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Minnesota v. Mille Lacs Band of Chippewa Indians

Citation: 29 ELR 20557
No. 97-1337, 119 S. Ct. 1187/(U.S., 03/24/1999)

The Court holds that several bands of Chippewa Native Americans retain the right to hunt, fish, and gather on lands in Wisconsin and Minnesota that were ceded to the United States in an 1837 treaty. Minnesota claimed that an 1850 executive order, an 1855 treaty, and the 1858 admission of Minnesota as a state of the Union terminated the bands' usufructuary rights. The Court first holds that the 1850 executive order, which ordered the removal of a band from ceded lands, did not terminate the bands' usufructuary rights under the 1837 treaty. The state has pointed to no statutory or constitutional authority for the removal order, thus, the order was unauthorized. In addition, the order's revocation of the usufructuary rights was insufficient because the revocation was inseverable from the invalid removal order. The 1850 order embodied a single, coherent policy, the predominant purpose of which was removal of the Chippewa from the lands they ceded to the United States.

The Court next holds that the 1855 treaty did not abrogate the bands' usufructuary rights. The 1855 treaty was designed primarily to transfer Chippewa land to the United States, not to terminate Chippewa usufructuary rights. Further, the historical record provides no support for the theory that the bands' relinquishment within the treaty of all right, title, and interest in any lands in Minnesota was designed to abrogate the usufructuary rights guaranteed under the 1837 treaty. And contrary to Minnesota'sassertion, Oregon Department of Fish and Wildlife v. Klamath Tribe, 473 U.S. 753 (1985), does not control this case.

The Court then holds that Minnesota's admission to the Union in 1858 did not extinguish the bands' usufructuary rights under the 1837 treaty. There is no clear evidence in Minnesota's enabling act of congressional intent to abrogate the bands' rights. In addition, the Equal Footing Doctrine does not extinguish the bands' usufructuary rights. Contrary to case law relied on by the state, a Native American tribe's treaty rights to hunt, fish, and gather on state lands are not irreconcilable with a state's sovereignty over its natural resources. Therefore, statehood by itself is insufficient to extinguish Native American treaty rights to hunt, fish, and gather on land within state boundaries.

Chief Justice Rehnquist, dissenting and joined by Justices Scalia, Kennedy, and Thomas, would hold that the bands' usufructuary rights to the ceded lands were terminated. The plain terms of the 1837 treaty granted the bands a quite limited privilege to hunt and fish, subject to the President's approval. The 1850 executive order constituted a valid revocation of the bands' hunting and fishing privileges. Further, the plain meaning of the 1855 treaty is the bands' relinquishment of all rights to land, and the majority's conclusion to the contrary holds that "all" does not in fact mean "all." And under the Equal Footing Doctrine, the bands' temporary and precarious treaty privileges were eliminated by the admission of Minnesota to the Union.

Justice Thomas, dissenting, would hold that the 1837 treaty did not limit Minnesota's sovereign regulatory authority over the bands' use of the state's natural resources.

[A prior decision in this litigation is published at 28 ELR 20183.]

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

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

Rehnquist, Scalia, Kennedy, and Thomas, JJ., dissenting