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Menominee Indian Tribe of Wis. v. Thompson

Citation: 29 ELR 20312
No. 96-3596, 161 F.3d 449/(7th Cir., 11/17/1998)

The court holds that a Native American tribe does not have usufructuary rights or aboriginal rights to hunt and fish on certain offreservation lands in Wisconsin. In 1831, the tribe ceded southeastern and western portions of their land to the United States, but reserved the right to use the eastern ceded land for hunting and fishing. In 1836, another treaty was entered into in which the tribe ceded additional western lands. This treaty did not contain an explicit reservation of any use rights. In 1848, the tribe ceded all of its land in Wisconsin in exchange for land in Minnesota. However, the tribe never left Wisconsin. Consequently, the tribe and the United States signed a fourth treaty in 1854 in which the tribe ceded its Minnesota land in exchange for a small reservation in Wisconsin.

The court first holds that the doctrine of judicial estoppel does not bar the tribe's lawsuit. The 1968 U.S. Supreme Court decision relied on by defendants has nothing to do with tribal use-rights on land the tribe ceded to the United States. Furthermore, the claims the tribe presented to the Indian Claims Commission in the early 1950s do not warrant application of the judicial estoppel doctrine to this case. The record does not contain any evidence revealing a claim of, or discussion about, use rights. Next, the court holds that the district court did not convert the motion to dismiss into a summary judgment motion when it considered the treaties in making its decision. Indisputably, the tribe refers to the treaties in the complaint, and the treaties are central to its claim. The treaties, therefore, are not materials outside the pleadings. Moreover, the district court took judicial notice of the treaties, and a court may consider judicially noticed documents without converting a motion to dismiss into a motion for summary judgment.

The court then holds that the 1848 treaty forecloses any claim of usufructuary rights reserved in the 1831 treaty. Clearly, by the terms of the 1848 treaty, the tribe relinquished title to their Wisconsin land. Thus, the tribe could not reasonably have expected to continue hunting and fishing on the ceded land. The tribe's claim that the 1848 treaty was obtained through fraud fails because in 1850, the tribe sought permission to remain on Wisconsin land, which demonstrates that it understood the terms of the 1848 treaty. Moreover, because the tribe relinquished all its usufructuary rights in the 1848 treaty, it is irrelevant that the 1854 treaty did not explicitly abrogate those rights. In addition, the tribe's right to hunt and fish on certain eastern lands under the 1831 treaty was conditional. Because this right was extinguished in the 1834 treaty when the land was surveyed and offered for sale, it was unnecessary to explicitly abrogate the right to use those lands in the 1848 treaty. Also, the 1831 treaty explicitly linked the right to hunt on certain western lands to the tribe's having title to that land. Because the 1836 and 1848 treaties extinguished their right to use the land for hunting, it was unnecessary to mention the usufructuary rights in the 1854 treaty.

The court next holds that the tribe can prove no set of facts entitling them to a declaration of off-reservation fishing rights based on the 1854 treaty. The 1854 treaty does not expressly entitle the tribe to a specific proportion of sturgeon, and the treaty is not ambiguous. Last, the court holds that the tribe does not retain its aboriginal right to use Lake Winnebago, Lake Michigan, and the Wisconsin River free from state regulation. The creation and acceptance of an Indian reservation by treaty constitutes a relinquishment of aboriginal rights to lands outside the reservation. It is irrelevant whether members of the tribe continued to use off-reservation resources after the 1854 treaty was signed.

Counsel for Plaintiff
Bruce R. Greene
Greene, Meyer & McElroy
1007 Pearl St., Boulder CO 80302
(303) 442-2021

Counsel for Defendants
Charles Hoornstra
Attorney General's Office
114 E. State Capitol
P.O. Box 7857, Madison WI 53707
(608) 266-1221