And now:Ish <[EMAIL PROTECTED]> writes:
Date: Wed, 24 Mar 1999 09:35:47 -0800
From: Tom Schlosser <[EMAIL PROTECTED]>
Organization: Morisset Schlosser Ayer & Jozwiak, 801 2nd Ave., Ste. 1115,
Seattle, WA 98104, 206 386 5200, (206 386 7322 fax)
This is a multi-part message in MIME format.
--------------EE0987174DBAA2F1E777FF3A
Content-Type: text/plain; charset=us-ascii
Content-Transfer-Encoding: 7bit
The website is: http://supct.law.cornell.edu/supct/html/97-1337.ZS.html
Here's the court's syllabus:
Ish wrote:
> Court OKs Chippewa Indian Hunting
> www.nytimes.com/
> ----------------------------------------------------------------------------
> ----
> WASHINGTON (AP) -- Eight bands of Chippewa Indians can continue to hunt and
> fish on 13 million acres of public land in Minnesota without state
> regulation, the Supreme Court ruled today in a case that attracted the
> attention of tribes nationwide.
>
> By a 5-4 vote, the court said that neither an 1850 presidential order nor
> Minnesota's statehood in 1858 stripped the Chippewas of the hunting and
> fishing privilege they received in an 1837 treaty.
>
> ``After an examination of the historical record, we conclude that the
> Chippewa retain the ... rights guaranteed to them under the 1837 treaty,''
> Justice Sandra Day O'Connor wrote for the court.
>
> Some Indian law experts had said the court's decision could affect the
> security of other Indian treaty rights. The Chippewas were supported in
> friend-of-the-court briefs submitted by the National Congress of American
> Indians, Affiliated Tribes of Northwest Indians and 32 individual tribes.
>
> The Mille Lacs Band of Chippewa sued the state in 1990, challenging its
> authority to impose hunting and fishing regulations on tribal members. The
> federal government and seven other Chippewa bands in Minnesota and Wisconsin
> joined the lawsuit. Nine counties and eight private landowners intervened on
> the state's side.
>
> A federal trial judge ruled in 1994 that the package of rights guaranteed by
> the Chippewas' 1837 treaty with the United States ``continues to exist,''
> and the 8th U.S. Circuit Court of Appeals agreed.
>
> Today, the nation's highest court said those courts were correct.
>
> The 1837 treaty gave the Chippewa Indians the rights to hunt and fish
> ``during the pleasure of the president'' on 13 million acres it ceded to the
> United States.
>
> Minnesota's lawyers contended that an order President Zachary Taylor signed
> 13 years later took those rights away and ordered the Chippewas removed from
> the previously ceded lands.
>
> The Chippewas opposed the removal order, and the federal government never
> enforced it. The bands continued to hunt and fish in the ceded
> territories -- an expanse of land in central Minnesota that includes Lake
> Mille Lacs, one of the state's prime walleye lakes.
>
> O'Connor wrote that Taylor's order requiring the Chippewas' removal from the
> land was not authorized by federal law, and that other provisions in
> Taylor's order revoking the hunting and fishing rights could not stand
> separately.
>
> The state's lawyers also contended that the hunting and fishing privilege
> free of state regulation ended when Minnesota became a state in 1858 and
> entered the union on an equal footing with all other states.
>
> However, O'Connor said Indian treaty rights can be revoked only when
> Congress clearly states its intent to do so. The legislation admitting
> Minnesota into the union did not mention Indian treaty rights, she said.
>
> ``Statehood by itself is insufficient to extinguish Indian treaty rights to
> hunt, fish and gather on land within state boundaries,'' O'Connor wrote.
>
> Her opinion was joined by Justices John Paul Stevens, David H. Souter, Ruth
> Bader Ginsburg and Stephen G. Breyer.
>
> Dissenting were Chief Justice William H. Rehnquist and Justices Antonin
> Scalia, Anthony M. Kennedy and Clarence Thomas.
>
> Writing for the four, Rehnquist said Taylor's order ending the Chippewas'
> treaty privileges was valid, adding, ``There is simply no principled reason
> to invalidate the 150-year-old executive order.''
>
> The case is Minnesota vs. Mille Lacs Band, 97-1337.
>
> &&&&&&&&&&&&&&&&&&&&&&&&&&
> Tsonkwadiyonrat (We are ONE Spirit)
> Unenh onhwa' Awayaton
> http://www.tdi.net/ishgooda/
> &&&&&&&&&&&&&&&&&&&&&&&&&&
>
> <<<< To remove your name from this list send a message to
"[EMAIL PROTECTED]" with the message "unsubscribe triballaw" >>>>
--------------EE0987174DBAA2F1E777FF3A
Content-Type: text/plain; charset=iso-8859-1; name="mille.txt"
Content-Transfer-Encoding: 8bit
Content-Disposition: inline; filename="mille.txt"
[U.S. Supreme Court] [LII]
MINNESOTA v. MILLE LACS BAND OF CHIPPEWAINDIANS (97-1337)
124 F.3d 904, affirmed.
Syllabus Opinion Dissent Dissent
[ O�Connor ] [ Rehnquist ] [ Thomas ]
------------------------------------------------------------------------
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
MINNESOTA et al. v. MILLE LACS BAND OF
CHIPPEWA INDIANS et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
---------------
No. 97�1337. Argued December 2, 1998�Decided March 24, 1999
---------------
Pursuant to an 1837 Treaty, several Chippewa Bands ceded land in
present-day Minnesota and Wisconsin to the United States. The United
States, in turn, guaranteed to the Indians certain hunting, fishing, and
gathering rights on the ceded land �during the pleasure of the President of
the United States.� In an 1850 Executive Order, President Taylor ordered
the Chippewa�s removal from the ceded territory and revoked their
usufructuary rights. The United States ultimately abandoned its removal
policy, but its attempts to acquire Chippewa lands continued. An 1855
Treaty set aside lands as reservations for the Mille Lacs Band, but made no
mention of, among other things, whether it abolished rights guaranteed by
previous treaties. Minnesota was admitted to the Union in 1858. In 1990,
the Mille Lacs Band and several members sued Minnesota, its Department of
Natural Resources, and state officials (collectively State), seeking, among
other things, a declaratory judgment that they retained their usufructuary
rights and an injunction to prevent the State�s interference with those
rights. The United States and several counties and landowners intervened.
In later stages of the case, several Wisconsin Bands of Chippewa intervened
and the District Court consolidated the Mille Lacs Band litigation with the
portion of another suit involving usufructuary rights under the 1837
Treaty. The District Court ultimately concluded that the Chippewa retained
their usufructuary rights under the 1837 Treaty and resolved several
resource allocation and regulation issues. The Eighth Circuit affirmed. As
relevant here, it rejected the State�s argument that the 1850 Executive
Order abrogated the usufructuary rights guaranteed by the 1837 Treaty,
concluded that the 1855 Treaty did not extinguish those privileges for the
Mille Lacs Band, and rejected the State�s argument that, under the �equal
footing doctrine,� Minnesota�s entrance into the Union extinguished any
Indian treaty rights.
Held: The Chippewa retain the usufructuary rights guaranteed to them by
the 1837 Treaty. Pp. 15�35.
(a) The 1850 Executive Order was ineffective to terminate Chippewa
usufructuary rights. The President�s power to issue an Executive Order must
stem either from an Act of Congress or from the Constitution itself.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585. The Court of
Appeals concluded that the 1830 Removal Act did not authorize the removal
order, and no party challenges that conclusion here. Even if the 1830
Removal Act did not forbid the removal order, it did not authorize the
order. There is no support for the landowners� claim that the 1837 Treaty
authorized the removal order. The Treaty made no mention of removal, and
the issue was not discussed during Treaty negotiations. The Treaty�s
silence is consistent with the United States� objectives in negotiating the
Treaty: the purchase of Chippewa land. The State argues that, even if the
order�s removal portion was invalid, the Treaty privileges were
nevertheless revoked because the invalid removal order was severable from
the portion of the order revoking usufructuary rights. Assuming, arguendo,
that the severability standard for statutes�whether the legislature would
not have taken the valid action independently of the invalid action, e.g.,
Champlin Refining Co. v. Corporation Comm�n of Okla., 286 U.S. 210,
234�also applies to Executive Orders, the historical evidence indicates
that President Taylor intended the 1850 order to stand or fall as a whole.
That order embodied a single, coherent policy, the primary purpose of which
was the Chippewa�s removal. The revocation of usufructuary rights was an
integral part of this policy, for the order tells the Indians to �go� and
not to return to the ceded lands to hunt or fish. There is also little
historical evidence that the Treaty privileges themselves�rather than the
Indians� presence�caused problems necessitating revocation of the
privileges. Pp. 15�21.
(b) The Mille Lacs Band did not relinquish its 1837 Treaty rights in
the 1855 Treaty by agreeing 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.� That sentence does not mention
the 1837 Treaty or hunting, fishing, and gathering rights. In fact, the
entire 1855 Treaty is devoid of any language expressly mentioning
usufructuary rights or providing money for abrogation of those rights.
These are telling omissions, since federal treaty drafters had the
sophistication and experience to use express language when abrogating
treaty rights. The historical record, purpose, and context of the
negotiations all support the conclusion that the 1855 Treaty was designed
to transfer Chippewa land to the United States, not terminate usufructuary
rights. Oregon Dept. of Fish and Wildlife v. Klamath Tribe, 473 U.S. 753,
distinguished. Pp. 21�29.
(c) The Chippewa�s usufructuary rights were not extinguished when
Minnesota was admitted to the Union. Congress must clearly express an
intent to abrogate Indian treaty rights, United States v. Dion, 476 U.S.
734, 734�740, and there is no clear evidence of such an intent here. The
State concedes that Minnesota�s enabling Act is silent about treaty rights
and points to no legislative history describing the Act�s effect on such
rights. The State�s reliance on Ward v. Race Horse, 163 U.S. 504, is
misplaced. The Court�s holding 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 when Wyoming
became a State, id., at 507, has been qualified by this Court�s later
decisions. The first part of the Race Horse holding�that the Treaty rights
conflicted irreconcilably with state natural resources regulation such that
they could not survive Wyoming�s admission to the Union on an �equal
footing� with the 13 original States�rested on a false premise, for this
Court has subsequently made clear that a tribe�s treaty rights to hunt,
fish, and gather on state land can coexist with state natural resources
management, see, e.g., Washington v. Washington State Commercial Passenger
Fishing Vessel Assn., 443 U.S. 658. Thus, statehood by itself is
insufficient to extinguish such rights. Race Horse�s alternative
holding�that the Treaty rights at issue were not intended to survive
Wyoming�s statehood�also does not help the State here. There is no
suggestion in the 1837 Treaty that the Senate intended the rights here to
terminate when a State was established in the area; there is no fixed
termination point contemplated in that Treaty; and treaty rights are not
impliedly terminated at statehood, e.g., Wisconsin v. Hitchcock, 201 U.S.
202, 213�214. Pp. 29�35.
124 F.3d 904, affirmed.
O�Connor, J., delivered the opinion of the Court, in which Stevens,
Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed a
dissenting opinion, in which Scalia, Kennedy, and Thomas, JJ., joined.
Thomas, J., filed a dissenting opinion.
--------------EE0987174DBAA2F1E777FF3A--
&&&&&&&&&&&&&&&&&&&&&&&&&&
Tsonkwadiyonrat (We are ONE Spirit)
Unenh onhwa' Awayaton
http://www.tdi.net/ishgooda/
&&&&&&&&&&&&&&&&&&&&&&&&&&
