensed activity," and therefore preempt certain discriminatory state regulations. Id. at 280-81, quoting Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 212 (1824). n20

n19 The district court reasoned that since Wisconsin territorial law allowed the public to hunt, fish and gather on all unenclosed, unposted and undeveloped lands and an abundant amount of land was open for these purposes, it was unnecessary to provide the Chippewa with a treaty right of access to land. PA 334. This is consistent with the parties' contemporaneous understanding of treaty hunting and fishing rights. See PA 271 (Gorman's understanding that the 1837 treaty gave the Chippewa an interest in harvesting wild rice but no right to interfere with the erection of a dam on ceded land); JA 381 (Chippewa understanding that hunting rights meant that "an Indian should not be permitted to trespass on a white man's or anybody else's property," but should be able "to go on government lands . . . whenever a man wants to go out and hunt and kill game"). A contrary holding would greatly expand the rights of the other Chippewa bands and have serious consequences for rights adjudicated in previous cases. See, e.g., Antoine v. Washington, 420 U.S. 194, 207 n.11 (1975) ("claim of entitlement to hunt on fenced or posted land without permission of the owner would raise serious questions").

n20 The Enrollment and Licensing Act of 1793 provided for registration and licensing of vessels to be employed in trading, whaling and fishing in United States waters. Douglas, 431 U.S. at 273. The Court has held that under the Act, States may impose upon federal licensees only those "reasonable, nondiscriminatory conservation and environmental protection measures otherwise within their police power," Douglas, 431 U.S. at 277, a restriction somewhat analogous to the standards for state regulation of treaty hunting rights set out in Antoine, 420 U.S. at 207(state may impose reasonable and necessary conservation measures that do not discriminate against the Indians).

[*23] Federal rights to take wild fish and game, whether secured by a federal permit or license or by a treaty guarantee, are not "rights to" or "interests in" land. Under the common law, wild fish and game are not considered part of the realty and are not subject to private ownership until reduced to possession. McKee v. Gratz, 260 U.S. 127, 137 (1922) (shellfish not "part of the realty" within the meaning of a state statute giving treble damages for interference [**41] with real property); Geer v. Connecticut, 161 U.S. 519, 526-30 (1896); see also Douglas, 431 U.S. at 290 (Rehnquist J. concurring and dissenting in part) (federal grant of "title" and "ownership" to land in Submerged Lands Act, 16 U.S.C. § 1311(a), "could not reasonably refer to free-swimming fish which are incapable of such ownership"). The prior holdings of this Court confirm that Indian treaties may secure important hunting and fishing rights, which are independent of any interests in land and which, by virtue of the Supremacy Clause, preempt inconsistent state regulations. See Klamath, 473 U.S. at 765-66 ("Indians may enjoy special hunting and fishing rights that are independent of any ownership of land"); Antoine, 420 U.S. at 207 & n.11 (upholding Indians' challenge to State fish and game regulations even though the Indians disclaimed any "entitlement to hunt on fenced or posted private land without prior permission of the owner"). n21 Thus, while the 1837 treaty hunting and fishing privilege must be exercised in a particular locale, it is not a "right to" or "interest in" land. Had the treaty secured [**42] an analogous right, such as [*24] "the right, in common with the citizens of the United States, to travel upon all public highways," 1855 Treaty with the Yakimas, Art. III, 12 Stat. 951, no one would suggest that it was a "right to" or "interest in" lands. n22

n21 Relying on United States v. Winans, 198 U.S. 371, 381 (1905), Thompson et al. argue that the 1837 treaty privilege is an "interest related to land." Th. Br. at 34. However, the treaty at issue in Winans, unlike the 1837 treaty, preserved the Indians' right of access to specific "usual and accustomed" fishing places. Moreover, the Court held in Fishing Vessel, 443 U.S. at 675, that the "specific provision for access in that treaty was intended to secure a greater right" to harvest the runs of anadromous fish. This "greater right," which protects the activity of fishing itself, is not a real property interest.

n22 Likewise, the holder of a federal license to trade on an Indian reservation under 25 U.S.C. § 261 et seq. does not possess a "right to" or an "interest in" reservation lands; instead the license provides federal authority to engage in the activity of trade and commerce within a designated area, and limits the state's power to regulate that activity. See Warren Trading Post v. Arizona State Tax Comm'n, 380 U.S. 685, 691 (1965).

It is a "principle deeply rooted in this Court's Indian jurisprudence" that treaties must be "construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit." Yakima County v. Yakima Indian Nation, 502 U.S. 251, 269 (1992), see also Klamath, 473 U.S. at 774. In Yakima, 502 U.S. at 268-69, the Court applied this rule to hold that statutory language authorizing state "taxation of land" did not encompass "'taxation with respect to land,' 'taxation of transactions involving land,' or 'taxation based on the value of land,'" and hence did not authorize a county excise tax on sales of tribally owned fee lands. Similarly here, the 1855 treaty explicitly extinguishes "right[s] . . . and interest[s] . . . in, and to . . . lands," but does not extinguish "interests related to lands" or "rights which may be exercised within a particular geographic area." As in Yakima, while the petitioners' interpretation of the 1855 treaty language perhaps does "not exceed the bounds of permissible construction," the Band's interpretation of the 1855 treaty language is not only "quite reasonable," 502 U.S. at 268, but [**44] also accords with the Chippewa's "natural understanding" of the language.Fishing Vessel, 443 U.S. at 675-76. Under these circumstances, the district court properly undertook a "careful examination" of the circumstances surrounding the 1855 treaty, and resolved [*25] any ambiguities in the treaty language "for the benefit of the Tribe." Yakima, 502 U.S. at 269; Klamath, 473 U.S. at 774.

C. The Petitioners' Argument Is Not Supported by Klamath.

Notwithstanding the ambiguities in the treaty language and the evidence that the Indians would not have understood the language to affect their 1837 hunting and fishing privilege, the petitioners insist that under Klamath, the 1855 treaty nevertheless must be construed as "effective to extinguish previously reserved hunting and fishing rights." Pet. Br. at 42. Klamath involved rights provided in an 1864 treaty which created a 1.9 million-acre reservation and secured "the exclusive right of taking fish in the streams and lakes, included in said reservation, and of gathering edible roots, seeds and berries within its limits." 473 U.S. at 755 (emphasis added). The treaty required [**45] the Indians to "remove to said reservation and remain thereon" and provided for no off-reservation usufructuary rights. Id. at 767. Due to a surveying error, approximately 600,000 acres of land was erroneously excluded from the reservation. n23 Id. at 757. In 1901, the Tribe agreed to "cede, surrender, grant and convey to the United States all their claim, right, title and interest in and to" the lands excluded from the reservation by the survey. Id. at 760.

n23 The petitioners mistakenly contend that the rights at issue in Klamath were non-exclusive, off-reservation rights. Pet. Br. at 43. While the United States had erroneously allowed entry to reservation land, the Klamath Tribe still legally held exclusive hunting and fishing rights on these lands under the terms of the 1864 treaty. The Court rejected the Tribe's claim that these exclusive, on-reservation rights were somehow converted to non-exclusive, off-reservation rights by the cession of reservation land. Klamath, 473 U.S. at 769-70 & n. 20.

The Court acknowledged that "Indians may enjoy special hunting and fishing rights that are independent of any ownership [*26] [**46] of land," id. at 765-66, but held that the exclusive hunting and fishing rights secured under the 1864 Treaty were appurtenant to the reservation and ceded when the reservation was diminished in 1901. Id. at 768. "More important[]" than the broad language of cession was the fact that the 1864 treaty "plainly describe[d] rights intended to be exercised within the limits of the reservation." Id. at 766. The Court reasoned:

In contrast to the Klamath Tribe's exclusive, on-reservation hunting and fishing right, [**47] which was relinquished when the boundaries of its reservation were diminished, the Mille Lacs Band's 1837 treaty privilege was always a non-exclusive right that could be exercised on ceded lands. It is the very type of "special hunting and fishing right" recognized by the Court in Klamath to exist "independent of any ownership of land." n24 473 U.S. at 765-66 & nn. 16-17 [*27] (emphasis added). Given the rationale of Klamath, a non-exclusive hunting and fishing right which is expressly secured by treaty on ceded lands (but which secures no right of access to such lands) can survive a later cession of all "right, title and interest . . . in, and to . . . lands." n25

n24 The five cases cited by the Court for this proposition all involved non-exclusive hunting, fishing or gathering rights reserved by treaties or agreements on ceded lands. In Antoine, the Indians ceded "all their right, title, claim and interest in" the land, while reserving "the right to hunt and fish in common with all other persons on lands not allotted to said Indians." 420 U.S. at 196, 208 (emphasis added). Similarly, Fishing Vessel; Puyallup Tribe v. Department of Game, 391 U.S. 392 (1968), and Winans, involved the Stevens treaties where the Indians ceded "their interest in most of the Territory," while reserving a "right of taking fish at all usual and accustomed places, in common with citizens of the Territory." See Fishing Vessel, 443 U.S. at 662 (emphasis added). Finally, in Kennedy v. Becker, 241 U.S. 556, 562 (1916), the Tribe ceded a tract of land while reserving what the Court found to be a non-exclusive "privilege of fishing and hunting" on that tract.

n25 By contrast, aboriginal hunting and fishing rights, unsecured by treaty, are merely incidents of original Indian title which, unless specially reserved, are extinguished when the lands are ceded. Klamath, 473 U.S. at 766; United States v. Minnesota, 466 F. Supp. 1382, 1385 (D. Minn. 1979), aff'd sub nom., Red Lake Band v. Minnesota, 614 F.2d 1161 (8th Cir.), cert. denied, 449 U.S. 905 (1980). Thus, a holding that the Mille Lacs Band's 1837 treaty privilege survived the 1855 cession of all interests in land would not resurrect the aboriginal hunting and fishing rights extinguished in numerous other land cession treaties.

Furthermore, the holding in Klamath did not rest solely on the bare language of the 1901 Agreement, but instead turned on the Court's "careful examination of the entire record," which showed that the Tribe's exclusive hunting and fishing right "was not intended to survive as a special right to be free of state regulation" after the lands were ceded. 473 U.S. at 774.Indeed, even outside the Indian context, such a careful review of the historical circumstances is an essential aspect of treaty [**49] interpretation. Eastern Airlines v. Floyd, 499 U.S. at 535 (because "treaties are construed more liberally than private [*28] agreements," courts may "look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties"); Saks, 470 U.S. at 396. The district court's careful, fact-based review of the circumstances surrounding the 1855 treaty, and its determination based on that review that the 1855 treaty did not extinguish the Mille Lacs Band's 1837 treaty privilege, is thus entirely consistent with Klamath and the Court's other treaty interpretation precedents.

THE DISTRICT COURT'S CAREFUL EXAMINATION OF THE HISTORICAL RECORD SHOWS THAT THE PARTIES DID NOT INTEND TO EXTINGUISH THE MILLE LACS BAND'S 1837 TREATY PRIVILEGE.

"In the absence of an explicit statement, 'the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.'" United States v. Dion, 476 U.S. 734, 739 (1986), quoting Menominee Tribe v. United States, 391 U.S. 404, 413 (1968); Fishing Vessel, 443 U.S. at 690. Because the Court will not construe [**50] statutes as abrogating treaty rights in "a backhanded way," treaty abrogation will be found only if Congress' intention to abrogate Indian treaty rights is "clear and plain." Yankton Sioux, 139 L. Ed. 2d at 786; Dion, 476 U.S. at 738-39. Because the language of the 1855 treaty did not unambiguously extinguish the Mille Lacs Band's 1837 hunting and fishing privilege, the petitioners were required to demonstrate through evidence in the historical record that the parties to the treaty clearly intended to extinguish the treaty privilege. The petitioners failed to meet these exacting standards. n26

n26 Instead, the petitioners try to turn these standards on their head by asserting that the historical evidence "must essentially be conclusive in order to overcome clear treaty language." Pet. Br. at 49. As shown in the previous section, however, the treaty language contains no explicit statement abrogating the 1837 treaty privilege.

The district court found no evidence that the United States intended to abrogate the Mille [**51] Lacs Band's 1837 treaty hunting and fishing privilege, and substantial evidence, particularly Commissioner Manypenny's treaty transmittal letter, showing that the government's intent in drafting the second sentence of Article 1 was to ensure that all of the Chippewa's various and overlapping land claims were extinguished. n27 PA 327-28. The first, and perhaps clearest, manifestation that the United States did not intend to abrogate the Band's 1837 treaty privilege is the 1854 treaty, which preserved the 1837 treaty rights of the Wisconsin and Fond du Lac Bands, and expressly established new hunting and fishing rights for the Fond du Lac and other Chippewa residing in the territory ceded by that treaty. n28 PA 31-34, 191-201. As the district court reasoned,

n27 The Eighth Circuit properly reviewed the district court's findings regarding the intent of the parties on the basis of the clearly erroneous standard. PA 37; see Pullman Standard v. Swint, 456 U.S. 273, 287-88 (1982) (intent is "a pure question of fact subject to Rule 52(a)'s clearly erroneous standard . . ., not a question of law and not mixed question of law and fact"). The petitioners do not take issue with the standard of review applied by the court of appeals.

n28 The lower courts' holding that the 1854 treaty did not abrogate the Chippewa's 1837 treaty privilege was not challenged in any of the petitions for certiorari or in any of the briefs filed on the merits in this Court. Only the Landowners pursued this issue in the court of appeals, which found the evidence "overwhelming that neither party intended the 1854 treaty to disturb usufructuary rights." PA 31-34 and n. 27.

Moreover, if Congress had sought to extinguish off-reservation hunting and fishing rights throughout the Minnesota territory, as petitioners suggest, it would not have ratified a treaty establishing new off-reservation treaty rights across the millions of acres of the 1854 ceded territory. See Morton v. Mancari, 417 U.S. 535, 548-49 (1974) (absent "any manifestation of supportive intent," where Congress had enacted two new Indian preferences, "we are loathe to imply [the] improbable result" that Congress intended to repeal Indian preferences in government employment). The petitioners fail to explain why Congress would have intended to abrogate the treaty hunting and fishing rights of the Mille Lacs Band, while leaving intact the reserved rights of [**53] all other Bands using the 1837 ceded territory and establishing new treaty rights in the 1854 ceded territory. n29

n29 The petitioners' brief correctly points out that if the State were to prevail on its 1855 treaty defense, "the Mille Lacs Band would not have a special hunting, fishing and gathering privilege in the Minnesota portion of the 1837 ceded territory, but the other plaintiff bands, including the Wisconsin Bands, would." Pet. Br. at 41, n.17. The petitioners make no effort to explain the logic of this odd result. See Yankton Sioux, 139 L. Ed. 2d at 788 (court should apply "sensible construction" which avoids "absurd conclusion").

The next manifestation of treaty intent, the legislation authorizing the 1855 treaty negotiations, 10 Stat. 598 (PA 532), [*31] likewise "does not support the interpretation [of the 1855 treaty] presented by the [petitioners]." PA 328. The legislation makes no mention of treaty hunting and fishing rights on lands previously ceded, but instead authorizes negotiations for "the extinguishment of [the Chippewa's] title to all the lands owned and claimed by them." n30 PA 532 (emphasis added). Moreover, the legislation not [**54] only authorized the 1855 treaty negotiations, but provided retroactive authority for the 1854 negotiations, which preserved existing treaty hunting and fishing rights and established new treaty hunting and fishing rights over a vast area in northeastern Minnesota. PA 275. The lack of intent to extinguish treaty hunting and fishing rights is confirmed by the legislative history which expressly states that the treaties authorized by the legislation would "reserve[]" to the Indians "those rights which are secured by former treaties." 23 Cong. Globe, 33rd Cong., 1st Sess. 1403-04 (June 15, 1854) (emphasis added)

n30 Commissioner Manypenny executed the congressional mandate by summoning the Chippewa to Washington for treaty negotiations "respecting their claims to lands in Minnesota," but made no suggestion that the negotiations would involve a cession of treaty hunting and fishing rights. PA 276-77. Furthermore, Manypenny did not summon to the negotiations all of the Bands who used and occupied the 1837 ceded territory, as would have been logical if he had sought to negotiate a cession of 1837 treaty rights. Id.

The petitioners cite language from the authorizing legislation directing [**55] that the new treaty provide that

The record of the 1855 treaty negotiations further confirms that the government intended to extinguish [**56] Chippewa land claims, not treaty hunting and fishing rights. The district court found that 1855 treaty journal contains no discussion of the 1837 treaty privilege, or hunting and fishing rights in general. PA 284, 325. The treaty negotiations instead focused on the obtaining a cession of Indian lands, as reflected by very first page of the treaty journal which indicates the negotiations were "required for the purpose of making a treaty for the purchase of a tract of land lying in Minnesota." JA 297; see also JA 304, 307, 309; JA 869 (Report of Dr. Tanner). The petitioners do not suggest that a cession of the 1837 treaty hunting and fishing privilege was ever proposed by government officials during the 1855 treaty negotiations.

The petitioners argue instead, without any citation to the record, that the shift in government policy away from removal and toward the establishment of reservations provides the "historical context" for an intent to extinguish treaty hunting and fishing rights. Pet. Br. at 45. However, the district court rejected this factual contention, finding instead that the [*33] preservation of treaty hunting and fishing rights was "not inconsistent with Manypenny's [**57] reservation policy." n31 PA 289. Indeed, the legislative history for the 1854 authorizing act contains extensive discussion about the shift from the removal to the reservation policy, but makes clear Congress's intent that "rights which are secured by former treaties" would be unaffected by the establishment of reservations. 23 Cong. Globe, 33rd Cong., 1st Sess. 1403-04 (June 15, 1854). The petitioners' historian testified that Manypenny's reservation policy allowed for off-reservation hunting, fishing and gathering, that the policy did not confine the Indians to their reservations, and that the Mille LacsReservation was established because it provided access to off-reservation fisheries and wild rice fields. JA 1359, 1368-69 (Newell Cross); see also Johnson v. Gearlds, 234 U.S. 422, 438 (1914) (1855 treaty drafters contemplated that the Chippewa "while making their permanent homes within the reservations would be at liberty to roam and to hunt throughout the entire country, as before").

n31 In support of this finding, the district court noted that the 1854 Chippewa treaty and many other treaties negotiated in the mid-1850s expressly secured off-reservation hunting and fishing rights while at the same time establishing reservations, and that only one treaty, the 1855 Sault Ste. Marie treaty, expressly abrogated treaty hunting or fishing rights and that followed the destruction of the fishery by a government canal project. PA 289; see also Fishing Vessel, 443 U.S. at 666 n.9.

The petitioners also argue that 1855 treaty provisions stipulating that the Chippewa would "settle down in the peaceful pursuits of life" and promising governmental assistance with agriculture demonstrate an intent to abrogate treaty hunting and fishing rights. n32 Pet. Br. at 46-47. However, many other treaties [*34] of this era encouraged the Indians to settle down on reservations and provided agricultural assistance while at the same time preserving off-reservation hunting and fishing rights. E.g. PA 493 (1854 treaty stipulations providing for allotment of land in severalty and agricultural assistance). The 1855 treaty itself, while not establishing new special hunting and fishing rights, nevertheless promised the Chippewa gunpowder, shot, lead and gilling twine to enhance their hunting and fishing activities. PA 509; see also Lac Courte Oreilles Band v. Voigt, 700 F.2d 341, 364-65 (7th Cir.) ("government's provision of guns and ammunition to the Indians pursuant to the 1854 treaty" is evidence that the government did not intend that treaty to abrogate the Chippewa's usufructuary rights), cert. denied, 464 U.S. 805 (1983).

n32 The petitioners' expert testified that this provision "doesn't mean . . . that the chiefs agreed their people would stop hunting, fishing, trapping and gathering." JA 1388 (Driben Cross).

Commissioner Manypenny's February 23, 1855, transmittal letter, which was presented to the Senate during the treaty ratification process, demonstrates clearly that the government intended that the second sentence of Article 1 would extinguish the Chippewa's remaining land claims, not their previously reserved treaty hunting and fishing rights. JA 291-94. Manypenny's letter explains that the second sentence of Article 1 was included in the treaty because the "Indians (and especially the Pillager and Lake Winnibigoshish bands) have some right or interest in a large extent of other lands in common with other Indians in Minnesota." PA 286; JA 291-92 (emphasis added). There is no reference to the 1837 privilege in Manypenny's transmittal letter and the explanation Manypenny provided for the cession language bears no relation to the 1837 privilege. n33 That privilege was not held "especially" by the Pillager and Lake Winnibigoshish bands, who occupied lands [*35] far to the north and west of the 1837 cession (see App. A attached), and had disclaimed any interest in the 1837 territory during the 1837 treaty negotiations. PA 287; JA 47. The 1837 privilege was not "some [indefinite] [**60] right or interest" but a specific privilege secured by treaty. And, the 1837 privilege was not held in common with "other Indians in Minnesota," but largely with other Chippewa bands in Wisconsin. PA 287.

n33 Indeed, Manypenny's letter asserted (erroneously) that the bands party to the 1855 treaty "have not been parties to or participants in the benefits of any treaty with the United States," other than an "unimportant" 1847 treaty. PA 288; JA 292.

Manypenny's transmittal letter strongly supports the district court's finding that

n34 The Commissioner's 1850 annual report explained that the Pillager claims went beyond the 1825 Prairie du Chein lines, see note 2 above, arose in some manner from "conquest and actual possession," and overlapped those of the Red Lake bands. PA 287; JA 187.

n35 Because the Mississippi and Pillager bands claimed different lands, Manypenny insisted that the chiefs define their respective boundaries before he could make a proposition to them. JA 313. The Pillager representative, Flat Mouth, demurred, stating that the Pillager and Lake Winnibigoshish bands would identify only those lands they wished to sell and would not "state precisely what our bands claim as a right." JA 317-18.

The petitioners apparently concede that the passage quoted above refers to the second sentence of Article 1, but argue that Manypenny's reference to lands in [**62] northwestern Minnesota does not support a "geographic limitation" on the treaty language of cession. Pet. Br. at 48. This misses the point. The issue is not whether the cession language is limited geographically, but whether the language was intended to extend beyond a cession of the Chippewa's remaining land claims and also abrogate their 1837 treaty hunting and fishing privilege. Manypenny's transmittal letter, which omits any reference to treaty hunting and fishing rights while explaining that the second sentence of Article 1 would extinguish the ill-defined land claims of the Pillager and Lake Winnibigoshish bands to the north and west of the demarcated cession boundaries (see App. A attached), is compelling evidence that the government's intent in drafting the broad language of cession in the 1855 treaty was to extinguish Chippewa land claims, not their 1837 hunting and fishing rights. As the district court reasoned, that interpretation does not rewrite the treaty or render the second sentence of Article 1 superfluous, "it merely limits the language to its intended effect." PA 328.

Finally, the government's "post-ratification conduct" provides no probative evidence that the treaty [**63] was intended to abrogate the Mille Lacs Band's 1837 treaty rights. Zicherman v. Korean Air Lines, 516 U.S. 217, 133 L. Ed. 2d 596, 607 (1996); Floyd, 499 U.S. at 546. After the 1855 treaty, Manypenny [*37] did nothing to correct the statement in Governor Gorman's February 1855 letter that the Mille Lacs Band still retained hunting and fishing rights under the 1837 treaty, and Gorman repeated his statement in a June 1855 letter to the Band. PA 269-71; JA 295-96. Notwithstanding complaints from non-Indians about Chippewa off-reservation hunting and fishing, and calls by the State to confine the Mille Lacs Band to its reservation, federal officials continued to support off-reservation hunting and fishing, never suggesting that the 1855 treaty had any effect on the Chippewa's 1837 treaty privilege until approximately 70 years after the treaty. n36 PA 293, 299-300. The petitioners' interpretation of the 1855 treaty is thus at odds with the contemporaneous understanding of the parties to the treaty.

n36 The petitioners contend that state statutes adopted in 1858 set seasons and "expressly applied those seasons to Indians hunting off their reservations." Pet. Br. at 47, citing PA 569-72. In fact, two of the cited statutes (chs. XIX, XLV) make no mention of Indians, while the third (ch. XLIV) purports to assert overall criminal jurisdiction over Indians when found off-reservation, and require Indians to obtain a pass from federal officials before leaving their reservations. There is no evidence that these statutes had any relation to the 1855 treaty, or that the Federal Government ever instituted a pass system. Indeed, the statutes by own their terms would apply to the 1854 ceded territory where the Chippewa unquestionably retained off-reservation hunting and fishing rights.

Thompson et al. point to Henry Rice's statements during the Nelson Act negotiations as evidence of an understanding that the Mille LacsBand's rights had been abrogated. Th. Br. at 9-10, 32. However, Rice never stated that the Band's 1837 treaty rights had been abrogated; he simply suggested that the State had the power to set deer hunting seasons. PA 297; JA 471-72. It is well established that the State does have the power to set seasons for Indian hunting, provided that the seasons are non-discriminatory and necessary for conservation. Antoine, 420 U.S. at 207. The district court also found that Rice's comments were "not persuasive evidence" that the 1837 privilege had been abrogated, because the United States negotiators made similar comments in discussions with the Grand Portage Band, which clearly retained usufructuary rights under the 1854 treaty. PA 297-98; JA 499.

The district court also found that the Mille Lacs Band did not intend to relinquish its 1837 treaty rights when it signed the 1855 treaty, and did not understand the 1855 treaty to have that effect. PA 292, 324. The evidence strongly supports this finding. The Chippewa were told and understood that the treaty would involve a cession of their unceded lands, n37 and were never asked to cede their guaranteed privilege of hunting, fishing and gathering in the 1837 ceded territory. PA 284. The Mille Lacs Chippewa would have starved if they had been unable to hunt and fish outside of the small reservation established by the 1855 treaty and "would not have knowingly given up the guaranteed [1837] privilege without any discussion." PA 292, 325. The lack of any mention of these important treaty rights in the 1855 treaty journal is thus strong evidence that the Mille Lacs Band did not understand the 1855 treaty to have this effect. See Fishing Vessel, 443 U.S. at 676 (given importance of fishing to Indians, it was "inconceivable that either party deliberately [**65] agreed to authorize future settlers to crowd the Indians out of any meaningful use of their accustomed places to fish").

n37 Flat Mouth remarked: "It appears to me that I understand what you want, and your views from the few words I have heard you speak. You want land." JA 309. Hole-in-the-Day likewise stated: "Your words strike us in this way. They are very short. 'I want to buy your land.' These words are very expressive, very curt." JA 304.

The petitioners argue that "the context of extinguishment was reflected in the goals of the Chippewa leaders" because Hole-in-the Day, a Chippewa spokesman, sought money and tools to enable the Indians to adopt agricultural ways and "live like the whites." Pet. Br. at 45-46 & n.20. While there is no dispute that Hole-in-the-Day at times espoused assimilation, the district court found that his views were not shared by the Mille Lacs Chippewa, who were at this time fighting to protect their wild rice fields from the [*39] Rum River dam. PA 291-92. The district court also found that the Chippewa representatives understood that their people would need to hunt, fish and gather off the small reservations created by the 1855 treaty in order [**66] to survive and would not have acquiesced without discussion to any restrictions on their legal rights to engage in these activities in the 1837 ceded territory. n38 PA 325; see also JA 598-607 (first-hand, contemporaneous account showing the extent of Chippewa dependency on hunting, fishing and gathering in the late 1850s), 1386-87 (testimony of State's expert that Chippewa representatives did not intend the 1855 treaty to restrict their people from using natural resources). Indeed, after the 1855 treaty was signed, the Chippewa representatives, including Hole-in-the-Day, expressed great concern that annuity payments under the treaty would not interfere with the Chippewa's fall fisheries. PA 289-90; see also JA 1090-91 (Testimony of Dr. Cleland).

n38 The petitioners also cite a passage from the treaty journal in which Hole-in-the-Day asserts that he studied the treaty and concluded that "the Indians have given away all, and leave themselves no alternative but to work." JA 348-49. Read in context, this passage has nothing to do with relinquishing hunting and fishing rights. Hole-in-the-Day was concerned that prior treaties which paid farmers and blacksmiths to work for the Chippewa had encouraged dependency. Id. He understood that, because they were ceding all of their remaining lands, the Chippewa would not be able to cede lands in the future in return for annuity payments, and therefore would have to work for themselves. Notably, the treaty journal indicates that this "work" would include fishing, hunting and trapping, as well as farming and other trades. See JA 1089-92 (Testimony of Dr. Cleland).

Finally, notwithstanding repeated calls by State officials to confine the Mille Lacs Chippewa to their reservation and, after 1892, active efforts to regulate off-reservation hunting, fishing and gathering, the district court found that the Chippewa "continued to hunt, fish and gather off-reservation after the 1855 treaty" and "complained to federal officials that state enforcement of game regulations violated their rights under the 1837 treaty." PA 325-26. This "post-ratification conduct" further supports the district court's finding that the Chippewa did not intend to [*40] relinquish their hunting and fishing rights under the 1837 treaty. See Seufert Bros. Co. v. United States, 249 U.S. 194, 198-99 (1919) (continued in common use of fishing places "shows clearly that [the Indians'] understanding of the treaty was that they had the right to resort to these fishing grounds and make use of them in common with other citizens of the United States").

To sum up, this Court has held repeatedly that the intent to abrogate Indian treaty rights must be "clear and plain."Yankton Sioux, 139 L. Ed. 2d at 786. In this case, the relevant language from the 1855 [**68] treaty is ambiguous at best, and the evidence from the surrounding circumstances provides no indication that either party intended to extinguish the Mille Lacs Band's 1837 treaty privilege. The historical record shows that the purpose of the broad treaty language in the second sentence of Article 1 was to ensure that all of the Chippewa's ill-defined land claims were fully extinguished. Not a single document in the historical record surrounding the negotiation and ratification of the 1855 treaty even mentions the Chippewa's hunting and fishing rights under the 1837 treaty. Petitioners suggest no reason why the United States would have sought to extinguish the rights of the Mille Lacs Band, after preserving the rights of the Wisconsin and Fond du Lac Bands and creating new hunting and fishing rights in the 1854 treaty. Nor do the petitioners offer any reason why the Mille Lacs Chippewa, who remained vitally dependent on hunting, fishing and gathering, would have knowingly relinquished the 1837 privilege without discussion. To construe the 1855 treaty to extinguish the Mille Lacs Band's 1837 treaty privilege, without any "clear and plain" manifestation of congressional or tribal intent [**69] to extinguish the privilege, would run afoul of this Court's admonition that treaty rights may not be "easily cast aside" in a "backhanded" manner. Dion, 476 U.S. at 738-39; Menominee, 391 U.S. at 412.

For all of the foregoing reasons, the Eighth Circuit's ruling that the Mille Lacs Band's hunting and fishing rights were unaffected by the 1855 treaty should be affirmed.

MARC D. SLONIM Counsel of Record JOHN B. ARUM ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLONIM 2101 Fourth Avenue, Suite 1230 Seattle, WA 98121-2331 (206) 448-1230

CHARLES J. COOPER ALAN K. PALMER COOPER, CARVIN & ROSENTHAL 200 K Street, N.W. Suite 401 Washington, D.C. 20006 (202) 822-8960

JAMES M. GENIA SOLICITOR GENERAL MILLE LACS BAND OF CHIPPEWA. INDIANS HCR 67, Box 194 Onamia, MN 56359 (320) 532-4181

Attorneys for Respondents Mille Lacs Band of Chippewa Indians, Arthur Gahbow, Walter Sutton, Carleen Benjamin and Joseph Dunkley

SETH P. WAXMAN, Solicitor General, Counsel of Record
LOIS J. SCHIFFER, Assistant Attorney General
EDWIN S. KNEEDLER, Deputy Solicitor General
BARBARA McDOWELL, Assistant to the Solicitor General
ELIZABETH ANN PETERSON, Attorney
Department of Justice, Washington, D.C. 20530-0001, (202) 514-2217

1. Whether the United States' "guarant[ee]" to the Chippewa Indians in an 1837 Treaty of the "privilege of hunting, fishing, and gathering the wild rice" within a territory that they had ceded in present-day Minnesota was extinguished by an 1850 Executive Order, which was never enforced to prohibit the Chippewa from fishing, hunting, and gathering in the ceded territory, which was superseded by Treaties negotiated in 1854 and 1855, and which has since been recognized by the United States as being of no effect.

2. Whether a provision of the 1855 Treaty to which one of the respondent Chippewa Bands, the Mille Lacs Band, was a party extinguished that Band's hunting, fishing, and gathering privilege within the territory ceded by the 1837 Treaty.

3. Whether the Chippewa's hunting, fishing, and gathering privilege under the 1837 Treaty was extinguished, sub silentio, by Minnesota's admission to the Union in 1858 on an equal footing with other States. [*II]

The decision of the court of appeals (Pet. App. 1-73) is reported at 124 F.3d 904.

The judgment of the court of appeals was entered on August 26, 1997. A petition for rehearing was denied on November 17, 1997. Pet. App. 7. The petition for a writ of certiorari was filed and docketed on February 17, 1998, the day after a federal holiday, and was granted on June 8, 1998. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

This case concerns whether the United States ever effectively rescinded its "guarant[ee]" to the Chippewa Indians in an 1837 Treaty of the "privilege of hunting, fishing, and [*2] gathering the wild rice" within an area of present-day Minnesota. It does not concern any right to enter onto private property to hunt, fish, or gather. The Chippewa claim no such right. They seek simply to be able to hunt, fish, and gather on lands that are open to the public for such purposes, subject only to tribal regulation and to such supplemental state regulation as may be "necessary in the interest of conservation," Antoine v. Washington, 420 U.S. 194, 207 (1975), or public health and safety.

1. In 1837, several Chippewa Bands entered into a Treaty with the United States in which they agreed to cede a tract of land, totaling more than 13 million acres, in present-day Wisconsin and Minnesota. Treaty of July 29, 1837, 7 Stat. 536 (Pet. App. 484). Article 5 of the 1837 Treaty stipulated that "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 United States." 7 Stat. 537. The Chippewa entered into another Treaty with the United States in 1842 that ceded additional lands in present-day Wisconsin and Michigan and that reserved the Chippewa's right to hunt, fish, and gather on those lands as well. Treaty of Oct. 4, 1842, 7 Stat. 591. n1

n1 The Seventh Circuit held in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341 (1983), that the Chippewa retained their hunting, fishing, and gathering rights under the 1837 and 1842 Treaties on public lands within the Wisconsin portion of the territory ceded by those Treaties. This Court dismissed the State's appeal for want of jurisdiction and, treating the appeal as a petition for a writ of certiorari, denied the petition. Besadny v. Lac Courte Oreilles Band of Lake Superior Chippewa Indians, 464 U.S. 805 (1983). Justices Brennan, Marshall, and Stevens would have affirmed. Ibid. See also State v. Gurnoe, 192 N.W.2d 892 (Wis. 1972) (upholding Chippewa's fishing rights under 1842 Treaty).

[*3] In 1850, President Taylor issued an Order that "revoked" the Chippewa's hunting, fishing, and gathering privileges under the 1837 and 1842 Treaties and "required [the Chippewa] to remove to their unceded lands." Pet. App. 565. The United States did not attempt to forcibly remove the Chippewa from the ceded lands. The government did, however, seek to induce those Chippewa who resided in Wisconsin and Michigan to relocate to the Minnesota Territory by moving the place at which they received their annuity payments to the unceded lands in the Minnesota Territory. The government did not enforce the portion of the 1850 Order relating to hunting, fishing, and gathering rights against any Chippewa Band. Pet. App. 30 n.24, 254, 256-257, 321.

The Chippewa did not remove from the ceded lands. In 1851, the Acting Secretary of the Interior suspended the removal effort. It was never resumed. The Chippewa continued to live within the ceded territory, and to hunt, fish, and gather wild rice there. The United States not only acquiesced in those activities but encouraged them, such as by providing the Chippewa with guns, ammunition, and traps. Pet. App. 30 n.24, 260-265, 320-321.

In 1854 and 1855, the United States negotiated new Treaties with the Chippewa, including the Bands residing in the territory ceded by the 1837 and 1842 Treaties, in order to acquire additional land in the Minnesota Territory. Treaty of Sept. 30, 1854, 10 Stat. 1109 (Pet. App. 490); Treaty of Feb. 22, 1855, 10 Stat. 1165 (Pet. App. 502). The United States agreed to set aside reservations in the 1837 and 1842 ceded territory as "permanent homes" for the Bands that resided there. The 1854 and 1855 Treaties did not confine the Chippewa to those reservations. And the Chippewa continued to hunt, fish, and gather on the previously ceded lands. Pet. App. 292, 299.

[*4] Of the Chippewa Bands residing in the 1837 ceded territory, only the Mille Lacs Band was a party to the 1855 Treaty. Article I of that Treaty provided that the signatory Bands would cede all of their right, title, and interest in some 10 million acres of land that lay within specified boundaries. Article I then stated that "the said Indians do further fully 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 now have in, and to any other lands in the Territory of Minnesota or elsewhere." 10 Stat. 1166. The Treaty made no specific mention of hunting, fishing, or gathering rights. Nor were such rights discussed during the Treaty negotiations. Pet. App. 34-37, 284, 324.

Minnesota was admitted to the Union in 1858. Act of May 11, 1858, ch. 31, 11 Stat. 285 (Pet. App. 515). The Act did not purport to alter the treaty rights of Indians in the new State.

2. In 1990, the Mille Lacs Band and several of its members filed this action against the State of Minnesota and various state officials, seeking a declaratory judgment that they retain their rights under the 1837 Treaty to hunt, fish, and gather in the Minnesota portion of the ceded territory. They also sought an injunction against the State's interference with those rights. The United States intervened as a plaintiff; nine Minnesota counties and six landowners intervened as defendants. The court bifurcated the case into two phases: the first to determine whether, and to what extent, the Chippewa retain their rights under the 1837 Treaty, and the second to consider the regulation of any such rights.

The court concluded, after a trial on the phase one issues that involved 14 witnesses and more than 400 exhibits, that "the privilege guaranteed to the Chippewa of hunting, fishing, and gathering the wild rice upon the lands, the rivers and the lakes included in the territory ceded to the United States by the treaty of 1837 continues to exist." Pet. App. [*5] 350. The court specifically held that those rights were not extinguished by the 1850 Order or the 1855 Treaty. Id. at 304-334. n2

n2 The Fond du Lac Band and several of its members had filed a separate action in 1992, seeking a declaration that they retained their usufructuary rights under the 1837 and 1854 Treaties. The district court held that the Band continued to possess those rights. Pet. App. 419-481. The Fond du Lac suit was consolidated with the Mille Lacs suit for the second phase of the case.

Several Wisconsin Bands of Chippewa were subsequently permitted to intervene as plaintiffs. The State of Minnesota, the counties, and the landowners asserted additional affirmative defenses, including that the Chippewa's usufructuary rights were extinguished by Minnesota's admission to the Union in 1858. The court granted the Bands' motion for summary judgment dismissing that defense, finding "nothing in the Minnesota Enabling Act that comes close to establishing a clear and plain intent by Congress to abrogate the 1837 privileges." Pet. App. 174-189.

In the second phase of the case, the State and the Bands stipulated to a Conservation Code and Management Plan to regulate hunting and fishing in the Minnesota portion of the 1837 ceded territory. The court resolved other issues that remained in dispute, concluding, inter alia, that it need not allocate the resources in that area between Indians and non-Indians, because there was no evidence of any real and substantial danger of depletion of natural resources. Pet. App. 128-139.

3. The State, together with the counties and landowners, appealed. The court of appeals affirmed on all issues raised by their appeals, including the three issues on which the State has sought this Court's review. Pet. App. 1-73.

First, the court concluded that the Chippewa's hunting, fishing, and gathering rights were not validly extinguished [*6] by the 1850 Order. Pet. App. 21-31. The court reasoned that President Taylor had no authority to order the removal of the Chippewa from the ceded lands without their consent, because Congress had authorized the President to convey lands west of the Mississippi only to "such tribes or nations of Indians as may choose to exchange the lands where they now reside, and remove there." Act of May 28, 1830, ch. 148, § 1, 4 Stat. 412 (emphasis added). Accordingly, because "Congress required consent for removal, and the Bands did not consent, then President Taylor had no authority for his 1850 Executive Order of removal." Pet. App. 27. The court further determined that the portion of the 1850 Order directing the Chippewa to remove was not severable from the portion revoking their usufructuary rights, finding "no evidence that revocation of usufructuary rights would have been made independently of the removal mandate." Id. at 29-30. The court therefore held that "the entire 1850 Executive Order is invalid." Id. at 31. n3

n3 The court of appeals did not address the district court's alternative grounds for finding that the Chippewa's usufructuary rights survived the 1850 Order. Pet. App. 31 n.25.

Second, the court held that the provision of the 1855 Treaty in which the signatory Bands agreed to relinquish "all right, title and interest * * * in, and to any other lands" could not properly be construed as extinguishing the Mille Lacs Band's privilege to hunt, fish, and gather within the territory ceded by the 1837 Treaty. Pet. App. 34-39. The court noted that hunting, fishing, and gathering rights were not specifically mentioned in the 1855 Treaty or in the negotiations that produced it. Id. at 37. And the court found ample support in the record for the district court's factual findings that neither the Band nor the United States had intended the 1855 Treaty to extinguish any such rights. Ibid. The court concluded that a contrary result was not [*7] required by Oregon Department of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985), which held that a Tribe had relinquished its right to fish or hunt on certain reservation lands when it ceded all "claim, right, title and interest" in those lands. The court explained that the rights in Klamath were "exclusive and on-reservation rights, and thus logically extinguished with a relinquishment of a portion of the reservation," whereas the rights in this case are "non-exclusive and off-reservation rights." Pet. App. 39.

Third, the court held that the Chippewa's privilege to hunt, fish, and gather in the 1837 ceded territory was not extinguished sub silentio by the admission of Minnesota to statehood. Pet. App. 52-59. The court reasoned that Congress must clearly express its intent to abrogate Indian treaty rights. But the court could find no such expression of intent to abrogate the Chippewa's usufructuary privilege under the 1837 Treaty in the Act of Congress admitting Minnesota to the Union. Id. at 59. The court noted that an Indian Tribe's retention of its treaty rights to hunt or fish on off-reservation lands "does not offend the State's sovereignty," relying on United States v. Winans, 198 U.S. 371 (1905), and Tulee v. Washington, 315 U.S. 681 (1942). Pet. App. 58. The court deemed Ward v. Race Horse, 163 U.S. 504 (1896), which held that the particular Indian hunting right at issue there did not survive statehood, to be distinguishable. The court explained that, whereas the hunting right in Race Horse was "temporary" because it could be exercised only so long as the lands at issue remained unoccupied and owned by the United States, the hunting, fishing, and gathering rights in this case are of a "continuing" nature and are not tied to ownership of lands. Pet. App. 55 & n.42.

The United States has never effectively rescinded its "guarant[ee]" to the Chippewa in the 1837 Treaty of "the right to fish, to hunt, and to gather the wild rice" within the territory ceded by that Treaty. The State contends that the guarantee was extinguished by any of three instruments: President Taylor's 1850 Order purporting to require the Chippewa to remove from the ceded territory and to revoke their usufructuary privileges; the 1855 Treaty in which certain Chippewa Bands, including the respondent Mille Lacs Band, relinquished "all right, title, and interest * * * in, and to any other lands"; and the 1858 Act of Congress admitting Minnesota to the Union. Only the 1850 Order specifically addressed the privilege at issue. But the 1850 Order was quickly abandoned by the United States without its provision revoking the Chippewa's usufructuary privilege ever having been enforced. It has no continuing validity. The text and history of the 1855 Treaty and the 1858 Act do not reflect any intent by the United States to extinguish the Chippewa's privilege to hunt, fish, and gather within the 1837 ceded territory. Much less do they provide the "clear evidence" required by this Court that "Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty." South Dakota v. Bourland, 508 U.S. 679, 693 (1993).

I. Even during the period immediately after the 1850 Order was issued, the United States did not enforce its provision revoking the Chippewa's usufructuary privilege. The Chippewa continued to fish, hunt, and gather, just as they had previously, throughout the 1837 ceded territory. Although the United States did seek to remove some Chippewa Bands from Wisconsin and Michigan to the Minnesota Territory on the authority of the 1850 Order, the [*9] United States formally suspended that removal effort in 1851 and never resumed it. The United States entered into new treaties with the Chippewa in 1854 and 1855 that superseded the 1850 Order. Those treaties provided the Chippewa with permanent homes within the 1837 ceded territory--the very territory from which they were ordered to remove in 1850--on the understanding that they could continue to hunt, fish, and gather throughout that territory.

II. As for the 1855 Treaty, there is no evidence that the Chippewa or the United States understood the provision on which the State relies, which ceded the Chippewa's "right, title, and interest * * * in, and to any other lands," as encompassing the Mille Lacs Band's usufructuary privilege under the 1837 Treaty. A privilege to hunt, fish, or gather on lands open to the public for those purposes was not commonly understood at that time to be a right or an interest "in, and to * * * lands." Other contemporaneous treaties simultaneously ceded "all [the Indians'] right, title, and interest in and to" their lands and preserved the Indians' hunting, fishing, and gathering rights on those same lands, thus demonstrating that both the government and tribal negotiators understood such usufructuary rights to be distinct from rights or interests in land. And, when the United States actually intended to extinguish a Tribe's hunting or fishing rights, the United States did so in express terms. At a minimum, the Mille Lacs Band's usufructuary privilege under the 1837 Treaty is not so unambiguously a "right, title, or interest * * * in, and to * * * lands" as to require the 1855 Treaty to be construed to the Indians' disadvantage and contrary to their understanding.

III. The Act admitting Minnesota to the Union in 1858 contains no mention of Indian treaty rights. This Court has recognized on numerous occasions, stretching over nearly a century, that the admission of a State to the Union is not irreconcilable with Indians' retention of their treaty rights to [*10] hunt and fish on lands and waters within the State outside their reservation. The Court's earlier decision in Ward v. Race Horse, 163 U.S. 504 (1896), which held that the particular hunting right in that case did not survive statehood, does not support the same result here. As the Court explained, at the time that the Senate ratified the treaty in Race Horse, the Senate understood the hunting right provided by the treaty to be "temporary and precarious," because the right was limited, by its terms, to the period in which the ceded lands remained unoccupied and owned by the United States. No such limitation was imposed on the fishing, hunting, and gathering rights here. The text of the 1837 Treaty "guarantied" those rights to the Chippewa, a term that suggests that the United States and the Indians would have understood those rights to be certain and secure, not "precarious," in their nature, until the President definitively terminated them. And, because the rights are capable of continuing indefinitely, so long as that remains the "pleasure of the President," they would not have been viewed as inherently "temporary." The inclusion of similar provisions in other contemporaneous Indian treaties, which preserved Indian's rights to hunt, fish, and gather on ceded lands that already were or soon would be within a State, confirms that the Senate would not have viewed such rights as terminating automatically with statehood.

n4 The court of appeals, while recognizing that the 1850 Order was "never implemented," was soon "suspen[ded]," and was ultimately "replaced" by a new policy (Pet. App. 30 n.24), did not reach the question whether the Order had thereby been repealed by implication (id. at 31 n.25). The district court, however, held, as an alternative ground for its decision, that the Order was repealed by implication (id. at 319-321).

The United States did not enforce the first provision of the 1850 Order to prevent the Chippewa from hunting, fishing, and gathering wild rice on the ceded lands. Indeed, it does not appear that the Chippewa were even informed of that provision. Pet. App. 257. Nor does it appear that any federal Indian agent in the Minnesota Territory was directed to take any action to enforce the provision. Id. at 254. The Chippewa continued to hunt, fish, and gather after 1850 as they had previously. Id. at 263. As the district court found, "the revocation of hunting, fishing, and gathering rights was never enforced against any of the Chippewa," even in the years immediately after the issuance of the 1850 Order. Id. at 321; see State v. Gurnoe, 192 N.W.2d 892, 895 (Wis. 1972) (Chippewa continued to fish in ceded territory after 1850 Order).

The United States did attempt to enforce the removal provision of the 1850 Order, although only against certain Chippewa Bands and only for a short time. Pet. App. 267, 321. The removal efforts were focused on the Lake Superior Bands, which resided on the ceded lands within the States of Wisconsin and Michigan. Those Bands were told by government officials in 1850 to relocate to the Minnesota Territory. n5 [*13] The Bands refused to do so. They claimed to have been promised during the 1842 Treaty negotiations that they would not have to leave the ceded lands for many years. Id. at 255-256. n6

n5 The district court found that the Minnesota politicians who urged President Taylor to adopt the 1850 Order were motivated by the perceived "economic benefits generated by having a large number of Indians residing in their territory." Pet. App. 251. The politicians believed that if the Chippewa relocated to the Minnesota Territory, "Minnesota traders would be more likely to benefit from the annuity payments made to the Indians, Minnesota businesses would be able to compete for the lucrative business of supplying and transporting annuity goods, and Minnesota would receive money from Indian agencies for their operations and for schools, farms, and blacksmith establishments." Id. at 251-252. It is consistent with such a motive that the government did not seek to enforce the 1850 Order, in any respect, against those Chippewa, such as the Mille Lacs Band, who were already residing well within the Minnesota Territory.

n6 The Chippewa's position was corroborated by non-Indians who were present during the 1842 negotiations. Pet. App. 255-256.

n7 Indians were entitled to annuities, paid in cash, goods, or both, under various treaties ceding lands to the United States. Generally, to receive the annuities, the Indians had to travel to a site designated by the Office of Indian Affairs. Pet. App. 247 n.12.

The government's first annuity payment at Sandy Lake in late 1850 proved to be a disaster. The Chippewa had been directed by John Watrous, a federal Indian agent, to be at Sandy Lake on October 25 to receive their payments. By November 10, nearly 4,000 Chippewa had gathered at Sandy Lake. But Agent Watrous did not arrive until November 24, and the annuities were not distributed until December 2. No adequate provisions had been made for housing and feeding the Chippewa for such a prolonged period. Measles and dysentery broke out among the Chippewa. Between 150 and 170 Indians died at Sandy Lake, and 230 more died during the trip back to their ceded lands. Pet. App. 256-258; see Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 347 (7th Cir.), cert. denied, 464 U.S. 805 (1983).

That experience intensified opposition to the 1850 Order, not only among the Chippewa, but also among non-Indian residents of the area. Pet. App. 258. On June 3, 1851, Luke Lea, the recently appointed Commissioner of Indian Affairs, recommended to the acting Secretary of the Interior that the removal of various Lake Superior Chippewa Bands be discontinued. Commissioner Lea, citing "communications from sources of the highest consideration" expressing opposition to the removal of those Bands, argued that the removal "is not required by the interests of the citizens or Government of the United States and would in its consequences in all probability be disastrous to the Indians." Pet. App. 259; J.A. 214-215. On August 23, 1851, after Agent Watrous reported that the Chippewa could not be removed from the ceded lands without the use of federal troops, the Office of Indian Affairs sent a second communication to the acting Secretary of the Interior, seeking authority "to [*15] instruct Agent Watrous to suspend the removal of these Indians." Pet. App. 260; J.A. 223-224.

On August 25, 1851, the acting Secretary of the Interior authorized Commissioner Lea "to instruct Agent Watrous to suspend the removal of the Chippeway Indians until the final determination of the President upon the subject of your letter of the 3rd June 1851," i.e., the recommendation that the removal be discontinued. Pet. App. 260; J.A. 225. On the same day, Commissioner Lea sent a telegram to Agent Watrous, directing him to "suspend action with reference to the removal of Lake Superior Chippewas" pending "further orders." Pet. App. 260-261; J.A. 225; Lac Courte Oreilles, 700 F.2d at 347; cf. Wolsey v. Chapman, 101 U.S. 755, 769 (1879) (noting that "the acts of heads of departments, within the scope of their powers, are in law the acts of the President"). No further order was ever issued directing that the removal be resumed. The State's own expert historian testified at trial that "federal efforts to remove the Lake Superior Chippewa to the Mississippi River effectively ended in the summer of 1851." Pet. App. 264; J.A. 986, 1356. n8

n8 There is some historical evidence that the United States expressly promised the Chippewa that the 1850 Order would be revoked. In June 1852, a Chippewa delegation, led by Chief Buffalo, traveled to Washington, D.C., to urge President Fillmore to revoke the 1850 Order. Benjamin Armstrong, a trader who accompanied the delegation, later wrote that the effort was successful. According to Armstrong's account, President Fillmore agreed to revoke the 1850 Order and to cause the annuity payments to be resumed at La Pointe. Pet. App. 263; Lac Courte Oreilles, 700 F.2d at 347-348. The district court, however, observed that Armstrong's account "may not be very reliable" (Pet. App. 263), and thus did not rely on that account in analyzing whether the 1850 Order was abandoned.

The government's annuity payments to the Chippewa during that period included gunpowder, lead, and shot. Pet. App. 265. In addition, the Chippewa requested, and Agent Gilbert agreed, that future annuity payments include guns as well. Ibid. The government thus not only acquiesced in, but encouraged, the Chippewa's exercise of their hunting rights on the ceded lands.

In August 1854, Commissioner Manypenny directed Agent Gilbert to negotiate with the Chippewa for the purchase of "all the country they now own or claim in the territory of Minnesota, the State of Wisconsin or elsewhere," except a quantity of land to be set aside as reservations. Pet. App. 273; J.A. 264. The Chippewa Bands that participated in the 1854 Treaty negotiations received reservations within the territory ceded by the 1837 and 1842 Treaties. Pet. App. 274. The 1854 Treaty contained a specific assurance that "the Indians shall not be required to remove from the homes hereby set apart for them." Ibid.; J.A. 495. n9

n9 Agent Gilbert explained to Commissioner Manypenny that the Chippewa insisted that those provisions be included in any treaty:

In January 1855, Commissioner Manypenny summoned the chiefs of various Chippewa Bands that had not participated in the 1854 negotiations, including the Mille Lacs [*18] Band, to Washington, D.C., to negotiate a new treaty for the sale of any remaining land in the Minnesota Territory in which they claimed an interest. Pet. App. 276-277. The resulting 1855 Treaty granted to the Mille Lacs Band, as its "permanent home," a reservation within the territory ceded by the 1837 Treaty. Id. at 283, 503-504.

As the district court recognized, the 1854 and 1855 Treaties are "completely contrary to the 1850 order," because those Treaties establish permanent homes for the Chippewa in the very territory that they were directed to vacate by the 1850 Order. Pet. App. 321; accord Gurnoe, 192 N.W.2d at 899-900. The 1854 and 1855 Treaties do not, in so many words, confirm the Chippewa's rights to hunt, fish, and gather within the 1837 and 1842 ceded territory. But the continued existence of those rights is implicit in those Treaties. The 1854 Treaty, for example, provides that the Chippewa would receive, as part of their compensation for the cession of additional lands, "two hundred guns, one hundred rifles, five hundred beaver-traps, [and] three hundred dollars' worth of ammunition." Pet. App. 494. Similarly, while the 1855 Treaty does not itself spell out the precise "goods" and "other useful items" that were to be paid to the Mille Lacs Band (id. at 507), the Treaty Journal records that Commissioner Manypenny promised that those goods and items would include "guns, traps, etc." Id. at 289; J.A. 318, 326. Clearly, the Chippewa were expected to use those firearms, traps, and ammunition within the 1837 and 1842 ceded territory, where they would continue to reside by virtue of the 1854 and 1855 Treaties. See Lac Courte Oreilles, 700 F.2d at 364-365 ("The Government's provision of guns and ammunition to the Indians pursuant to the 1854 treaty suggests that the United States did not envision the Indians abandoning their traditional pursuits.").

Even the State does not appear to dispute that the Chippewa retain the rights to hunt, fish, and gather on the [*19] reservations set aside for them by the 1854 and 1855 Treaties, cf. United States v. Dion, 476 U.S. 744, 738 (1986) (noting the "general rule" that "Indians enjoy exclusive treaty rights to hunt and fish on lands reserved to them"), and consequently that the 1854 and 1855 Treaties entirely superseded the 1850 Order with respect to those portions of the 1837 and 1842 ceded territory included in the reservations. But the reservations encompassed only a small part of the Chippewa's traditional hunting, fishing, and gathering grounds. The Chippewa could not have survived if they were suddenly restricted to hunting, fishing, and gathering only within the reservations. Pet. App. 325. And there is no evidence that the United States intended such a cruel result. To the contrary, the Chippewa recalled that Agent Gilbert had assured them during the 1854 negotiations that the reservations "were not to confine us all together to live upon them--that we should have the privilege of going out of it whenever we had a mind for hunting purposes." Id at. 274.

Article 11 of the 1854 Treaty, which states that "such of [the Indians] as reside in the territory hereby ceded, shall have the right to hunt and fish therein" (Pet. App. 495), confirms that the United States expected that the Chippewa would continue to hunt, fish, and gather throughout the area in which they resided, on ceded lands as well as reservation lands. Article 11 specifically refers, of course, only to territory ceded by the 1854 Treaty. But the 1837 and 1842 Treaties had already preserved the Chippewa's usufructuary rights within the territory ceded under those Treaties.

Finally, both the 1854 Treaty and the 1855 Treaty contained provisions prohibiting the sale of liquor not only on the reservations but throughout the ceded territory. Pet. App. 494-495, 512. Those provisions reflect the United States' understanding that the Chippewa would not be confined to their reservations. It was instead expected that they would venture outside the reservations--for example, [*20] to hunt or to fish--and should not be exposed to liquor when they did so. As this Court observed in construing the liquor provision of the 1855 Treaty, "it was evidently contemplated that the bands of Indians, while making their permanent homes within the reservations, would be at liberty to roam and to hunt throughout the entire country, as before," and that the liquor provision would "guard them from all temptation to use intoxicating liquors" anywhere within that country. Johnson v. Gearlds, 234 U.S. 422, 438 (1914).

In February 1855, for example, Willis Gorman, the Governor of the Minnesota Territory and ex officio superintendent of Indian affairs for the Territory, wrote to Commissioner of Indian Affairs Manypenny, explaining that "the lands occupied by the timbermen have been surveyed and sold by the United States and the Indians have no other treaty interests except hunting and fishing." Pet. App. 270; J.A. 295-296 (emphasis added). There is no indication that [*21] Commissioner Manypenny disagreed with Governor Gorman's understanding that the Chippewa retained their usufructuary rights in the 1837 ceded territory. Otherwise, Governor Gorman doubtless would not have continued to maintain, as he did in a June 1855 letter to Mille Lacs Chief Little Hill, that the dam, even if located on land included within the Mille Lacs Reservation under the 1855 Treaty, "was put there before you had any rights there except to fish and hunt." Pet. App. 271 (emphasis added). If the 1850 Order was effective in 1855, and thus had deprived the Chippewa of the rights to hunt, fish, and gather on the ceded lands, Commissioner Manypenny and Governor Gorman surely would have said so. n10

n10 The dispute was resolved later in 1855 when the lumbermen agreed to compensate the Chippewa for their losses of wild rice. Pet. App. 271.

The 1850 Order appears to have been forgotten by 1894, when the Court observed in United States v. Thomas, 151 U.S. 577, 582 (1894), that "no executive order has ever been made for the[] removal" of the Chippewa from the 1842 ceded territory. The United States represented to the Court in Thomas that, while the 1842 Treaty allowed the Chippewa to remain in the ceded territory only "until required to remove [*22] by the President," "the President did not require them to remove and no Executive order looking to their removal has ever been made." J.A. 505-506. The 1850 Order could not have had any continuing vitality by the time of Thomas if neither the Executive Branch nor the Court was aware that it ever existed.

Again, in 1925, when asked whether the Wisconsin Chippewa retained their rights under the 1837 and 1842 Treaties to hunt and fish on the ceded lands outside their reservations, the Office of Indian Affairs responded that "no record has been found of the abrogation of the treaty provisions" that guaranteed those rights and, "apparently, therefore, there is merit in the claims of the Indians." Pet. App. 327; J.A. 541. The absence of any such record in the Office of Indian Affairs further indicates that the 1850 Order had long since been abandoned.

In 1938, after apparently going unnoticed by the United States for some 80 years, the 1850 Order began to be cited in correspondence by federal officials, including President Roosevelt, as having revoked the Chippewa's hunting, fishing, and gathering privileges under the 1837 and 1842 Treaties. See Pet. App. 300, 575-578; J.A. 549-555, 1823-1836. As the district court noted, however, that correspondence does not reflect that the authors "considered all of the background relevant to treaty interpretation," including that the United States had never enforced the usufructuary rights provision of the 1850 Order and had abandoned the entire Order soon after its issuance. Pet. App. 300.

By 1947, the United States, after having considered some of the history surrounding the 1850 Order, took the position in the Mole Lake Band litigation in the Court of Claims that the 1850 Order "was never carried out" and thus was of no [*23] continuing effect. J.A. 557-558; accord J.A. at 560. n11 The government explained that "the Treaty of 1854, which was made four years after the executive order of the President, in effect cancelled the President's Executive order." J.A. at 564. The government added that, "in its administrative interpretations as to the effect of the Executive Order of February 6, 1850, the United States never considered that the Indian rights were terminated thereby." J.A. at 565.

n11 The government's statement in Mole Lake Band was directed at the question whether the Chippewa had been removed, pursuant to the 1850 Order, from the lands ceded in the Treaties of 1837 and 1842. The government explained to the court that the Chippewa remained, after the 1850 Order, "in possession of the land covered by the treaties of 1837 and 1842, and which they had occupied from time immemorial." J.A. 560.

Finally, in the Lac Courte Oreilles litigation concerning the Chippewa's hunting, fishing, and gathering privilege within the Wisconsin portion of the 1837 ceded territory, the United States again maintained that the 1850 Order had not effectively terminated that privilege. The government explained to this Court that the 1850 Order "was never enforced," "was quickly abandoned as the policy of the United States," and was "superseded by" the 1854 Treaty. U.S. Motion to Dismiss in Part and Affirm in Part at 12-13, Besadny v. Lac Courte Oreilles Band, No. 83-6 (J.A. 575-576). n12

n12 Congress has since appropriated funds to assist the Great Lakes Indian Fish and Wildlife Commission, an entity formed by the Chippewa, in its management of the Chippewa's use of natural resources in the 1837 and 1842 ceded territory. See, e.g., U.S. Dep't of Interior, Bureau of Indian Affairs, Budget Justifications FY 1998, reprinted in Department of the Interior and Related Agencies Appropriations for 1998: Hearings Before a Subcomm. of the H. Comm. on Appropriations, 105th Cong., 1st Sess. 631, 747 (1997). The Fish and Wildlife Service has since 1986 promulgated regulations under the Migratory Bird Treaty Act that recognize the Chippewa's hunting rights in that territory. See, e.g., 63 Fed. Reg. 46,558, 46,562 (Sept. 1, 1998) (final rules for 1998-1999 season); 63 Fed. Reg. 43,854, 43,857 (Aug. 14, 1998) (proposed rules).

This Court's decision in Fellows v. Blacksmith, 60 U.S. (19 How.) 366 (1856), is instructive in its refusal to enforce a removal provision of an Indian treaty that the political branches of government had declined to enforce. In that case, the Seneca Indians had entered into a treaty with the United States in which they agreed to remove from two reservations in New York to a new reservation in Kansas within a specified period of time. The treaty also provided for the sale of the Indians' lands in New York to private parties, including one Joseph Fellows. The Indians did not remove from New York within the time specified by the treaty, and the United States did not force them to do so. Fellows then attempted to take forcible possession of the New York lands. The Court held that Fellows "derived no power, under the treaty, to dispossess by force these Indians, or right of entry, so as to sustain an ejectment in a court of law." Id. at 372. The Court explained that "the treaty was to be carried into execution by the authority or power of the Government, which was a party to it," id. at 371, and consequently that "a forcible removal must be made, if made at all, under the direction of the United [*25] States," id. at 372. Similarly, here, only the United States, and specifically the President, has the authority under the 1837 Treaty to deprive the Chippewa of their usufructuary rights. But the United States has consistently chosen not to carry out that authority. Just as the mere existence of the unenforced removal requirement of the Seneca treaty did not give the courts the authority to enforce that provision at the behest of Fellows, the mere existence of the unenforced usufructuary rights revocation in the 1850 Order does not give the courts the authority to enforce that provision at the behest of the State. See United States v. Kagama, 118 U.S. 375, 384 (1886) (noting that in Fellows "the State could not enforce the removal" of the Seneca, because "the duty and the power to do so was in the United States").

The State has invoked the well-settled rule of statutory construction that "repeals by implication are not favored." Silver v. New York Stock Exchange, 373 U.S. 341, 357 (1963). But that rule accepts that repeals by implication may, and indeed should, be found where the intent to do so is apparent from the surrounding circumstances. Moreover, the fundamental point here is that the 1850 Order, including its provision concerning hunting, fishing, and gathering rights, was essentially an executory directive from the President to the Indians that was never carried out. It is clear from the facts summarized above that the United States intended to, and did, abandon the policy embodied in the 1850 Order of removing the Chippewa from the ceded lands and terminating their privileges to hunt, fish, and gather wild rice there. See Gurnoe, 192 N.W.2d at 407 (concluding that 1850 Order "has no effect" on Chippewa's right to fish within 1842 ceded territory, given "the fundamental change in policy marked by the 1854 treaty, the rights granted in the treaty, and the fact that the order of 1850 did not result in an actual revocation of fishing rights").

[*26] The State further suggests (Br. 27) that, whether or not the United States abandoned the removal portion of the 1850 Order, there is "no evidence" that the United States abandoned the portion of the Order relating to the Chippewa's usufructuary rights. The State's position is untenable for several reasons. First, since the United States never enforced the usufructuary rights provision and, to the contrary, continued to facilitate the Chippewa's exercise of those rights, the United States doubtless perceived no need to formally suspend or terminate the provision. Second, as both the court of appeals and the district court recognized (Pet. App. 9-31, 310-312), the usufructuary rights provision was included in the 1850 Order for only one purpose, i.e., to encourage the Chippewa's compliance with the removal provision. Accordingly, once the United States abandoned its objective of removing the Chippewa from the ceded territory, the United States necessarily abandoned all of the 1850 Order, the usufructuary rights provision as well as the removal provision. It would have served no purpose of the United States to allow the Chippewa to remain in the ceded territory but to prevent them from engaging in the activities essential to their survival. Third, the 1854 and 1855 Treaties superseded the entire 1850 Order by giving the Chippewa permanent homes within the 1837 and 1842 ceded territory, in the expectation that they would continue to hunt, fish, and gather throughout that territory. Fourth, Governor Gorman's statements during the Rum River Dam dispute, both to the Commissioner of Indian Affairs and to the Chippewa themselves, reflect the government's understanding in 1855 that the Chippewa retained their hunting, fishing, and gathering privilege under the 1837 Treaty. Finally, the United States has since maintained (except for a brief period in the 1930s and early 1940s) that the 1850 Order either did not exist or was "cancelled," a position that does not allow for the continued vitality of any portion of the Order. And [*27] the United States has acted for at least the past half century in accordance with the view that the Chippewa retain their usufructuary privilege under the 1837 Treaty.

n13 The 1855 Treaty was negotiated with the Mississippi, Pillager, and Lake Winnibigoshish Bands of Chippewa. The Mille Lacs Band is one of the Mississippi Bands.

1. The State's argument rests on the proposition that a privilege to fish, hunt, or gather on lands that are open to the public for those purposes is a "right * * * [or] interest * * * in, and to * * * lands" within the terms of Article I. But that proposition is dubious at best. The rights secured to the Chippewa under the 1837 Treaty are more naturally viewed as rights to engage in the specified activities within the specified area, not as rights or interests in the lands within that area.

According to the State, the Chippewa's hunting, fishing, and gathering privilege is an easement or a profit, both of which are considered to be interests in land. See Restatement of Property § 450 (1944). But the State's argument disregards the particular nature of the rights at issue as they existed at the time of the 1855 Treaty. In 1855, as in 1837, all unfenced, unimproved lands within the ceded territory were open to the public generally for hunting, fishing, and gathering, without any restriction under federal or territorial law. See Pet. App. 223; J.A. 775; McKee v. Gratz, 260 U.S. 127, 137 [*29] (1922) (noting the "common understanding" that people may "wander, shoot and fish at will" on "unenclosed and uncultivated land"). As a practical matter, therefore, the 1837 Treaty did not provide the Chippewa with any greater rights, in 1837 or in 1855, than were possessed by non-Indian residents of the ceded territory. We are aware of no authority, and the State has offered none, holding that a privilege to hunt, fish, or gather on open lands, in common with the public generally, would have been viewed in 1855 as an easement, a profit, or any other sort of right or interest in land. See Pet. App. 332; J.A. 774-775 (testimony of legal historian Thomas Lund that the treaty drafters would not have considered such a privilege to be a right or an interest in land).

The understanding that such usufructuary rights are not rights or interests in land is reflected in several Nineteenth Century treaties and agreements between the United States and Indian Tribes. In 1891, for example, the United States negotiated an agreement with the Colville Indians that provided, in separate articles, that the Indians would cede to the United States "all their right, title, claim and interest," without qualification, in a large tract of land, and that the Indians' "right to hunt and fish in common with all other persons" on that land "shall not be taken away or in anywise abridged." Antoine v. Washington, 420 U.S. 194, 196 (1975); id. at 208 (Douglas, J., concurring). Nine separate treaties negotiated between the United States and Tribes of the Pacific Northwest in 1855 (and thus contemporaneously with the Treaty at issue here) similarly provided, in one article, that the Tribes would "cede, relinquish, and convey to the United States all their right, title, and interest in and to" certain territory that they occupied and, in a subsequent article, that certain rights would be "secured" to the Tribes, including "the privilege of hunting and gathering roots and berries on open and unclaimed lands" within the ceded [*30] territory. E.g., Treaty of Jan. 22, 1855, arts. I, III, 12 Stat. 927-928. n14 The text and structure of those instruments demonstrate that both the government and tribal negotiators understood hunting, fishing, and gathering rights to be distinct from "right[s]" or "interest[s]" in land. It was not incompatible for Indians to retain a right or privilege to hunt, fish, or gather on lands as to which they had ceded, without reservation, "all their right, title, and interest."

n14 See also Treaty of Jan. 26, 1855, arts. I, III, 12 Stat. 933-934; Treaty of Jan. 31, 1855, arts. I, III, 12 Stat. 939-940; Treaty of June 9, 1855, arts. I, III, 12 Stat. 945-946; Treaty of June 9, 1855, arts. I, III, 12 Stat. 951, 953; Treaty of June 11, 1855, arts. I, III, 12 Stat. 957-958; Treaty of June 25, 1855, arts. I, III, 12 Stat. 963-964; Treaty of July 1, 1855 and Jan. 25, 1856, arts. I, III, 12 Stat. 971-972; Treaty of July 16, 1855, arts. I, III, 12 Stat. 975-976. Those treaties also secured for the Tribes "the right of taking fish at usual and accustomed grounds and stations * * * in common with all citizens of the Territory." Treaty of Jan. 22, 1855, art. V, 12 Stat. 928. As this Court has recognized, such a provision reserves for a Tribe not only a right to fish on lands and waters accessible to the general public, as did the 1837 Treaty in this case, but also a right to enter even private lands to reach the "usual and accustomed" fishing grounds. United States v. Winans, 198 U.S. 371, 381 (1905). Such rights would be more in the nature of an easement or a profit than are the rights at issue in this case. See ibid.; New York ex rel. Kennedy v. Becker, 241 U.S. 556 (1916) (assuming that Indians' right to enter onto private lands to fish and hunt would be an easement or a profit).

Indeed, when the United States and a Tribe did agree to a termination of hunting or fishing rights, they did so by express reference to such rights. For example, in another 1855 Chippewa treaty negotiated by Commissioner Manypenny, the signatory Band specifically "surrender[ed] to the United States the right of fishing at the falls of St. Mary's" [*31] secured under an earlier treaty. Treaty of Aug. 2, 1855, art. I, 11 Stat. 631 n15

n15 See also, e.g., Treaty of Nov. 15, 1865, art. I, 14 Stat. 751 (providing that the Middle Oregon Tribes' "right to take fish, erect houses, hunt game, gather roots and berries, and pasture animals upon lands without the reservation set apart by the treaty aforesaid--[is] hereby relinquished"); Treaty of Oct. 13, 1846, art. IV, 9 Stat. 878 (government agrees to pay Winnebago Indians $ 40,000 "for release of hunting privileges, on the lands adjacent to their present home").

2. At a minimum, even if a "right * * * [or] interest * * * in, and to * * * lands" could permissibly be construed to include a right to fish, hunt, or gather on lands open to the public, "that is surely not * * * the phrase's unambiguous meaning." County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 268 (1992). It is "a principle deeply rooted in this Court's Indian jurisprudence" that statutes and treaties affecting Indian rights "are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit." Id. at 269 (quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985)); accord, e.g., Choctaw Nation v. United States, 318 U.S. 423, 431-432 (1943); Winters v. United States, 207 U.S. 564, 576-577 (1908). In Yakima Nation, for example, the Court concluded, in accordance with that principle, that a statute authorizing "taxation of * * * land" should not be construed as authorizing "'taxation with respect to land,' 'taxation of transactions involving land,' or 'taxation based on the value of land." 502 U.S. at 269. So, too, here, a treaty relinquishing Indians' "right, title, or interest * * * in, and to * * * lands" should not be construed as also relinquishing Indians' right to engage in particular activities, such as hunting, fishing, and gathering, on the open lands and waters within a particular territory.

3. A second, related principle of construction is also applicable here: the principle that a treaty negotiated between [*32] the United States and an Indian Tribe is to be construed "not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians." Washington v. Washington Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 675-676 (1979) (Fishing Vessel); accord, e.g., United States v. Winans, 198 U.S. 371, 380-381 (1905). That principle reflects the recognition that the United States possessed "superior negotiating skills and superior knowledge of the language in which the treaty is recorded" and thus had "a responsibility to avoid taking advantage of the other side." Fishing Vessel, 443 U.S. at 675-676; see Choctaw Nation v. Oklahoma, 397 U.S. 620, 642 (1970); Jones v. Meehan, 175 U.S. 1, 10-11 (1899). Such was the case with respect to the 1855 Treaty. Commissioner of Indian Affairs Manypenny, the negotiator for the United States, communicated with the Chippewa negotiators through interpreters. Pet. App. 278; J.A. 297, 308, 311, 314, 321 (noting presence of interpreter during negotiations). He observed in the course of the negotiations that "one great impediment to a good understanding between the government and the Indians arose from the fact that the latter cannot read or understand the contracts which they make." Pet. App. 278; J.A. 305; see J.A. 349 (Commissioner Manypenny notes Chippewa negotiator Hole-in-the-Day's "want of education" and inability to read the Treaty).

The district court found, and the court of appeals agreed, that the Chippewa did not understand the provision of the 1855 Treaty relinquishing their "right, title, and interest * * * in, and to any other lands" as encompassing the privilege to hunt, fish, and gather on the lands ceded by the 1837 Treaty. Pet. App. 36-38, 324. The quoted phrase had no literal equivalent in the Chippewa language. It would most likely have been translated into Chippewa as simply a relinquishment of "the lands" at issue, which would not have [*33] conveyed to the Indians that they were relinquishing the privilege of hunting, fishing, and gathering on previously ceded lands. Id. at 284, 324-325; J.A. 856-862 (report of linguist John D. Nichols).

The Authorizing Legislation. The 1855 Treaty, like the 1854 Treaty, was negotiated under the authority of the Act of December 19, 1854, Ch. 7, 10 Stat. 598, which authorized negotiations with the Chippewa "for the extinguishment of their title to all the lands owned and claimed by them in the Territory of Minnesota and State of Wisconsin." Pet. App. 532. The Act made no mention of also seeking the Chippewa's relinquishment of hunting, fishing, and gathering rights under earlier treaties with respect to lands that they no longer owned or claimed. To the contrary, Senator Sebastian, the Chairman of the Committee on Indian Affairs, explained during the Senate debate that the contemplated treaties would "reserve[] to them [i.e., the Chippewa] those rights which are secured by former treaties." Cong. Globe, 33d Cong., 1st Sess. 1403-1404 (1854).

The Negotiations. Commissioner Manypenny summoned several chiefs of the Mississippi, Pillager, and Lake Winnibigoshish Bands of Chippewa to Washington, D.C., in early 1855 for the stated purpose of "enter[ing] into additional articles of convention with them respecting their claim to lands in Minnesota." J.A. 288. The treaty journal recounts that Commissioner Manypenny explained to the Chippewa [*34] chiefs at the outset of the negotiations that "his object in sending for them was to buy from them a portion of their lands lying in the Mississippi [River] country." J.A. 304. Chippewa negotiators Hole-in-the-Day and Flatmouth also expressed their understanding that the purpose of the negotiations was to buy their land. See J.A. 304 (Hole-in-the-Day: "Your words strike us in this way. They are very short. 'I want to buy your land.'"); J.A. 309 (Flatmouth: "It appears to me that I understand what you want, and your views from the few words I have heard you speak. You want land."), In response to Flatmouth's statement, Commissioner Manypenny confirmed that his interest was in buying land, noting that Flatmouth "appears to understand the object of the interview." Ibid. He added that Flatmouth's "people had more land than they wanted or could use, and stood in need of money," whereas "I have more money than I need, but want more land." Ibid. The treaty journal records no discussion of any relinquishment of the Chippewa's hunting, fishing, and gathering privileges on lands that they had previously ceded to the United States.

The Treaty Ratification. On February 27, 1855, President Pierce submitted the Treaty to the Senate for ratification, together with a memorandum by Commissioner Manypenny describing the Treaty. J.A. 290-294. That report, like the Treaty itself, contains no express mention of any hunting, fishing, or gathering rights. In the report, Commissioner Manypenny noted that the quantity of land ceded by the Treaty, "according to the boundaries defined in the first article," was estimated at between 11 million and 14 million acres. J.A. 291-292. He went on to explain that, in addition to the land within those boundaries, "those Indians (and especially the Pillager and Lake Winnibigoshish bands) have some right or interest in a large extent of other lands in common with other Indians in Minnesota, and which right or interest * * * is also ceded to the United States." J.A. 292.

[*35] The "other lands" referred to by Commissioner Manypenny--which presumably were the "other lands" referred to in the final sentence of Article I--do not appear to be the lands ceded by the 1837 Treaty. The Pillager and Lake Winnibigoshish Bands did not live in the territory ceded by the 1837 Treaty. It is thus unlikely that Commissioner Manypenny would have described the usufructuary rights reserved in the 1837 Treaty as belonging "especially" to those Bands. And, whereas the rights with which Commissioner Manypenny was concerned were possessed by the signatory Bands "in common with other Indians in Minnesota," the usufructuary privilege under the 1837 Treaty was possessed by the Mille Lacs Band in common with other Indians primarily in Wisconsin. Pet. App. 287.

As Commissioner Manypenny's report suggests and as the district court found, the final sentence of Article I had a different purpose than to extinguish the Mille Lacs Band's usufructuary rights: "to ensure that the Chippewa did not have any remaining claims to lands located north and west of the territory ceded in the first sentence of Article I." Pet. App. 286. The Pillagers, among others, had asserted claims to lands in that area, but had refused to specify the precise nature and extent of their claims. Id. at 287-288; see J.A. 317-318 (Pillager negotiator Flatmouth declines to "state precisely what our bands claim as a right"). The district court found that Commissioner Manypenny "drafted the broad language of [the last sentence of Article I] "because he was not sure about the nature and scope of the claims made by the Chippewa to the remaining unceded lands in Minnesota." Pet. App. 288.

The 1854 Treaty. Of the various Chippewa Bands that resided within the territory ceded by the 1837 Treaty, only the Mille Lacs Band was a party to the 1855 Treaty. J.A. 731-734. Most of the other Bands had participated in the [*36] 1854 Treaty negotiations. Accordingly, if the United States had actually intended to abrogate the Chippewa's hunting, fishing, and gathering rights in the 1837 ceded territory, the United States would doubtless have sought to include a provision to that effect in the 1854 Treaty. But it did not. Nor does the 1854 Treaty include a provision like that in the 1855 Treaty generally relinquishing the Bands' "right, title, and interest * * * in, and to any other lands." Indeed, the 1854 Treaty expressly secures the signatory Bands' usufructuary rights on lands that were newly ceded by the Bands in that Treaty. No reason has been suggested why the United States would have sought to extinguish the usufructuary rights of the Mille Lacs Band alone.

Subsequent History. The Mille Lacs Band, like the other Chippewa Bands, continued after 1855 to hunt, fish, and gather in the 1837 ceded territory. Pet. App. 292, 325. The United States did not interfere with that activity based on any authority supposedly provided by the 1855 Treaty. It is noteworthy that the United States did not suggest during the Rum River Dam dispute, which occurred simultaneously with the negotiation and ratification of the 1855 Treaty, that the Mille Lacs Band's privilege of hunting, fishing, and gathering was affected by that Treaty. For example, Governor Gorman wrote a letter to a Mille Lacs chief in June 1855, after the 1855 Treaty had been ratified, continuing to express the view that the Band possessed hunting and fishing rights throughout the 1837 ceded territory. Pet. App. 271. Governor Gorman, as the superintendent of Indian affairs in the Minnesota Territory, was certainly aware of the provisions of the 1855 Treaty. n16

n16 In the 1920s, long after the ratification of the 1855 Treaty, the United States took the position, in at least one letter by a Commissioner of Indian Affairs, that the 1855 Treaty "modified" the Chippewa's usufructuary rights under the 1837 Treaty. J.A. 543. But that letter does not reflect any analysis of the proper construction of the final sentence of Article I or of the intent of the parties regarding the Chippewa's usufructuary rights.

In Klamath, the United States and the Tribe had entered into an 1864 Treaty, whereby the Tribe conveyed to the United States all of its remaining lands, a portion of which were to be set aside by the United States as the Tribe's reservation. It was later determined that the reservation actually set aside for the Tribe excluded certain lands that should have been included under the terms of the 1864 Treaty. The United States agreed in 1901 to compensate the Tribe for those lands, and the Tribe agreed to "cede, surrender, grant, and convey to the United States all [its] claim, right, title and interest in and to" those lands. The Tribe later contended that it had not thereby relinquished its usufructuary right under the 1864 Treaty with respect to those lands.

The Court recognized that the 1864 Treaty had secured to the Tribe certain hunting, fishing, and gathering rights. But the Court concluded that those rights were intended to exist only "within the limits of the reservation." 473 U.S. at 766. The Court reached that conclusion based on the Treaty's provisions stating that the Tribe's fishing rights extended only to "the streams and lakes included in said reservation," the Tribe's gathering rights applied only "within [the [*38] reservation's] limits," and the Tribe's rights to fish, hunt, and gather were "exclusive," which would not "be possible on lands open to non-Indians." Id. at 767. Accordingly, "because the right to hunt and fish reserved in the 1864 Treaty was an exclusive right to be exercised within the reservation," the Court concluded that "that right could not * * * survive off the reservation" on lands that the Tribe had sold. Id. at 769-770. The exclusive, on-reservation nature of the usufructuary rights secured by the 1864 Treaty, in turn, informed the Court's construction of the "all claim, right, title and interest" language of the 1901 Agreement and undergirded its holding that the Tribe retained no usufructuary rights on the ceded lands. See id. at 766 (noting that the "more important[]" consideration in the construction of the 1901 Agreement was that "the language of the 1864 Treaty plainly describes rights intended to be exercised within the limits of the reservation").

The Chippewa's usufructuary rights under the 1837 Treaty, in contrast to the Klamath Indians' rights under the 1864 Treaty, are not exclusive or restricted to a reservation. The Chippewa ceded title to certain of their lands in the 1837 Treaty, while expressly preserving their right to hunt, fish, and gather on those lands. They had no reservation at that time, within the 1837 ceded territory or elsewhere, to which those usufructuary rights might have been confined. Nor were the Chippewa's usufructuary rights under the 1837 Treaty ever considered to be exclusive. It is implicit in the 1837 Treaty that the Chippewa could not exclude others from the ceded lands, which the Chippewa had sold to the United States on the understanding that they would be opened to non-Indians for purposes such as lumbering. Accordingly, because the 1837 Treaty does not "describe rights intended to be exercised [only] within the limits of the reservation," the Court's principal reason for concluding that [*39] the usufructuary rights were extinguished in Klamath is inapplicable here. n17

n17 Other considerations reinforce the conclusion that a different result is required here than in Klamath. The Court emphasized in Klamath that "the Tribe was represented by counsel" in negotiating the 1901 Agreement and that "the tribal negotiating committee members spoke and understood English." 473 U.S. at 772. The Chippewa were not represented by counsel during the 1855 negotiations, the Chippewa negotiators did not speak or understand English, and a representative of the Mille Lacs Band may not even have reached Washington, D.C., until the negotiations were completed. Pet. App. 277, 278. Moreover, while both parties in Klamath plainly understood the precise tract of land to which the Tribe was relinquishing "all claim, right, title and interest," the text and history of the 1855 Treaty offer no basis to conclude that any party understood the final sentence of Article I to have any application to the 1837 ceded territory. In contrast to Klamath, therefore, "the historical record" offers no reason to suppose that Article I of the 1855 Treaty, if construed as the State suggests, "fairly describes the * * * understanding between the parties." 473 U.S. at 772.

1. Any analysis of the State's position must begin with the rule, often recited by this Court, that "Congress' intention to abrogate Indian treaty rights be clear and plain." Dion, 476 U.S. at 738; accord Fishing Vessel, 443 U.S. at 690 ("absent explicit statutory language, we have been extremely reluctant to find congressional abrogation of [Indian] treaty rights"); Menominee Tribe v. United States, 391 U.S. 404, 413 (1968) ("the intention to abrogate or modify [an Indian] treaty is not to be lightly imputed to the Congress"). In order to conclude that Indian treaty rights have been abrogated, the Court has required "clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty." Dion, 476 U.S. at 738; accord South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789, 798 (1998).

There is no such evidence here. The State concedes (Br. 36) that the Minnesota Admission Act "is silent as to the Indians' 1837 Treaty privilege." The legislative history of that Act likewise contains no suggestion that any Indian treaty rights were to be extinguished by Minnesota's admission to the Union.

Nor is a State's admission to the Union on an equal footing with other States incompatible with an Indian Tribe's retention of its treaty rights to fish, hunt, and gather within the State on lands outside its reservation. This Court has recognized in a number of cases, stretching over nearly a century, that such Indian treaty rights may survive statehood. See, e.g., Fishing Vessel, 443 U.S. at 674-685; Puyallup Tribe v. Department of Game, 391 U.S. 392, 397-399 (1968); Tulee v. Washington, 315 U.S. 681, 684-685 (1942); Seufert Bros. Co. v. United States, 249 U.S. 194, 198-199 (1919); Winans, 198 U.S. at 382-383; cf. Antoine, 420 U.S. at 201-204 [*41] (United States did not violate the sovereignty of an existing State by granting Indians the right to hunt and fish on ceded lands); Menominee Tribe, 391 U.S. at 411 (United States did not violate the sovereignty of an existing State by establishing a reservation where Indians could fish and hunt without state regulation). It was unnecessary in those cases for Congress to have said anything at the time of statehood to preserve the Indians' treaty rights. n18

n18 The Court has also rejected equal footing challenges to the continued existence after statehood of other provisions of Indian treaties and agreements. See, e.g., Johnson, 234 U.S. at 439-440 (provision of 1855 Treaty with Chippewa prohibiting sale of liquor on ceded lands); Winters v. United States, 207 U.S. at 577-578 (implied term of agreement acquiring Indian lands and creating reservation that Indians would retain rights to water from river on reservation); cf. United States v. 43 Gallons of Whiskey, 93 U.S. 188, 197 (1876) (rejecting equal footing challenge to provision of treaty, ratified after Minnesota's admission to statehood, that prohibited sale of liquor on ceded lands).

2. Even Ward v. Race Horse, 163 U.S. 504 (1896), the case principally relied on by the State, acknowledges not only that Congress has the power to secure off-reservation hunting rights to an Indian Tribe in a territory that has not yet become a State, but that "it would be also within the power of congress to continue them in the state, on its admission into the Union." Id. at 515. The Court further acknowledged that Congress need not expressly preserve such rights in the act admitting the State to the Union, so long as the rights "are of such a nature as to imply their perpetuity, and the consequent purpose of congress to continue them in the state." Ibid. n19 But the Court found that the particular right at issue there--"the right to hunt on the [*42] unoccupied lands of the United States," id. at 514--was not intended to be continuing in nature, but to be "temporary and precarious." Id. at 515. As noted above, in the century since Race Horse, the Court has often recognized that the admission of a State to the Union was insufficient, in and of itself, to abrogate Indians' rights under other treaties to hunt or fish within the State. The Court has never again relied on the Race Horse analysis to hold that Indian treaty rights were extinguished by statehood.

n19 Indeed, in the same Term as Race Horse, in an opinion by Justice White, who also authored Race Horse, the Court implicitly recognized that the Chippewa's treaty right to fish at the falls of Sault Ste. Marie continued to exist after Michigan was admitted to the Union. Spalding v. Chandler, 160 U.S. 394, 406-407 (1896).

In any event, whatever vitality Race Horse retains after Winans and its progeny, Race Horse does not support the conclusion that the Chippewa's usufructuary privilege under the 1837 Treaty was revoked by Minnesota's admission to the Union. The touchstone of the Court's analysis in Race Horse was the intent of the Congress (more precisely, in the case of treaties, the Senate) that adopted the provision securing the Indians' usufructuary rights. See 163 U.S. at 515 (considering whether the hunting right was "intended to be of a limited duration" when "created by congress"). Neither the text nor the history of the 1837 Treaty suggests that the Chippewa's hunting, fishing, and gathering privilege was intended to terminate automatically upon statehood.

The 1837 Treaty provides, in pertinent part, that "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 United States." Art. V, 7 Stat. 537. The Treaty thus precisely identified the circumstance in which the privilege would terminate: when the Chippewa's exercise of the privilege was no longer the "pleasure of the President." He alone was vested with the power and discretion to determine whether the privilege should end. There is no intimation that the President would be required to conclude that the privilege should terminate if and when a State was established in the ceded area. It was [*43] the President's prerogative, after statehood as before, to allow the Chippewa to continue to hunt, fish, and gather. n20

n20 The State's reliance on the "during the pleasure of the President" language to suggest that the rights at issue were too "temporary and precarious" to survive statehood is undermined by Wisconsin v. Hitchcock, 201 U.S. 202 (1906). In that case, the Court recognized that the provision of the 1842 Treaty securing the Chippewa's "right of hunting on the ceded territory, with the usual privileges of occupancy, until required to remove by the President," was not extinguished by Wisconsin's admission to the Union. The Court thus held that, although the Wisconsin Enabling Act had granted to the State the sixteenth section of each township for school purposes, the State had no right to interfere with the Chippewa's occupancy of any such sections that were within the boundaries of their reservations:

201 U.S. at 213-214 (quoting Thomas, 151 U.S. at 583); see also Johnson, 234 U.S. at 439 (Indian treaty provision prohibiting sale of liquor on ceded lands "until otherwise provided by Congress" survived Minnesota's admission to the Union).

The use of the term "guarantied" is also significant. A right that is "guarantied" is one that is certain and secure, as opposed to "precarious," in its nature. The word "guaranty" or "guarantee" was commonly understood in the Nineteenth Century, as it is today, as meaning "to warrant," "to make sure," or "to undertake to secure to another, at all events, as claims, rights or possessions." Noah Webster, American Dictionary of the English Language (1828); see also IV James A.H. Murray, A New English Dictionary 477 (1901) (defining the verb "guarantee" as, inter alia, "to assure the existence or persistence of; to set on a secure basis"). Presumably, when the Framers used the term "guarantee" in [*44] Article IV, Section 4 of the Constitution, which provides that "the United States shall guarantee to every State in this Union a Republican Form of Government," they did so to assure the people of the new nation that their entitlement to a republican form of state government was anything but "perishable" and "of limited duration." 163 U.S. at 515. n21 No language of "guarantee" appeared in the treaty in Race Horse.

n21 See also Treaty of Alliance with France, Feb. 6, 1778, art. XI, 8 Stat. 10 (King of France "guarantees on his part to the United States, their liberty, sovereignty and independence, absolute and unlimited," and the United States "guarantee[s] * * * the present possessions of the crown of France in America, as well as those which it may acquire by the future treaty of peace").

The absence of any fixed termination point to the guarantee contained in the 1837 Treaty is noteworthy as well. It indicates that the guarantee to the Chippewa was capable of continuing in perpetuity and thus was not inherently "temporary." The treaty in Race Horse, by contrast, provided that the Indians' hunting right was to continue only for so long as their hunting grounds remained unoccupied and owned by the United States, conditions whose "disappearance" was already "clearly contemplated" at the time that the treaty was ratified. 163 U.S. at 509.

The United States acted in a different historical context in drafting and ratifying the 1837 Treaty, moreover, than in drafting and ratifying the treaty in Race Horse three decades later. As the Court noted, by the time that the treaty in Race Horse was negotiated in 1868, "the march of advancing civilization foreshadowed the fact that the wilderness"--i.e., the Indians' off-reservation hunting ground--"was destined to be occupied and settled by the white man." 163 U.S. at 508-509. It was understood to be only a matter of time until "the necessities of civilization" [*45] would require that the Indians cease hunting in that area. Id. at 509. But that was not the understanding in 1837 with respect to the lands being ceded by the Chippewa. It was uncertain whether the ceded territory would ever experience the sort of "civilization" that would require the Chippewa's hunting, fishing, and gathering rights to be extinguished. n22

n22 The Court noted in Race Horse that Congress had authorized the organization of the Wyoming Territory even before the ratification of the treaty at issue in that case. 163 U.S. at 504. But the organization of the Minnesota Territory was not authorized until 12 years after ratification of the 1837 Treaty. Act of Mar. 3, 1849, ch. 121, 9 Stat. 403.

For example, Commissioner of Indian Affairs Carey Harris stated, in his instructions to the negotiators of the 1837 Treaty, that the land to be acquired from the Chippewa "is valuable for its pine woods which cover it, but is unfit for cultivation." Pet. App. 228; J.A. 42. Henry Dodge, the Wisconsin territorial governor and principal U.S. negotiator, similarly stated during the negotiations that the land was "not suited to the culture of corn, and other Agricultural purposes," and that the government was seeking to acquire the land "for the advantage of its pine timber." Pet. App. 231; J.A. 47. And Governor Dodge assured the Chippewa that "it will probably be many years, before your Great Father will want all these lands for the use of his white Children." Pet. App. 233; J.A. 78. As the district court concluded, the United States "expected the Chippewa to remain on the lands for many years," because "the primary purpose of the treaty was to acquire land for timber, not settlement, and neither party to the treaty thought that continued exercise of usufructuary rights would interfere with lumbering." Pet. App. 314; see also J.A. 647. The relevant government officials did not contemplate in 1837 that the ceded territory would, at least for the foreseeable future, [*46] attract the agriculturally based white settlement that would be incompatible with the Chippewa's exercise of their hunting, fishing, and gathering privilege.

The contemporaneous negotiation and ratification of treaties that secured Indians' usufructuary rights on ceded land within an existing State--or a territory that was imminently to become a State--confirm that the President and the Senate did not perceive the continued existence of such rights as being incompatible with a State's admission to the Union. The 1842 Treaty, for example, secured to the Chippewa "the right of hunting on the ceded territory, with the other usual privileges of occupancy, until required to remove by the President." art. II, 7 Stat. 592. The territory ceded under the 1842 Treaty was located in Michigan, which had been admitted as a State in 1837, and Wisconsin, which was to be admitted in 1848. n23 Similarly, the 1854 Treaty, which preserved the Chippewa's usufructuary rights on newly ceded land within the Minnesota Territory, was ratified just three years before Minnesota became a State. It is unlikely that the President and the Senate would have perceived the usufructuary rights secured by that Treaty as being of such short duration, which would have been "an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more." Winans, 198 U.S. at 380; accord Winters, 207 U.S. at 577.

n23 President Taylor apparently did not believe when he issued the 1850 Order that the Chippewa's usufructuary rights under the 1837 and 1842 Treaties were extinguished by Wisconsin's admission to the Union in 1848. The 1850 Order did not suggest any difference in the status of those rights in the State of Wisconsin as opposed to the Territory of Minnesota.

3. Finally, the State complains (Br. 37-38) that, if the Chippewa are recognized to retain their hunting, fishing, and gathering privilege under the 1837 Treaty, the State will be [*47] denied "the authority to unilaterally make management decisions regarding a wide variety of natural resource issues." The State raises the specter of the federal courts' micromanaging natural resource issues involving those lands. See Br. 38-39. It is no reason to deny the existence of federal rights, especially those of a politically unpopular minority, that the federal courts may have to enforce those rights, to the detriment of a State's ability "to unilaterally make management decisions" impinging on those rights. See, e.g., Brown v. Board of Education, 349 U.S. 294 (1955) (Brown II). This Court has recognized that the federal judiciary may sometimes have to play a continuing supervisory role in assuring the accommodation of Indians' usufructuary rights by a recalcitrant State. See, e.g., Fishing Vessel, 443 U.S. at 692-696.

In any event, the State's concerns about federal court intervention in natural resource management issues appear to be exaggerated, at least if recent experience is any guide. In the 15 years since the Seventh Circuit held that the Chippewa retained their hunting, fishing, and gathering rights in the 1837 and 1842 ceded territory in Wisconsin, the district court has been required to issue only a few decisions clarifying the scope of those rights. As that court has observed, the Chippewa, through the Great Lakes Indian Fish and Wildlife Commission (GLIFWC), and the Wisconsin Department of Natural Resources have worked cooperatively to implement and manage those rights, obviating the need for extensive judicial involvement. See, e.g., Lac Courte Oreilles Band v. Wisconsin, 707 F. Supp. 1034, 1050, 1052-1054 (W.D. Wis. 1989); see also Proposed Migratory Bird Hunting Regulations, 63 Fed. Reg. 43,854, 43,857 (Aug. 14, 1998) (noting cooperation between GLIFWC and States of Wisconsin and Michigan in developing hunting rules for 1837 and 1842 ceded territory).

[*48] The same sort of cooperation can be anticipated here. As the courts below noted, the Chippewa, the State, and the United States agreed upon a Conservation Code and Management Plan, which resolved most resource management issues relating to tribal hunting and fishing within the 1837 ceded territory in Minnesota. Pet. App. 73, 80, 88. The State has conceded that the Conservation Code and Management Plan is adequate to conserve natural resources and to protect public health and safety. Pet. App. 65. n24

n24 The respondent landowners, although not the State, argue that the federal courts are deprived of jurisdiction over "plaintiffs'" claims by the Indian Claims Commission Act, which provided that "no claim existing before [the date of approval of the Act] but not presented within [five years after that date] may thereafter be submitted to any court or administrative agency for consideration." Act of Aug. 13, 1946, ch. 959, § 12, 60 Stat. 1052. See Thompson, et al., Br. 13. That argument is without merit. The Act applied, by its terms, only to specified categories of "claims against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians." § 2, 60 Stat. 1050 (emphasis added). The Act could thus have no application to claims by the United States, which is an intervening plaintiff in this case. See Pet. App. 18 ("The United States has fully participated in all proceedings on behalf of the Bands. As an intervenor, it has the right to continue the suit even without the presence of the Bands."). Nor could the Act have any application to claims by Indians against a State to prevent ongoing interference with their federal treaty rights.

WILLIAM R. PERRY *, DOUGLAS B.L. ENDRESON, ANNE D. NOTO, SONOSKY, CHAMBERS, SACHSE, & ENDRESON, 1250 Eye Street, N.W., Suite 1000, Washington, D.C. 20005, (202) 682-0240

* Counsel of Record
Attorneys for the Fond du Lac, Band of Lake Superior, Chippewa Indians
(Additional Attorneys continued on inside cover)
HENRY M. BUFFALO, JR., JACOBSON, BUFFALO, SCHOESSLER, & MAGNUSON, LTD, 810 Lumber Exchange Building, Ten South Fifth Street, Minneapolis, Minnesota 55402, (612) 339-2071
DENNIS J. PETERSON, FOND DU LAC RESERVATION, LEGAL DEPARTMENT, 1720 Big Lake Road, Cloquet, Minnesota 55720, (218) 878-2607
Attorneys for the Fond du Lac, Band of Lake Superior, Chippewa Indians
MILTON ROSENBERG, 40 Glenway Street, Madison, Wisconsin 53705, (608) 231-6784
Attorney for Red Cliff Band of, Lake Superior Chippewa

Whether Chippewa rights of "hunting, fishing and gathering the wild rice" guaranteed in the Treaty of July 29, 1837, 7 Stat. 536, were silently abrogated when Minnesota was admitted to the Union on an equal footing with the original thirteen states in 1858. [*iii]

This case involves core Indian interests secured by treaty and at the heart of Chippewa culture, religion and identity--the right to hunt, fish and gather as the Chippewa have done from time immemorial, without interference from state laws that regulate sport and recreational uses. By Treaty of July 29, 1837, in exchange for the Chippewa Bands' agreement to cede land in present-day Wisconsin and Minnesota, the United States "guarantied" to the Chippewa the right to continue to hunt, fish and gather on the ceded territory. Specifically, Article 5 of the Treaty recites:

PA 486. On May 11, 1858 the State of Minnesota was admitted to the Union. The statehood act, 11 Stat. 285, PA 515, provides that Minnesota is "admitted into the Union on an equal footing with the original States in all respects whatever," and that "all laws of the United States which are not locally inapplicable shall have the same force and effect within the State as in other States of the Union. . . ." Id. at section 3.

The District Court upheld the continuing vitality of the rights guaranteed in Article 5 of the 1837 Treaty. PA 350. The District Court further held the State can regulate the exercise of the treaty right but only to the extent necessary for conservation of the resources, public health or public safety. PA 344-45. n2

n2 The case was initially brought by the Mille Lacs Band. PA 214. The Wisconsin Bands of Chippewa that were parties to the 1837 Treaty intervened, and the court's rulings were applied to them. PA 210. Likewise, in a separate suit the District Court's rulings were applied to the Fond du Lac Band. PA 478.

[*3] Following the District Court's decision, the Bands and Minnesota reached agreement, set out in a stipulation and related documents, n3 that resolved "the vast majority" n4 of regulatory issues of concern to the State. n5 Under this agreed-upon regulatory regime, responsibility for regulating the Indians is on the Bands, but all Band activities in that regard are subject to State oversight. E.g., JA 1733-34 paras. 3, 4, 6. Failure on the part of the Bands to adopt or effectively enforce those rules results in the automatic application of state law to Band members hunting, fishing or gathering in the ceded territory. JA 1733 para. 3; PA 81. By the stipulation, the parties agreed to the federal court's continuing jurisdiction, JA 1736 para. 12, and to procedures by which the Bands and State would seek to resolve disputes without judicial [*4] intervention. See, e.g., JA 1742-45. The few regulatory issues on which the Bands and the State could not reach agreement were presented to the District Court for resolution. The District Court decided these issues by applying settled law to the specific facts and evidence presented. See PA 85-87, 92-101, 114-116.

n4 State Defendants' Memorandum in Response to Bands' Motion on Regulatory Issues, September 13, 1996 at 2, Docket Entry No. 768 in Mille Lacs v. Minnesota. The State joined the Bands in asking that the District Court enter an order incorporating the terms of the stipulation, provided that it be part of the final judgment. Id.; see also PA 83-84. In making this request, the State informed the court that "the documents included with the Stipulations address the vast majority of regulatory issues for which the State has the burden of evaluating the conservation, public health and safety concerns." State Mem. supra, at 2 (emphasis supplied).

n5 For example, under the stipulation and the code it approves, because of the importance of deer to Band subsistence and cultural practices, Band members are allowed a longer season to hunt deer than provided by state law, but the total Band harvest of deer is subject to annual ceilings and bag limits, as well as limits on the number of deer that can be taken from any one of the state's deer management zones. See JA 1771; see also Docket Entry No. 689 in Mille Lacs v. Minnesota, at Ex. A, §§ 6.02, 6.03, Ex. C at p. 2. Similar restrictions are imposed on fishing. Band members are permitted to use traditional means for harvesting fish, such as nets and spears, but the resource is protected by the imposition of strict per lake and per species harvest limits, which are enforced by the Bands through on-site monitoring of the catch. E.g., id. at Ex. A, § 9.05; JA 1762-63.

Minnesota, and the Counties and Landowners who intervened in the suit, appealed, alleging that the Bands' rights were extinguished by, inter alia, an 1850 executive order, an 1855 Treaty, and the equal footing doctrine. See PA 21-39, 52-59. Minnesota did not challenge any aspect of the District Court's rulings on regulatory issues. n6 The State assured the Court of Appeals that the regulatory framework established by the stipulation and the District Court's rulings did not have any detrimental effect on the natural resources. n7 A unanimous panel of the Eighth Circuit affirmed the District Court's decisions.

n6 See Minnesota's Opening Brief before the Court of Appeals for the Eighth Circuit, dated April 28, 1997; Minnesota's Reply Brief dated May 27, 1997.

n7 See PA 65; see also Tape No. 1, Oral Argument Before the Eighth Circuit Court of Appeals, Mille Lacs Band v. City of Aitkin, No. 97-1957 MN, June 12, 1997.

The decision below correctly held that the 1837 Treaty right was not extinguished by Minnesota's admission to the Union in 1858. The State, the Landowners and the Counties advance the same argument here, relying primarily on Ward v. Race Horse, 163 U.S. 504 (1896). They contend that the 1837 Treaty right is irreconcilable with the State's sovereign right to regulate the taking of fish and game, and that it was extinguished when Minnesota entered the Union on an equal footing in 1858. They further contend that Ward established a rule under which a right reserved by treaty does not survive statehood [*5] if it is "temporary or precarious," and that when the federal government holds power to negate a treaty right, it is "temporary and precarious." Applying their self-constructed rule here, they assert that the 1837 Treaty right is such a right, and was extinguished upon statehood.

This argument is wrong on three separate grounds. First, all states enter the Union subject to the Federal Constitution, and thus subject to the federal government's authority in Indian affairs and to the terms of the Supremacy Clause, U.S. Const., art. VI, cl. 2. In conformance with these principles, constitutionally valid exercises of federal power do not offend the equal footing doctrine, or interfere with state police power, including the power to regulate hunting and fishing. This is shown by two decisions that resolved the same issue posed here, whether Minnesota's admission to the Union extinguished treaty rights over ceded lands. United States v. 43 Gallons of Whiskey, 93 U.S. 188 (1876); Johnson v. Gearlds, 234 U.S. 422 (1914). Additional authorities, including the landmark decisions in United States v. Winans, 198 U.S. 371 (1905) and Winters v. United States, 207 U.S. 564 (1908), and the more recent decision in Antoine v. Washington, 420 U.S. 194 (1975), confirm the same conclusion. This defeats the petitioners' reliance on Ward to support their equal footing claim.

Second, differences between the treaty right at issue in Ward and Article 5 of the 1837 Treaty make Ward inapplicable in any event. Article 5 guarantees the rights it reserves to the Chippewa, subject only to action of the President. In contrast, the right at issue in Ward was held to terminate by means that the Treaty did not control or restrain. Ward, 163 U.S. at 509-10. Treaty rights that are subject only to subsequent action by the President are not extinguished by statehood, as 43 Gallons, Johnson and additional cases decided before and after Ward establish. This distinction also renders Ward's descriptive reference [*6] to the treaty right before the Court as "temporary and precarious" inapplicable here.

Third, changes in the law since Ward, establish that that it may no longer be relied on to show that an offreservation treaty right has been extinguished by a state enabling act. The perceived conflict, at the heart of Ward, between Indian rights and state regulatory authority has long been reconciled. Tulee v. Washington, 315 U.S. 681 (1942). Off-reservation treaty rights have been sustained but made subject to state regulation for conservation, public health or safety. Additionally, the foundation of Ward's holding that the treaty right there at issue had been extinguished by the State Enabling Act--the absence of any mention of the treaty right in the enabling act--has been disavowed. It is now clear that the presence or absence of a reservation of Indian rights in a state enabling act is not sufficient to establish congressional intent as to the existence of such rights, as Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1982) shows. Finally, the decision in United States v. Dion, 476 U.S. 734 (1986), now requires that it be shown that Congress' intent to abrogate a treaty right was "clear and plain" before such a determination will be upheld. That standard was not, and cannot be met here.

These contentions are defeated by three well-settled rules of law. The first is that all states, both the original 13 as well as those subsequently admitted, enter the Union subject to the Federal Constitution, and thus also subject to the federal government's constitutional authority in Indian affairs, and to the command of the Supremacy Clause, which declares Indian treaties to be the law of the land. The second is that limitations on state authority created by a constitutionally valid treaty do not offend a state's admission on an equal footing. As the original 13 states are subject to valid exercises of federal authority, so too are states admitted subsequently. The third is that, in conformance with this rule, Minnesota's admission to the Union on an equal footing did not invalidate Indian treaty rights, whether the treaty was entered into before or after statehood. This is shown by United States v. 43 Gallons of Whiskey, 93 U.S. 188 (1876) and Johnson v. Gearlds, 234 U.S. 422 (1914), and confirmed by decisions of this Court decided before and after Ward.

[*8] The Court began by examining the Treaties of Hopewell and Holston n8 and the congressional acts regulating trade and intercourse with Indian tribes, and found that "the treaties and laws of the United States contemplate the Indian territory as completely separated from that of the States; and provide that all intercourse with them shall be carried on exclusively by the government of the union." Id. at 557. The question was then "is this the rightful exercise of power, or is it usurpation?" Id. at 558. The Court addressed this question by comparing federal power over Indian relations under the Articles of Confederation with the Constitution's text on the same subject.

n8 Treaty of Hopewell, November 28, 1785, 7 Stat. 18; Treaty of Holston, July 2, 1791, 7 Stat. 39.

The Articles had imposed two limitations on the power of Congress over Indian affairs--"the Indians [must] not [be] members of any of the States: provided that the legislative power of any State within its own limits be not infringed or violated." Id. at 558-59; IX Journals of the Continental Congress, 1774-1789, at 919 (Lib. of Cong. ed. 1904-1937). These limitations led to disagreement. n9 As the Court explained, the limitations "were so construed by the states of North Carolina and Georgia as to annul the power itself." Worcester, 31 U.S. at 559. To avoid further conflict, the limitations contained in the Articles were omitted from the text of the Constitution. n10

n9 While the Continental Congress asserted exclusive power to deal with Indian tribes, a number of states disputed this view and independently dealt with Indian tribes. Journals, supra, at XXXIII, at 455, 460.

n10 See United States v. 43 Gallons of Whiskey, 93 U.S. 188, 194 (1876); see U.S. Const., art. I, § 8, cl. 3. As this Court explained, the Framers recognized that those limitations "rendered the [federal] power of no practical value," and that "the only efficient way of dealing with the Indian Tribes was to place them under the protection of the General Government. Their peculiar habits and character required this . . . ." 43 Gallons, 93 U.S. at 194; accord, The Federalist No. 42, at 217 (James Madison) (William R. Brock ed. 1992) (explaining that the Indian Commerce Clause was "properly unfettered from two limitations contained in the articles of Confederation").

[*9] Accordingly, the Court held "the whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the government of the United States." Worcester, 31 U.S. at 561. The Georgia law was therefore void, "as being repugnant to the constitution, treaties, and laws of the United States . . . ." Id. at 562. n11

n11 The Supremacy Clause established that the state law was void by "declar[ing] treaties already made, as well as those to be made, to be the supreme law of the land . . . ." Worcester, 31 U.S. at 559.

The basic constitutional principles of Worcester remain the law. It is thus well-settled that "the Constitution vests the Federal Government with exclusive authority over relations with Indian tribes." Montana v. Blackfeet Tribe, 471 U.S. 759, 764 (1985) (citing Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 670 (1974), and Worcester, 31 U.S. at 561 (1832)); Bryan v. Itasca County, 426 U.S. 373, 376 n.2 (1976); United States v. Mazurie, 419 U.S. 544, 554 n.11 (1975); Morton v. Mancari, 417 U.S. 535, 551-52 (1974); Board of County Comm'rs v. Seber, 318 U.S. 705, 715-16 (1943). So too is the rule that under the Constitution, treaties entered into between the Indian tribes and the United States are "the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI, cl. 2. See Antoine v. Washington, 420 U.S. 194, 206 (1975); 43 Gallons, 93 U.S. at 196; Worcester, 31 U.S. at 559.

All states enter the Union subject to the Federal Constitution, and thus subject to these basic constitutional principles.

n12 To establish that the 1837 Treaty right was beyond the constitutional authority of the federal government would require at a minimum that it would be shown that the Treaty right was not "tied rationally to the fulfillment of Congress' unique obligation toward the Indians." Morton v. Mancari, 417 U.S. 535, 555 (1974). See also Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 85 (1977). No such showing was attempted, nor could one succeed in view of the importance of the right to the Chippewa, as well as to the cession that the United States sought and obtained by the Treaty. If such a claim were nonetheless made, the precedent discussed infra would plainly defeat it.

n13 The Landowners and Counties assert that the 1837 Treaty rights are invalid because they conflict with the Tenth Amendment. This claim, which is not made by the State, was rejected by the Court of Appeals, PA 58 n.44, and has no merit. As the power to enter into the Treaty plainly exists in Congress, "the Tenth Amendment expressly disclaims any reservation of that power to the States." New York v. United States, 505 U.S. 144, 156 (1992). Additionally, as we show in section II.A., infra, this Court has reconciled Indian off-reservation treaty rights and state regulatory authority over natural resources, making it clear that the constitutional power of the federal government to enter into treaties or agreements securing Indian hunting, fishing and gathering rights is not inconsistent with a state's police power, or its general power to regulate hunting and fishing. Thus the conflict on which this argument is based no longer exists. Furthermore, New York also makes it clear that when the State is given the choice of regulating according to federal standards or not regulating at all, the Tenth Amendment does not invalidate the federal enactment. Id. at 161, 167. There is no requirement of state regulation in the 1837 Treaty. Cf. Printz v. United States, 521 U.S. , 117 S.Ct. 2365 (1997). Indeed, the State here voluntarily entered into a stipulation with the Bands that comprehensively addressed and resolved nearly all regulatory issues. See infra at section II.A.

n14 Even if this were not so, as we show below, Ward is also based on assumptions repudiated by subsequent decisions of this Court, and its application of these now invalid assumptions cannot be extended to this case.

The claim in 43 Gallons was that Article 7 of the Treaty of October 2, 1863, 13 Stat. 667, entered into [*12] after Minnesota's statehood, was unconstitutional and an invalid infringement on Minnesota's admission to the Union on an equal footing. 93 U.S. at 193, 197. Article 7 provided that the federal Indian country liquor laws were to remain in effect on the lands ceded by the Treaty, "until otherwise directed by Congress or the President of the United States." Id. at 193.

The Court held first, relying on Worcester, that the Treaty right was constitutionally valid, id. at 196, and then turned to the claim that Article 7 conflicted with Minnesota's admission to the Union on an equal footing. The Court rejected this claim, finding that the Treaty "does not rest on any ground which makes a distinction between the States, and the fact that the ceded territory is within the limits of Minnesota is a mere incident and not the foundation of the prohibition," and then holding that "there is no disturbance of the principle of state equality" as Article 7 was "based exclusively on the federal authority over the subject matter." Id. at 197. n15 Additionally, as the power of the United States to make treaties with Indian tribes was "co-extensive with the power to make treaties with foreign nations," the Court held that "surely the Federal Government can, in the exercise of its power to treat with Indians, make provisions over a subject like the present . . . ." Id.

n15 These same principles were confirmed in Dick v. United States, 208 U.S. 340 (1908), in which the Court upheld the validity of a congressionally-approved agreement which provided that the land ceded by the agreement would remain subject to the federal liquor laws applicable to Indian country for a period of 25 years. Id. at 352-53. The Court rejected the defendant's claim that after Idaho's admission to the Union on an equal footing in 1890, its jurisdiction over the ceded lands was exclusive. Id. at 342. The Court reached the same result in Perrin v. United States, 232 U.S. 478 (1914), upholding a congressionally-ratified agreement between the Yankton Sioux and the United States that barred the sale of intoxicating liquor on ceded land in South Dakota, and rejecting the contention that the power to regulate the sale of intoxicating liquor rested exclusively with the State. Id. at 483-84.

[*13] The decision in 43 Gallons was held to apply with equal force to a treaty entered into before statehood in Johnson v. Gearlds, 234 U.S. 422 (1914). The claim was that Article 7 of the 1855 Treaty, 10 Stat. 1165, which barred the introduction of liquor into lands that had been ceded by the Treaty "until otherwise provided by Congress," had been repealed by Minnesota's admission to the Union on an equal footing. This Court unanimously rejected that claim, holding:

Johnson and 43 Gallons are controlling with regard to the claimed effect of Minnesota's admission to the Union on the 1837 Treaty rights, which Johnson establishes are not inconsistent with the Minnesota enabling [*14] and admitting acts and were not repealed by those acts. 234 U.S. at 439. These decisions also reject the State's attempt to characterize the 1837 Treaty rights as inadequate to survive statehood. Br. at 33-36. The treaty terms at issue in these cases were subject to subsequent action only by the Congress or the President, 43 Gallons, or by Congress, Johnson. Article 5 of the 1837 Treaty makes an even stronger promise in a similar form, as it provides that the rights are "guarantied to the Indians, during the pleasure of the President of the United States." (Emphasis added.) As the rights in Johnson and 43 Gallons survived statehood, so too did Article 5 of the 1837 Treaty.

This conclusion is confirmed by the test used in 43 Gallons to determine whether the treaty right there at issue offended the state's equal footing. Article 5 "does not rest on any ground which makes a distinction between the States, and the fact that the ceded territory is within the limits of Minnesota is a mere incident and not the foundation of the prohibition." 93 U.S. at 197. Indeed, at the time of the Treaty the ceded lands were territorial lands, and were not included in Minnesota and Wisconsin until 1858 and 1848 respectively. So the Treaty can hardly be said to have singled out Minnesota. Thus, in this case, as in 43 Gallons, "there is no disturbance of the principle of state equality" as Article 5 was "based exclusively on the federal authority over the subject matter." Id. Article 5 is also validated by the power of the United States to make treaties with Indian tribes, which is "co-extensive with the power to make treaties with foreign nations." Id.

The State's equal footing claim in this case is also rejected by the landmark decisions in United States v. Winans, 198 U.S. 371 (1905) and Winters v. United States, 207 U.S. 564 (1908). These cases establish that a state's admission to the Union on an equal footing does not terminate rights reserved by treaty or agreement.

[*15] In Winans, the Court rejected an equal footing attack on Article 3 of the Treaty of June 9, 1855, 12 Stat. 951, by which the Yakima Nation had reserved "the right of taking fish at all usual and accustomed places, in common with citizens of the territory, and of erecting temporary buildings for curing them . . . ." 198 U.S. at 378. To interpret the Treaty, the Court examined the circumstances of its making in accordance with the rule that "the treaty was not a grant of rights to the Indians, but a grant of rights from them,--a reservation of those not granted." Id. at 381. The Court held that the Indians had ceded lands under Article 1 of the Treaty, and had also reserved a right on the ceded lands of "taking fish at all usual and accustomed places." Id. at 378. These rights were not terminated by the state's admission to the Union on an equal footing, the Court held, for the "extinguishment of the Indian title, opening the land for settlement, and preparing the way for future states, were appropriate to the objects for which the United States held the territory," and thus "surely it was within the competency of the nation to secure to the Indians such a remnant of the great rights they possessed as taking fish at all usual and accustomed places." Id. at 384.

In Winters v. United States, 207 U.S. 564 (1908), the Court applied the same principles to hold that reserved Indian water rights were not repealed by a state's admission to the Union. The Court held that as the agreement reserving these rights to the Indians of the Fort Belknap Reservation was within the power of the United States to enact by legislation, these rights were not repealed by Montana's admission to the Union on an equal footing in 1889. Id. at 577.

The principle that a state enters the Union subject to the valid pre-existing treaty rights of Indian tribes was also upheld in United States v. Thomas, 151 U.S. 577 (1894) and Wisconsin v. Hitchcock, 201 U.S. 202 (1906). These cases establish that the State of Wisconsin entered the [*16] Union subject to the pre-existing Treaty rights held by the Chippewa under Article 2 of the Treaty of October 4, 1842, 7 Stat. 591. Article 2 provides that "the Indians stipulate for the right of hunting on the ceded territory, with the other usual privileges of occupancy, until required to remove by the President of the United States." Thomas, 151 U.S. at 582. The question was whether these rights were defeated by the terms of the 1846 Wisconsin Enabling Act, which set aside section 16 of every Township for school purposes. n16 If so, they could not later have been included within the reservations set aside by the Treaty of 1854, 10 Stat. 1109.

n16 As in Minnesota, both the act admitting Wisconsin into the Union, 9 Stat. 233, and the Enabling Act, 9 Stat. 56, were silent with respect to Indian rights.

The Court held that at the time of the Enabling Act in 1846, the lands in question already had been dedicated to Indian use by Article 2. Accordingly, the Court held that "whatever right the state of Wisconsin acquired by the Enabling Act to the 16th section was subordinate to this right of occupancy for which the Indians stipulated and which the United States recognized." Thomas, 151 U.S. at 582. The same question was presented and this holding was reaffirmed in Wisconsin v. Hitchcock, 201 U.S. 202 (1906).

The unequivocal holdings of Winans and Winters, that rights reserved by treaty or agreement are not extinguished by a state's admission to the Union on an equal footing, put to rest any contrary claim. n17 The law is that states [*17] enter the Union subject to the pre-existing treaty rights of Indian tribes, as Thomas and Hichcock hold. Taken together, these decisions also confirm, as do 43 Gallons and Johnson, that a treaty right that is secured to the Indians subject only to later action by the President is not affected by statehood any more than a treaty that does not contain such a proviso.

n17 The Counties (Br. at 44-47) and Landowners (see Br. at 47) argue that the test used to determine whether Congress intended to convey the beds under navigable waters prior to statehood, see Shively v. Bowlby, 152 U.S. 1 (1894), also applies to determine whether the 1837 Treaty right precludes state interference with the Indians' exercise of the right. This argument fails for three reasons. First, this Court held in Arizona v. California, 373 U.S. 546 (1963) that this test applies only to determine ownership of the beds of navigable waters. Id. at 597. Second, this Court has repeatedly rejected the application of the equal footing doctrine as a basis for invalidating an Indian right reserved by treaty or agreement, as Winans and Winters as well as all of the cases discussed above show. Third, as Antoine v. Washington, 420 U.S. 194 (1975) holds, the Supremacy Clause bars state interference with Indian rights reserved on ceded lands, "and neither an express provision precluding state qualification nor the consent of the State [is] required to achieve that result." Id. at 205.

The holding of the Court in Ward was that Article 4 of the Treaty of 1868 n18 had been impliedly repealed by the Wyoming Enabling Act, 26 Stat. 222. Ward, 163 U.S. at 510-11, 514-16. The Court first considered the [*18] meaning of Article 4, apparently without the benefit of a factual record of the Treaty's making. n19 From this examination, the Court concluded that the right existed only within the "hunting districts" and within such districts, only on "unoccupied lands of the United States." Id. at 507-08. n20 The Court further found that the right terminated as the United States transferred title to lands in the hunting districts, a matter which the Treaty left "entirely to the will of the United States" with "no restraint." Id. at 509-10.

n20 That this construction essentially inverted the right as written, by construing the "hunting districts" to be the greater, and "unoccupied lands" to be the lesser, was said to be overcome by "the cardinal rule of interpretation . . . that such construction be adopted as gives effect to all the language of the statute." Id. at 508.

The Court then concluded that the Treaty right was in "irreconcilable" conflict with the Enabling Act, id. at 514, n21 as the former "gave them the right to exercise the hunting privilege," while the latter recognized the State's power, equal with that of other states, to regulate [*19] fish and game. Id. at 507, 509-11. This raised the question of implied repeal, on which the Court held that the silence of the Enabling Act with regard to the Treaty right, and the "fact that Congress in creating the territory expressly reserved such rights," established that the Enabling Act had impliedly repealed the Treaty right. Id. at 515.

That Ward has no application here is clear on several grounds. This is established without more by the decisions in 43 Gallons and Johnson. These decisions, handed down before and after Ward, respectively, are controlling with regard to the effect of Minnesota's admission to the Union on treaty rights, and their force cannot be overcome by a decision construing the Wyoming Enabling Act.

Johnson is also controlling by virtue of its analysis, which establishes that a constitutionally valid treaty right is not inconsistent with a state's subsequent admission to the Union on an equal footing. 232 U.S. at 439. As the original 13 states are subject to constitutionally valid exercises of federal power, so too are subsequently admitted states, without offending their equality. Thus, as Johnson makes clear, it makes no difference that the Minnesota enabling and admitting acts do not refer to the 1837 Treaty rights, for there is no conflict between the two. Id.

The decisions in Winans and Winters also defeat the State's reliance on Ward. These cases, both decided after Ward, unequivocally hold that rights reserved by treaty or agreement are not repealed by a state's admission to the Union on an equal footing. The rights held under Article 5 of the 1837 Treaty are reserved rights, as the Court of Appeals correctly held, PA 56-57, and are subject to these same holdings. Indeed, if the contrary were true, and treaty rights expired upon statehood, the result would "certainly [be] an impotent outcome to negotiations [*20] and a convention which seemed to promise more and give the word of the nation for more." Winans, 108 U.S. at 380. n22 This is not the law, as the decisions in Thomas and Hitchcock, decided before and after Ward, respectively, also show.

n22 For example, the 1842 Treaty, 7 Stat. 591, ceded lands that were at that time within both the State of Michigan, which was admitted in 1837, 5 Stat. 144, and the territory of Wisconsin, which was formed in 1836, 5 Stat. 11. Article 2 of the Treaty reserved to the Indians the right to hunt and other usual privileges of occupancy, subject only to later action of the President. If the State's views were the law, Article 2 would have been invalid in Michigan immediately upon its proclamation.

Accordingly, decisions of this Court reject the State's attempt to extend the analysis in Ward to this case. But even if this were not so, differences between Article 5 of the 1837 Treaty and the right at issue in Ward would defeat any attempt to analogize this case to Ward. Article 5 guarantees the rights it reserves to the Chippewa, subject only to subsequent action of the President. Similarly, the treaties in Johnson and 43 Gallons left their continuing effect to the Congress, or both the President and the Congress, respectively. In contrast, Ward held that the Article 4 rights terminated through a process that the Treaty did not control or restrain. Ward, 163 U.S. at 509-10. As we have shown, when a treaty commits the continuing effect of one of its terms to the Congress or the President, or both, the treaty right is not extinguished by statehood. Johnson, 232 U.S. at 439, 436; Thomas, 151 U.S. at 584; Hitchcock, 201 U.S. at 213-14.

The State's attempt to show otherwise rests on the argument that Ward's description of Article 4 of the 1868 Treaty as "temporary and precarious" created a category of treaty rights that do not survive statehood. Br. at 30-36. This argument fails because Ward did no such thing, and because in any event the 1837 Treaty right does not fit within this imagined category.

[*21] The Court in Ward used the words "temporary and precarious" to describe its finding that transfers of title terminated the Article 4 right. 163 U.S. at 510, 515. It was "this view" of the right that the Court held was evidenced by a large land transfer from the hunting districts, made shortly after the Treaty. Id. at 509-10. This description did not, however, provide the basis for decision in the case. Ward turned on a finding of implied repeal. Id. at 511, 514. Nothing in Ward, or any other decision of this Court, suggests that invocation of the term "temporary and precarious" is legally sufficient to establish that a treaty right was extinguished by statehood. Indeed, this Court has never since used the term "temporary and precarious" to describe a treaty right, or to test whether a treaty right survives statehood. n23

n23 To the contrary, in cases involving Indian rights, Ward has been cited for the principle that the state retains sovereign authority to regulate the taking of natural resources within its borders, Organized Village of Kake v. Egan, 369 U.S. 60, 75 (1962), Menominee Tribe v. United States, 391 U.S. 404, 411 n.12 (1968), Kennedy v. Becker, 241 U.S. 556, 562 (1916), see also Mescalero Apache Tribe v. Jones, 411 U.S. 145, 149 (1973), an interest which was reconciled with the exercise of Indian treaty rights. Washington v. Washington Passenger Fishing Vessel Ass'n, 443 U.S. 658, 682 n.25 (1979), Tulee v. Washington, 315 U.S. 681, 683 n.2 (1942). Ward was also cited simply in comparison to the unique historical context of a land cession in Oregon Dep't of Fish and Game v. Klamath Indian Tribe, 473 U.S. 753, 773 n.23 (1985). In addition, Ward has been cited by this Court in support of other issues not pertinent here: the definition of the equal footing doctrine or state authority over wildlife in cases not involving treaties with Indian tribes, Bolln v. Nebraska, 176 U.S. 83, 88 (1900), Coyle v. Smith, 221 U.S. 559, 573 (1911), McCabe v. Atchison, Topeka, & Santa Fe Railway Co., 235 U.S. 151, 159 (1914), Virginia v. West Virginia, 246 U.S. 565, 593 (1918), Lacoste v. Dep't of Conservation of Louisiana, 263 U.S. 545, 549 (1924), and in Indian cases where the Court found the equal footing doctrine inapplicable. Ex parte Webb, 225 U.S. 663, 690 (1912), Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 83-84 (1922); in support of the Supreme Court's jurisdiction to review a decision in a habeas corpus case, Bryant v. Zimmerman, 278 U.S. 63, 70 n.6 (1928); and for the rule that Congress has the constitutional power to "pass laws in conflict with treaties." Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903); Ex parte Webb, 225 U.S. at 683.

[*22] In any event, Article 5 of the 1837 Treaty cannot be described as "temporary and precarious." n24 The placement of treaty rights in the hands of the President does not make such rights "temporary and precarious" any more so than does the placement of such rights in the hands of Congress. See 43 Gallons; Johnson; Dick. The existence of such authority does not deprive such a right of its continuing effect, as the Court of the Appeals correctly held, PA 55, nor render it "temporary and precarious." Indeed, all federal rights, except those set forth in the Constitution, are subject to subsequent action by Congress. But this does not deprive such rights of their force when in effect.

n24 By vesting authority in the President, the 1837 Treaty did not leave the Chippewas' hunting, fishing and gathering rights "temporary and precarious." To the contrary, as stated in the Brief of Respondents St. Croix, Lac Courte Oreilles and Sokaogan Bands, Article 5 guaranteed permanent rights to hunt, fish and gather. And whatever authority the President had to suspend the rights was not unfettered, but limited--by the common law duties of good faith applicable to parties to any contract, and here the further obligation imposed on the United States as a trustee to act in accord with the assurances that its representatives made to the Chippewa at the time of the treaty negotiations--that the President would protect their rights in good faith. The obligations imposed on the President to carry out the trust due from the United States to the Indians alone defeats the claims that his authority under Article 5 was left without restraint. See Seminole Nation v. United States, 316 U.S. 286, 297 (1942); accord United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339, 354-56 (1941); Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 113 (1919); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).

The State nonetheless contends that Article 5 is "temporary and precarious" because the 1837 Treaty does not provide a special right of access, and thus may be exercised only on public lands and private lands generally [*23] open to the public, as was conceded in the District Court. PA 215 n.2. n25 This argument finds no support in Ward. For unlike the treaty rights there at issue, the rights held under Article 5 do not terminate as and when the United States parts with title to the land, n26 as the Court of Appeals correctly held. PA 70-71 (affirming Mille Lacs II, PA 334-37). n27 Accordingly, the term "temporary and precarious" has no application here, nor could that term be used to describe rights that continue to be exercised more than 160 years after they were reserved by Treaty. n28

n25 This concession was confirmed by the District Court's parallel holding. PA 334-37. That such a concession has no effect on the right found to exist is well illustrated by Antoine v. Washington, 420 U.S. 194 (1975). In Antoine, the Indian hunters "apparently claim[ed] no right to hunt on fenced private property." Id. at 208 n.11. That concession not only did not deprive them of the remaining right, it was found to avoid "serious questions." Id.

n26 The rights reserved by Article 5 are rights to engage in the activity of hunting, fishing and gathering in areas that are otherwise open to public hunting and fishing. See Brief of Respondent Mille Lacs Band, at sec. I.B. The rights exist independent of any interest in the land, and by virtue of the Supremacy Clause, preempt inconsistent state regulation. See Antoine v. Washington, 420 U.S. 194, 205 (1975).

n27 The State did not seek review of this ruling, and in fact, the State does not contend otherwise here.

n28 There is no merit in the State's attempt to label Article 5 "temporary and precarious" because as a practical matter access to ceded lands is needed to exercise the right. Br. at 34-6. All rights are subject to limitations that, as a pratical matter, may impede or limit their exercise, but this does not make such rights terminable.

The law is settled that state authority to regulate fish and game "is . . . not absolute in the face of federal regulation and certain federally protected interests." Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371, 386 (1978), and does not "preclude the proper exercise of a federal power." Id. It is also established that the state's authority to regulate the taking and sale of natural resources must yield when its exercise would interfere with rights protected by treaties made by the United States, whether with foreign nations, Missouri v. Holland, 252 U.S. 416, 434-35 (1920), Asakura v. Seattle, 265 U.S. 332, 341 (1924), n29 or Indian tribes. Antoine v. Washington, 420 U.S. 194, 204 (1975); Washington v. Washington Passenger Fishing Vessel Ass'n, 443 U.S. 658, 691-92 (1979).

n29 In Missouri v. Holland, 252 U.S. 416, 434-35 (1920), this Court held that the state's power to regulate the killing of game was required to give way to the requirements of the Migratory Bird Treaty Act. In Asakura v. Seattle, 265 U.S. 332, 341 (1924), the Court held that a city's sovereign authority did not permit it to limit the availability of business licenses to only United States citizens where a treaty between the United States and Japan required that Japanese citizens residing within the United States be allowed the same opportunities to engage in trade or business as United States citizens. As the Court stated, "the treaty is binding within the state . . . . The rule . . . established by it cannot be rendered nugatory in any part of the United States by municipal ordinances or state laws. It stands on the same footing of supremacy as the provisions of the Constitution and laws of the United States." Id.

In Antoine, the Court specifically rejected an argument that "Congress is not constitutionally empowered to inhibit a State's exercise of its police power" by ratification of an agreement with a tribe that reserved the tribe's hunting rights on ceded land, "to which the State is not a party." 420 U.S. at 201. As this Court explained:

Id. Thus, by virtue of the Supremacy Clause, treaties are "'superior and paramount to the authority of any State within whose limits are Indian tribes.'" Id. at 204 (quoting Dick v. United States, 208 U.S. 340, 353 (1908)). n30 Furthermore, as the Court held, "neither an express provision precluding state qualification nor the consent of the State was required to achieve that result." Id. at 205.

n30 The Court gave effect to these same principles in Washington Passenger Fishing Vessel Ass'n, 443 U.S. at 689-92, when the Court held that state law regulating fishing must yield to the provision contained in a 1930 Convention between the United States and Canada regarding allocation of salmon, and federal regulations implementing that Convention with regard to its impact on the Indians' reserved fishing rights. As the Court explained, "to the extent that any . . . State statute imposes any conflicting obligations, the statute is without effect . . . and must give way to the federal treaties, regulations, and decrees." Id. at 691-92.

Relying on state sovereign authority over natural resources as described in Ward v. Race Horse, 163 U.S. 504, 507 (1896) and Geer v. Connecticut, 161 U.S. 519, 528 (1896), the State in Tulee argued that the Indians' treaty rights could not impair the State's authority to impose licensing requirements and fees on all fishermen, including a Yakima Indian fishing off-reservation under a treaty that reserved to the Indians the right to fish at usual and accustomed places in common with all state citizens. 315 U.S. at 683-84. The Yakima Indian countered that he had an exclusive right to take fish off-reservation "free from state regulation of any kind." Id. at 684. This Court rejected both positions, holding that "the treaty leaves the state with power to impose on Indians equally with others such restrictions of a purely regulatory nature . . . as are necessary for . . . conservation." Id. Applying that test to the license fee at issue, the Court found that the fee served both regulatory and revenue-raising purposes, but that the "regulatory purpose could be accomplished otherwise, . . . the imposition of license fees was not indispensable to the effectiveness of a state conservation program." Id. at 685. The Court further noted that "even though this method may be both convenient and, in its general impact fair, it acts upon the Indians as a charge for exercising the very right their ancestors intended to reserve," a result that could not "be reconciled with a fair construction of the treaty." Id.

This Court has since consistently relied on the "conservation necessity" standard set out in Tulee to reconcile the state's regulatory authority as described in Ward with [*28] Indian off-reservation treaty rights. n31 In Puyallup Tribe v. Department of Game, 391 U.S. 392 (1968), this Court described the standard, stating that the treaty right:

n31 In Ward, the Court said that if the Indian position were upheld there would be complete immunity from state regulatory authority, see 163 U.S. at 509--an issue not posed here, as the Chippewa do not dispute the application of state regulatory authority as provided under the "conservation necessity" standard since established by this Court.

Applying that standard, the Court in Department of Game of Washington v. Puyallup Tribe, 414 U.S. 44 (1973) (Puyallup II), held that a state regulation which banned all commercial net fishing of steelhead impermissibly interfered with the Indians' treaty fishing right. The Court found: "There is discrimination here because all Indian net fishing is barred and only hook-and-line fishing, entirely preempted by non-Indians, is allowed," id. at 48, and "invalidat[ed] the ban on Indian net fishing and remand[ed] the case with instructions to the state courts to determine the portion of harvestable steelhead that should be allocated to net fishing by members of the tribe." Washington Passenger Fishing Vessel Ass'n, 443 U.S. at 683 (describing Puyallup II, 414 U.S. at 48-49). On remand, the state court made an accommodation by setting aside a portion of the steelhead run for Indian net fishermen. This Court affirmed, finding the action to be [*29] an appropriate state regulation "narrow in scope and wellsuited to effect a minimum of intrusion on the treaty right." Puyallup Tribe v. Washington Game Dep't, 433 U.S. 165, 177-78 & n.18 (1977) (Puyallup III).

The "conservation necessity" standard was subsequently reaffirmed. In Antoine v. Washington, 420 U.S. 194, 207 (1975), it was applied to bar enforcement of state deer hunting seasons against an Indian exercising an off-reservation treaty hunting right. n32 And in Washington v. Washington Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979), this Court rejected arguments that the treaties reserved to the Indians no more rights than those enjoyed by non-Indian citizens of the state, but recognized state authority to regulate for conservation. As the Court stated, "nontreaty fishermen might be subjected to any reasonable state fishing regulation serving any legitimate purpose, [but] treaty fishermen are immune from all regulation save that required for conservation." Id. at 682 (citing Antoine, 420 U.S. at 207-8; Puyallup I, 391 U.S. at 398; Tulee, 315 U.S. at 684; Winans, 198 U.S. at 384; and Ward, 163 U.S. 504); accord Oregon Dep't of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 765 n.16 (1985) (reiterating standard).

n32 In so ruling, the Court explained that although the Indians' off-reservation rights were "not exclusive and [were] to be enjoyed 'in common with all other persons'" that did not affect "the Supremacy Clause's preclusion of qualifying state regulation." 420 U.S. at 206. The Court further explained that while the state might regulate Indian hunting, it could only do so upon a showing that the state regulation was necessary for conservation. "The State must demonstrate that its regulation is a reasonable and necessary conservation measure, . . . and that its application to the Indians is necessary in the interest of conservation." Id. at 207 (citations omitted). Since the state there had "not argued, let alone established, that applying the ban on out-of-season hunting of deer by Indians [was] in any way necessary or even useful for the conservation of deer," it could not enforce that ban against an Indian exercising treaty rights. Id. at 207.

[*30] Significantly, this Court's rulings in Tulee, the Puyallup trilogy, Antoine and Washington Passenger Fishing Vessel Ass'n established a framework within which the state's and tribe's respective rights and interests can be addressed, accommodated and reconciled. The framework protects the state's sovereign interests, as early expressed in Ward, in management of natural resources for the benefit of all persons within the state. At the same time, to give effect to the obligations imposed by treaty, the standard properly requires that the state accommodate Indian rights, and for that purpose limits state authority to regulate Indian treaty rights to measures necessary for conservation.

The resulting framework has since been relied upon by the courts, states and tribes to effectively balance those interests. n33 Indeed, this framework provided the basis on which the Chippewa and the State successfully reached agreements on "the vast majority" of regulatory issues of concern to the State. See n.4, supra. The few regulatory issues on which the Bands and the State could not agree were presented to and resolved by the District Court, which correctly decided the matters by applying the "conservation necessity" standard as established by this Court to the evidence presented. n34 The State did not challenge any [*31] aspect of those regulatory rulings in the Court of Appeals, nor the "conservation necessity" standard on which the District Court's decision and the parties' comprehensive stipulation were based. See n.6 supra. Instead, the State assured the Court of Appeals that the District Court's ruling did not have any detrimental effect on the resources, n.7 supra, and the Court commended the parties for their work in resolving regulatory issues. PA 65, 73.

n33 United States v. Michigan, 653 F.2d 277, 279 (6th Cir.), cert. denied, 454 U.S. 1124 (1981); Lac Courte Oreilles Band v. Wisconsin, 668 F. Supp. 1233, 1238-42 (W.D.Wis. 1987); United States v. Washington, 384 F. Supp. 312, 340-42 (W.D.Wash, 1974), aff'd, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). And although this Court has stated that the only permissible state regulation of an Indian treaty right is that necessary for conservation, the lower federal courts, including the courts in this case, have further concluded that the state may permissibly regulate in the interest of public health and safety. See Lac Courte Oreilles Band, 668 F. Supp. at 1238-42; Mille Lacs v. Minnesota, PA 344-45; Fond du Lac v. Carlson, PA 447-51. The stipulated code in this case reflects these requirements.

n34 See PA 85-87, 92-101, 114-116. The District Court properly applied this standard to the matters before it. The State reaches a contrary conclusion by reciting one portion of the District Court's ruling out of context. Where the state regulation at issue authorized the State to make management decisions based not only on conservation needs, but also to provide "recreational opportunities," PA 90, the District Court correctly found--similar to this Court in Tulee, 315 U.S. at 685--that State decisions on such matters were not per se unreviewable but that enforcement of the state regulation would only be allowed upon a showing of conservation necessity. PA at 90-101. The same was true of the state regulation on shining deer. Because the State failed to show a conservation need--as opposed to "recreational concerns," PA 119--the District Court concluded that this prohibition could not be enforced against the Bands. The court further found that even if a conservation need were shown, the State failed to establish that a complete prohibition was necessary to meet a conservation objective, much less that this was the least restrictive alternative. PA 120. Likewise, the District Court's conclusion that State decisions regarding the "harvestable surplus" of a species were not per se unreviewable by the federal court did no more than permit either party to invoke the federal court's jurisdiction should a dispute about application of the "conservation necessity" standard arise. PA 87-101.

Minnesota's contention here that the legal framework established by the "conservation necessity" standard is unworkable, Br. at 37-38, is untimely and based on speculation that is belied by the parties' ability to effectively resolve the vast majority of all such issues in this case. n35 [*32] Its claim that under the lower court's decisions the State's management authority will be "sharply curtailed," Br. at 37, cannot be supported by a belated attack on those parts of the District Court's decision that the State did not deem sufficiently erroneous or important to challenge on appeal. n36 And the State's speculation that it will "operate under perpetual federal court supervision," Br. at 37, is simply not supported by framing as hypothetical future resource management issues, Br. at 39, matters that were in fact resolved by agreement between the Bands and Minnesota without federal court involvement. n37 In sum, there is simply no reason to believe that the existing legal framework that enabled Minnesota and the Bands to reach agreement on most issues affecting natural resources does not work, or that the spirit of cooperation reflected [*33] by the parties' agreement will not continue. And the fact that the federal courts remain open should a dispute arise that the parties are unable to resolve is--without question--squarely within the settled authority of the federal courts, see Washington Passenger Fishing Vessel Ass'n, 443 U.S. at 695-96, and will serve to protect the interests of all parties to this litigation.

n35 The assertion is further refuted by the history of the exercise of these treaty rights in Wisconsin under a regulatory framework that is very similar to the one agreed upon in this case. As discussed in the Brief of Respondents Bad River Band and Lac du Flambeau Band of Chippewa, in the years since final judgment was entered in Lac Courte Oreilles Band v. Wisconsin, 775 F. Supp. 321 (W.D. Wis. 1991), the parties to that case have not found it necessary to invoke the federal court's jurisdiction to resolve any issue relating to the State's regulation or management of natural resources. Nor has the exercise of the treaty right given rise to any conservation concern about the resources. To the contrary, Chippewa input on natural resource management has served to enhance those resources for the benefit of all residents of the State.

n36 See Adickes v. Kress & Co., 398 U.S. 144, 147 n.2 (1970) ("where issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily consider them"); J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 568 (1981) ("We do not ordinarily address for the first time in this Court an issue which the Court of Appeals has not addressed . . ."). See also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 61 n.10 (1996).

n37 Cf., JA 1771-72, 1780-84 (agreement on methods for determining harvestable surplus); JA 1768 (agreement that change in boundaries of state parks and special use areas not subject to judicial review); Docket Entry No. 689 in Mille Lacs v. Minnesota at, e.g., Ex. A, § 3.06A (agreement to prohibit introduction of acquatic species by Bands), Ex. C (agreement to restrict Band hunting, fishing and gathering in state parks and state special use areas).

n38 The case was a sequel to Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), which upheld the power of the states with enabling acts that did not contain such disclaimers to hear such cases.

Arizona shows that the presence or absence of language in a state enabling act that reserves federal authority over Indian rights is not reflective of Congress' intention one way or the other. Rather, the presence or absence of such a term "has more to do with historical timing than with deliberate congressional selection." 463 U.S. at 562. As the Court explained (id.):

Thus, the absence of such a disclaimer in the Minnesota enabling and admitting acts does not indicate congressional [*35] intent with regard to whether Indian rights are to be continued in force in the State. Minnesota, having been admitted in 1858, more than two decades before the Court's suggestion in McBratney of the possible significance of such disclaimers, was not admitted with a disclaimer in its enabling or admitting acts. But this fact alone gives no indication of congressional intent, as Arizona shows.

Indeed, given this Court's holding in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), decided just five years before the 1837 Treaty was entered into, there would have been no reason for Congress to believe it necessary to include such disclaimers in order to preserve the 1837 Treaty rights. For if the rights of Georgia, as one of the original 13 states, did not trump the Cherokee treaty rights there at issue, Minnesota plainly would not be denied admission to the Union on an equal footing by reason of the 1837 Treaty right.

Even if such a contrary argument could plausibly be advanced, well-settled law concerning the effect of Minnesota's admission to the Union compels its rejection. For it is established that the absence of a disclaimer did not void federal jurisdiction over Indian affairs in Minnesota, or terminate pre-existing treaty rights, as United States v. 43 Gallons of Whiskey, 93 U.S. 188 (1876), United States v. LeBris, 121 U.S. 278 (1887) and Johnson v. Gearlds, 234 U.S. 422 (1914) plainly show.

As a unanimous Court held in Dion, for a treaty right to have been terminated by a subsequent statute, it is "essential" that there be "clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve the conflict by abrogating the treaty." Id. at 739-40. See also Washington Passenger Fishing Vessel Ass'n, 443 U.S. at 690 ("Absent explicit statutory language, we have been extremely reluctant to find congressional abrogation of treaty rights . . . ."); Menominee Tribe v. United States, 391 U.S. 404, 413 (1968) ("intention to abrogate or modify a treaty is not to be lightly imputed to the Congress"); Cook v. United States, 288 U.S. 102, 120 (1933) ("A treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed."); United States v. Payne, 264 U.S. 446, 448 (1924) ("an intention to alter, and, protanto, abrogate, the treaty, is not to be lightly attributed to Congress").

The Dion standard cannot be met by reliance on Minnesota's Enabling Act or Act of Admission because there is no indication that Congress was aware of the conflict that the State claims to exist between the 1837 Treaty [*37] right and these Acts, much less any indication that Congress chose to resolve such a conflict by terminating the 1837 Treaty right. As the Court of Appeals correctly held, n39 the defendants in the Court below presented no evidence "from which [the Court] could conclude that Congress intended to abrogate the 1837 Treaty rights" upon Minnesota's admission to the Union. PA 59. n40

n39 Both District Court judges reached the same conclusion on this issue. Fond du Lac, Order of March 18, 1996, PA 454; Mille Lacs, Order of March 29, 1996, PA 188-89.

n40 Finally, even if the State's construction were plausible, it would necessarily be rejected by the rule of construction that ambiguities in treaties or statutes affecting Indian rights must be construed in favor of the Tribes. County of Yakima v. Yakima Indian Nation, 502 U.S. 251, 269 (1992); Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 152 (1982); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143-44 (1980); Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247 (1985); Bryan v. Itasca County, 426 U.S. 373, 392 (1976); McClanahan v. Arizona Tax Comm'n, 411 U.S. 164, 174 (1973).

WILLIAM R. PERRY *, DOUGLAS B.L. ENDRESON, ANNE D. NOTO, SONOSKY, CHAMBERS, SACHSE & ENDRESON, 1250 Eye Street, N.W., Suite 1000, Washington, D.C. 20005, (202) 682-0240

[*38] HENRY M. BUFFALO, JR., JACOBSON, BUFFALO, SCHOESSLER & MAGNUSON, LTD, 810 Lumber Exchange Building, Ten South Fifth Street, Minneapolis, Minnesota 55402, (612) 339-2071

DENNIS J. PETERSON, FOND DU LAC RESERVATION LEGAL DEPARTMENT, 1720 Big Lake Road, Cloquet, Minnesota 55720, (218) 878-2607

CAROL BROWN BIERMEIER, BROWN & LACOUNTE, Attorneys for Respondent, Lac du Flambeau Band of Lake, Superior Chippewa Indians, 2916 Marketplace Drive, Madison, WI 53719, (608) 288-8360
JAMES M. JANNETTA, Counsel of Record, Attorney for Respondent, Bad River Band of Lake Superior, Chippewa Indians, 523 Ashmun Street, P.O. Box 1292, Sault Ste. Marie, MI 49783, (906) 635-6050 ext. 26302 [*i]

The Bad River and Lac du Flambeau Bands adopt the Statements of the Case set forth in the briefs filed by the other Respondent Bands.

The Wisconsin Bands n1 secured judicial recognition of the continued vitality of their usufructuary rights under the 1837 treaty in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt (LCO I), 700 F.2d 341 (7th Cir.), cert. denied. 464 U.S. 805 (1983), a case that also involved rights under an [*2] 1842 treaty not at issue here. LCO I held that the Chippewa bands in Wisconsin had treaty-secured rights to hunt, fish, and gather in the Wisconsin portion of the ceded territory.

n1 The six Wisconsin Bands that are Respondents in this case and were plaintiffs in the LCO case are: the Bad River Band of Lake Superior Chippewa Indians, Lac Courte Oreilles Band of Lake Superior Chippewa Indians, Lac du Flambeau Band of Lake Superior Chippewa Indians, Red Cliff Band of Lake Superior Chippewa, Sokaogon Chippewa Community, and the St. Croix Chippewa Indians of Wisconsin. The Bad River and Lac du Flambeau Bands respectfully refer the Court to the briefs submitted by the other Wisconsin Bands, the Fond du Lac Band and the Mille Lacs Band for responses to Petitioners' full range of arguments.

These treaty rights were implemented in a series of court decisions and agreements of the parties which culminated in the entry of a final judgment in 1991. The story of the implementation of these rights is one of remarkable cooperation between the Wisconsin Bands and the State of Wisconsin that resolved almost all resource and regulatory issues. Beginning in 1983, the parties reached a series of interim agreements providing for the exercise of treaty rights which paved the way for the broader, final stipulations incorporated in the final judgment. Under these agreements, as well as the decisions of the court, the State of Wisconsin continues to be responsible for resource management, subject only to the legal constraints upon regulation of the exercise of treaty rights imposed by federal law. The court has not become an "appellate biologist"; the parties have not returned to court once since the final judgment.

The exercise of treaty rights in Wisconsin is highly regulated and closely monitored. In fifteen years of exercise of treaty rights in Wisconsin the tribal harvest has matured and peaked at a level short of the amount legally available to the Tribes. The resources are healthy, and the fish stocks in particular have benefitted from the increased biological monitoring and assessment work attendant upon the treaty right. In fact, attention to the fishery resource caused by the treaty rights has put state and tribal biologists on the cutting edge of resource management. Alarmist speculation about adverse economic impact has likewise proven unfounded.

The close cooperation between the State and the Tribes developed despite the abuse and harassment that the Chippewa [*3] endured while exercising their rights, particularly from 1987 through 1990. This harassment interfered with tribal fishing and affected other areas of social interaction.

Early in 1991, the tide turned and the harassment ebbed. State officials denounced this harassment from the start, and local leaders also began speaking out. A treaty rights school curriculum was developed and taught in the public schools, criminal legislation was passed, an injunction was issued prohibiting harassment of Chippewas exercising the treaty right and local communities reached out to tribal leaders to build cooperation and trust.

Today, the Chippewa and their treaty rights are an accepted thread of the social fabric of northern Wisconsin. Cultural values have been articulated and debated, public knowledge and appreciation of Native Americans has increased, and the state's resources are better understood and more wisely managed. Tribes, too, have grown in governmental and natural resource capacity, and forged new links with the state and local communities. More fundamentally, the Tribes experienced a cultural and spiritual renaissance which brought them back full circle to the promises and understandings underlying the 1837 treaty that they could maintain their way of life.

These developments have had a positive effect upon Wisconsin, its resources, and all of its citizens. The lessons learned in Wisconsin have carried over into Minnesota, where the Chippewas' rights have been implemented cooperatively, peacefully, and without incident.

THE CHIPPEWAS' 1837 TREATY RIGHTS WERE FIRST ADJUDICATED IN THE LCO LITIGATION.

The 1837 treaty rights were first upheld fifteen years ago in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt (LCO I), 700 F.2d 341 (7th Cir.), cert. denied, 464 U.S. 805 (1983). n2 Long before the present case was even filed, the Wisconsin Bands were exercising their treaty rights in Wisconsin. The LCO litigation dealt with the off-reservation usufructuary rights reserved to the Chippewa under both the 1837 treaty, Treaty with the Chippewa, July 29, 1837, 7 Stat. 536, and the 1842 treaty, Treaty with the Chippewa, October 4, 1842, 7 Stat. 591. About three-quarters of the 1837 treaty ceded territory is in Wisconsin. The 1842 ceded territory is located entirely in Wisconsin and the western Upper Peninsula of Michigan. n3

n3 A map depicting the areas of cession of these and other relevant treaties, Joint App. ("JA") 956, is reproduced in this brief as Appendix 1. Rights secured under the 1842 treaty are not at issue in this case.

LCO I held that the Chippewa reserved off-reservation treaty usufructuary rights to hunt, fish, and gather in the territory in Wisconsin ceded by the 1837 and 1842 treaties. The court examined the treaty language, the circumstances surrounding the treaties, and the understanding of the parties to conclude that the 1850 executive order was not authorized and invalid, and so did not extinguish the treaty rights. 700 F.2d at 361-364. The court also noted that attempts to remove the Chippewa were quickly abandoned, and the Chippewa were secured [*5] permanent reservations within the ceded territory in the 1854 treaty, Treaty with the Chippewa, September 30, 1854, 10 Stat. 1109. n4

n4 The LCO litigation was not ignored by the lower courts in this case. The district court called LCO I "significant precedent for key issues in this case," Pet. App. ("PA") 303, and cited it frequently. See also PA 10 n. 3, 22 n. 19.

Eleven years before LCO I, the Wisconsin Supreme Court also addressed the effect of the 1850 executive order in State v. Gurnoe, 53 Wis. 2d 390, 192 N.W. 2d 892 (1972), which upheld fishing rights in the Lake Superior waters adjacent to two Chippewa reservations. n5 In the course of doing so, it rejected the argument that the 1850 executive order terminated the previously reserved off-reservation rights. 53 Wis. 2d at 405-407, 192 N.W. 2d at 899-900. Fishing rights in the Lake Superior waters involved in Gurnoe have been exercised for the last 26 years and have been conducted under separate agreements between the Wisconsin Department of Natural Resources ("DNR") and the Tribes directly involved. See Keweenaw Bay Indian Community v. Michigan, 11 F.3d 1341, 1344 (6<th> Cir. 1993).

n5 Although within the 1842 treaty ceded territory, the use of Lake Superior was excluded from the LCO litigation by stipulation of the parties. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin (LCO X), 775 F. Supp. 321, 324 (W.D. Wis. 1991).

In reaching its decision in LCO I, the Seventh Circuit invoked and applied the canons of Indian treaty construction developed by this Court in over a century and a half of undisturbed jurisprudence. LCO I, 700 F.2d at 350-351. The canons are but a special application of familiar rules governing construction of contracts and treaties generally. See Brief of St. Croix Chippewa, et al. Treaty interpretation is based upon [*6] the treaty language, the history of the treaty, treaty negotiations, the surrounding circumstances, and the practical construction given it by the parties. Choctaw Nation v. United States, 318 U.S. 423, 431-432 (1943). This was the approach of the Seventh Circuit in LCO I, 700 F.2d at 351, and of the lower courts in this case involving a much more complete record and lengthy trial. PA 36, 301-304.

Contrary to statements made by Minnesota and its supporters, the treaty rights at issue in LCO were ultimately held to be permanent rights subject to a Presidential authority exercisable only in narrow circumstances. LCO I, 700 F.2d at 352-355; Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin (LCO III), 653 F. Supp. 1420, 1426, 1430 (W.D. Wis. 1987). In affirming the continued vitality of the rights secured by the 1837 and 1842 treaties, the Seventh Circuit held that the rights were not terminated by settlement but can only be exercised on lands publicly available for the usufructuary activity in question at the time of the exercise of the right. LCO I, 700 F.2d at 365 and n. 14; Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin (LCO II), 760 F.2d 177 (7th Cir. 1985). See LCO III, 653 F. Supp. at 1426; Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin (LCO X), 775 F. Supp. 321, 323 (W.D. Wis. 1991). The district court carefully addressed the standard for state regulation of the treaty rights, holding that the State could regulate in the interest of conservation, public health, or safety, provided its regulations met applicable legal standards. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin (LCO IV), 668 F. Supp. 1233, 1242 (W.D. Wis. 1987). See LCO X, 775 F. Supp. at 324, 325. The lower courts reached the same conclusions in the present case. PA 57-58 n. 43, 70-72, 104-112, 205-206, 337-338, 344-345.

After the nature of the rights was defined by the Seventh Circuit in LCO I and LCO II, issues surrounding implementation of the rights, especially resource and regulatory issues, were [*7] of the rights, especially resource and regulatory issues, were for the most part resolved between the parties. When final judgment was entered in 1991, LCO X, supra, neither side appealed.

IMPLEMENTATION OF TREATY RIGHTS IN WISCONSIN SHOWS THAT THE RIGHTS DO NOT IMPINGE UPON THE STATE'S SOVEREIGNTY, HARM NEITHER THE RESOURCES NOR THE LOCAL ECONOMY, AND ARE AN ACCEPTED PART OF LIFE IN NORTHERN WISCONSIN.

We now turn to the story of implementation of treaty rights in Wisconsin, which contradicts many of the assertions made in support of Minnesota's equal footing argument. n6 The story will be told from court decisions, reports of congressional hearings, and law review articles. We will also rely upon matters of general knowledge as presented in a scholarly work on Wisconsin Chippewa treaty rights, a number of reports issued or coauthored by the State of Wisconsin, and other official sources. These are matters of which the Court may take judicial notice under Fed. R. Evid. 201(b), and we have lodged 20 copies of these materials with the Clerk's Office. n7 See Muller v. Oregon, 208 U.S. 412, 421 (1908). The materials lodged with the Court are listed in Appendix 2 of this brief.

n6 The equal footing doctrine is addressed in the Brief of the Fond du Lac and Red Cliff Bands. See Brief of Amici Tribes as well.

n7 This practice is suggested in Stern, Gressman, Shapiro and Geller, Supreme Court Practice (7th ed. 1993), pp. 555-557. Each party was also sent a copy of the materials.

[*8] A. The Wisconsin Bands and the State of Wisconsin Cooperate Extensively on Resource Management, and the State Retains Its Resource Management Authority.

From the outset, the Wisconsin Bands and the State of Wisconsin have cooperated on the implementation of treaty rights and the management of resources. This cooperation began in 1983 within a month after the decision in LCO I when discussions with the bands were initiated by the DNR Secretary. Anti-Indian Violence, Hearings Before the Subcomm. on Civil and Constitutional Rights of the House Committee on the Judiciary, House of Representatives, 100th Cong., 2d Sess. 396 (1988) ("Hearings"). n8

n8 The portion of the hearings pertaining to Wisconsin was held on May 18, 1988. Witnesses from the state perspective included the Wisconsin Attorney General, the head of the DNR's Enforcement Division, and a county sheriff. The tribal and state witnesses had no dispute on the facts. Hearings, supra, at 423.

These discussions led to a series of interim agreements that provided for a limited exercise of treaty rights pending final disposition of the case. The first such agreement was reached in 1983, some eight years before final judgment was entered. The parties entered into several dozen such agreements, each of which generally covered a specific activity for a single season. Hearings, supra, at 397; Charles F. Wilkinson, To Feel the Summer in the Spring: the Treaty Fishing Rights of the Wisconsin Chippewa, 1991 Wis. L. Rev. 375, 408 ("Wilkinson"). n9 The agreements ran the entire gamut of the [*9] major activities included in the treaty rights: deer hunting, ice fishing, trapping, summer and fall fishing, small game hunting, spring spearing (for fish), gathering wild rice, migratory bird hunting, and bear hunting. Ronald N. Satz, Chippewa Treaty Rights: The Reserved Rights of Wisconsin's Chippewa Indians in Historical Perspective 100 (Wisconsin Academy of Sciences, Arts and Letters 1991) ("Satz") n10; Wilkinson, supra, at 408-409.

n9 The author is professor of law at the University of Colorado, managing editor of the leading Indian law treatise, Cohen, Handbook of Federal Indian Law (1982 ed.), coauthor of an Indian law casebook, Getches and Wilkinson, Cases and Materials on Federal Indian Law (2d ed. 1986), and author of American Indians, Time and the Law (Yale U. Press 1987).

n10 The author, Dean of Graduate Studies and Professor of American Indian History at the University of Wisconsin - Eau Claire, and a noted expert on the Removal era, was presented the Award of Merit from the State Historical Society of Wisconsin in 1992 for this book. Id. at endpaper. This book is included in the materials lodged with the Court.

The interim agreements led to a close working relationship between the Tribes and the DNR--stormy at times, to be sure--as well as a meaningful exercise of the treaty rights. They were a marked departure from the past experience in other states. George Meyer, current Secretary of the DNR, stated in 1988, Hearings, supra, at 397: "The cooperation of tribal and state governments in the implementation of treaty rights prior to final court decisions we believe to be truly unprecedented in the United States."

When LCO I was decided in 1983, few of the Wisconsin Bands had natural resource scientists or the courts and law enforcement personnel needed for enforcing tribal ceded territory conservation laws. Since the interim agreements depended upon tribal enforcement under tribal law, the Tribes quickly established the tools needed for the task. Hearings, supra, at 397.

The Wisconsin Bands also helped to found the Great Lakes Indian Fish and Wildlife Commission (GLIFWC), an intertribal [*10] consortium whose biologists and resource specialists helped the Tribes prepare for negotiations with the DNR, understand the resource issues involved, develop regulatory approaches, perform resource assessments, and monitor and evaluate harvests. GLIFWC also employs the conservation wardens needed to enforce tribal ceded territory conservation codes and provides funding for tribal courts. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin (LOC VI), 707 F. Supp. 1034, 1050, 1054 (W.D. Wis. 1989); Satz, supra, at 100, 109; U.S. Department of the Interior, Casting Light Upon the Waters: A Joint Fishery Assessment of the Wisconsin Ceded Territory 21 (2nd ed. 1993) ("Casting Light"). n11 The work of GLIFWC is also discussed in Reich v. Great Lakes Indian Fish & Wildlife Comm., 4 F.3d 490 (7th Cir. 1993).

n11 The Casting Light study was funded by a federal appropriation secured by Sen. Daniel Inouye. Study and report participants included the Wisconsin DNR, GLIFWC, the U.S. Fish and Wildlife Service, Bureau of Indian Affairs, and the Wisconsin Bands. The report "provides an objective statement about the rights reserved by the Chippewa Indians, the status of the fishery resources, and the rights of the State of Wisconsin to use those resources." Id. at 13. It was signed by all participants, including the DNR Secretary and Sen. Inouye. The report is included in the materials lodged with the Court.

The cooperative experience gained through the interim agreements, together with the expertise available to the Wisconsin Bands through GLIFWC, paved the way for the final resolution of resource and harvest issues by stipulation of the parties. The district court adopted an issue-narrowing process proposed by the parties that resulted in the settlement of most implementation issues. Even the matters remaining in dispute were generally resolved either by stipulation or by the court on stipulated facts. LCO VI, 707 F. Supp. at 1038; Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin (LCO VII), 740 F. Supp. 1400, 1401-1402 (W.D. Wis. 1990). [*11] The stipulations covered all of the harvest activities included in the interim agreements, as well as the harvest of all other species, fish and game processing, gear marking and safety identification, enforcement issues, ceremonial use, and management authority. See Wilkinson, supra, at 408-409. The stipulations were incorporated in the final judgment. LCO X, 775 F. Supp. at 324-325.

On several occasions the district court described and praised the cooperation between the State and the Wisconsin Bands. For example, in LCO VI, 707 F. Supp. at 1052-1054, the court stated:

Id. at 93. The ongoing efforts of the parties are further documented in follow-up reports of the Joint Assessment Steering Committee. See, e.g., U.S. Department of the Interior, Casting Light Upon the Waters 1992 Accomplishment Report (1993) ("Accomplishment Report"); U.S. Department of the Interior, Fishery Status Update in the Wisconsin Treaty Ceded Waters (1995) ("Fishery Update"). n12

State-tribal cooperation in Wisconsin helped pave the way for a similar approach in Minnesota. The Mille Lacs and Fond du Lac Bands are also members of GLIFWC and were able to tap its considerable institutional experience. In Minnesota, virtually all of the resource and management issues were settled by the parties. Many features of the Wisconsin stipulations were incorporated or built upon in the protocols and management plans implementing the 1837 treaty rights in Minnesota. PA 57 n. 43, 80-81. n13 As in Wisconsin, cooperation with the State has [*14] carried over into the implementation of the treaty rights. See J. Z. Grover, One Cast Beyond: Tribal Fishery Management, In-Fisherman, July-August 1998. n14 Following the first spring treaty fishing season, the head of the Minnesota DNR praised the "excellent working relationships" among tribal, GLIFWC, and DNR staffs. Letter from Sando to Kmiecik of 5/15/98. Similarly, at the conclusion of the first treaty deer hunting season in Minnesota, the manager of St. Croix State Park wrote congratulatory letters to the Mille Lacs and Fond du Lac Bands stating: "You have laid the cornerstone on which to build a long term relationship based on common sense and cooperation." Letter from Nelson to Wedll of 11/18/97; Letter from Nelson to Martineau of 11/20/97. n15

n13 The Eight Circuit wrote in this case: "We commend particularly the State of Minnesota and the various Bands for their willingness to reach agreement regarding the valuable resources in the Conservation Code and Management Plan." PA 73. The Stipulation and Protocols are included in the Joint Appendix, JA 1727-1784. They detail state-tribal cooperation on resource matters and share many of the features of the Wisconsin stipulations described in this brief. Cf. Brief of Fond du Lac and Red Cliff Bands.

The Wisconsin experience, which has carried over into Minnesota, belies the claims made by Minnesota and the other states upon which they construct the equal footing argument. For example, Minnesota claims that it will "operate under perpetual federal court supervision" with the federal court functioning as an "appellate biologist." (Br. 37, 38) But in Wisconsin the parties have not returned to court on any resource issue in the seven years since final judgment was entered. The close cooperation of the parties in Minnesota suggests the same future there as well.

Minnesota also asserts that the treaty rights are incompatible with its ability to manage the resource (Br. 37) and that the right "carves out a significant slice of the State's core sovereign interests, and requires the state to share that area of sovereignty." (Br. 40) This is wrong as a general proposition, as shown in the Brief of the Fond du Lac and Red [*15] Cliff Bands. In addition, the Wisconsin experience demonstrates that these concerns are overstated and misplaced, both in fact and in law. The LCO litigation made it quite clear that notwithstanding Chippewa treaty rights, Wisconsin retained sovereign responsibilities as resource manager. For example, in the dispute over the walleye harvest by spearers, the district court adopted--over strenuous tribal objection--the DNR's safety factor and quota process, LCO VI, 707 F. Supp. at 1055-1059, because the state had satisfied the conservation standard governing state regulation of tribal treaty rights. Moreover, in requiring exchange of biological information between the parties, the court said:

Id. at 1060. Subject only to the conservation standard, the State retains authority to set safe harvest levels upon which tribal harvest quotas are based. LCO X, 775 F. Supp. at 323.

Similarly, the tribal deer harvest is accommodated within the State's overall management program, a system under which the DNR, in cooperation with GLIFWC biologists, sets a desired harvest level for the deer management units in the State. LCO VII, 740 F. Supp. at 1404-1405. The Tribes stipulated to this management system, which is but little disturbed by implementation of the treaty rights. LCO VII, 740 F. Supp. at 1401. The result is similar for the other resources and harvest activities.

[*16] The same is true in this case under the stipulations and protocols. Minnesota and the Tribes have stipulated that "the state has a trust responsibility and authority to manage resources for the benefit of all current and future users consistent with the treaty harvest rights of the Bands," JA 1770, and have adopted a detailed protocol on information exchanges to enable the state to exercise that authority. JA 1755-1769. The district court declined to make an abstract ruling on management authority in the absence of a concrete dispute between the parties, PA 91-94, but concluded that state restrictions on tribal harvest based upon harvestable surplus determinations were subject to review under the "conservation" standard. PA 94-101. Minnesota did not appeal either ruling. To date the Tribes have not sought review of any harvestable surplus determinations. See JA 1771-1777, 1780-1784 (protocol provisions governing harvestable surplus determinations and methodologies).

Until it lent its name to the States' amicus brief in this case, Wisconsin had not voiced concerns about intrusions upon its sovereignty. To the contrary, Wisconsin officials have acknowledged and even trumpeted that the resource management authority of the State was preserved in the LCO litigation. For example, in his statement announcing Wisconsin's decision not to appeal from the final judgment, Wisconsin Attorney General James Doyle cited as one of the significant victories achieved by the State in the litigation that "the state has the ultimate authority to protect and manage the resources of the ceded territory." Satz, supra, App. 9 at 196. Likewise Casting Light, supra, at 20, the report coauthored by the DNR, states:

B. The Treaty Harvest in Wisconsin Poses No Threat to the Resources or Economy of Northern Wisconsin.

Treaty rights in Wisconsin are governed by tribal regulations based upon the management regimes contained in the stipulations incorporated in the final judgment, LCO X. The tribal codes are enforced in the field through the cooperative law enforcement efforts of the DNR and GLIFWC wardens, and violators are prosecuted in tribal courts. Harvest levels are established cooperatively for each species that requires them and, where harvest levels are established, the harvest is monitored to assure they are not exceeded. The two most extensive Chippewa harvest activities are whitetailed deer hunting and spring spearing for walleye. The harvest regimes for these activities illustrate the careful regulation and close monitoring that have ensured a healthy resource base.

The tribal deer harvest is accommodated within the State's highly developed management scheme. The DNR, in consultation with GLIFWC biologists, sets a harvest target for each of its deer management units. These targets are forwarded to the Tribes, which then make declarations to the DNR of their [*18] intended harvest in each management unit in the ceded territory. The declarations cannot exceed the maximum treaty entitlement for a unit. The State then adjusts the number of antlerless deer permits available in each unit for state-licensed hunters, if necessary, in light of the anticipated tribal harvest. Tribal hunters are issued permits by the Tribes and are required to tag and register every deer killed. See LCO VII, 740 F. Supp. at 1403 f.

Tribal spring spearing is even more highly regulated. Most spring spearing takes place during a period of about fifteen days that begins shortly after "ice out," when the walleye are congregated for spawning. The spearer stands in the bow of a small boat, illuminating the water with a bright light shone from either below or above, while another person operates the boat. The spring spearing season is usually over before the beginning of the state angling season. LCO VI, 707 F. Supp. at 1039-1042. See Casting Light, supra, at 55-62.

Each year safe harvest levels for walleye and muskellunge are set for each lake in the ceded territory available for spearing, from which the maximum allowable tribal harvest is calculated for each lake. The Tribes then declare the lakes where they intend to spear and the amount of fish, within their harvest limit, that they intend to take from each lake. LCO VI, 707 F. Supp. at 1059-1060. See Casting Light, supra, at 55-62.

Spearing is regulated through a nightly permitting system, a bag limit per permit, designation of a single boat landing for use on each lake, dockside monitoring of the entire catch by GLIFWC wardens and creel clerks (who count and measure every fish taken), and a host of other regulations designed to prevent overexploitation. Permit quotas are adjusted daily based upon the previous night's harvest. One would be hard pressed to identify a more highly regulated or closely monitored fishery. [*19] LCO VI, 707 F. Supp. at 1047-1052. See Wisconsin Legislative Reference Bureau Bulletin 91-1, Chippewa Off-Reservation Treaty Rights: Origins and Issues 14 (1991) ("Wis. LRB"); n16 Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse - Wisconsin, Inc., 843 F. Supp. 1284, 1286-1287 (W.D. Wis. 1994), aff'd, 41 F.3d 1190 (7th Cir. 1994), cert. denied, 514 U.S. 1096 (1995). The regulatory and monitoring regime employed in Wisconsin is similar to that in Minnesota under the Bands' Conservation Code and Management Plan, as well as the stipulation and protocols. See Scott Bestul, In Minnesota: A New Era for Mille Lacs Walleye, Field and Stream, May 1998, at 140. n17

n16 The Legislative Reference Bureau is the research arm of the Wisconsin Legislature. This document is included in the materials lodged with the Court.

The close monitoring of these activities guarantees solid data on tribal harvest, which in turn enhances the ability of the State and Tribes to better manage the resources. The level of tribal harvest has not posed any threat of harm to the resources upon which they depend. The tribal harvest levels have fallen short--in fact, in most instances well short--of the maximum available under the treaty allocation.

[*20] Satz, supra, at 112-113. The tribal treaty harvest "remains well under the safe harvest." Wilkinson, supra, at 377. See Accomplishment Report, supra.

The result has been a healthy resource base unimpaired by the exercise of treaty rights. In Casting Light, supra, the state, federal, and GLIFWC biologists came to two basic conclusions: "NO! - Chippewa spearing has not harmed the resource; and YES! - the fish population in the ceded territory is healthy." Id. at 13 (emphasis in original). See Wis. LRB, supra, at 14-15; Wilkinson, supra, at 376-378. The report also concludes that the tribal harvest is "conservative and completely monitored" and that "lakes with tribal harvest are studied and monitored more than lakes without tribal quotas." Casting Light, supra, at 78.

The Wisconsin Bands have also taken extraordinary steps to limit the impact of spearing on their neighbors. They have consistently declared walleye harvest levels well below their maximum entitlement in order to allow angler daily bag limits of three or more fish. Casting Light, supra, at 81; Fishery Update, supra, at 9; Satz, supra, at 111. They have avoided spearing lakes for two consecutive years at the level that would trigger a one year fishing closure. Fishery Update, supra, at 9. The Wisconsin Bands also take a large and active role in fish rearing and stocking programs both on and off the reservation. Satz, supra, at 111. In 1990 walleye production by the Wisconsin Bands was almost 25% of the State's walleye production, with more tribal hatchery and fish rearing capacity under construction. Casting Light, supra, at 69-70. "All of those fish were stocked in lakes and rivers accessible to state licensed anglers." Id. at 70. For example, the Lac du Flambeau Band has an extensive fish hatchery and rearing program and stocks the waters of its reservation, where non-Indians take over 90% of the harvest. Satz, supra, at 111. They also make fish available for off-reservation stocking. Id.

[*21] Opponents of treaty rights continue to raise the specter of unregulated Indian hunting and fishing leading to resource depletion. For example, the counties allude to depletion of fish stocks and the "very real potential for over-exploitation." (Br. 10, 47) In fact, treaty rights are heavily regulated and closely monitored. Fifteen years of Wisconsin experience with the actual exercise of the rights involved in this case has demonstrated that tribal harvest levels have posed no threat to the resource and that the fishery resource in Wisconsin remains healthy.

Nor has the implementation of treaty rights caused any economic harm to northern Wisconsin. On the contrary, state and local authorities report that its tourism-based economy is doing well. During the height of the spring spearing protests, see Section C, infra, Wisconsin tourism director Dick Matty reported that there was "no real negative impact" on tourism, and Chamber of Commerce officials in the areas of heaviest spearing activity reported that tourism was "thriving." Satz, supra, at 113. Reports issued by the Wisconsin Department of Development also show that tourism is flourishing. Wis. LRB, supra, at 17.

C. Chippewa Treaty Rights Are an Accepted Part of Life in Wisconsin That Has Yielded Many Positive Benefits.

The cooperative resolution of resource and management issues in Wisconsin described above is, as the district court said, a "remarkable story." LCO VI, 707 F. Supp. at 1052. It is even more remarkable when placed in its social context, for at the very time that the final stipulations on resource issues were being negotiated, the Chippewa in Wisconsin were the target of protest activity that peaked between 1988 and 1990. Cooperation between the State and the Tribes thrived despite--one is almost tempted to say because of--that protest. The [*22] broader context illustrates the soundness of the Court's "conservation" regulation standard, which has led to the degree of state-tribal cooperation demonstrated in Wisconsin despite social forces which sought, at least for awhile, to dictate a different and surely less desirable result.

The Wisconsin Chippewa paid a price for their treaty rights which was aptly described by the district court:

LCO VI, 707 F. Supp. at 1054. The details of the story are told in Satz, supra, at 101-124; Hearings, supra, at 125-427; and in Wisconsin Advisory Committee to the U.S. Civil Rights Commission, Discrimination Against Indians in Northern Wisconsin (1989) ("WAC Report"). n18 Mercifully, this period is now in the past.

Many persons had sincere concerns about treaty rights and were worried about resource depletion and harm to the local economy. However, a minority of northern Wisconsin's citizens briefly succumbed to a latent bigotry underlying these concerns and attempted to physically interfere with the exercise of the treaty right. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse - Wisconsin, Inc., 843 F. Supp. at 1288 (injunction issued under 42 U.S.C. § 1982 restraining physical interference with the exercise of treaty rights). Their [*23] activities were quickly condemned by State officials. See Hearings, supra, at 389. In addition, in some areas local officials and citizens intervened on behalf of the Chippewa. For example, in one locale "Chamber of Commerce members not only asked area residents to honor the spearing rights ..., but they also manned two boats and accompanied the spearfishers to help promote calm." Satz, supra, at 126. Nevertheless, for a time racial tensions affected many aspects of tribal life and general social interaction in the North Woods. Hearings, supra, passim; WAC Report, supra, passim.

Beginning in 1991 the protest activities ebbed. The most recent chapter of the Wisconsin story is a happy one. Religious and political leaders, the Tribes themselves, educators, and--most importantly--ordinary citizens of northern Wisconsin rose to combat ignorance with facts, prejudice with understanding. A treaty rights support group, Honor Our Neighbors' Origins and Rights (HONOR), was organized and has since expanded into a nationwide organization active on Indian issues today. Satz, supra, at 115-116. Major public education efforts by the State, Tribes, GLIFWC, religious groups, and others helped to increase public understanding, which in turn brought general acceptance of treaty rights. Racial prejudice became socially unacceptable in northern Wisconsin. Today, the Chippewa are left free to pursue their harvest activities unimpeded. This has been carried over into Minnesota, where the exercise of treaty rights has likewise been peaceful and unimpeded. See Sando letter and Nelson letters, supra.

Cooperation between Indians and non-Indians has increased across the board as a result of implementing treaty rights and dealing with the protest. Tribal-state cooperation on biology and harvest management has grown, both in Wisconsin and in Minnesota. In addition, law enforcement cooperation has increased with the cross-deputization of tribal and local police [*24] officers, and of DNR and GLIFWC wardens. In Wisconsin Tribes have teamed up with their local Chambers of Commerce in joint tourism promotion, and at least twelve local Chambers in northern Wisconsin issued a joint statement recognizing the treaty rights of the Chippewa. Satz, supra, at 125-128. The Bad River and Red Cliff Bands have combined forces with a local Chamber of Commerce, resort owners, and sport fishers to form Fish For the Future. This joint project uses volunteers and tribal biologists to collect eggs from speared walleye, which are then incubated in tribal hatcheries and stocked in area waters. Wis. LRB, supra, at 18.

The Wisconsin Legislature has also forged new ties with Indian people. Wis. Stat. § 29.223(2)(a), prohibits interference with lawful hunting, fishing, and trapping activity. See State v. Bagley, 164 Wis. 2d 255, 474 N.W. 2d 761 (Wis. App. 1991). 1989 Wis. Act 31 weaves the teaching of American Indian history, culture and tribal sovereignty into the school curriculum of Wisconsin's public schools "at least twice in the elementary grades and at least once in the high school grades." Wis. Stat. § 121.02(1)(L)(4). The curriculum was implemented in the 1991-1992 school year. Wis. LRB, supra, at 17; Satz, supra, at 126. The Wisconsin Legislature has also enacted the nation's most sweeping full faith and credit legislation for tribal court judgments. 1991 Wis. Act 43.

The Wisconsin Bands have grown as governments, as they have enhanced tribal codes, strengthened tribal courts, and actively enforced tribal law. Hearings, supra, at 401. They have also gained valuable experience in resource management that has been put to good use in conserving natural resources for everyone. GLIFWC has become a crucial intertribal institution. Its respected scientific and resource management capabilities, amply reflected in Casting Light, supra, and later studies, have made it and the Wisconsin Bands a respected voice in resource matters extending well beyond the regulation of treaty rights.

[*25] Even more fundamentally, there has been a spiritual and cultural revival among the Wisconsin Chippewa, a sense of identity and pride forged during their struggle for recognition and acceptance of their treaty rights. This has reinforced the Chippewa connection with the way of life guaranteed by the 1837 Treaty. At treaty time the Chippewa of the ceded territory were pursuing the traditional lifeway that had been theirs from time beyond memory, living off the land in a seasonal round of hunting, fishing, trapping, harvesting wild rice, making maple sugar, and gathering other fruits of the land. LCO I, 700 F.2d at 344; LCO III, 653 F. Supp. at 1424-1428; PA 222-223. These activities not only constituted tribal subsistence, but also defined their culture and a lifeway without which the Chippewa would lack identity. Satz, supra, at 1-2. See PA 150, 235.

At the time of the treaty, then, in both a material and a cultural sense, these usufructuary activities "were not much less necessary to the existence of the Indians than the atmosphere they breathed." United States v. Winans, 198 U.S. 371, 381 (1905). As the Chippewa chief Aish-ke-bo-gi-ko-zhe (Flat Mouth) pointedly observed during the 1837 treaty negotiations:

Today, the usufructuary activities no longer form the whole of tribal subsistence (though they remain important). But they [*26] still inform the cultural identity of the Tribes. Today, the activities guaranteed by the treaty "still remain an important part of the culture, lifestyle, and economy of Band members." PA 326.

The implementation of treaty rights in Wisconsin has had a positive effect upon the State, its resources, and all of its citizens, but most of all upon the Chippewa who, in an important way, have been reconnected with the wellspring of their cultural identity. Indeed, the leaders of the Wisconsin Bands announced their decision not to appeal the final LCO judgment "secure in the conviction that they have preserved these rights for the generations to come." Satz, supra, at 193.

In announcing the State's decision not to appeal from the final judgment in LCO, Wisconsin Attorney General James Doyle said:

Satz, supra, at 196. The State and the Wisconsin Bands have indeed moved on--on to a better understanding of and closer cooperation with each other in a way that imposes but lightly upon the State and its citizens. Both the State and Tribes are better for it.

JAMES M. JANNETTA, Counsel of Record, Attorney for Respondent, Bad River Band of Lake Superior, Chippewa Indians, 523 Ashmun Street, P.O. Box 1292, Sault Ste. Marie, MI 49783, (906) 635-6050 ext. 26302

CAROL BROWN BIERMEIER, BROWN & LACOUNTE, Attorneys for Respondent, Lac du Flambeau Band of Lake, Superior Chippewa Indians, 2916 Marketplace Drive, Madison, WI 53719, (608) 288-8360

[*1a] APPENDIX A--CHIPPEWA LAND CESSIONS, 1837-1855 (DEFS. EXH. 1, PAGE 13; JOINT APPENDIX PAGE 956)

1. Ronald N. Satz, Chippewa Treaty Rights: The Reserved Rights of Wisconsin's Chippewa Indians in Historical Perspective (Wisconsin Academy of Sciences, Arts and Letters 1991).

2. U.S. Department of the Interior, Casting Light Upon the Waters: A Joint Fishery Assessment of the Wisconsin Ceded Territory (1991).

3. U.S. Department of the Interior, Casting Light Upon the Waters 1992 Accomplishment Report (1993).

4. U.S. Department of the Interior, Fishery Status Update in the Wisconsin Treaty Ceded Waters (1995).

5. J. Z. Grover, One Cast Beyond: Tribal Fishery Management, In-Fisherman, July-August 1998.

9. Wisconsin Legislative Reference Bureau Bulletin 91-1, Chippewa Off-Reservation Treaty Rights: Origins and Issues (1991).

10. Scott Bestul, In Minnesota: A New Era for Mille Lacs Walleye, Field and Stream, May 1998

11. Wisconsin Advisory Committee to the U.S. Civil Rights Commission, Discrimination Against Indians in Northern Wisconsin (1989).

JOHN BELL, ANNETTE KLAPSTEIN, LAW OFFICE OF THE, PUYALLUP TRIBE, 2002 E. 28th Street, Tacoma, WA 98404, (253) 573-7877
CARTER G. PHILLIPS *, VIRGINIA A. SEITZ, SIDLEY & AUSTIN, 1722 Eye Street, N.W., Washington, D.C. 20006, (202) 736-8000

n1 Pursuant to Rule 37.6 of the Rules of this Court, Amici state that no counsel for a party authored this brief in whole or in part, and that no person or entity other than amici and their counsel made any monetary contribution to the preparation or submission of this brief. Pursuant to Rule 37.3 of the Rules of this Court, the parties have consented to the filing of the brief, and the consent letters have been filed with the Clerk of the Court.

Established in 1944, the National Congress of American Indians ("NCAI") is the oldest and largest organization addressing American Indian interests in the United States, representing more than 250 American Indian tribes and Alaska Native villages, and native American citizens. The preservation of off-reservation hunting, fishing and gathering rights is vitally important to NCAI and its members.

The 49 members of the Affiliated Tribes of Northwest Indians govern reservations within Washington, Oregon, Idaho, Alaska, western Montana and northern California. Each Tribe exercises hunting, fishing and gathering rights under treaties signed with the United States or Executive Orders establishing their reservations.

The Amici Tribes listed in footnote two have the treaty "right of taking fish, at all usual and accustomed grounds and stations, . . . in common with all citizens . . ., and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, . . . on open and unclaimed lands . . . ." n2 These rights have been upheld seven times by this Court, most recently in Washington v. Passenger Fishing Vessel Ass'n. 443 U.S. 658 (1979).

n2 The tribes are the Lummi, the Nooksack, the Sauk Suiattle, the Upper Skagit, the Swinomish, the Tulalip, the Stillaguamish, the Muckleshoot, the Suquamish, the Puyallup, the Nisqually, the Squaxin, the Skokomish, the Port Gamble S'Klallam, the Jamestown S'Klallam, the Lower Elwha S'Klallam, the Makah, the Quileute, and the Yakima and Quinault Nations.

$=P2 The Confederated Tribes of the Warm Springs Reservation of Oregon, the Confederated Salish & Kootenai Tribes of the Flathead Reservation of Montana, the Confederated Tribes of the Umatilla Indian Reservation, and the Confederated Tribes and Bands of the Yakima Indian Nation have treaty rights to hunt, fish, and gather on and off of their reservations. The off-reservation fishing rights were the subject of litigation, and were affirmed in Sohappy v. Smith, 302 F. Supp. 899, (D. Ore. 1969), later denominated United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981); United States v. Oregon, 718 F.2d 299 (9th Cir. 1983).

The Sault Ste. Marie Tribe of Chippewa Indians, the Bay Mills Indian Community and the Grand Traverse Band of Ottawa and Chippewa Indians, exercise treaty fishing rights in a portion of the Great Lakes waters of Michigan under Article Thirteen of the Treaty with the Ottawa and Chippewa, March 28, 1836, 7 Stat. 491: "The Indians stipulate for the right of hunting on the lands ceded, with the other usual privileges of occupancy, until the land is required for settlement." State and Federal courts construe the treaty to guarantee the tribes use of Great Lakes fishery resources. See People v. LeBlanc, 399 Mich. 31, 248 N.W.2d 199 (1976); United States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979), mod. in part, 653 F.2d 277 (6th Cir. 1981).

The Grand Portage Band of Chippewa is one of six bands of the Minnesota Chippewa Tribe. Pursuant to the Treaty of September 30, 1854, Band members exercise hunting and fishing rights on certain off-reservation lands in Minnesota.

The Leech Lake Band of Chippewa, one of six member bands of the Minnesota Chippewa Tribe, reserved the right to hunt, fish, and gather wild rice on ceded lands in Minnesota and Wisconsin in treaties with the United States, dated July 29, 1837, and October 4, 1842.

$=P3 The Spirit Lake Tribe, formerly known as the Devils Lake Sioux Tribe, is a descendent of the Sisseton and Wahpeton Bands of the Sioux Nation. Congress has recently reaffirmed that the Devils Lake reservation in North Dakota, reserved by treaty in 1867, is the Tribe's "permanent homeland." Pub. L. 97-459, 96 Stat. 2515. The Tribe asserts ownership to the submerged lands of Devils Lake.

The federally recognized Colorado River Indian Tribes inhabit a reservation in Arizona and California. The predecessors of the Tribes fished in the Colorado River and hunted on its banks, and the Tribes' members continue to do so today.

The Crow Tribe of Indians is a federally recognized American Indian Tribe located in south central Montana. The Second Fort Laramie Treaty of May 7, 1868, 15 Stat. 649, reserves to the Crow Indians "the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts."

In sum, Amici represent the majority of American Indians and have an abiding interest in the hunting, fishing, and gathering rights of native Americans which are protected by numerous treaties with the United States. Amici are profoundly concerned about the adverse effect on those interests that would arise under the interpretation of the Equal Footing Doctrine proposed by Minnesota in this case. Minnesota's argument--that its admission to the Union implicitly terminated pre-existing off-reservation hunting, fishing, and gathering rights recognized in treaties with the United States--might eliminate valuable rights that have existed for decades and disrupt numerous tribal programs designed to manage the reasonable exercise of those rights. As Amici demonstrate in this brief, the State's legal argument is contrary $=P4 not only to ordinary rules of treaty construction, but also to precedents of this Court applying the Equal Footing Doctrine for more than 100 years. Amici wish to present their views to assist the Court in evaluating Minnesota's claim under the Equal Footing Doctrine.

1. In an 1837 treaty with the United States, the Chippewa Indians expressly reserved rights to hunt, fish, and gather wild rice--"usufructuary" rights--on aboriginal lands which they were ceding to the United States. Under the treaty, the Chippewa ceded 13 million acres of land in present day Minnesota and Wisconsin, however:

Rather, in this brief, the Amici Tribes address solely the question whether a federally recognized reservation of usufructuary rights on off-reservation lands is terminated by implication when the Territory in which such rights may be exercised becomes a State. n3 This issue is raised because in 1858, by an Act of Congress, the Territory $=P5 of Minnesota was admitted to the Union as a State "on an equal footing" with other States. Act of May 11, 1858, 11 Stat. 285. Although nothing in the act of admission purported to abrogate treaties affecting the Territory of Minnesota previously negotiated by the United States, petitioners broadly urge that Minnesota's admission to the Union necessarily terminated the Chippewas' usufructuary rights under the 1837 Treaty. Amici demonstrate that Minnesota's position simply cannot be squared with myriad decisions of this Court holding that the Federal Government has clear constitutional authority to enter into treaties recognizing tribal usufructuary rights on lands outside of a reservation, and that such Federal treaty rights are not irreconcilable with State sovereignty and remain in full force and effect after the lands in question become part of a State.

n3 This case involves only off-reservation usufructuary rights. Tribal "authority to control hunting and fishing on the reservation" unquestionably preempts State jurisdiction over wildlife there. See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 338 (1983).

2. Petitioners have relied solely on Ward v. Race Horse, 163 U.S. 504 (1896), to argue that, by necessary implication, the United States repealed the 1837 Treaty provision reserving the Chippewas off-reservation usufructuary rights when it admitted the Territory of Minnesota to Statehood in 1858. The district court rejected this argument, and the court of appeals affirmed.

The court of appeals first distinguished Race Horse. The court explained that, by the terms of the treaty at issue, the hunting rights in Race Horse were repealed at Statehood, because they were "temporary" and depended upon continuous United States' ownership of the lands. In contrast, the court found that the usufructuary rights at issue in this case were intended to be "continuing" and were not tied to ownership of the lands. Pet. App. 56 & n.42. Second, the court concluded that the 1837 Treaty in no way "offend[ed] the State's sovereignty," citing United States v. Winans, 198 U.S. 371 (1905), and Tulee v. Washington, 315 U.S. 681 (1942). Pet. App. 58. Finally, the court of appeals pointed out. Congress must clearly indicate its intent to impair Indian $=P6 treaty rights, and the Act of Congress admitting Minnesota contained no such clear indication. Pet. App. 59.

1. This Court has held that the Constitution implicitly requires that all States be admitted to the Union on an equal footing with the original 13 States. Coyle v. Smith, 221 U.S. 559, 565-66 (1911). The State relies on this principle--termed the Equal Footing Doctrine--to argue that its admission into the Union worked an implicit repeal of the Chippewas' reserved treaty rights. This interpretation of the Doctrine cannot be squared with numerous decisions of this Court declaring the supremacy of reserved treaty rights in the face of Statehood. In effect, what Minnesota seeks is not equality with other States, but special treatment based on a reading of the Equal Footing Doctrine that has been soundly rejected. This brief explains the proper contours of the Equal Footing Doctrine and describes what the doctrine does (protects certain core aspects of State sovereignty), and what the doctrine does not do (grant an immunity from treaty provisions within the bounds of the Federal Government's constitutional powers with respect to Indian tribes).

Properly understood, the Doctrine has two components: First, it prohibits the Federal Government from exceeding its constitutionally prescribed authority by infringing upon fundamental sovereign powers and rights of States when exercising its power to admit new States to the Union. Second, it makes clear that States admitted to the Union have sovereign ownership of shorelines and lands underlying navigable waters ("submerged lands"), unless the Federal Government has plainly provided otherwise.

The Equal Footing Doctrine does not go beyond these protections of fundamental attributes of State sovereignty to erode the Federal Government's proper exercise of its $=P7 treaty power and its authority under the Property Clause and the Indian Commerce Clause of the Constitution. Just as such authority could (and can) be exercised in the original 13 States, so it could (and can) be exercised with respect to the Territories and newly admitted States. The Equal Footing Doctrine does not establish a special rule that the Federal Government must plainly provide that it is precluding or limiting inconsistent State regulation in order to do so.

Thus, the Chippewas' federally recognized usufructuary rights on off-reservation lands were not terminated by implication under the Equal Footing Doctrine when the Territory of Minnesota was admitted to the Union. Petitioners incorrectly contend that the treaty right is wholly irreconcilable with Minnesota's status as a sovereign State with power to regulate wildlife within her borders. Minnesota's position cannot be squared with almost a century of authority, firmly upholding the Federal Government's power to recognize off-reservation usufructuary rights and to preclude or limit inconsistent State regulation. See, e.g., United States v. Winans, 198 U.S. 371 (1905); Antoine v. Washington, 420 U.S. 194 (1975); Washington v. Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979). To sustain Minnesota's contention, these cases would have to be overruled. Accordingly, it is Minnesota's position that misconceives the proper division of power in the Federal system.

The Federal Government may regulate wildlife within State borders pursuant to any valid constitutional power. And while the States unquestionably have police power to regulate wildlife, it is equally certain that, under the Supremacy Clause, such State regulation is barred to the extent it is inconsistent with Federal law. See Kleppe v. New Mexico, 426 U.S. 529 (1976); Missouri v. Holland, 252 U.S. 416 (1920); Winans, 198 U.S. at 380. If the two legal requirements conflict or if State law impairs the Federal right, the State regulation $=P8 must give way. See generally Hines v. Davidowitz, 312 U.S. 52, 67 (1941). The Equal Footing Doctrine simply does not apply in areas--such as fish and wildlife regulation--where the Federal Government and the State have concurrent sovereign authority to act. See, e.g., United States v. Winans, 198 U.S. at 380 (police power over wildlife); Winters v. United States, 207 U.S. 564 (1908) (power over water rights); Johnson v. Gearlds, 234 U.S. 422 (1914) (police power over liquor).

In fact, when the State's police power over wildlife is in tension with a Federal treaty with an Indian tribe, the treaty right is protected by established rules of construction. Treaties reserving Indian rights and lands are liberally construed, and such treaty rights are not terminated by implication at Statehood or at any other time unless there is "clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty." United States v. Dion, 476 U.S. 740 (1986). More concretely, the federally recognized reservation of usufructuary rights in the 1837 Treaty must be generously construed and may not be deemed repealed by implication simply because the affected lands became part of the State of Minnesota. Nor does the Federal treaty right entirely preempt State regulation of wildlife. Instead, this Court's decisions require that the Federal treaty right and the State's police power be reconciled by enforcing the treaty right, unless it is inconsistent with State regulation that is "necessary" for conservation. Antoine, 420 U.S. at 207. In this way, the State's interests are accounted for, and the Federal treaty right is preserved. That is precisely what the lower courts did in this case.

2. Petitioners' Equal Footing argument rests entirely on Ward v. Race Horse, 163 U.S. 504 (1896), which held that a reserved "right to hunt on unoccupied lands of the United States" under certain conditions was terminated $=P9 by necessary implication when those lands become part of the State of Wyoming. Id. at 514. Race Horse, however, rests on principles that this Court has rejected for at least a century.

First, the Race Horse Court incorrectly assumed that the State's police power over wildlife is inviolate--"an essential attribute of its governmental existence," 163 U.S. at 516. This Court has since held, however, that although the State has an important interest in wildlife regulation within its borders, State regulation must yield to a valid exercise of Federal power. See, e.g., Holland and Kleppe, supra, and Hunt v. United States, 278 U.S. 96 (1928). This Court thus has rejected the fundamental premise of Race Horse.

Second, the Court's alternative basis for its decision--that the treaty rights were temporary and that temporary rights are necessarily repealed at Statehood--itself rests on two faulty assumptions. The Court incorrectly assumed that "unoccupied" lands of the United States would inevitably become occupied and that the right to hunt on such lands was temporary. The United States, however, has the power to reserve property for public purposes, including purposes that relate to its sovereignty over Indian tribes, so the treaty right at issue in Race Horse was not necessarily temporary. The Court's assumption that temporary rights are necessarily terminated by Statehood is equally ill-founded. It is contrary to the usual principle of construction that when reasons for termination of a right are expressly stated, the right does not terminate for unstated and unrelated reasons. It is also contrary to this Court's cases holding that treaty rights which impair State power and which are temporary by their terms are not presumptively terminated by Statehood. See, e.g., Johnson v. Gearlds, 234 U.S. 422; Part H.B., infra.

For these reasons, Race Horse should be overruled or strictly limited to the proposition for which it has recently $=P10 been cited by this Court--viz., that States can regulate usufructuary rights reserved in a treaty when necessary in the interest of conservation. E.g., Washington v. Passenger Fishing Vessel Ass'n, 443 U.S. at 682 n.25.

The Northwest Ordinance of 1787 authorized the creation of new States in the western Territories, and mandated that those States be on an "equal footing with the original States in all respects whatever." n4 And, although the phrase "equal footing" does not appear in the Constitution or in the act of admission of every State, this Court has held that the Constitution implicitly mandates a "union of states, equal in power, dignity, and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself." Coyle v. Smith, 221 U.S. 559, 567 (1911).

n4 The equal footing language in the Ordinance had its origin in the fears of Thomas Jefferson and others that admission of western Territories to the Union as second-class States would endanger the stability and growth of the United States. Specifically, it was believed that inferior status would cause western discontent and disloyalty, giving rise to settler independence movements and allowing Great Britain and Spain to expand their influence in North America. See G. Stewart, The Northwest Ordinance and the Balance of Power in North America, in The Northwest Ordinance: Essays on its Formulation, Provisions, and Legacy, 25 (Williams ed. 1988).

The Equal Footing Doctrine developed by this Court has two related, but independent components: First, the Federal Government may not exceed the bounds of its constitutional powers by impairing the core sovereign authority of newly admitted States when exercising its power to admit new States to the Union. Second, newly $=P11 admitted States come into the Union with ownership of their submerged lands, unless the Federal Government has plainly provided otherwise.

The protection afforded by the Equal Footing Doctrine is confined to these fundamental attributes of State sovereignty. It does not affect or limit in any way the powers that are conferred upon the Federal Government by the Constitution, or alter the principle that a valid Federal exercise of power preempts inconsistent State law. The Equal Footing Doctrine is not some extraordinary antipreemption theory that confers unusually strong protections for States as they enter the Union. The doctrine embraces equality, which means that each entering State is subject to the same rules and the same Federal powers that apply to the original 13 States under the Supremacy Clause. Accordingly, where a Federal statute or treaty regulates conduct within a newly formed State--including conduct related to fish and wildlife--that law remains effective after Statehood, unless the law impairs the newly formed State's sovereignty protected by the Tenth Amendment or core principles embedded in the constitutional plan under Our Federalism. If it does not, the new State's regulatory authority is restricted to the extent it conflicts with federal law (whether statutory or treaty) under traditional principles of preemption.

Minnesota's position, however, is that Federal treaties recognizing off-reservation usufructuary rights impair the State's fundamental sovereign right to regulate wildlife and thus necessarily terminate at Statehood. The Court has rejected this argument many times, commencing with United States v. Winans, 198 U.S. at 380, and has in this century refused numerous invitations to find an equal footing violation in a Federal law that limits State sovereignty over wildlife. Instead, the Court enforces offreservation usufructuary rights recognized in treaties against claims that such rights impair State sovereignty. See cases cited in Part I.C.3.

$=P12 Amici first describe the two components of the Equal Footing Doctrine and then demonstrate that neither applies in this case.

The principal case so holding is Coyle v. Smith, 221 U.S. 559 (1911). In that case, the Court employed the Equal Footing Doctrine to invalidate a provision of Oklahoma's act of admission forbidding Oklahoma to move its State capital for a period of some years:

The Court explained that "when a new State is admitted into the Union, it is so admitted with all of the powers of sovereignty and jurisdiction which pertain to the original States, and that such powers may not be constitutionally diminished, impaired or shorn away by any conditions, $=P13 compacts or stipulations embraced in the act under which the new State came into the Union, which would not be valid and effectual if the subject of congressional legislation after admission. . . . [The location of capital provision] is referable to no power granted to Congress over the subject, and . . . [such authority cannot] be implied from the power to admit new States." Id. at 573. See also Hawkins v. Bleakly, 243 U.S. 210 (1917) (holding that, under the Equal Footing Doctrine, Iowa must be allowed independently to decide whether to have jury trials in worker compensation cases, despite the Northwest Ordinance's guarantee of jury trial to Iowa territory residents), Cincinnati v. Louisville & Nashville Railroad, 223 U.S. 390 (1912) (holding that, under the Equal Footing Doctrine, Ohio cannot be stripped of its eminent domain power). Cf. United States v. Texas, 339 U.S. 707, 718 (1950) (holding that, on admission to the Union, Texas ceded sovereignty over its marginal sea to the United States; as "an incident to the transfer of [Texas'] sovereignty any claim that Texas may have had to the marginal sea was relinquished to the United States"). n5

n5 Additional irreducible attributes of State sovereignty are defined in the Court's cases addressing the Tenth Amendment and principles of federalism. See New York v. United States, 505 U.S. 144 (1992) (holding that federal statute requiring States to [ILLEGIBLE WORD] title to and possession of waste generating property and to assume liability for certain damages incurred in relation to that property is unconstitutional because it forces the States to implement federal regulations); United States v. Lopez, 514 U.S. 549, 564 (1995) (holding invalid a federal exercise of the Commerce Clause power that usurped the State's police power "in areas such as criminal [ILLEGIBLE WORD] enforcement [and] education where States have historieally been sovereign"); Printz v. United States, 117 S. Ct. 2365 (1997) (holding invalid federal gun legislation because it compels States to execute federal laws).

Newly admitted States thus may not be shorn of "necessary attributes [of] an independent sovereign government" $=P14 by any Federal Government statement or action, no matter how plain the Federal Government's intent. Coyle v. Smith, 221 U.S. at 575 (citation omitted). This component of the doctrine is an important, but relatively modest, constraint on Federal authority. And it has only limited relevance to the Federal Government's treating with Indian tribes, as such activity takes place pursuant to constitutional provisions vesting the Federal Government with plenary power in the area.

n6 The United States is empowered in these circumstances not only to convey title to, but also to reserve submerged lands for public purposes. See United States v. Alaska, 117 S. Ct. at 1906.

n7 This presumption, though powerful, has been defeated in cases where the United States has conveyed title to submerged lands to Indian tribes. In such cases, another powerful presumption is at work--i.e., the presumption that treaty rights should not be impaired unless Congress has made clear its intention to do so. That presumption is supported by a strong principle of construction--that treaty rights should be generously construed as the Indians would have understood them. See Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970); Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918). Cf. Brewer Oil Co. v. United States, 260 U.S. 77 (1922) (holding, as a matter of law, that the Arkansas River is not navigable and therefore that a federal grant of an area encompassing the River included the bed and divested the State of title).

In sum, the Court has provided the States' title to submerged lands with heightened--though certainly not absolute--protection from Federal Government impairment. n8 This second component of the Equal Footing Doctrine, however, extends no further than the States' ownership of submerged lands. n9

n8 The unique and important relationship between sovereignty and submerged lands is also reflected in the public trust doctrine. See Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892).

n9 The Court also requires a plain statement from the Federal Government before it will find a Federal impairment of the State's authority "to determine the qualifications of their most important government officials," Gregory v. Ashcroft, 501 U.S. 452, 463 (1991), or a Federal abrogation of a State's sovereign immunity from suit in federal court, Blatchford v. Native Village of Nootak, 501 U.S. 775, 786 (1991). If the Federal Government attempted to so impair the fundamental sovereignty of a single State or a few States, this Court likely would require a plain statement of intent to do so under the Equal Footing Doctrine. But the Court does not impose a plain statement requirement solely because the Federal Government is acting in areas "traditionally regulated by the States"; rather the Court raises the bar for Federal action above traditional presumption analysis only when the Federal Government impairs State powers that "go to the heart of representative government" and are "of the most fundamental sort for a sovereign entity." Gregory, 501 U.S. at 460-63 (citation omitted).

To demonstrate this, Amici first establish the general proposition that, even where the States have important interests and historic powers, the Federal Government's actions within the realm of its constitutional authority do not give rise to equal footing violations, and the Court does not apply a plain statement requirement. Amici then show that this established rule applies in a way that requires the State's power to regulate wildlife to be reconciled with Federal law, including treaties.

2. While the Federal Government did not have title to public lands in the original 13 colonies when they became States, and while title to public lands was and is an important component of State sovereignty, the Federal Government nonetheless chose to exercise its constitutional $=P17 authority to retain title to public lands in the western Territories when they were admitted to the Union. n10 The Court has not treated this Federal retention of title to public lands as implicating the Equal Footing Doctrine. Thus, there is no presumption that the Federal Government has conveyed public lands to a new State upon admission to the Union absent a plain statement to the contrary. See United States v. Oregon, 295 U.S. 1, 14 (1935); Scott v. Lattig, 227 U.S. 229 (1913).

n10 See United States v. Texas, 339 U.S. at 716 ("some States when they entered the Union had within their boundaries tracts of land belonging to the Federal Government; others were sovereigns of their soil").

In Wisconsin v. Hitchcock, 201 U.S. 202 (1906), the State argued that, upon admission to the Union, it received title to tracts of public land to use for schools through a conveyance from the United States, although a prior treaty granted the same parcel to Indians "until they were required to surrender it by the President of the United States." The Court did not presume that the land passed to the State (either implicitly or through construction of the act of admission), and instead held that "whatever right the State of Wisconsin acquired by the enabling act . . . was subordinate to this right of occupancy for which the Indians stipulated and which the United States recognized." Id. at 213-14. n11

n11 See United States v. Gratiot, 39 U.S. 526, 536 (1840) (upholding continued application of law authorizing United States to lease lead mines in Territory after it became part of the State of Illinois); Light v. United States, 220 U.S. 523, 536 (1911) (holding that the Federal Government "can withhold or reserve the land . . . indefinitely").

Nor is there an Equal Footing presumption that States obtain title to submerged lands seaward of the low water line. See United States v. California, 332 U.S. 19 (1947); United States v. Texas, 339 U.S. 707, 717 (1950). (After these cases were decided, Congress enacted legislation to create a presumption that States hold title to submerged lands seaward of the low water mark. See Alabama c. Texas, 347 U.S. 272 (1954); 43 U.S.C. § 1301. But see id. 1313(b).

$=P18 Similarly, there is no presumption that, absent a plain statement to the contrary, a Federal reservation of water rights is terminated by implication upon Statehood as an impairment of the State's power over water. See Winters v. United States, 207 U.S. 564 (1908). Indeed, in Winters, far from presuming that Montana obtained the right to appropriate or regulate appropriation of water at Statehood, the Court held that "the power of the [Federal] Government to reserve the waters and exempt them from appropriation under the state laws is not denied, and could not be," that the treaty gave the tribe an implied right to appropriate water, and that Montana's admission to the Union did not terminate the tribe's right. Id. at 577. See also Arizona v. California, 373 U.S. 546, 597-98 (1963) (Congress' broad power to reserve water for Indian tribes is not limited by the Equal Footing Doctrine).

Finally, Federal laws and treaties regulating liquor within a Territory are not presumptively repealed when the Territory becomes a State, and the Court does not require a plain statement of congressional intent to impair the State's police power over liquor in order for such laws and treaties to survive Statehood. Instead, in a line of cases commencing with United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188 (1876), the Court has upheld treaties promising that United States statutes regulating liquor would be enforced in lands ceded by the Indians, and rejected claims that such treaties violate a State's equal footing with other States.

In Forty-Three Gallons of Whiskey, for example, the treaty made such United States laws applicable in ceded lands "'until otherwise directed by Congress or the President of the United States.'" Id. at 193 (citation omitted). Rejecting the State's equal footing claim, this Court enforced the treaty:

See also Dick v. United States, 208 U.S. 340, 359 (1908) (rejecting Idaho's equal footing claim and enforcing treaty providing that United States liquor statutes would apply on Indian lands and ceded lands for a period of 25 years); Johnson v. Gearlds, 234 U.S. at 439 (rejecting Minnesota's equal footing claim and enforcing treaty providing that United States liquor statutes would apply in ceded lands "until otherwise provided by Congress"). Cf. Ex Parte Webb, 225 U.S. 663, 690-91 (1912) (holding that the act admitting Oklahoma to the Union did not repeal a federal liquor statute, expressly or by implication); Perrin v. United States, 232 U.S. 478 (1913) (rejecting the argument that a treaty regulating liquor on ceded lands was invalid as an encroachment on the State's exclusive authority to regulate liquor). n12

n12 The cases cited involve treaties concluded before and after Statehood, but that fact does not alter the equal footing analysis: "If the making of such a treaty after the admission of the State is not inconsistent with the 'equal footing' of the State with the others . . . it seems to us to result that there is nothing in the effect of 'equal footing' clauses to operate as an implied repeal of such a treaty when previously established." Johnson v. Gearlds, 234 U.S. at 439.

The absence of a plain statement requirement in this area is particularly significant. There is an "historical tradition of concurrent state and federal jurisdiction over $=P20 the use and distribution of alcoholic beverages in Indian country," and the "State has an unquestionable interest in the liquor traffic that occurs within its borders." Rice v. Rehner, 463 U.S. 713, 724 (1983). Nonetheless, a treaty requiring Federal regulation of liquor on ceded lands does not impair a State's equal footing right, and Statehood does not terminate by implication treaties impairing the State's authority over liquor. The issue in such cases--as in other areas of concurrent State and Federal Government jurisdiction--is only whether application of a State liquor law or regulation "would impair a right granted or reserved by federal law." Id. at 726 (citation omitted). n13

n13 See also Hauenstein v. Lynham, 100 U.S. 483 (1879). In that case, the Court construed a treaty with Switzerland and addressed the disposition upon death of real property located in the United States but owned by Swiss citizens. The State's power to control the conveyance of real property within its borders is historically strong and substantial, but the Court had little trouble concluding that the treaty's provisions displaced State authority. Most pertinent here, the Court stated that "where a treaty admits of two constructions, one restrictive as to the rights, that may be claimed under it, and the other liberal, the latter is to be preferred." Id. at 487. Put differently, the Court did not attempt to give the treaty a narrow construction to avoid impairing the State's police power over real property conveyance.

3. At issue here is the State's police power over wildlife. It is neither a necessary sovereign power (like the power to locate the State capital) nor a fundamental sovereign power (like sovereign title to submerged lands). It is a power that coexists with clear Federal authority regarding the same subject matter. In this section, Amici show that the power is akin to the State's police power over liquor, and that this Court's cases have treated it so.

There can be no doubt about "the importance to its people that a State have power to preserve and regulate the exploitation of an important resource," such as the State's wildlife. Hughes v. Oklahoma, 441 U.S. 322, 335 (1979), quoting Toomer v. Witsell, 334 U.S. 385, 402 (1948). "States have broad trustee and police powers $=P21 over wild animals within their jurisdictions." Kleppe v. New Mexico, 426 U.S. at 545. Those powers are, however, subject to an important limitation: The State's "exercise [of its authority] may be not incompatible with, or restrained by, the rights conveyed to the Federal government by the Constitution." Id. at 545 (quotation omitted).

Accordingly, the State's regulatory authority over wildlife is limited by federal constitutional provisions, such as the Commerce Clause (see Hughes v. Oklahoma), and the Privileges and Immunities Clause (see Toomer v. Witsell; Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371 (1978)). In addition, and most relevant here, the Supremacy Clause limits State power to regulate wildlife when the Federal Government legitimately exercises one of its enumerated powers to enter into treaties or make laws and regulations concerning wildlife. See Kleppe v. New Mexico (Wild Free-Roaming Horses and Burros Act); Missouri v. Holland, 252 U.S. 416 (1920) (Migratory Birds Treaty Act); Hunt v. United States, 278 U.S. 96 (1928) (Federal regulation authorizing thinning of deer population in violation of State law). Indeed, Missouri v. Holland flatly rejects the argument that legislation enforcing a treaty regulating treatment of migratory birds is "an unconstitutional interference with the rights reserved to the States by the Tenth Amendment, and . . . invades the sovereign right of the State." 252 U.S. at 431. n14

n14 Citing Geer v. Connecticut, 161 U.S. 519 (1896), the State argued that its power over wildlife could not be impaired because it "owned" the wildlife within its borders. The Court characterized this argument as leaning on a "slender reed," 252 U.S. at 434. Geer was called into question for years and formally overruled in Hughes, 441 U.S. at 325-36.

Federal treaties and laws respecting wildlife thus do not impinge on fundamental sovereign powers of the State $=P22 that are protected by the Equal Footing Doctrine. n15 In this century, the Court has not required a Federal law or treaty regulating wildlife to contain a plain statement of Federal intent to prevent or limit State regulation of wildlife. Neither Missouri v. Holland nor any of this Court's cases interpreting treaties reserving usufructuary rights on off-reservation lands even hint at such a requirement. To the contrary, in such cases, as in many other cases involving construction of treaties with Indian tribes, the Court liberally and generously construes the reserved treaty rights at issue and rejects the argument that enforcement of such rights violates the State's equal footing right. See United States v. Winans, 198 U.S. at 380 (interpreting Yakima Indians' treaty right "to take fish at all usual and accustomed places" as the Indians "understood it, and 'as justice and reason demand in all cases where power is exerted by the strong over those to whom they owe care and protection'" and rejecting the argument that Washington's admission to the Union abrogated the treaty); Tulee v. Washington, 315 U.S. at 683-85 (holding that Indians' treaty right to fish in the "usual and accustomed places" must be "generously" interpreted, and rejecting the State's argument that the treaty should not be construed to work any impairment of the State's "broad powers" to regulate wildlife); Puyallup Tribe v. Department of Game, 391 U.S. 392, 397-98 (1968) (interpreting treaty right to fish "liberally" and "rejecting a strict, technical construction not in keeping with the justice of the case" and remanding for accommodation of rights); Antoine v. Washington, 420 U.S. at 199 (applying to a Congressional act ratifying an agreement to preserve a tribe's reserved usufructuary rights "the canon of construction" that "the wording of treaties and statutes ratifying agreements with the Indians is not $=P23 to be construed to their prejudice" and enforcing treaty rights).

n15 Minnesota is thus simply wrong as a matter of law when it asserts that its "interest in natural resource management is as important to its sovereignty as is its interest in owning and controlling the use of the beds of lakes and rivers." Brief at 37.

In two of the above-cited cases (Winans and Tulee), as in cases involving other aspects of State police power (Winters, Dick, Gearlds, Ex Parte Webb), the Court expressly held that tribal rights reserved by treaty are not implicitly repealed by an act admitting a State to the Union. These holdings are specific examples of the Court's general rule that Federal action will not be deemed to impair treaty rights absent "clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty." See United States v. Dion, 476 U.S. at 740. See also Menominee Tribe v. United States, 391 U.S. 404, 415 (1968).

The Court's decisions clearly chart the proper course here. The 1837 Treaty must be generously construed, and the usufructuary rights reserved in that Treaty may not be deemed repealed by implication when Minnesota became a State in 1858. The Federal treaty rights and State regulation of wildlife must be reconciled, if possible. n16

n16 As explained above, the timing of the State's admission does not affect the validity of a treaty right under the Equal Footing Doctrine. See note 12, supra. The Court's presumption that federally-recognized reservations of usufructuary rights are not repealed by implication at Statehood, however, is doubly warranted. When a tribe reserves rights in a treaty, the United States does not obtain sovereign authority over the tribe's exercise of such rights and thus cannot bequeath such authority to the new State. See, e.g., United States v. Winans, 198 U.S. at 381 ("the trealy was not a grant of rights to the Indians, but a grant of rights from them--a reservation of those [usufructuary rights] not granted").

Over the years, in cases involving usufructuary rights on off-reservation lands, the Court has developed a general rule governing the reconciliation of usufructuary rights reserved by Federal treaty and State regulation of $=P24 wildlife: Treaty rights must be enforced except to the extent that they are inconsistent with State regulations "necessary in the interest of conservation." Antoine v. Washington, 420 U.S. at 204-07. n17 This reconciliation of State and Federal interests accounts for the State's strongest interest without abrogating the Federal right. In Antoine, the Court explained why it requires this particular accommodation of the Federal right:

In this case, the district court and court of appeals upheld the Federal treaty right and ordered reconciliation $=P25 of the right and State laws necessary for conservation, just as this Court has instructed. n18

n18 Minnesota objects to any impairment of its "authority to unilaterally make management decisions regarding a wide variety of natural resource issues within the ceded territory" and attempts to arouse the Court's concern that the Federal courts will end up providing detailed supervision of such issues in Minnesota. Brief at 37-38. But Minnesota does not have "unilateral" authority over natural resource issues in the State; it shares its authority with the Federal Government. The Constitution requires the State to accommodate its regulation to Federal law, including reserved treaty rights of the tribes. This shared authority exists in Minnesota and in numerous other jurisdictions where tribes have usufructuary rights on off-reservation lands within State borders and, contrary to Minnesota's dire speculation, is generally exercised by the parties without significant Federal court intervention. See Brief of Bad River Band of Lake Superior Chippewa Indians (providing detailed description of the cooperative, effective, non-litigious relationship among Federal, State, and Tribal resource regulators and managers); Casting Light Upon the Waters (1991, 1995 editions) (describing the success of cooperative Federal, State and Tribal management of fishing in ceded areas in Wisconsin).

Petitioners rely solely on Ward v. Race Horse, 163 U.S. 504 (1896), to argue that the usufructuary rights reserved in the 1837 Treaty terminated when Minnesota became a State. In that case, the Court held that a treaty reserving to a tribe "the right to hunt on the unoccupied lands of the United States, so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts" terminated by its own terms when Wyoming became a State. The Court provided two rationales for its holding, neither of which has been good law since the turn of the century.

A. The Court in Race Horse erroneously believed that the State's police power over wildlife is an indefeasible sovereign power--in the words of the Court "an essential attribute of its governmental existence," 163 U.S. at 516. $=P26 Relying on this faulty premise, the Court treated the reserved usufructuary rights as terminated by necessary implication when the lands became part of a State.

The Race Horse opinion leaves no room for doubt that this fundamental mistake lies at the heart of its holding. The Court flatly states that a tribal reservation of usufructuary rights on lands outside of a reserved area is "irreconcilably" in conflict with the powers of the State over wildlife, because "when the United States has called into being a sovereign State, a necessary incident of [its] authority is the complete power to regulate the killing of game within its borders." Id. at 510. Thus, the Race Horse Court reasoned, the United States must have intended to terminate the usufructuary rights reserved in the 1869 Treaty when it admitted Wyoming to the Union:

The Court believed that if a treaty expressly states that usufructuary rights are terminated when the United States conveys title to the lands where they may be exercised, then, a fortiori, the treaty must be interpreted to terminate such rights when the lands become part of a State, because at Statehood, the "United States parted with its entire authority over the capture and killing of game." Id. at 55 (emphasis added).

The cases cited by Amici, including Kleppe, Holland, Hunt, Winans, and Antoine, demonstrate with unmistakable clarity that while the State has an important interest in the regulation of wildlife within its borders, the State $=P27 shares this authority with the Federal Government, and that State regulation must recede before a valid Federal exercise of the treaty power or any other constitutional source of Federal authority. In sum, the foundation of Race Horse has crumbled, and therefore the remainder of Race Horse should not stand.

B. The Court provided an alternative rationale for its decision in Race Horse. The Court assumed "for the sake of the argument," that if Congress were to create rights in a territory which are "of such a nature as to imply their perpetuity, and the consequent purpose of Congress to continue them in the State, after its admission," the Court would uphold such rights "although the enabling act does not expressly so direct." Id. at 515. But, the Court stated, "here the nature of the right created gives rise to no such implication of continuance, since, by its terms, it shows that the burden imposed on the Territory was essentially perishable and intended to be of a limited duration," because the "hunting privilege was to cease whenever the United States parted merely with the title to any of its lands." Id.

In other words, the Court stated that the treaty must be interpreted to provide for termination of the reserved usufructuary rights under two sets of conditions--one express and one implied. The treaty expressly terminated the rights if the United States conveyed title to the lands, if the lands became "occupied," or if there were no longer peace on the borders of the hunting districts. Because these limitations demonstrated that the reserved rights were temporary, the Court read into the treaty an additional implied condition under which the usufructuary rights would terminate--if the unoccupied lands were to become part of a State.

It is, at the very least, unusual for a court to add an implied provision to a list of express provisions for termination of treaty rights. The Race Horse approach is particularly odd because the implied provision is neither $=P28 derived from nor related to the express provisions themselves. See e.g., O'Melveny & Myers v. FDIC, 512 U.S. 79, 86-87 (1994); Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993); Singer, 2A Sutherland Statutory Construction §§ 47.23-25 (1992 ed.). There is no clear nexus between the fact that the right would terminate under the circumstances explicitly set forth in the treaty and termination upon Statehood. Indeed, if the reserved rights were merely temporary, they would seem to represent a smaller, and thus more acceptable, encroachment on the State's police power than would a permanent treaty right. Add to these points the presumption against implied impairment of treaty rights, and the Court's interpretation of the treaty in Race Horse represents a substantial departure from ordinary principles of treaty construction.

Equally to the point, both steps in the Court's alternative rationale--its interpretation of the treaty right as temporary and its extrapolation that temporary rights were necessarily repealed by implication at Statehood--are faulty. The treaty reserved usufructuary rights on the "unoccupied lands of the United States" so long as game was present and there was peace between whites and Indians. That right was temporary only if the United States' occupation of the lands identified in the treaty was temporary. Although the United States generally sought to convey title to lands in the western Territories to settlers, n19 there was no constitutional or legal requirement that it do so. Under the Property Clause of the United States Constitution, Art. IV, section 3, cl. 2, the Federal Government has the right to convey land or to retain title $=P29 and use the land for federal purposes. See note 6 supra. n20 The Court's assumption that the treaty right was temporary because the United States had to convey or occupy the land was incorrect.

n19 See C. Landever, "Whose Home on the Range? Equal Footing, the New Federalism and State Jurisdiction on Public Lands," 47 Fla. L. Rev. 557, 566 (1995) (making constitutionally based argument for concurrent Federal-State authority over Federal lands within State borders).

n20 See also Light v. United States, 220 U.S. at 537 (the courts "cannot compel [the Congress] to set aside the [public] lands for settlement; or to suffer them to be used for agricultural or grazing purposes; nor interfere when, in the exercise of its discretion, Congress establishes a forest reserve for what it decides to be national and public purposes"); Stearns v. Minnesota, 179 U.S. 223, 243 (1900) ("if Congress should determine that the great body of public lands within the State of Minnesota should be reserved from sale for an indefinite period it might do so, and thus the lands be exempted from taxation. . . .").

Second, this Court's cases make clear that, as a general matter, a treaty right which may be of limited duration is not presumptively terminated by Statehood. In Wisconsin v. Hitchcock, 201 U.S. at 213, the State asserted that tribal members' treaty right to land "until they were required to surrender it by the President of the United States" was terminated by Wisconsin's admission to the Union. In Dick v. United States, 208 U.S. 340 (1908), the State contended that a tribe's treaty right to the protection of federal liquor laws for 25 years was terminated by Idaho's admission to the Union. And in Johnson v. Gearlds, 234 U.S. 422 (1914), the State maintained that a tribe's treaty right to the protection of federal liquor laws "until otherwise provided by Congress" was terminated by Minnesota's admission to the Union. The Court firmly rejected the argument that these treaty rights--plainly subject to express provisions regarding termination just as the treaty right in Race Horse was--had been terminated by implication at Statehood. Instead, applying ordinarily principles of construction, the treaty rights were deemed to terminate if and when the condition stated in the treaty was met.

The Court drove itself to the conclusion that the treaty right in Race Horse was temporary and thus terminated $=P30 at Statehood, because it did not believe that the United States could require the State to accommodate its police power over wildlife with a Federal treaty reserving usufructuary rights on lands outside of a reservation and within a State's borders. See id. at 515. But under this Court's subsequent, better reasoned decisions, the United States unquestionably has such power, and the second rationale of Race Horse is just as hollow as the first.

C. At the end of the day, there is little of Race Horse that survives or should survive. To accept Minnesota's position, the Court would have to overrule more than a century's worth of Indian treaty cases on the basis of an expansive reading of a single decision, the fundamental tenets of which have been discredited for nearly as long. The notion that the State's police power over wildlife is irreducible cannot conceivably be squared with this Court's established authority to the contrary. Equally untenable is the conclusion that any reserved treaty right that is temporary is terminated by implication at Statehood. Finally, since the United States has an established right to retain public lands within State borders for public purposes, the presumption that the reserved right to hunt on "unoccupied lands" of the United States is temporary is also erroneous. What remains is only the proposition for which this Court has cited Race Horse in this century--that States can regulate usufructuary rights reserved in a treaty when necessary in the interest of conservation. E.g., Washington v. Passenger Fishing Vessel Ass'n, 443 U.S. at 682 n.25. That narrow conclusion simply does not alter the outcome in this case, and the Court should take this opportunity to complete the return of the Equal Footing Doctrine to its legitimate role in safeguarding essential elements of State sovereignty and no more.

JOHN BELL, ANNETTE KLAPSTEIN LAW OFFICE OF THE PUYALLUP TRIBE, 2002 E. 28th Street, Tacoma, WA 98404, (253) 573-7877

CARTER G. PHILLIPS * VIRGINIA A. SEITZ, SIDLEY & AUSTIN 1722 Eye Street, N.W. Washington, D.C. 20006 (202) 736-8000

HOW ARD J. BICHLER, Counsel of Record
OFFICE OF THE TRIBAL, ATTORNEY
Attorney for Respondent, St. Croix Chippewa Indians, of Wisconsin
Highway 70 and Angeline Road, P.O. Box 287, Hartel, WI 54845, (715) 349-2195
GUY C. CHARLTON, ANDREW H. MORGAN, CHARLTON LAW FIRM, LTD.
Attorneys for Respondent, Sokaogon Chippewa Community, 840 North Old World Third Street, Suite 500, Milwaukee, WI 53203, (414) 272-2855
M. JOAN WARREN, M. JOAN WARREN, & ASSOCIATES
Attorneys for Respondent, Lac Courte Oreilles Band of, Lake Superior Chippewa Indians, of Wisconsin, 310 Fourth Avenue South Suite 500, Minneapolis, MN 55415, (612) 335-8787

In an 1837 treaty, "the privilege of hunting, fishing, and gathering the wild rice" on lands and water ceded to the United States was "guarantied to the Indians, during the pleasure of the President of the United States." Does an 1850 executive order, which purported to "revoke" the privilege and order the Chippewa to remove from the ceded territory, bar enforcement of the privilege today, where:

a. the United States first suspended and then abondoned the order shortly after it was issued, federal officials recognized at the time that the Chippewa retained their usufructuary rights under the 1837 treaty, and it remains the pleasure of the President that the privilege be guaranteed to the Chippewa today;

b. the President had no authority in 1850 to order the Chippewa to remove from the 1837 ceded territory, and the sole purpose of the 1850 order was to remove the Chippewa; and

c. neither party to the 1837 treaty intended to authorize the President to "revoke" the privilege under the circumstances present in 1850; viz., the Chippewa presented no impediment to settlement of the ceded terrritory, local citizens wanted them to remain on account of their contributions to timber and mining operations and the fish and fur trade, and removal would have been disastrous to the Chippewa? [*ii]

[*1] Respondents St. Croix Chippewa Indians of Wisconsin, Sokaogon Chippewa Community and Lac Courte Oreilles Band of Lake Superior Chippewa Indians submit this brief in response to Minnesota's argument that the "privilege of hunting, fishing and gathering the wild rice" guaranteed in the 1837 Treaty with the Chippewa was permanently extinguished by an 1850 executive order. In providing that the privilege is "guarantied . . . during the pleasure of the President," the treaty conferred power on the President to determine when it should be guaranteed, but gave the President the no power to extinguish the privilege for all time. Because the 1850 order was suspended and abandoned by the United States shortly after it was issued, and it was then and remains today the pleasure of the President that the privilege should be guaranteed to and exercised by the Chippewa, the privilege is enforceable under the plain language of the treaty.

Moreover, the 1850 order was invalid when issued. The President had no authority to remove the Chippewa from the 1837 ceded territory. The purported revocation of hunting and fishing rights in the 1850 order was an integral part of an unlawful removal directive and cannot be severed from it. And, even if severable, the President's attempt to revoke the Chippewa's usufructuary privilege in 1850 exceeded his authority under the 1837 treaty. Under fundamental principles of contract and treaty interpretation, and the fiduciary duties imposed by the Northwest Ordinance and the trust responsibility, the President did not have unfettered discretion to withdraw the treaty guarantee. There is overwhelming evidence that neither party to the treaty intended to authorize the President to withdraw the privilege under the circumstances present in 1850.

In the late 19th and early 20th century, states began enforcing lish and game laws that conflicted with traditional, treaty-protected Indian hunting and fishing practices. The conflict grew as states gave increasing preference to sport hunting and fishing, imposing restrictive seasons and bag limits that were inconsistent with Indian subsistence harvests. Indians could not eat by seasons, nor could sporting bag limits suffice for famnly sustenance. See T. Lund, American Wildlife Law 60-67, 90 (Univ of Cal. Press 1980).

When the Chippewa and other Indians sought to hunt and fish without state interference under their treaties, the states claimed that Indian treaty [*2] rights were subject to state regulation. In a seminal decision, this Court reconciled the competing interests; it held that the states could regulate off-reservation Indian hunting and fishing rights, but only to the extent necessary for conservation. Tulee v. Washington, 315 U.S. 681, 684-85 (1942). Since Tulee, this and other courts have provided for the orderly implementation of such rights, permitting state regulation where necessary to protect public health and safety as well as to conserve natural resources, ensuring non-Indian access to searce resources by placing a ceiling on Indian harvests, and protecting private property rights by limiting the exercise of the Indians' rights to lands open to public hunting and fishing, except where treaties secure access to specific fishing grounds. n1

n1 E.g. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n. 443 U.S. 658, 682 & n.25, 685-86 (1979); Antoine v. Washington, 420 U.S. 194, 207-08 & n.11 (1975); United States v. Michigan, 653 F.2d 277, 279 (6th Cir.), cert. denied, 454 U.S. 1124 (1981); Lac Courte Oreilles Band v. Wisconsin, 775 F. Supp. 321, 323 (W.D. Wis. 1991); Lac Courte Oreilles Band v. Wisconsin, 668 F. Supp. 1233, 1237-42 (W.D. Wis. 1987); State v. Miller, 102 Wash. 2d 678, 687-88, 689 P.2d 81, 86 (1984); People v. LeBlanc, 399 Mich. 31, 61-64, 248 N.W. 2d 199, 214-15 (1976); State v. Tinno, 94 Idaho 759, 766, 497 P.2d 1386, 1393 (1972); cf. United States v. Winans, 198 U.S. 371, 381-82 (1905).

In Article 5 of the 1837 Chippewa treaty, the United States "guaranteed" that the Chippewa could hunt, fish and gather wild rice on lands and waters ceded to the United States "during the pleasure of the President." Petition Appendix ("PA") 486. The ceded territory is now located in Wisconsin and Minnesota. See map at Joint Appendix ("JA") 956 (App. A attached). In litigation involving the Wisconsin portion of the ceded territory, the Seventh Circuit held more than 15 years ago that the 1837 treaty rights were not terminated by the 1850 order, the United States supported that result, and this Court denied certiorari, Lac Courte Oreilles Band v. Voigt, 700 F.2d 341, 361-62 (7th Cir.), cert. denied, 464 U.S. 805 (1983); JA 575-77. On remand, the district court implemented the treaty right based on the standards developed in Tulee and its progeny, and no party appealed from its final judgment. See PA 22 n.19.

In this case, brought initially by the Mille Lacs Band and involving the Minnesota portion of the same ceded territory, the district court, on an extensive historical record n2 and again at the urging of the United States, [*3] held that the 1850 order did not extinguish the usufructuary privilege guaranteed in the 1837 treaty because: (1) the President had no authority to order the Chippewa to remove and the order could not be severed, PA 304-12; (2) even if severable the order exceeded the President's authority under the 1837 treaty, PA 312-16; and (3) the order was never carried out and was repealed, PA 319-21. The Wisconsin Bands intervened and the court's holding was applied to them, PA 201-02, and, in a separate case, to the Fond du Lac Band, PA 457-74. The United States, the Chippewa Bands and the State of Minnesota then stipulated to a regulatory and management system to implement the treaty right while protecting the State's interests in conservation, health and safety. PA 79-82. The system parallels state law in many respects, places ceilings on Chippewa harvests, and restricts the exercise of the right to public lands and a small category of private timber lands open to public hunting and fishing under state law. PA 79-82, 104-12, 137. The State did not challenge any aspect of this system on appeal. PA 14-16, 57-58 n.43, 73. n3

n2 The court received over 400 exhibits, consisting primarily of historical documents, and heard from 11 expert witnesses, who submitted most of their direct testimony before trial in the form of written reports and were [ILLEGIBLE WORD] examined extensively at trial. PA 218.

n3 At oral argument in the Eighth Circuit the State's counsel represented that "the State is not taking the position that the natural resourees will be damaged at all by the lower court's decision here." 6-12-97 Oral [ILLEGIBLE WORD] Tape # 1 (emphasis added).

The Eighth Circuit affirmed. With respect to the 1850 order, it held that, because the President had no authority to remove the Bands without their consent, and the Bands did not consent to remove from the 1837 ceded territory, the President had "no authority for his 1850 Executive Order of removal." PA 23-27. It held that the order to remove could not be severed from the purported revocation of hunting and fishing rights because "the purpose of the Order was to mandate removal, and this purpose was integral to the entire Order." PA 27-31. The court did not address the other grounds on which the district court held the order ineffective. PA 31 n.25.

The Chippewa bands in this case have small reservations in the [ILLEGIBLE WORD] of the larger territory they ceded. Their rights to hunt, fish and gather according to their own customs on the lands they ceded is essentiat to the usefulness of their reservations. The State contends that the attempt to take away those rights in 1850, which was corrected within two years of its issuance, repudiated and long forgotten, should now be given new [*4] life. This would recreate an injustice that was successfully corrected long ago, and serve no purpose other than to suppress Chippewa hunting and fishing practices. n4 Fifteen years of experience in Wisconsin and the initial experience under the stipulations in this case demonstrate the compatibility of those practices with the conservation of natural resources and all public health and safety concerns. Like the lower federal courts in Wisconsin and Minnesota, where all of the people in question live, this Court should hold that the Chippewa's rights remain in force today.

n4 This case began because, under Minnesota law, traditional Chippewa harvesting techniques such as spring spear fishing and the use of nets to catch fish for subsistence purposes are prohibited. See, e.g., Kegg Direct and Cross (JA 1230-32, 1239).

In 1837 the Chippewa country in northern Michigan, Wisconsin and Minnesota was a wilderness, in which only a few hundred non-Indians--fur traders, lumbermen and missionaries--could be found. The Chippewa survived by hunting, fishing and gathering, and by planting crops such as corn and squash. Following a seasonal round, they obtained virtually all of their material needs from the plants and animals in their environment. They were longstanding participants in the Northwest fur trade and supplied fish and game to miners and lumbermen entering their country. n5

In 1837 Commissioner of Indian Affairs Carey Harris prepared instructions for a treaty to acquire a tract of land from the Chippewa, noting that the land was "valuable for the pine woods which cover it, but [was] unfit for cultivation." The instructions made no reference to the removal of the Chippewa, and contemplated that they would remain east of the Mississippi River, where they would receive Government annuities and possibly be joined by other Indians from Michigan. The instructions did not refer to the 1830 Indian Removal Act, and addressed none of the measures authorized in that Act to induce Indian tribes to remove. n6

n6 PA 228-29; 5-13-37 Harris to Dodge and Smith (JA 42-44); see Cleland Direct (JA 1018-19). The Removal Act authorized the President to divide lands west of the Mississippi into districts "for the reception of such tribes or nations of Indians as may choose to exchange the lands where they now reside, and remove there." (Emphasis added.) To induce removal, the Act authorized the President to; appraise and pay for improvements; provide assistance in removal and settlement; provide subsistence for one year after removal "forever secure and guaranty" new lands to the tribes; and protect the tribes from disturbances in such lands. PA 225-26; Act of May 28, 1830. 4 Stat 411-12 (JA 20-23).

[*5] The Chippewa were summoned to Fort Snelling (near present-day St. Paul) for the treaty council. The district court found that translation between English and Chippewa presented a tremendous challenge. The two languages have radically different structures, and there are no Chippewa counterparts for the highly refined English legal vocabulary. The secretary to the treaty commission believed the interpreters were "unfit to act in that capacity." n7

n7 PA 229-30; Nichols Rpt. (JA 845-50); Nichols Direct (JA 1152-50). 1837 Treaty Journal (JA 64-65, 70 n.5).

The United States' representative, Wisconsin Territorial Governor Henry Dodge, informed the Chippewa that the United States wanted to purchase their land "for the advantage of its Pine Timber." JA 46, 66. The Chippewa agreed to sell their lands, but insisted upon the privilege of hunting, fishing and gathering in the ceded territory. n8 A Chippewa spokesman, Ma-ghe-ga-bo, stated:

JA 69-70 (emphasis in original). The federal official transcribing the proceedings added a footnote to this statement, in which he commented:

The next day Aish-ke-bo-gi-ko-zhe (Flat Mouth) reiterated that the Chippewa wanted the privilege to hunt, fish and gather on the ceded lands:

n10 Dodge repeated the assurance that the Government would treal the Chippewa justly at several points in the treaty council. JA 74, 86; see PA 223 24; Cleland Rpt. (JA 628-29); Driben Cross (JA 1381-82).

The 1837 treaty contains a cession of land within defined boundaries and the following reservation of hunting and fishing rights:

Governor Dodge did not explain the phrase "during the pleasure of the President" during the treaty council and the district court found that the Chippewa did not understand it to give the President unfettered discretion to revoke the usufructuary privilege. Given the repeated assurances by Governor Dodge that the President (their "Great Father") would treat them justly, the Chippewa understood that the President would protect their rights, and would not revoke them without good cause. n12

n11 Treaty with the Chippewa, 1837, 7 Stat. 536 (July 29, [ILLEGIBLE WORDS] 5) (PA 484-89).

n12 PA 235-37; Nichols Direct (JA 1159-61); Cleland Rpt. (JA 628 [ILLEGIBLE WORD] Cleland Direct (JA 1014-16).

There is no provision for removal in the treaty. Governor Dodge described the results to Commissioner Harris in August 1837, and made [*8] no reference to removal. n13 On August 17, 1837, a missionary who attended the treaty council, William Bootwell, predicted trouble if the Government attempted to remove the Chippewa, because they had "no idea of leaving their country while they live--they know nothing of the duration of a man's pleasure." n14

n14 8-17-1837 Boutwell to Greene (JA 99). See also 1-21-1851 Warren to Ramsey (JA 205) ("No provision has ever been made in any of their treaties contemplating [the Chippewa's] removal.... Whether this will go to prove that their early removal had not been heretofore contemplated by our Government or is mainly a want of foresight in the commissioners negotiating treaties with them, I will not presume to say.").

In 1842 the United States sought to acquire from the Chippewa a cession of their lands north of those ceded by the 1837 treaty, along the south shore of Lake Superior in Wisconsin and in Michigan's Upper Peninsula, including valuable mineral lands. Unlike the instructions for the 1837 treaty, the 1842 instructions expressly called for a treaty stipulation authorizing removal, while noting that it was "not likely that it [would] be necessary for [the Chippewa] to remove for a considerable time." n15 The 1842 treaty council took place at La Pointe and involved many of the same bands as the 1837 treaty. The Chippewa again insisted on the privilege of hunting, fishing and gathering on ceded lands, and strongly opposed any provision that would give the President authority to remove them from the ceded territory. They refused to sign the treaty until they received assurances that they would not be removed either during the term of their annuities (25 years) or their lifetimes, and for a longer period if they remained peaceable. Government officials confirmed that these assurances were given, and that without them no treaty could have been made. n16

n15 8-1-1842 Crawford to Stuart (JA 116-17); see PA 241; Cleland Rpt. (JA 634-35).

n16 PA 241, 255-56; Cleland Rpt. (JA 641-46); Cleland Direct (JA 1017); Newell Cross (JA 1323-55); 12-14-1853 Gilbert to Manypenny (JA 241); 11-6-1851 Buffalo to Lea (JA 226-27); 6-30-1851 Chippewa Address at Swan River (JA 218); 1-21-1851 Warren to Ramsey (JA 204-05); 1-21-1851 Treat to Lea (JA 199); 1-6-1851 Mendenhall to Lea (JA 196-97); 5-10-1850 Livermore to Brown (JA 174-75); 3-26-1850 Livermore to Ramsey (JA 167); 3-9-1850 Minnesota Chronicle and Register (JA 164-65); S. Doc. No. 403, 29th Cong. 1st Sess. 1-3 (June 24, 1846) (JA 130); 1-6-1843 Brunson to Doty (JA 121-22).

[*9] Article I of the 1842 treaty ceded lands in the State of Michigan and Territory of Wisconsin, north and east of those ceded in 1837, see App. A, and Article II reserved the "right of hunting" and "privileges of occupancy" in the 1842 ceded territory, until the Chippewa were "required to remove by the President of the United States." Article IV separately provided for removal from mineral lands "at the pleasure of the President of the United States." The treaty contains no provision authorizing removal from the 1837 ceded territory. n17

n17 Treaty with the Chippewa, 1842, 7 Stat. 591 (Oct. 4, 1842); see PA 241 n.10.

In 1847 and 1848 Commissioner of Indian Affairs William Medill advocated purchase of Chippewa lands east of the Mississippi and their removal to the west. In 1847 he wrote instructions for a Chippewa treaty to acquire two tracts of land, immediately west of the 1837 cesston, to which the Winnebago and Menominee could be removed, and to obtain a cession of the Chippewa's remaining lands east of the Mississippi and their agreement to remove to the west. The treaty commissioners successfully acquired land for the Winnebago and Menominee, see App. A, but were unable to secure a cession of Chippewa lands east of the Mississippi or Chippewa consent for removal. n18 The Chippewa, local citizens and missionaries opposed removal, because the lands occupred by the Chippewa were not needed for settlement, the Chippewa presence in the ceded territory was important to lumbermen, miners and fur traders, and there were no lands suitable for Chippewa resettlement. n19

n18 PA 243-47; Treaty with the Chippewa of the Mississippi and [ILLEGIBLE WORD] Superior, 1847, 9 Stat. 904 (Aug. 2, 1847); Treaty with the Pillager Band [ILLEGIBLE WORD] Chippewa Indians, 1847, 9 Stat. 908 (Aug. 21, 1847).

n19 PA 249-50; 2-25-1850 Hall to Treat (JA 156). The [ILLEGIBLE WORD] statements that the ceded lands were not wanted for settlement are [ILLEGIBLE WORD] by available demographic data. According to an expert [ILLEGIBLE WORDS] Landowners, "in 1849 Minnesota Territory was little more than a [ILLEGIBLE WORD] In 1850, there were only 892 whites in the Minnesota part of the 1837 [ILLEGIBLE WORD] territory, or 09 persons per square mile. PA 245; Squires Rpt. (JA 911). [ILLEGIBLE WORD] Rpt. (JA 873); Cleland Rpt. (JA 657-67).

The impetus for an executive removal order came from the newly formed Minnesota Territory. In September 1849, Territorial Governor Alexander Ramsey asserted that settlers near Sauk Rapids and Swan River complained about the "demoralizing effects" of the 1837 privilege, [*10] and urged the Territorial Legislature "to memorialize the President of the United States, requesting him to notify the Chippeways that these privileges must cease and requiring them to move into their proper territory." In October the Legislature approved "Joint Resolutions relative to the removal of the Chippewa Indians from the ceded lands within the Territory of Minnesota," which resolved:

The claim that the Chippewa were interfering with settlers in Minnesota was not supported by the official record of depredation claims, which contained only one minor claim against the Chippewa at the time; indeed, although more serious claims were made against the Winnebago in the vicinity of Sauk Rapids and Swan River, Ramsey did not seek their removal. n21 Moreover, the agent for the Mississippi Chippewa contradicted Ramsey's account, stating that the Chippewa were "peaceable, temperate, and industrious." n22 When put in charge of implementing the removal order, Governor Ramsey took no steps to remove the Chippewa from the vicinity of Sauk Rapids or Swan River or to restrict their hunting and fishing privileges there, but instead focussed on bringing Chippewa to Minnesota, in closer proximity to these Mississippi River settlements. n23

n23 PA 267-68; Cleland Rpt. (JA 677); Cleland Direct (JA 1025-26); White Direct (JA 1099). With respect to the Mille Lacs Chippewa, Governor Ramsey himself wrote in 1850 that they were "forty or fifty miles from any white settlement" and prospered from abundant resources of the area. In 1851 he wrote that they "have for some years evinced an improving disposition" and instructed the Indian agent to assist them in farming at Mille Lacs (i.e. within the 1837 ceded territory). PA 268. In 1852, two newspapers reported that the Mille Lacs Chippewa supplied venison, fish, fowl, berries and wild rice to lumbermen operating on the Rum River and helped make it "the [ILLEGIBLE WORD] desirable point for lumbering that has yet been discovered in Minnesota" PA 269; Cleland Rpt. (JA 611-12).

[*11] On this record, the district court found that Minnesota politicians, including Ramsey, advocated removal not because of settler complaints, but because they wanted to bring the Chippewa from Wisconsin to Minnesota, "to obtain more of the economic benefits generated by having a large number of Indians residing in their territory." PA 251. This purpose was illustrated by the extra-territorial scope of the resolutions. All of the lands ceded in the 1842 treaty were in Michigan and Wisconsin, and a substantial portion of those ceded in the 1837 treaty were in Wisconsin. Revoking the Chippewa's usufructuary privileges in Michigan and Wisconsin would not help "ensure the security and tranquility of white settlements" in Minnesota. However, moving the Chippewa from Michigan and Wisconsin to Minnesota would have important benefits for the Territory: Minnesota traders would be more likely to benefit from the annuity payments made to the Chippewa; Minnesota businesses would be able to compete for the lucrative business of supplying and transporting annuity goods; and Minnesota would receive money from and patronage opportunities at Indian agencies and their schools, farms and blacksmith establishments. As Henry Rice, an influential fur trader on the upper Mississippi, wrote to Governor Ramsey, "Minnesota would reap the benefit [from the Chippewa's removal] whereas now their annuities pass via Detroit and not one dollar do our inhabitants get." n24

n24 PA 251-52; Cleland Rpt. (JA 668-71, 674); White Direct (JA 1095), 12-1-1849 Rice to Ramsey (JA 149-50); see also 2-15-1850 Rice to Ramsey (JA 152) ("removing the indians of Lake Superior to and paying them annuities on the Mississippi will have a great influence on Minnesota. espectally [ILLEGIBLE WORD] Paul") (emphasis added); 12-31-1853 Hall to Treat (Pls. Exh. 98 at 10) (Removal "is a political business brought about through the [ILLEGIBLE WORDS] persons interested in the growth of this territory. They destre to get the Indians here, because it will bring more business and money into the [ILLEGIBLE WORD]

The State's expert cited two published historical accounts of the 1850 order, both of which conclude that the order was not motivated [ILLEGIBLE WORDS] complaints, but by the desire to bring more Chippewa to [ILLEGIBLE WORDS] economic reasons. Driben "Armstrong" Rpt. (Defs. Exh. 5 at 8-9 [ILLEGIBLE WORDS] R. Satz, Chippewa Treary Rights 52-53 (Wis. Academy of [ILLEGIBLE WORDS] Letters 1991) (lodged with the Court by respondents Bad River Band et al.); Clifton, Wisconsin Death March: Explaining the Extremes in Old Northwest Indian Removal, 75 Trans. of the Wis. Academy of Sciences, Arts and Letters 1, 19-20 (1987) (JA 1681-82).

[*12] Ramsey and Rice lobbied for an executive removal order in Washington D.C. and on February 6, 1850, President Taylor signed the following order:

Commissioner of Indian Affairs Brown sent the order to Ramsey on the same day. His transmittal letter addressed steps to remove the Chippewa, but made no suggestion that Chippewa hunting, fishing and gathering activities should be restricted. Brown referred to his "late annual report" for an explanation of "the policy of the measure," which likewise focussed on removal, not hunting, fishing and gathering rights. n25

Upon receipt of Commissioner Brown's letter, Governor Ramsey sent instructions to the La Pointe sub-agent, John Livermore, enclosing "a copy of the order of the President for the removal of the Chippewas, from the lands they have ceded in Wisconsin." Ramsey made no reference to the removal of the Chippewa from lands ceded in Minnesota, or to the revocation of usufructuary privileges. n26 Livermore prepared a circular to notify the Wisconsin bands of the order, but made no reference to the [*13] revocation of hunting and fishing privileges. n27 No efforts were ever made to remove the Chippewa from the portion of the 1837 ceded territory in Minnesota. n28

n27 PA 256-57; see also 3-26-1850 Livermore to Ramsey (JA 168) ([ILLEGIBLE WORD] of removal deferred while Chippewa hunt and make sugar).

n28 PA 267; Cleland Rpt. (JA 677). Some St. Croix Chippewa on the Minnesota-Wisconsin border were later removed to Mille Lacs (within the 1837 ceded territory), but soon returned home. PA 267; Newell Cross (JA 1353-54).

In Michigan and Wisconsin local citizens protested the order. One such letter to President Taylor stated that

A July 1850 petition to the President signed by nearly "every principal man in business in the country" stated that removal was "wholly uncalled for by any interest of the Government or people of the United States, and that it would be in a high degree prejudicial to the welfare of the Indians." It added that the lands occupied by the Indians were "undesirable for agricultural purposes, and not demanded by any influx of white settlers," and that "the most friendly feelings, strengthened by mutual kind offices, has at all times, existed between the Indians and ourselves." n30

n29 5-9-1850 Mendenhall to Taylor (Pls. Exh. 92 at 1); see Cleland Rpt. (JA 654-55).

n30 7-30-1850 Giddings to President (Pls. Exh. 93) (emphasis added) see 1-6-1851 Mendenhall to Lea (JA 190).

Although the Chippewa were told that removal was ordered "on strength of the [1842] treaty," they believed it was unauthorized by either the 1837 or the 1842 treaty, and federal officials verified that it violated the assurances they received in 1842 that they would not be required to remove so long as they were peaceable. n31 Moreover, the lands to which the Government sought to remove them were occupied by bands who had not agreed to receive them, and were insufficient to support those to [*14] be removed and those already living there. n32 By 1850 the Chippewa had purchased lands and homes in the ceded territory, and they did not want to leave their homes and burial grounds or the territories where they hunted, fished and gathered. n33

n32 PA 255; 1-21-1851 Treat to Lea (JA 200); 1-6-1851 Mendenhall to Lea (JA 192-93); 3-26-1850 Livermore to Ramsey (JA 171); 4-25-1850 C. Beaulieu to Borup (JA 176); see Newell Cross (JA 1341).

To circumvent the opposition to removal, Governor Ramsey planned the 1850 annuity payment "in such a way as to interpose obstacles to a return to the country they left." Removal Agent Watrous told the Chippewa that they had to be at Sandy Lake, Minnesota, by October 25 to receive the payment. By November 10, almost 4,000 Chippewa had gathered there, but Agent Watrous did not arrive until November 24, and the annuity goods were not distributed until December 2. n34 Measles and dysentery broke out while the Chippewa were waiting, and 150 to 170 died. Another 230 Chippewa perished on the difficult winter trip home to Wisconsin. n35

n34 PA 257. Congress appropriated $ 25,000 on September 30, 1850, "for expenses of removal and subsistence of the Chippewas of Lake Superior and Mississippi from the lands ceded under the [1842] Treaty." 9 Stat. 544 (PA 525). It appropriated another $ 25,000 on February 27, 1851, "for expenses of removal and subsistence of the Chippewas of Lake Superior and the Mississippi from the lands ceded under the Treaties of [1837] and [1842]." 9 Stat. 570 (PA 530).

n35 PA 257-60; 1-21-1851 Warren to Ramsey (JA 206-07); 11-6-1851 Buffalo to Lea (JA 227-29).

On June 3, 1851, Commissioner of Indian Affairs Luke Lea wrote to the Secretary of the Interior recommending that the President's order be modified to permit the Chippewa "to remain for the present in the country they now occupy." Lea explained that when the effect of the order became known, "communications from sources of the highest consideration ... were received at this office remonstrating in strong terms against the application of the order to these Indians." Lea concluded that removal of the Chippewa was "not required by the interests of the citizens or Government of the United States and would in its consequences in all probability be disastrous to the Indians," and recommended that "the order of the President be modified as to permit such portions of [*15] those bands as may desire it to remain for the present in the country they now occupy." n36

On August 23, 1851, the Acting Commissioner of Indian Affairs informed the Secretary of the Interior that 1,000 Chippewa were assembled at La Pointe but could not be removed without the aid of troops. He reiterated the concerns expressed in Lea's June 3rd letter, and sought the Secretary's authorization "to instruct Agent Watrous to suspend the removal of these Indians until the determination of the President upon the recommendation of the commissioner is made known to this office." Two days later the Secretary authorized Lea "to suspend the removal of the Chippeway Indians until the final determination of the President upon the subject of your letter of the 3rd June 1851," and Lea telegraphed Watrous to "suspend action with reference to the removal of the Lake Superior Chippewas for further orders." n37

n37 PA 259-61; White Direct (JA 1106-08); 8-25-1851 Lea [ILLEGIBLE WORDS] (JA 225); 8-25-1851 [Graham] to Commissioner (JA 225); 8-23-1851 [ILLEGIBLE WORDS] Graham (JA 223).

In Minnesota, Governor Ramsey agreed that "no pressing necessity exists for [the Chippewa's] immediate removal, so far as the [ILLEGIBLE WORD] rights, prejudices even of our citizens are concerned, who inhabit the lands they have ceded but continue to occupy." Although Governor Ramsey recommended, and Commissioner Lea approved, a policy of only paying annuities on unceded lands to those Indians who removed, very few Chippewa actually removed, and those who did quickly returned. A Lake Superior missionary, Rev. Wheeler, wrote in March 1852 that the "end has now come" to the removal effort, the $ 50,000 expended by the Government was "worse than wasted," and the Indians have "nearly all returned to their old homes." Because they did not receive annuity payments in 1852, "more of [the Chippewa] than usual have gone a hunting, their furs bringing them the ready cash or its equivalent in something else." No government official made any attempt to prevent the Chippewa from pursuing these activities. n38

n38 PA 261-63; 12-26-1851 Ramsey to Lea (JA 235) (emphasis added). 3-2-1852 Wheeler to Treat (Pls. Exh. 227 at 1); 11-20-1852 Wheeler [ILLEGIBLE WORDS] (Pls. Exh. 105 at 1).

In 1853, the Government reversed the policy of only paying [ILLEGIBLE WORD] to those who had removed and, in so doing, made it clear that the [*16] Chippewa could continue to exercise their usufructuary privileges on ceded lands. In that year President Pierce took office and appointed George Manypenny as Commissioner of Indians Affairs and Willis Gorman as Governor and ex officio Superintendent of Indian Affairs of the Minnesota Territory. The Indian Office appointed Henry Gilbert as a Special Agent to make the annuity payment to the Lake Superior Chippewa and authorized Governor Gorman to pay the other Wisconsin bands on the St. Croix River, within the 1837 ceded territory. The payments included hunting and fishing equipment, such as powder, lead and shot. Rev. Wheeler wrote that it was "almost certain that no further efforts will be made to remove these Indians." and that the removal effort was not only a failure, but "seen by the Department in Washington to have originated with a few designing men who wanted the Indians removed that they might get their money." n39

After the La Pointe payment, Agent Gilbert reported that the removal order was "the great terror of [the Chippewa's] lives." He confirmed that they had been assured that they would not be removed at the 1842 treaty council, and recommended that the "policy of removal" be abandoned, that the Chippewa be given land near their present homes, and that they receive their annuity payments within the ceded territory. n40 He also "adverted to the perfectly good understanding & harmony existing between the white residents of the country & the Indians," and stated that "it seems hardly possible that any collision, or even inconvenience can result from permitting the Indians to become permanently domiciled in the country." Gilbert linked his recommendations to the prospects for a new treaty to acquire unceded Chippewa lands on the north shore of Lake Superior. n41 Minnesota Governor Gorman also recognized the need to smooth the way for a new treaty, and emphasized the importance of assisting the Chippewa in hunting and fishing:

In May and June 1854 Congress considered a bill to authorize a treaty "for the extinguishment of the title of the Chippewa Indians to the lands owned and claimed by them in the Territory of Minnesota and the State of Wisconsin." Contrary to the stated objectives of the 1850 order, the Chippewa would receive lands where they were living: "The [House Indian Affairs] committee desire that they shall be allowed to remain on their own lands, and cultivate the same; and we are informed that such is the desire of the people of Minnesota." The House sponsor explained that

The Senate sponsor added that while the bill contemplated opening Indian lands to settlement and mining, it did "not design to remove the Indians at all." Rather, it "prescribes ... that the Indians shall not be removed from the territory ... and it reserves to them those rights which are secured by former treaties." n43

n43 PA 272; 23 Cong. Globe, 33rd Cong., 1st Sess 1032, 1403-04 [ILLEGIBLE WORD] (emphasis added).

Although the bill did not pass the Senate until December. Commissioner Manypenny authorized Agent Gilbert to conduct treaty negotiations when he assembled the Chippewa for the fall annuity payment. He sought to acquire "all the country" the Chippewa still owned, with the exception of 743,000 acres for reservations. n44 Gilbert reported to Manypenny in October 1854 that the Chippewa "strenuously [ILLEGIBLE WORD]" [*18] both on "the privilege of remaining in the country where they reside" and on the reservation of lands for their homes, and that the treaty could not have been made if he had not yielded these two points. The reservations made by the treaty contained less than 300,000 acres altogether, and were located on lands ceded in 1837, 1842 and 1854. Gilbert recognized that the Chippewa would be leaving the reservations to engage in usufructuary activities, noting that a large portion of the land reserved for the La Pointe band was "valueless except as it gives them access to [Lake Superior] for fishing purposes." n45 He assured the Chippewa that the reservations "were not to confine [them] all together to live upon them--that [they] should have the privilege of going out of [them] whenever [they] had a mind for hunting purposes." n46

n44 PA 273; 8-11-1854 Manypenny to Gilbert (JA 263-64); 8-12 [ILLEGIBLE WORD] Manypenny to Gilbert (JA 269).

n45 PA 273-75; 10-17-1854 Gilbert to Manypenny (JA 271-73) (emphasis added). The reservations established in the treaties were like "postage stamps" within the ceded territory; absent the ability to hunt, fish and gather offreservation the Chippewa would have starved. Cleland Direct (JA 1029-30, 1033, 1041-42); Cleland Rpt. (JA 728-30).

In addition to establishing reservations on ceded lands, the treaty provided in Article 4 for payments of "two hundred guns, one hundred rifles, five hundred beaver traps, [and] three hundred dollars worth of ammunition." Article 11 pledged that the Chippewa would not be removed, and reserved usufructuary rights on newly ceded lands:

In his 1854 annual report, Commissioner Manypenny explained the status of the Chippewa bands within the 1837 and 1842 cessions:

Two weeks later Manypenny forwarded the 1854 treaty, along with Agent Gilbert's report, to Secretary of the Interior McClelland. After Congress passed the bill authorizing the treaty, the President forwarded it to the Senate, where it was ratified. n49

n49 PA 275; Sen. Exec. No. 5, 33rd Cong., 2d Sess. (Jan. 4, 1855) (JA 282-85); Act of December 19, 1854, 10 Stat. 598 (PA 532-34); 24 Cong. Globe, 33rd Cong. 2d Sess. 53-54 (Dec. 14, 1854) (Pls. Exh. 137).

The 1855 Chippewa treaty is discussed at length in the district court's findings. PA 275-92. It established an additional reservation within the 1837 ceded territory as a "permanent home" for the Mille Lacs Band. Like the reservations established in the 1854 treaty, the small Mille Lacs Reservation provided access to important off-reservation resources, upon which the band depended for its survival. n50

n50 PA 283, 292; Treaty with the Chippewa, 1855, 10 Stat. 1165 (PA 503-04); Cleland Direct (JA 1042).

In February 1855 Governor Gorman wrote to Commissioner Manypenny about a lumbermen's dam that flooded wild rice beds used by the Mille Lacs Chippewa. In discussing the competing interests. Governor Gorman recognized that the Chippewa retained hunting and fishing rights on lands they had ceded to the United States:

Governor Gorman's letter makes it clear that the lands were ceded in the 1837 treaty, and the retained hunting and fishing rights were those secured by Article 5 of the 1837 treaty. n51 In addition to Governor Gorman, the lumbermen, other non-Indians and all of the Indians believed that the Chippewa retained their rights under the 1837 treaty, [*20] and Governor Gorman repeated his position in a letter to the Chippewa. n52 Neither Commissioner Manypenny, Secretary McClelland (who was involved in the ultimate resolution of the dam controversy), nor anyone else disputed Gorman's statement that the Chippewa retained hunting and fishing privileges under the 1837 treaty. n53

n51 PA 269-70; 2-16-1855 Gorman to Manypenny (JA 295-96) (emphasis added); Cleland Direct (JA 1030-31). The State's expert agreed that ([ILLEGIBLE WORD] was referring to hunting and fishing rights under the 1837 treaty. Newell Cross (JA 1308-10).

n52 PA 270-71; 6-4-1855 Petition, Garland et al. to Gorman (Pls. Exh. 20 at MN 10135); 6-4-1855 Gorman to Little Hill (Pls. Exh. 19 at 1); 3-9-1855 Hamilton to Stewart (JA 360).

There is no reference in the historical record to the 1850 order for the next 75 years, although the Chippewa continued to hunt, fish and gather throughout the 1837 ceded territory. Notwithstanding sporadic efforts by the State of Minnesota to confine the Chippewa to their reservations, n54 the United States affirmatively supported these activities, supplying guns, traps, fish nets and other implements, and agreeing to make annuity payments at times that would not interfere with seasonal harvesting patterns. n55 During the last decade of the 19th century, as Wisconsin and Minnesota began systematic efforts to enforce their fish and game laws against the Chippewa, the Chippewa protested that they had rights to hunt, fish and gather under the 1837, 1842 and 1854 treaties. n56 In 1897, the United States Attorney for Minnesota argued that the State had no power to interfere with the privileges reserved in the 1837 and 1854 treaties, and Minnesota's Attorney General agreed. In 1925, the Commissioner of Indian Affairs believed there was "merit in the claims of the Indians" under the 1837 and 1854 treaties, and suggested a test case be initiated. n57

n55 PA 292-93, 299, 326; Cleland Rpt. (JA 598-607, 753-67); McClurken Rpt. (JA 829-37).

n56 PA 298-99, 326-27; Cleland Rpt. (JA 757, 761-62); 12-14-1928 Superintendent to Commissioner (JA 1804).

n57 PA 299, 326-27 & n.21; Cleland Rpt. (JA 762-65); 4-15-1897 Scott to Commissioner (JA 529-35); 12-9-1925 [ILLEGIBLE WORD] to Hammitt (JA 540-41); 12-2-1928 Burke to Hammitt (JA 545-46).

During this 75-year period, despite controversy over off-reservation hunting and fishing, no one claimed that the Chippewa's rights had been revoked by the 1850 order. In two cases before this Court, the United [*21] States represented and the Court found that the Chippewa had never been removed and their "privileges of occupancy" under the 1842 treaty had never been revoked. See Wisconsin v. Hitchcock, 201 U.S. 202, 213-14 (1906); United States v. Thomas, 151 U.S. 577, 582 (1894); JA 506. It was not until 1930 that anyone asserted the Chippewa's rights had been abrogated by the 1850 order. This assertion was reiterated by a variety of officials in the 1930s and early 1940s, including in one case by President Roosevelt, but it was not accompanied by analysis of the circumstances surrounding the issuance or abandonment of the order. PA 300. When the Executive Branch fully examined those circumstances in a Court of Claims case involving the ownership of swamp lands within some of the Wisconsin reservations, it asserted that the order had no effect on the Chippewa's treaty rights. In 1947 and 1948, the United States argued that the "right of occupancy" under Article II of the 1842 treaty was unaffected by the 1850 order because "the Executive Order was never carried out." In 1954 it added that: (1) "Congress did not act as though the order was effective"; (2) the 1854 treaty "in effect canceled the President's Executive Order"; and (3) in its contemporaneous "administrative interpretations ... the United States never considered that the Indian rights were terminated thereby." n58

n58 Mole Lake Band v. United States, Ct. Cl. No. 45162(1), Dls. Obj to Findings (Jan. 3, 1947) (JA 556-58); Dfs. Req. for Findings (July 23, 1948) (JA 559-61); Dfs. Obj. to Findings (Mar. 1, 1954) (JA 562-65). The effect of the 1850 order was not decided in the Mole Lake case. PA 43-44.

The United States has since taken the same position with respect to the effect of the 1850 order on the hunting and fishing privileges in the 1837 and 1842 treaties. In the Lac Courte Oreilles litigation, Solicitor General Lee informed this Court that, "whether or not valid and authorized, the 1850 Executive Order does not determine the legal issues at hand because the Order was never enforced" and, in fact, "was quickly abandoned as the policy of the United States, and superseded by the Treaty of La Pointe." n59 The United States has argued throughout this case that the 1850 order has no present effect on the usufructuary privileges guaranteed to the Chippewa in the 1837 treaty, both because [ILLEGIBLE WORD] was invalid when issued and because it was abandoned by the Executive Branch.

n59 United States' Motion to Dismiss and Affirm at 12-13, [ILLEGIBLE WORDS] Lac Courte Oreilles Band, 464 U.S. 805 (1983) (No. 83-6) (JA 575-76).

[*22] Moreover, for many years the United States Fish and Wildlife Service has promulgated annual regulations under the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 et seq., that affirmatively provide for the exercise of Chippewa hunting rights under the 1837 and 1842 treaties. n60 In 1992 Minnesota objected to these regulations on the ground that the Lac Courte Oreilles decision was binding only in Wisconsin and not in Minnesota. The Service responded that "the United States Government" recognized the rights, that the treaties cover Minnesota (and Michigan) as well as Wisconsin, and that the Service had implemented the rights in all three states for many years. 57 Fed. Reg. 35,446, 35,450 (Aug. 7, 1992).

n60 For recent examples, see 62 Fed. Reg. 46,420, 46,422-23 (Sept. 2, 1997); 61 Fed. Reg. 46,352, 46,355 (Aug. 30, 1996).

In the late 1980s, non-Indians protested Chippewa exercise of their 1837 and 1842 treaty rights. Congress held hearings, but rejected bills to abrogate the hunting and fishing rights reserved in those treaties. n61 For the past 15 years, at the request of the Reagan, Bush and Clinton administrations, Congress has made annual appropriations to help fund implementation of the Chippewa's usufructuary privileges under the 1837 and 1842 treaties. n62 In addition, after meetings among the Chairman of [*23] the Senate Committee on Indian Affairs, "representatives of the President of the United States" and state and tribal officials, in which a "commonlyshared perception" emerged that "the fires of controversy were being fueled by a campaign of misinformation regarding the impact of Indian treaty fishing," Congress appropriated funds for a scientific study of the matter. The joint federal-state-tribal study concluded that "Chippewa spearing has not harmed the resource," and emphasized the continuing importance of hunting and fishing to the Chippewa's culture and wellbeing today, a point confirmed by the trial testimony of three Mille Lacs Band members in this case. n63

n61 See Anti-Indian Violence, Hearings Before the Subcomm. on Civil and Constitutional Rights of the House Committee on the Judiciary, H. Rep., 100th Cong., 2d Sess., Serial No. 119, 125-440 (1988); Satz, note 24 above, at 116-17 ("neither Congress nor the President would abrogate" Chippewa hunting and fishing rights under the 1837 treaty, despite the introduction of two bills to do so); H.R. Bill 3034, 100th Cong., 1st Sess. (July 28, 1987); H.R. Bill 2058, 101st Cong., 1st Sess. (Apr. 18, 1989); S.J. Res. 119, 101st Cong., 1st Sess. (May 4, 1989).

n62 The purpose of these appropriations, the amount appropriated in the prior year, and the current year's request are set forth in the Interior Department's budget justifications, which make specific references to the hunting, fishing and gathering rights recognized in Lac Courte Oreilles and related cases and their implementation in Minnesota, Wisconsin and Michigan. See U.S. Dept. of the Interior Budget Justifications: F.Y. 1999 at p. BIA 133; F.Y. 1998 at pp. BIA 111-12; F.Y. 1997 at p. BIA 99-100; F.Y. 1996 at p. BIA 113-14; F.Y. 1995 at p. BIA 101; F.Y. 1994 at p. BIA 94; F.Y. 1993 at p. BIA 106; F.Y. 1992 at p. BIA 123; F.Y. 1991 at p. BIA 163; F.Y. 1990 at p. BIA 128; F.Y. 1989 at p. BIA 135; F.Y. 1988 at p. BIA 160; F.Y. 1987 at p. BIA 137; F.Y. 1986 at p. BIA 162; F.Y. 1985 at p. BIA 151. When a change in funding from the previous year is proposed, it is generally addressed in congressional committee reports. H.R. Rep. No. 626, 102d Cong. 2d Sess. 51 (1992) (increase for "biological services and conservation enforcement in Minnesota, Wisconsin and Michigan"); S. Rep. No. 122, 102d Cong., 1st Sess 58-59 (1991) (increase for "rights protection implementation programs" [ILLEGIBLE WORD] S. Rep. No. 534, 101st Cong., 2d Sess. 62 (1990) (increase "under (Lac Courte Oreilles] case management").

n63 U.S. Dept. of the Interior, Casting Light Upon the Waters; A [ILLEGIBLE WORD] Fishery Assessment of the Wisconsin Ceded Territory 3, 13, 93 (2d ed., Jan 1993) (lodged with the Court by respondents Bad River Band et al.) [ILLEGIBLE WORD] Direct (JA 1221-36); Boyd Direct (JA 1241-55); Dunkley Direct (JA [ILLEGIBLE WORD] 75).

The State argues that the privilege set forth in the 1837 treaty is not enforceable today because the plain language of the treaty authorized the President, in his unfettered discretion, to terminate the privilege, and President Taylor did so in 1850. This argument fails for three reasons. First, the treaty provides that the "privilege ... is guarantied ... during the pleasure of the President." This language does not authorize one president to terminate the privilege; rather, it creates a continuing privilege that can be exercised at the President's pleasure. Thus, while President Taylor could enforce or suspend the privilege, he could not extinguish it for all time regardless of the pleasure of his successors.

The district court found that the 1850 order purported to revoke the Chippewa's hunting and fishing privilege for the sole purpose of facilitating their removal. However, shortly after the order was issued, and before its purported revocation of hunting and fishing privileges took effect, the entire order was suspended and abandoned by President [*24] Taylor's successors. In 1855 President Pierce's appointee, Minnesota Territorial Governor Gorman, recognized that the Chippewa retained the privilege to hunt and fish under the 1837 treaty, i.e., that it was the President's pleasure that they be allowed to do so, and no one suggested otherwise for the next 75 years.

The rediscovery of the 1850 order in the 1930s and early 1940s was not accompanied by analysis of its historical circumstances. With the benefit of such analysis, the Executive Branch has made it clear over the past 50 years that the 1850 order has no continuing force or effect and that it remains the President's pleasure that the Chippewa may exercise their rights under the 1837 treaty. Because it is the pleasure of the President that the 1837 privilege be guaranteed to the Chippewa, the privilege is enforceable under the plain language of the treaty.

Second, the lower courts held, and the State does not dispute, that the 1850 order's directive to remove was unlawful. That unlawful directive cannot be severed from the purported revocation of usufructuary privileges because, as the lower courts found, the sole purpose of the order was to remove the Chippewa, and a revocation of the Chippewa's usufructuary privileges in the absence of removal would have been contrary to the goals of the order. The State's argument that the President would have revoked the 1837 privilege to encourage the Chippewa to remove cannot be reconciled with its concession that, even without the privilege, the Chippewa could still have hunted and fished in the ceded territory under state and territorial law. An order revoking the privilege would not have "encouraged" the Chippewa to remove under these circumstances. Moreover, as the court of appeals noted, there is not a shred of evidence that anyone ever considered, let alone proposed, such a scheme.

Third, even if severable from the unlawful removal directive, the purported revocation of the hunting and fishing privilege was itself invalid because it exceeded the President's authority under the 1837 treaty. It is a fundamental rule of contract and treaty law that authority conferred on one party must be exercised in good faith, i.e., it cannot be exercised in a manner that the parties would not have countenanced at the time the agreement was made. That doctrine is reinforced here by the special, fiduciary relationship between the United States and Indian tribes. Given the paramount importance of the usufructuary privilege to the Chippewa, the assurances they received of just treatment during the treaty negotiations, and the fiduciary relationship between the Chippewa and [*25] the United States, the treaty cannot fairly be construed to confer unfettered discretion on the President to revoke the Chippewa's usufructuary rights at any time and for any reason. When the President purported to revoke their rights as part of an unlawful removal effort, at a time when the Chippewa were peaceable, their lands were not needed for settlement, and they were contributing valuable products to local citizens who wanted them to remain, the President acted in a manner that was not authorized by the 1837 treaty.

There is no reason for the Court to give effect to the tragic and short-lived 1850 order today over the objections of the United States. The President and Congress retain authority over the exercise of the privilege, and the principles developed by this Court allow for the implementation of the privilege in a manner that protects core interests of the State (natural resource conservation, public health and public safety), as well as the interests of private landowners. The State's interest in requiring Chippewa adherence to seasons, bag limits and gear restrictions designed for sport hunting and fishing cannot justify disregarding the privilege expressly guaranteed in the 1837 treaty.

I. THE PRIVILEGE IS ENFORCEABLE UNDER THE PLAIN LANGUAGE OF THE 1837 TREATY.

The 1837 treaty provides that the "privilege of hunting, fishing, and gathering the wild rice ... is guarantied to the Indians, during the pleasure of the President of the United States." The State argues that this privilege was "terminated" or "extinguished" by the 1850 order. E.g. St. Br. 16, 29. In Parts II and III below we show, as the lower courts held, that the 1850 order was unlawful. We begin, however, with the district court's conclusion that the 1850 order was ineffective because it was abandoned by the President soon after it was issued, a conclusion that reflects the longstanding position of the Executive Branch. PA 321.

The State's argument is premised on its assertion that the 1850 order "terminated" or "extinguished" the privilege. However, as a threshold matter, the State fails to show that the 1837 treaty authorized President Taylor to do so. By establishing a privilege that is guaranteed "during the pleasure of the President," the treaty conferred power on the President to determine when, during his or her term of office, the privilege [ILLEGIBLE WORD] [*26] be exercised. n64 It did not authorize any president to terminate or extinguish the privilege for all time, thereby depriving his or her successors of the power expressly conferred by the treaty. This conclusion rests on the plain language of the treaty, the applicable canons of construction and the parties' practical construction of the treaty. See Air France v. Saks, 470 U.S. 392, 396-97 (1985); Fishing Vessel, 443 U.S. at 675-76.

n64 Even this power must be exercised consistently with the President's fiduciary obligations to his Indian wards, and in a manner that is consistent with the intentions of the parties to the treaty. See Part III below.

The State's own analysis of the treaty language shows that the President had no power to "terminate" the privilege for all time. It contends (Br. 17) that "the ordinary meaning of the phrase 'during the pleasure of' in legal documents such as treaties is that the designated person or entity has the sole discretion to decide to take the contemplated action." (Emphasis added.) Here, the contemplated action is determining when the privilege of hunting, fishing and gathering should be guaranteed to the Chippewa. The power to determine when the privilege should be guaranteed to and exercised by the Chippewa does not encompass the power to terminate the privilege for all time, regardless of the pleasure of future presidents. n65 The treaty simply does not say, as the State's argument assumes, that the privilege is guaranteed "until it is terminated by the President." n66

n65 If a sitting president could determine that the privilege should, henceforth, never be guaranteed, he could, conversely, determine that it should always be guaranteed. Neither is consistent with the plain language of the treaty.

n66 An 1833 Pawnee treaty cited by the State (Br. 21-22 n.8) illustrates this point. It provides that

7 Stat. 448 (Art. II) (emphasis added). Under this provision, the President's authority to retain the common hunting ground and permit the Pawnees or others to hunt on it is continuing until the land is "assigned to" another tribe. See Pawnee Indian Tribe of Oklahoma v. United States, 109 F. Supp. 860, 883-84 (Ct. Cl. 1953). The 1837 treaty contains no such termination provision.

Although the State cites (Br. 21-22 n.8) other treaties using the phrase "during the pleasure of the President," they do not support its position. [*27] For example, an 1856 treaty provided that the Creeks would receive "[$ 2,000] per annum, during the pleasure of the President, for assistance in agricultural operations." 11 Stat. 699 (Art. 5). This provision cannot reasonably be read to mean that, if a sitting president stops agricultural assistance to the Creeks, neither he nor his successors can resume such assistance thereafter. Yet that is precisely the interpretation on which the State's "termination" argument rests. As this and other examples illustrate, this interpretation conflicts with the plain language of the treaty and would produce anomalous results. n67

n67 The 1858 Yankton Sioux treaty cited by the State provides that a sum determined by the President can be taken from the tribe's annuities "and applied annually, during the pleasure of the President to the support of [ILLEGIBLE WORD] schools." 11 Stat. 743 (Art. 4th). Under the State's approach, a sitting President who became dissatisfied with the operation of the schools and stopped [ILLEGIBLE WORD] annuity funds for their support would prevent future presidents [ILLEGIBLE WORDS] assessing the situation and restoring the funding authorized by the [ILLEGIBLE WORDS] an 1862 Ottawa treaty cited by the State, the Indian Department is to [ILLEGIBLE WORD] an interpreter for the tribe "to be continued during the pleasure of the [ILLEGIBLE WORD] of the Interior." 12 Stat. 1237 (Art. 11). If the State were right, one [ILLEGIBLE WORD] could not only withdraw the interpreter but also bar his or her [ILLEGIBLE WORD] from reinstating the interpreter thereafter.

If the language of the 1837 treaty leaves any room to doubt that it created a continuing privilege that could not be terminated by a sitting president, that doubt should be resolved in favor of the Chippewa. Treaties with Indian tribes "are to be liberally construed" in favor of the Indians, and "doubtful expressions are to be resolved in [their] favor." Carpenter v. Shaw, 280 U.S. 363, 367 (1930). These "principle[s are] deeply rooted in this Court's Indian jurisprudence," Yakima County v. Yakima Indian Nation, 502 U.S. 251, 269 (1992), and counsel against the implication of a power to terminate the privilege for all time that is at odds with the plain language of the treaty. Such an interpretation would also be inconsistent with the Court's traditional approach to Federal authority over Indian affairs, which has sought to preserve such authority absent explicit language to the contrary. See Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 655-56 (1976) (Court has protected Congress' power to alter statutory allotment plans until they are carried out, in the absence of a clear expression to the contrary).

The State's position is also inconsistent with the practical construction of the 1837 treaty by the parties to it. Very soon after the [*28] issuance of the 1850 order it was clear that it was a serious mistake--that it was unnecessary to serve the interests of the United States and would be disastrous to the Indians. Under the State's theory, the President had no power to change course, no matter what the consequences. However, at the urging of the Chippewa and others, the President and his subordinates in the 1850s plainly rejected that position, and instead suspended implementation of the order to permit a new determination by the President, and then abandoned the order altogether. See pp. 14-15 above. This "post-ratification conduct of the contracting parties" further undermines the State's position. Zicherman v. Korean Air Lines, 516 U.S. 217,227 (1996). n68

n68 It should not escape notice that it is the State, a stranger to the treaty, that is urging an interpretation that is hostile to the interests of both contracting parties--to the Chippewa, by permitting the termination of their privilege for all time, even under circumstances where all concerned quickly recognized it had been a mistake to do so; and to the United States, by restricting the authority to continue the privilege for the benefit of its Indian wards.

In short, given the plain language of the treaty, the applicable rules of construction, and the parties' practical construction, the 1837 treaty established a continuing privilege that could not be terminated by a sitting president. Thus, notwithstanding the 1850 order, the President retained authority under the 1837 treaty to guarantee the privilege during his pleasure. n69 Because it was the President's pleasure to do so almost [*29] immediately after the 1850 order was issued, and it remains the President's pleasure to do so today, the privilege is enforceable under the plain language of the treaty.

n69 At a minimum, it is clear that the President retained such authority until the 1850 order was carried out, and the Indians were settled on new lands where they could sustain themselves. This Court has long recognized that, in the context of Indian removals, the Indians retain their pre-existing rights, and the United States retains the authority to protect those rights, until the Indians are actually removed. See Fellows v. Denniston, 72 U.S. (5 Wall.) 761, 770 (1867) ("until the Indians have sold their lands, and removed from them in pursuance of the treaty stipulations, they are to be regarded as still in their ancient possessions, and are in under their original rights, and entitled to the undisturbed enjoyment of them"); People v. Dibble, 62 U.S. (21 How.) 366, 371 (1859) (where treaty makes no provision "as to the mode or manner" in which the Indians are to be removed, they remain under the exclusive authority and guardianship of the Federal Government until they are actually removed); Fellows v. Blacksmith, 60 U.S. (19 How.) 366, 372 (1857) (same); see also United States v. Kagama, 118 U.S. 375, 394 (1886).

Thus, in holding that the 1850 order was repealed, PA 321, the district court recognized that the 1850 order did not "terminate" or "extinguish" the privilege for all time. Indeed, the State itself has never denied that the President had the power to repeal the 1850 order. Thus, it too has recognized that the order did not bar either President Taylor or his successors from guaranteeing the privilege after the order was issued.

B. The Record Shows that, Shortly After the 1850 Order Was Issued, It Was the Pleasure of the President that the Privilege Be Guaranteed to the Chippewa, and It Remains the President's Pleasure Today.

The State's attempt to treat the 1850 order as the final and binding expression of the President's pleasure under the 1837 treaty cannot be squared with the record in this case. n70 Its contention (Br. 27) that "there was no evidence that the President ever revoked or modified, or even considered revoking or modifying, his [1850] order" (emphasis in original), is wrong as a matter of law and fact. This Court held in 1839 that the "President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties." Wilcox v. Jackson, 38 U.S. (13 Pet.) 498, 513 (1839). This is particularly true in the area of Indian affairs, where there has been a statutory delegation of authority to the Commissioner of Indian Affairs to "have the management of all Indian affairs and of all matters arising out of Indian relations" since 1832. Act of July 9, 1832, codified as amended, 25 U.S.C. § 2; see Morton v. Ruiz, 415 U.S. 199, 231-32 (1974) (under 25 U.S.C. §§ 2, 9 Executive authority "has been given explicitly to the Secretary and his delegates at the BIA"); 5 U.S. Op. Atty. Gen'l, 36, 39 (1848) (under 1832 Act Secretarial order "is to be presumed to [*30] have received the assent of the President, and to be his regulation") (emphasis added). n71

n70 The district court found that the purported revocation of hunting and fishing rights in 1850 was never enforced against the Chippewa, and that the Executive Branch intended to repeal the order in its entirety. PA 320-21 The court of appeals agreed that the revocation of usufructuary rights was never implemented and that the order was replaced by new treaties that [ILLEGIBLE WORD] required the Chippewa to remove nor extinguished their hunting and [ILLEGIBLE WORD] rights. PA 30 n.24. As set forth in the Statement of Facts, and summatized here, these findings rested on a substantial evidentiary record.

n71 See also United States v. Midwest Oil Co., 236 U.S. 459, 469 (1915) (acts of subordinate Executive Branch officials must be treated as "acts of the President"); Wolsey v. Chapman, 101 U.S. 755, 769 (1880) (acts of heads of departments, within scope of their powers, are in law acts of the President); 7 U.S. Op. Atty. Gen'l 453, 482 (1855) ("as a general rule, the direction of the President is to be presumed in all instruction and orders issuing from the competent Department") (emphasis added).

Accordingly, the acts of the Secretary of the Interior and the Commissioner of Indian Affairs, in suspending removal operations and resuming annuity payments to assist the Chippewa in hunting and fishing in the ceded territory, see pp. 14-17 above, must be presumed to have had the assent of the President and to have been his acts. Moreover, the 1854 and 1855 treaties, which set aside permanent homes for the Chippewa in the territories from which they had been ordered to remove, and which were intended to "reserve ... rights ... secured by former treaties," were submitted to the Senate and proclaimed by the President. See pp. 17-19 above. These treaties were, as the district court found, "completely contrary to the 1850 order." PA 321. Thus, not only was the 1850 order abandoned by the President, it was repealed by subsequent treaties of the United States. See Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976); State v. Gurnoe, 53 Wis. 2d 390, 400-01, 192 N.W.2d 892, 899-900 (Wis. 1972) (1854 treaty repealed 1850 order).

The State also argues (Br. 27) that "there was no evidence that any federal official recommended reversal of the portion of the order revoking the hunting, fishing and gathering privilege; all the discussion concerned the removal portion of the order." This argument fails for several reasons. First, the district court found that "the only reason that the 1850 executive order included language extinguishing the hunting, fishing, and gathering privilege was to facilitate removal," and that the "essential purpose of the 1850 executive order was to remove the Chippewa." PA 310-11 (emphasis added). n72 Thus, the reversal of the removal directive is by [*31] itself strong evidence that the President intended to permit the Chippewa to exercise their hunting and fishing rights in the ceded territory, and any ambiguity on this score should be resolved in favor of the Chippewa. See Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1444-45 (D.C. Cir. 1988), cert. denied, 488 U.S. 1010 (1989) (isolated portions of prior act limiting Indian rights do not survive later act that stripped away entire context in which they appeared).

n72 The State embraces the proposition that "the overall purpose of the order was removal" in its severability argument. St. Br. at 25. Although it and the Landowners speculate about possible reasons why the President might have revoked the privilege even if he did not intend to remove the Chippewa, they do not identify a single document in the historical record that suggested this be done. As we discuss below, see note 79, such speculation fails to show that the district court's finding, based on a substantial evidentiary record, was clearly erroneous.

Second, as the district court found (PA 320-21), there was substantial additional evidence that the Chippewa retained their hunting and fishing rights under the 1837 treaty. The abandonment of the 1850 order was not some arbitrary or unintentional action, but an expression of the fiduciary obligations that the United States undertook as guardian to a dependent people when by treaty it acquired title to the Chippewa's lands and their allegiance to the United States. See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). When the United States abandoned the 1850 order it did so precisely because removing the Chippewa from their traditional hunting and fishing territories would lead to large scale suffering and death; as one government official put it: "Let five thousand Indians be crowded into the small Territory they call their own, and they will subsist as long as they are fed by [the] Government, after which, they would starve or flee back to their own haunts." PA 254, quoting 3-26-1850 Livermore to Ramsey (JA 171). It cannot be supposed that, in allowing the Chippewa to remain, the United States did not preserve the treaty rights that protected their means of subsistence.

That it was the President's pleasure that the Chippewa exercise those rights was shown inter alia by the affirmative assistance the Government provided to the Chippewa to hunt and fish on ceded lands, the establishment of treaty reservations at locations that would provide access to off-reservation resources, the assurances provided by the U.S. treaty commissioner in 1854 that the Chippewa could leave their reservations whenever they desired for hunting purposes, the establishment of a new off-reservation hunting and fishing right in Minnesota in the 1854 treaty, and the explicit statements of Governor Gorman and others in 1855 that the Chippewa retained their hunting and fishing privilege under the 1837 treaty--statements that were not questioned by the Commissioner [ILLEGIBLE WORD] Indian Affairs, the Secretary of the Interior, or anyone else. See pp. 19 20 above. Because these officials were involved in the implementation of the 1837 treaty and 1850 order, their views regarding the effect of the order are entitled to great weight. See, e.g., Udall v. Tallman, 380 U.S. 1, 16-17 [*32] (1965). Indeed, as the district court found, Governor Gorman's statement was "compelling contemporaneous evidence that [the 1837 privileges] were not revoked by the 1850 executive order." PA 270.

The State does not discuss any of this evidence, but its silence regarding the 1854 treaty and Governor Gorman's statements is particularly telling. The former shows that it was the President's pleasure to permit the Chippewa to continue to hold and exercise off-reservation hunting and fishing rights in Minnesota, and the latter shows that the Chippewa retained hunting and fishing rights under the 1837 treaty in particular. Thus, the record shows clearly that shortly after the 1850 order was issued, it was the pleasure of the President to permit the Chippewa to exercise their 1837 treaty privilege.

Finally, there can be no dispute that it remains the pleasure of the President that the privilege should be guaranteed to the Chippewa today. The order was not mentioned for 75 years after the 1854 and 1855 treaties were made, during a period in which the Chippewa, under claim of right, exercised their rights throughout the ceded territory, notwithstanding State attempts to confine them to their reservations and enforce restrictive fish and game laws. See pp. 20-21 above. Although the order was rediscovered in the 1930s and 1940s, that period has been followed by 50 years in which the United States, on the basis of careful analysis of the historical circumstances, has denied that the order was ever effective, sued to enforce the 1837 privilege, and promulgated regulations to implement the privilege. See pp. 21-22 above. Over the last 15 years Congress has held hearings growing out of the exercise of the privilege, has rejected bills to abrogate the treaty, and instead has helped fund implementation of the Chippewa's rights. See pp. 22-23 above. The President's manifest pleasure to enforce the 1837 privilege, with the acquiescence and support of the Congress, should be given effect under the plain language of the treaty. n73

n73 See Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) (long-continued practice, known to and acquiesced in by Congress, raises presumption of congressional consent); Thomas Jefferson University v. Shalala, 512 U.S. 504, 515, 517 (1994) (deference owed to current position of Executive Branch).

The State's reliance on the 1850 order fails for a second reason. As the court of appeals held, and the State does not dispute, the President [*33] had no authority to remove the Chippewa from the 1837 ceded territory. The State's attempt to sever the order, whose sole purpose was removal, is without merit.

In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), the Court held that the "President's power, if any, to issue [an executive] order must stem either from an act of Congress or from the Constitution." Id. at 585. In finding President Truman's order seizing the nation's steel mills invalid the Court particularly noted that two statutes authorized the President to seize property under certain conditions, but "these conditions were not met." Id. at 585-86; see id. at 602 (President could not act in disregard of statutory limitations on seizure) (Frankfurter, J., concurring). The Court also held an executive order invalid in Cole v. Young, 351 U.S. 536, 557 (1956), reasoning that when the President rests his action on statutory authority, "the validity of the action must be determined solely by the congressional limitations which the President sought to respect." Id. at 557 n.20. In Dames & Moore, the Court upheld presidential orders, but reiterated that "when the President acts in contravention of the will of Congress, 'his power is at its lowest ebb,' and the Court can sustain his actions 'only by disabling the Congress from acting upon the subject.'" 453 U.S. at 669, quoting Youngstown, 343 U.S. at 637-38 (Jackson, J., concurring). n74

n74 For additional cases addressing the validity of executive orders, see, e.g., Chamber of Commerce v. Reich, 74 F.3d 1322, 1332-39, reh'g denied, 83 F.3d 439 & 442 (D.C. Cir. 1996); Matter of Reyes, 910 F.2d 611, 613 (9th Cir 1990); Levy v. Urbach, 651 F.2d 1278, 1282 (9th Cir. 1981); National Federation of Employees, Local 1622 v. Brown, 645 F.2d 1017, 1025 (D.C. Cir. 1981) (Ginsburg, J.); Day v. United States, 611 F.2d 1122 (5th Cir.), cert denied, 449 U.S. 919 (1980).

Congress addressed Indian removal in the 1830 Removal Act, but conferred no authority on the President to order the removal of tribes without their consent. Instead, it authorized the President to take measures to induce the tribes to remove, and permitted him to set apart lands for those tribes "as may choose" to do so. JA 21. n75 The requirement of tribal [*34] consent was recognized by President Andrew Jackson, a vigorous removal advocate. PA 24-25. Congress subsequently recognized the need for tribal consent by appropriating funds to negotiate treaties providing "for [the tribes'] removal." PA 25. In the 1842 and 1847 Chippewa treaties, the Commissioner of Indian Affairs recognized that, even in a land cession treaty, a specific removal provision was necessary to provide authority to remove the Indians. See pp. 8-9 above.

n75 Supporters of the Act emphasized that it gave the President to authority to remove the Indians without their consent. See 6 Gales & Seaton's Register of Debates in Congress 359 (Apr. 20, 1830) (authority contemplated by the bill extends only to those Indians willing to remove; "the friends of this measure do not wish to vest power in the President . . . by strong arm, to drive these unfortunate people from their present abode"); id. at 328 (Apr. 15, 1830) (proposed change "not intended to be forced upon [the Indians], but to be the result of their own judgment"); 360 (Apr. 20, 1830) (bill "is only to operate upon those Indians who are willing to remove").

The courts have held consistently that Indians cannot lawfully be removed, even from ceded lands, unless the removal is authorized by an act of Congress or a treaty. In United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 355-56 (1941), the Court held that, notwithstanding appropriations to assist in removal, an attempt to remove Indians without their consent was "not pursuant to any mandate of Congress," and therefore "unauthorized" and of no legal effect. In United States v. Crook, 25 F. Cas. 695 (D. Neb. 1879), Judge Dundy held that, notwithstanding appropriations to aid in the removal of Ponca Indians, whose lands had been ceded to the United States, "without some specific authority found in an act of Congress, or in a treaty with the Ponca tribe of Indians," there was simply no authority for their removal, Id. at 700; see Elk v. Wilkins, 112 U.S. 94, 108-09 (1884) (referring to Judge Dundy as "that learned judge," and explaining that his holding rested on the absence of "lawful authority" for removal). n76

n76 See also Fellows v. Denniston, 72 U.S. (5 Wall.) at 770 (Indians cannot be disturbed until they "have sold their lands, and removed from them in pursuance of treaty stipulations") (emphasis added); The Kansas Indians, 72 U.S. (5 Wall.) 737, 752 (1867) (policy implemented by the 1830 Removal Act was "to persuade all the Indian tribes east of the Mississippi to migrate and settle . . . west of that river") (emphasis added).

There is no provision authorizing the removal of the Chippewa from the 1837 ceded territory in any act of Congress or treaty. PA 26-27. When President Taylor ordered the Chippewa to remove in 1850, without first obtaining their consent, he acted without "lawful authority" and "in contravention of the will of Congress." Under this Court's precedents, [*35] his order was unlawful and ineffective, the district court and court of appeals so held, and the State does not challenge that holding here.

B. The Revocation of Hunting and Fishing Rights Cannot Be Severed from the Order to Remove.

To circumvent the unlawfulness of the removal order, the State relies (Br. 23-26) on the rule of statutory construction that a court should invalidate no more of a statute than necessary. See Alaska Airlines v. Brock, 480 U.S. 678, 684 (1987). Under the traditional test for severability, the invalid part of a statute may be dropped if what is left is fully operative as a law, "'unless it is evident that the Legislature would not have enacted [the remaining] provisions . . . independently . . . .'" Id., quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam); Champlin Refining Co. v. Corp. Comm'n of Oklahoma, 286 U.S. 210, 234 (1932). The district court applied this test, but concluded that the "President would not have issued an executive order merely to extinguish the usufructuary rights guaranteed under the 1837 treaty." PA 309-12 (emphasis added). Applying the same test the court of appeals affirmed, finding that "the purpose of the Order was to mandate removal, and this purpose was integral to the entire Order." PA 27-31. Although the court considered sua sponte the possibility that the President would have issued a revocation order to "encourage" the Chippewa to remove, it found no evidence to support such a scenario in the record. PA 29-31.

The State's principal argument for severing the 1850 order (Br. 24-25) seizes on this rejected hypothesis. n77 Although it did not make the [*36] argument below, see PA 29, the State now embraces the proposition that "the overall purpose of the order was removal" and contends that, had he known he could not order removal directly, President Taylor would have revoked the bands' usufructuary privileges to "encourage" removal. However, while it is clear that the drafters of the 1850 order believed that revocation of usufructuary privileges was a necessary component of the removal order, there is no evidence that they believed it was sufficient, by itself, to accomplish the goal of removal. Notably, elsewhere in its brief the State concedes (Br. 47 n.21) that a revocation of the Chippewa's usufructuary privilege would not have meant that "the Indians could not hunt and fish" in the ceded territory, but only "that such activity must be done pursuant to territorial and, later, state law." See Winans, 198 U.S. at 380 (in absence of treaty fishing right, Indians would have had same right to fish as would "any inhabitant of the territory or state"). The State does not explain how, under these circumstances, a revocation of the usufructuary privilege would--by itself--have encouraged the Chippewa to remove.

n77 In support of this argument, the State notes that the court of appeals described its task as determining "whether President Taylor would have issued an executive order revoking the Bands' treaty rights without also ordering removal," and claims that the form of this question reversed the "presumption" of severability. St. Br. at 24, quoting PA 29 (emphasis added by the State). This claim lacks substance.

First, notwithstanding any such presumption, "whether an unconstitutional provision is severable from the remainder of the statute in which it appears is largely a question of legislative intent." Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality op.). Accordingly, in the absence of a severability clause, the Court has employed traditional tools of statutors construction to determine whether "Congress would have enacted" the statute without the offending provision, Alaska Airlines, 480 U.S. at 686-87, 691 (emphasis added), which is precisely the question asked by the court of appeals here. See also United States v. Treasury Employees, 513 U.S. 454, 488 [ILLEGIBLE WORD] (O'Connor, J., concurring and dissenting) (under Alaska Airlines, "the operative question . . . is whether Congress would have promulgated" a statutory provision if it had known certain applications of the provision were unconstitutional) (emphasis added).

Second, "the standard principles of statutory construction do not have their usual force in cases involving Indian law." Montana v. Blackfeet Tribe of Indians. 471 U.S. 759, 766 (1985). Because the Court requires explicit language to abrogate treaty rights, Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247 (1985), and interprets ambiguous provisions to benefit the tribes, Montana, 471 U.S. at 766, if there is any doubt about whether to sever the 1850 order it should be resolved in favor of the Chippewa.

Moreover, even if the Government lawfully could have stopped the Chippewa from hunting and fishing by revoking the 1837 privilege, there is a material difference between an order that revokes usufructuary privileges as a predicate to a lawful removal directive and one that, in the absence of removal authority, revokes usufructuary privileges in order to force the Chippewa to remove by depriving them of the means of subsistence. As the court of appeals noted, and the State does not dispute, there is "in the record no statement by anyone indicating [the latter] plan had ever been considered, much less employed." PA 30. In fact, the record shows that such an order would not have been issued. During the effort [*37] to implement the removal order the Executive Branch took no steps to stop the Chippewa from hunting, fishing and gathering in the ceded territory, either to "encourage" them to remove or for any other purpose. To the contrary, it delayed removal efforts to accommodate hunting and gathering activities and, in 1853 and 1854 provided annuity goods to assist the Chippewa in those endeavors. See pp. 12-13 & n.27, 15-16 above. Severance is improper where the record shows that the Government rejected the very approach that would allegedly result from severing the order. See Alaska Airlines, 480 U.S. at 685 (severance improper if remainder of statute would not operate "in a manner consistent with the intent of Congress") (emphasis in original); Bowsher v. [ILLEGIBLE WORD] 478 U.S. 714, 735 (1986) (severance improper where it "would lead to a statute that Congress would probably have refused to adopt"). In addition, if the State is correct that the Chippewa's usufructuary rights were revoked to "encourage" them to remove, that provision was repealed when the President determined and the 1854 and 1855 treaties provided that the Chippewa did not have to remove, but could remain permanently in the ceded territory. See Radzanower, 426 U.S. at 154.

The State also argues (Br. 25) that President Taylor would have revoked the Chippewa's usufructuary rights for purposes other than removal. However, this argument conflicts directly with the district court's finding, affirmed on appeal, that "the only reason that the 1850 executive order included language extinguishing the hunting, fishing, and gathering privilege was to facilitate removal of the Chippewa. . . ." PA 310 (emphasis added); see PA 29-30. The only evidence cited by the State in support of this argument is Governor Ramsey's speech to the Territorial Legislature and the Legislature's Joint Resolutions to Congress. See JA 878; PA 567; pp. 9-10 above. However, both Governor Ramsey and the Legislature closely linked the revocation of hunting and fishing privileges with the removal of the Chippewa; neither they (nor anyone else) sought to end the hunting and fishing privilege while the Chippewa remained in the ceded territory. See pp. 9-10 above. Moreover, the asserted basis for stopping the privilege and removing the Chippewa--to "ensure the security and tranquility of white settlements"--would not have been furthered if the privilege ceased but the Chippewa remained in the ceded territory. n78 And, the title of the resolutions confirms that their purpose [*38] was removal: "Joint Resolutions relative to the removal of the Chippewa from the ceded lands within the Territory of Minnesota." PA 566-67 (emphasis added).

n78 The objective revealed in the correspondence between [ILLEGIBLE WORD] Ramsey and Henry Rice--bringing economic and political [ILLEGIBLE WORDS] Minnesota--was likewise dependent on the removal of the Chippewa, and would have been undermined if the privilege were suspended but the Chippewa were not removed. PA 310; see p. 11 & n.24 above.

There was substantial additional evidence to support the district court's finding, which the State does not address at all. For example, on the day it was issued, Commissioner Brown stated the "policy" of the order was announced in his 1849 annual report, which asserted that the "longer residence [of the Chippewa on the ceded lands] is incompatible with the tranquility and interests of our citizens," but suggested no reason for revoking hunting and fishing rights if the Chippewa were to remain. PA 253 (emphasis added); see PA 310, p. 12 above. On receipt of the order, Governor Ramsey referred to it as an "order for removal," and in all of his efforts to implement the order he treated it as such. See pp. 12-13, 15 above. And, despite the extensive documentation surrounding the issuance, implementation and abandonment of the order, there is not a single document in the historical record in which anyone suggested any reason for revoking the Chippewa's usufructuary rights in the absence of their removal from the ceded territory. Thus, the district court and the court of appeals were entirely correct in finding that "the purpose of the Order was to mandate removal, and this purpose was integral to the entire Order." PA 29. n79 On this record, the lower courts properly held that the unlawful 1850 order could not be severed.

n79 The State and Landowners suggest three reasons why the President might have revoked the Chippewa's usufructuary rights even if he did not intend to remove them: (1) to extinguish the rights of Chippewa bands not residing in the ceded territory (St. Br. 26 n.10); (2) to clear land title to make way for survey and sale (Ld. Br. 27); and (3) to resolve the conflict between the privilege and state regulatory authority (Ld. Br. 25). Only one of these reasons (clearing land titles) was suggested in the district court, which rejected it because the evidence showed that it was unnecessary to revoke the privilege to permit the survey and sale of lands; lands had already been surveyed and sold in the 1837 ceded territory when the order was issued; and the Government extended a similar privilege to the 1854 ceded territory, and lands were surveyed and sold there without extinguishing the privilege. PA 311.

The other suggested reasons fare no better. There was no evidence that anyone intended to extinguish the privilege of non-resident bands in the absence of removal of resident bands, and the State suggests no policy objective that would have been served by such an order. Nor is there any evidence of an intent to address a conflict between the privilege and state regulatory authority or, indeed, any evidence that such a conflict existed at the time. This theory is inconsistent with the 1842 treaty, which established a hunting right in the State of Michigan, the 1854 treaty, which extended hunting and [ILLEGIBLE WORD] privileges to the lands ceded in that treaty, and the 1854-55 Stevens treaties which secured similar off-reservation rights in the Pacific Northwest. See Fishing Vessel, 443 U.S. at 661-62 & n.2 (1979).

[*39] III. EVEN IF SEVERABLE, THE PORTION OF THE 1850 ORDER PURPORTING TO REVOKE THE 1837 PRIVILEGE WAS INVALID.

The State's reliance on the 1850 order fails for a third reason. Even if severable, the portion of the order purporting to revoke the 1837 privilege was itself invalid.

A. The President Did Not Have Unfettered Discretion to Revoke the Privilege.

1. The State argues (Br. 16-23) that, because the language of the treaty confers "sole discretion" on the President over the usufructuary privilege, it must be read to permit termination of the privilege at any time and for any reason. However, the State's argument overlooks fundamental principles of contract and treaty law that govern the construction of a clause giving authority to one of the contracting parties, and ignores the United States' fiduciary responsibilities to Indian tribes.

A treaty is in essence a contract between sovereign nations, and is subject to the rules of construction that apply to the interpretation of contracts. Societe Nat. Ind. Aero. v. U.S. District Court, 482 U.S. 522, 533 (1987); Fishing Vessel, 443 U.S. at 675; Sullivan v. Kidd, 254 U.S. 433, 439 (1921); Tucker v. Alexandroff, 183 U.S. 424, 437 (1902). n80 In Tymshare v. Covell, 727 F.2d 1145 (D.C. Cir. 1984) (Scalia, J.), the court interpreted a contract which "state[d] and reiterate[d]" that an employer could change a sales quota plan "within [its] sole discretion." 727 F.2d at 1154 [*40] (emphasis added). The court held that this express provision did not confer authority on the employer to alter the plan "for any reason whatsoever." Id. This result rested on the doctrine that the parties to a contract must perform in good faith, which is a "fundamental principle[ ] of contract law" that obligates the contracting parties "not to engage in the particular form of conduct which, in the case at hand, constitutes 'bad faith.'" Id. at 1152. n81 The doctrine applies with even greater force to treaties. Sullivan, 254 U.S. at 439 (treaties "are to be executed in the utmost good faith, with a view to making effective the purposes of the high contracting parties"); Tucker, 183 U.S. at 437 (treaties "'are to receive a fair and liberal interpretation according to the intentions of the contracting parties, and to be kept with the most scrupulous good faith'").

n80 If anything, treaties "'are construed more liberally than [ILLEGIBLE WORD] agreements, and to ascertain their meaning [a court] may look beyond the written words to the history of the treaty, the negotiations, and the [ILLEGIBLE WORD] construction adopted by the parties.'" Air France v. Saks, 470 U.S. at [ILLEGIBLE WORD] quoting Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32 (1943).

n81 These principles have their origin in the writings of Cicero, see 3A Corbin on Contracts § 654A (Supp. 1992), and were well-established in English and American common law in the 19th century. In a series of cases, the courts held that contract provisions conferring authority on one party did not confer unfettered discretion, and imposed limitations to ensure that such authority was exercised consistently with the intentions of the contracting parties. E.g. Singerly v. Thayer, 108 Pa. 291, 2 A. 230, 233 (1885); Frolick v. Schonwald, 52 N.C. 330, 331 (1860); Bryant v. Flight, 5 M & W 114, 117, 151 Eng. Rep. 49 (1839); Jewry v. Busk, 5 Taunt. 302, 128 Eng. Rep. 706 (1814). See Chitty. The Law of Contracts 544 (6th American Ed. J.C. Perkins 1844).

Of course, it is possible to draft a treaty or contract to leave decisions absolutely to the uncontrolled discretion of one party. Tymshare, 727 F.2d at 1153. "But the trick is to tell when a contract has been so drawn--and surely the mere recitation of an express power is not always the test." Id. (emphasis added). The answer is found in the "nature of the power at issue" and the intentions of the contracting parties:

[*41] Id. at 1154 (emphasis added). Accord: Market Street Associates v. Frey, 941 F.2d 588, 594-96 (7th Cir. 1991) (Posner, J.).

These principles have "special meaning" in interpreting an Indian treaty, because "the United States, as the party with the presumptively superior negotiating skills and superior knowledge of the language in which the treaty is recorded, has a responsibility to avoid taking advantage of the other side." Fishing Vessel, 443 U.S. at 675-76. An Indian treaty is to be construed "not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians." Id., quoting Jones v. Meehan, 175 U.S. 1, 10-11 (1899); accord, Choctaw Nation v. Oklahoma, 397 U.S. 620, 630-31 (1970); United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938); Worcester v. Georgia, 31 U.S. [ILLEGIBLE WORD] Pet.) 515, 582 (1832) (McLean, J., concurring). And, as explained above, ambiguities must be resolved in favor of the Indians, for "it cannot be supposed that the Indians were alert to exclude by [ILLEGIBLE WORD] words every inference which might militate against or defeat the declared purpose of themselves and the government. . . ." Winters v. United States, 207 U.S. 564, 577 (1908); accord, McClanahan v. Arizona State Tax Comm., 411 U.S. 164, 175 (1973); Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89 (1918).

2. Like the contract in Tymshare, the language of the 1837 treaty "need not, and therefore can not reasonably," be read to confer authority on the President to revoke the usufructuary privilege at any time and for any reason. Indeed, as discussed in Part I above, the language of the treaty, which "guarantee[s]" the privilege "during the pleasure of the President," confers no power on the President to permanently revoke the privilege. But even if such power existed, it could not be exercised in a manner that would not have been countenanced by the parties at the time the treaty was made.

That the treaty was not intended--by either party--to permit the President to revoke the Chippewa's usufructuary privilege at any time and for any reason is clear from the record. First, such an interpretation would mean that the President could have revoked the privilege the day after the treaty was ratified, something not in the contemplation of either party. The primary purpose for which the Government acquired the lands (lumbering) was compatible with (and in part depended upon) continued Chippewa hunting, fishing and gathering. See pp. 4-5 & n.23 above. The Government made no provision for the Chippewa's removal in the trealy [*42] Thus, both parties contemplated that the Chippewa would remain and exercise their privilege for many years: the Chippewa anticipated being present for at least another 60 years, and Governor Dodge assured them that it would "probably be many years, before your Great Father will want all these lands for the use of his white Children." JA 78; see p. 6 above.

Second, and more important, the Chippewa emphasized throughout the treaty negotiations that hunting, fishing and gathering were essential to their survival and way of life; even the State's anthropologist testified that preserving the ability to live off the land was of "paramount importance" to the Chippewa in the treaty negotiations. PA 231; see pp. 5-7 & n.8 above. Governor Dodge readily agreed that they would have the privilege of hunting and fishing in the ceded territory "during the pleasure of the President," and repeatedly assured the Chippewa that they would be treated justly by the President and his agents. See pp. 5-7& n.10 above. n82 This Court's observation about the treaty negotiations in the Pacific Northwest is apropos here; it is

Fishing Vessel, 443 U.S. at 667. To construe the treaty to give the President unfettered discretion to revoke the privilege at any time and for any reason is inconsistent both with the overriding importance of the privilege to the Chippewa and Governor Dodge's repeated assurances of just treatment. PA 236-37, 314.

n82 Contrary to the State's suggestion (Br. 19), Governor Dodge never used the term "temporary" to characterize the privilege.

Third, the "sense in which [Article 5] would naturally [have been] understood" by the Chippewa, Fishing Vessel, 443 U.S. at 675-76, would not have conferred unfettered discretion on the President. n83 Rev. Boutwell [*43] wrote at the time that the Chippewa "knew nothing" of the duration of a man's pleasure. See p. 8 above. Instead, during the treaty council. Chippewa chief Ma-ghe-ga-bo stated "if I have rightly understood you I can remain on the lands and hunt there." See p. 6 above. Had the Chippewa understood Dodge's response to mean that the President could revoke their rights at any time, they surely would have objected, as they vehemently objected when this possibility was raised in the 1842 treaty council. See p. 8 above. In 1842 the Government suggested that it might someday revoke the Chippewa's usufructuary rights in northern [ILLEGIBLE WORD] and Michigan and order them to remove from those lands. The Chippewa response was described in a contemporaneous account by a Lac Courte Oreilles chief:

1-6-1843 Brunson to Doty (JA 121-22); PA 242. The fact that the Chippewa did not object in 1837 is strong evidence that they understood, as Governor Dodge promised, that the President would treat them justly and, thus, protect their rights, not revoke them at a whim. PA 236-37. n84

n83 The State's argument (Br. 20) that Federal officials understood the treaty to confer unfettered discretion on the President is misplaced for two reasons. First, the State cites nothing in the record in which Federal officials suggested that the President could act for any reason (or no reason); as in Tymshare, their assertion of a power of revocation need not, and can not reasonably, be read as an assertion of a power to revoke the privilege for any reason whatever. Second, "it is the intention of the parties, not solely the superior side, that must control any attempt to interpret the treat[y]." Fishing Vessel, 443 U.S. at 675 (emphasis added). To prevent overreaching by the United States, the treaty must be construed, "not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally [have been] understood by the Indians." Id. at 675-76.

n84 The State argues (Br. 19) that "there was not an [ILLEGIBLE WORDS] from the treaty negotiations that the Indians did not understand the meaning of 'during the pleasure of the President.'" But Rev. Boutwell was present during the negotiations, and his contemporaneous statement that the [ILLEGIBLE WORD] did not understand that phrase is uncontradicted in the record; indeed, his prediction that there would be trouble with the Chippewa should the Government attempt to remove them was prescient. See pp. 8, 13-14 above. The State also mischaracterizes the record when it complains (Br. 19) that the district court dismissed as speculative its assertion that "English speaking persons at the negotiations who were friendly to the Indians may have explained the treaty provisions to them." The State argued below that "traders, half-breeds, and missionaries" would have told the Chippewa that their privilege could be revoked at any time and for any reason. The district court rejected this argument not only because it was speculative, but because it was directly contradicted by Rev. Boutwell's letter and by evidence that traders and half-breeds stood to receive substantial payments under the treaty and therefore would have been unlikely to raise issues that would impede its successful conclusion. PA 315; JA 1081-83.

[*44] 3. The conclusion that the 1837 treaty did not confer unfettered discretion on the President is not only supported by applicable principles of contract and treaty interpretation, it is compelled by the Northwest Ordinance and the fiduciary obligations imposed by the federal trust responsibility, obligations recognized by this Court as early as 1831. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) at 17 (unique relationship of tribe to United States resembles that of ward to guardian). The Northwest Ordinance, I Stat. 51 (1787), required that "the utmost good faith shall always be observed toward the Indians," PA 313, and under the federal trust responsibility:

Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942) (footnote omitted; emphasis added); see Tulee, 315 U.S. at 684-85 (treaty fishing right should be construed "in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people") (emphasis added). Contrary to the State's argument (Br. 26-27), nothing in the 1837 treaty relieved the United States of the duty of good faith imposed by the Northwest Ordinance or its fiduciary obligations to its Indian wards; as the court held in Tymshare there is no inconsistency between a clause conferring power [*45] on one party to a contract and a duty to exercise that power in good faith, consistently with other legal obligations.

The State cannot seriously contend that it was the intention of the parties to the 1837 treaty to authorize the President to revoke the usufructuary privilege on a whim, for no reason at all, or in bad faith, notwithstanding the requirements of the Northwest Ordinance, his fiduciary obligations to the Indians, the importance the Chippewa placed on the usufructuary privilege throughout the treaty negotiations, and the Government's explicit promises of just treatment. Notably, the unlimited power for which the State contends here is not a power to terminate the treaty in its entirety, relieving both parties of its provisions. Rather, it is a power to revoke the one provision that was (and still is) of "paramount importance" to the Chippewa, while retaining the provisions that benefit the United States (most prominently, the cession of over 13 million acres of land). Given the fiduciary relationship between the parties. It is smply inconceivable that the Government, much less the Chippewa, intended to confer such unlimited power on the President in this context. See Air France, 470 U.S. at 397 (analysis begins with text of treaty "and the context in which the written words are used"); Zicherman, 516 U.S. at 223 (giving effect to "shared expectations of the contracting parties" in interpreting treaty).

The State ultimately contends (Br. 22-23) that any interpretation of the treaty that does not permit the President to terminate the [ILLEGIBLE WORD] usufructuary privilege in his unfettered discretion--at any time and for any reason--is contrary to the plain meaning of the treaty. However, as Tymshare teaches, the inclusion of a clause conferring authority on one party does not ipso facto confer unfettered authority on that party. Every court that has examined the validity of the 1850 order in light of the language and history of the 1837 treaty has concluded that the treaty did not confer unfettered discretion on the President. n85 These holdings are not inconsistent with the plain meaning of the treaty; rather they read the language of the treaty in light of well-established legal principles and give full effect to the intentions of the parties. In contrast, the State's interpretation, under which the President could revoke the [ILLEGIBLE WORD] privilege at any time for any reason or no reason, makes Article's [*46] essentially meaningless--"an impotent outcome to negotiations and a convention which seemed to promise more, and give the word of the nation for more." Winans, 198 U.S. at 380.

n85 See Lac Courte Oreilles, 700 F.2d at 361-62; Menominee [ILLEGIBLE WORDS] v. Thompson, 943 F. Supp. 999, 1010 (W.D. Wis. 1996) (app. [ILLEGIBLE WORDS] Lacs II. 861 F. Supp. at 826-27 (PA 314-16); United States v. [ILLEGIBLE WORDS] F. Supp. 1316, 1349-50 (W.D. Wis. 1978).

B. The President Acted Outside the Scope of His Authority in Purporting to Revoke the 1837 Privilege in 1850.

The district court held that the President could revoke the usufructuary privilege only if the Chippewa misbehaved in a manner that interfered with white settlement, that in any event the President was required to act in good faith, and that the 1850 order was inconsistent with each of these obligations. PA 314-16. This Court should affirm because it is clear, at a minimum, that when President Taylor signed the 1850 order, he acted in a manner that neither party would have countenanced when the treaty was made and violated his fiduciary obligations to the Chippewa. Commissioners Lea and Manypenny, Minnesota Territorial Governor Ramsey, and Special Agent Gilbert all determined that the order was not necessary to serve the interests of the citizens or Government of the United States; that local residents wanted the Chippewa to remain on account of their good behavior, contributions to mineral and timber enterprises, and participation in the fish and fur trade; that the Chippewa were not interfering with settlement; and that the order would be disastrous to the Chippewa. See pp. 13, 14-17 above. Neither the President nor the Congress questioned these determinations; instead, they acted upon them in suspending the order, restoring annuity payments and then authorizing and approving the 1854 and 1855 treaties. See pp. 17-19 above.

The State cites nothing in the language or negotiating history of the treaty to suggest that either party contemplated that the Chippewa's usufructuary rights could be revoked under these circumstances. Governor Dodge's statement that it would be many years before the President would want "all the lands for the use of his white children" is inconsistent with the proposition that the Chippewa's privilege could be revoked when the lands were not needed for non-Indian settlement and those non-Indians that were present wanted the Chippewa to remain. His assurance that the President would treat the Chippewa justly is inconsistent with the proposition that their rights could be revoked as part of an unlawful removal effort that would be disastrous for the Chippewa, and that was requested by Minnesotans who hoped to profit at their expense. See pp. 10-11 above. And the Chippewa's own understanding that the President would protect their rights unless they [*47] misbehaved by interfering with white settlers (which was derived from explicit promises of just treatment at the 1837 treaty council, expressly confirmed at the 1842 treaty council, and gave rise to their strenuous protests when the 1850 order was issued), is inconsistent with the proposition that the President could revoke the privilege when they remained peaceable and provided no impediment to settlement. n86

n86 The Counties argue (Br. 26-31) that the "record" before the President justified the revocation of the privilege in 1850. However, the Counties description of the record is highly misleading, and ignores both the [ILLEGIBLE WORD] of the district court and Executive Branch at the time. E.g. PA 250-51 Notably the Counties' suggestion that "cultural misunderstandings" justified the [ILLEGIBLE WORD] order is expressly contradicted by Governor Ramsey's statement that not even the "prejudices . . . of our citizens" necessitated the Chippewa's removal [ILLEGIBLE WORD] p. 15 above.

The validity of the purported revocation of the 1837 usufructuary privilege in the 1850 order depends on the scope of authority conferred in the 1837 treaty. Because the language in the treaty "need not, and therefore can not reasonably," be read to confer authority on the President to revoke the privilege under the circumstances present in 1850, Tymshare, supra, the order was issued without lawful authority and was therefore invalid. See Youngstown, 343 U.S. at 585-86. Notably, this is not a case in which the Court needs to second guess the determinations of the Executive Branch on which the President's order rested; it is the Executive Branch's own determinations, upon which the President and the Congress based their future actions, which demonstrate the invalidity of the order.

The Counties (Br. 36) and Landowners (Br. 12) argue that, even it the President acted outside the scope of authority conferred by the treaty, his order is unreviewable under Dalton v. Specter, 511 U.S. 462 (1994). n87 There, however, the Court construed a statute that did not "at all himit the President's discretion," and instead allowed him to act "for whatever reason he sees fit." Id. at 476 (emphasis added); see id. at 478 (Souter, J., concurring) ("Act grants the President unfettered discretion" to act "for a good reason, a bad reason, or no reason"). For the reasons explained above, the 1837 treaty did not confer the kind of unfettered discretion on the President conferred by the statute at issue in Dalton. Where the [*48] governing law imposes limitations on the President's authority, the validity of his action depends on whether he has complied with those limitations. E.g. Clinton v. Jones, 520 U.S. 681, 137 L. Ed. 2d 945, 966 (1997); Cole v. Young, 351 U.S. at 557 n.20; Wiener v. United States, 357 U.S. 349, 356 (1958). To hold otherwise would render meaningless limitations on presidential authority imposed by Congress and upheld by this Court. See, e.g., Mistretta v. United States, 488 U.S. 361, 411 (1989); Morrison v. Olson, 487 U.S. 654, 691-92 (1988); Humphrey's Executor v. United States, 295 U.S. 602, 631-32 (1935); see generally Chamber of Commerce v. Reich, 74 F.3d at 1329-32. If such limitations are to be effective, executive orders that exceed them, such as the 1850 order at issue here, cannot be enforced.

n87 In this case, unlike Dalton, the Executive Branch contends that [ILLEGIBLE WORD] order was ineffective. The Counties and Landowners do not [ILLEGIBLE WORDS] Dalton should apply to the President's 1850 order, as opposed to [ILLEGIBLE WORDS] today.

IV. NEITHER PAYMENT FOR CEDED LAND NOR THE STATE'S INTEREST IN SUPPRESSING CHIPPEWA HUNTING AND FISHING SUPPORTS THE STATE'S POSITION.

The State seeks to justify its position on the ground that the Chippewa received "adequate compensation" for the land ceded in the 1837 treaty. St. Br. 28-29. n88 However, the Chippewa were entitled to such compensation because they ceded the land; the United States acquired ownership of the land and has conveyed substantial portions of it to the State and its non-Indian citizens. The fact that the Chippewa were belatedly paid fair compensation for the land they ceded cannot justify disregarding the hunting and fishing privilege separately guaranteed in the treaty. No court has ever held that payment for a land cession justifies the judicial abrogation of an expressly reserved hunting and fishing right. n89

n88 The Landowners go further, and argue that the Indian Claims Commission Act, 60 Stat. 1049, is a jurisdictional bar to this case. Ld. Br. 13-14. However, they point to nothing in that Act that bars the United States' claims, and the district court correctly held that the Act does not bar the Bands' claims. PA 394-96.

n89 In Oregon Dept. of Fish and Wildlife v. Klamath Tribe, 473 U.S. 753, 774 (1985), this Court held that the payment for lands ceded in a 1901 agreement, which contained no express reservation of hunting and fishing rights, supported its conclusion that the agreement did not reserve such rights; the Court did not suggest that payment for lands ceded in a treaty such as the 1837 Chippewa treaty, which expressly guaranteed such rights, would justify disregarding those rights. See PA 49-51. Other courts have held consistently that compensation for lands has no effect on hunting and fishing rights expressly reserved in land cession treaties. E.g. United States v. Washington, 135 F.3d 618, 637 (9th Cir. 1998) (reaffirming United States v. Washington, 459 [ILLEGIBLE WORD] Supp. 1020, 1039-42 (W.D. Wash. 1978)); Swim v. Bergland, 696 F.2d 712, 718 (9th Cir. 1983); Holcomb v. Confederated Tribes of the Umatilla Indian Reservation, 382 F.2d 1013, 1014 (9th Cir. 1967); cf. Western Shoshone Nat'l Council v. [ILLEGIBLE WORD], 951 F.2d 200, 203 (9th Cir. 1991), cert. denied, 506 U.S. 822 (1992) (distinguishing the 1837 Chippewa Treaty from a Shoshone treaty; which did not expressly reserve usufructuary rights).

[*49] Nor can the State's position be justified by its desire to suppress Chippewa hunting and fishing practices. The standards developed by this Court and applied by many federal and state courts allow for the orderly implementation of the treaty privilege in a manner that protects the interests of the State as well as private property owners. See p. 2 & n.1 above. The workability of those standards is confirmed by the fact that the parties to the Lac Courte Oreilles litigation in Wisconsin have had no need to return to court in the seven years since final judgment was entered in that case; virtually every implementation issue in this case was resolved by stipulation among the United States, the State and the Chippewa bands; the State did not appeal a single implementation issue to the court of appeals; and the State conceded that natural resources will not be damaged "at all" by the decisions below. See pp. 2-3 & n.3 above. n90

n90 These points are developed more fully in the briefs filed by respondents Bad River Band et al. and Fond du Lac Band et al. The State's current complaints (Br. 37-39) about the regulatory and management system to which it stipulated and about rulings it did not appeal should be viewed in [ILLEGIBLE WORDS] this larger picture.

HOWARD J. BICHLER Counsel of Record OFFICE OF THE TRIBAL ATTORNEY Attorney for Respondent St. Croix Chippewa Indians of Wisconsin Highway 70 and Angeline Road P.O. Box 287 Hertel, WI 54845 (715) 349-2195

GUY C. CHARLTON ANDREW H. MORGAN CHARLTON LAW FIRM, LTD. Attorneys for Respondent Sokaogon Chippewa Community 840 North Old World Third Street Suite 500 Milwaukee, WI 53203 (414) 272-2855

M. JOAN WARREN M. JOAN WARREN & ASSOCIATES Attorneys for Respondent Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin 310 Fourth Avenue South Suite 500 Minneapolis, MN 55415 (612) 335-8787

[*1a] APPENDIX A--CHIPPEWA LAND CESSIONS, 1837-1855 (DEFS. EXH. 1, PAGE 13; JOINT APPENDIX PAGE 956)