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Mille Lacs Band of Chippewa Indians v. Minnesota

Citation: 28 ELR 20183
No. 97-1757 et al., 124 F.3d 904/(8th Cir., 08/26/1997)

The court holds that various Native American bands retain their right to hunt, fish, and gather in the Minnesota portion of territory they ceded in an 1837 treaty. The bands, however, may only exercise their usufructuary rights on public lands and private lands open to public hunting, fishing, and gathering. The court first holds that the Eleventh Amendment does not bar U.S. or the bands' claims against the state. As an intervenor, the United States has the right to continue the suit even without the presence of the bands. Because the United States has a right to bring the claims in federal court, the state's sovereign immunity is not compromised. The remaining claims seek prospective relief against state officials in their official capacities for continuing violations of the bands' federal treaty rights. As such, they fall squarely within the exception set out in Ex Parte Young, 209 U.S. 123 (1908). The court next holds that an 1850 Executive Order concerning removal and revocation of usufructuary rights did not terminate the usufructuary rights reserved by the bands in the 1837 treaty. The Executive Order is invalid, because it was issued without presidentialauthority. Congress required consent for removal, and the bands did not consent. Moreover, there is no evidence that the revocation of usufructuary rights would have been made independently of the removal mandate. Thus, the court cannot sever the revocation portion of the order and hold that it is valid standing alone. The court next holds that neither party intended an 1854 treaty, which established reservations for some of the bands, to disturb usufructuary rights. The court then holds that an 1855 treaty, which also established a reservation, did not revoke the 1837 treaty's usufructuary rights. Neither the 1837 treaty nor its usufructuary rights were mentioned in the 1855 treaty or during its negotiation process, and there is no evidence that the parties intended to extinguish these rights.

Next, the court holds that the original petition in a proceeding brought by some of the bands concerning swamp land and public school sections of land does not bar the bands' claims under the doctrine of collateral estoppel. The petition does not include any claims under the 1837 treaty that underlies the bands' claims here. And the usufructuary rights issue was not actually litigated in the earlier proceeding. The court also holds that litigation brought before the Indian Claims Commission does not collaterally estop the bands' usufructuary rights claims. An Indian Claims Commission award that is silent as to usufructuary rights does not automatically subsume and estop future usufructuary rights claims. Next, the court rejects the state's equal footing doctrine argument, and holds that the 1837 treaty rights were not void when Minnesota was granted statehood. The rights secured to the bands in the 1837 treaty were in no way tied to ownership, but instead were intended to be continuing rights. The bands' usufructuary rights are not irreconcilable with the state's sovereignty. And the rule that Congress can abrogate treaty rights with the Native Americans only when its intention is expressed clearly and plainly counsels against application of the equal footing doctrine in this case. The court also rejects the state's moderate living doctrine argument. The court holds that an equitable apportionment in a treaty case is not appropriate unless conservation of the resources makes apportionment necessary, or the existence and scope of a party's right to the resource has been determined, and that right is substantially harmed due to another party's harvest of that resource. Because neither circumstance is present here, and because the moderate living doctrine itself cannot be applied to require apportionment, the court does not consider the doctrine. Last, the court holds that the lower court did not err in barring the bands from hunting on unposted, unenclosed, nonagricultural lands open to public hunting. A distinction between private lands open to the public generally and indiscriminately and private lands to which owner consent is necessary is crucial.

Counsel for Plaintiffs
John B. Arum
Ziontz, Chestnut, Varnell, Berley & Slonim
2101 4th Ave., Ste. 1230, Seattle WA 98121
(206) 448-1230

Counsel for Defendants
Jennifer Fahey
County Attorney's Office
635 Second St. SE, Milaca MN 56353
(320) 983-8305

Before McMillian and Gibson, JJ.