Menominee Indian Tribe of Wisconsin v. Thompson

Decision Date17 November 1998
Docket NumberNos. 96-3596,96-3985,s. 96-3596
Citation161 F.3d 449
Parties28 Envtl. L. Rep. 20,312 MENOMINEE INDIAN TRIBE OF WISCONSIN, Plaintiff-Appellant, v. Tommy G. THOMPSON, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Bruce R. Greene (argued), M. Catherine Condon, Greene, Meyer & McElroy, Boulder, CO; James M. Jannetta, Sault Ste. Marie, MI, for Plaintiff-Appellant in No. 96-3596.

Charles D. Hoornstra (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees in No. 96-3596.

Bruce R. Greene (argued), Greene, Meyer & McElroy, for Plaintiff-Appellant in No. 96-3985.

John D. Niemisto, Charles D. Hoornstra (argued), Thomas L. Dosch, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI; Philip Peterson, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees in No. 96-3985.

Charles G. Curtis, Jr., Foley & Lardner, Madison, WI, for Amicus Curiae in Nos. 96-3596 and 96-3985.

Before CUMMINGS, WOOD, JR., and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

The Menominee Indian Tribe of Wisconsin appeals the district court's dismissal of its lawsuit seeking a declaration of the Tribe's usufructuary rights on certain off-reservation lands set forth in a series of mid-nineteenth century treaties, as well as the enforcement of those rights by means of injunctive relief. The district court dismissed the lawsuit, concluding that the Tribe does not retain any aboriginal right to special treatment in hunting and fishing on off-reservation lands and that any off-reservation use rights reserved in the Treaty of 1831 were extinguished either by explicit conditions in that treaty or by removal provisions in subsequent treaties. We affirm.

I. BACKGROUND
A. The Treaty Process

Before addressing the claims presented in this appeal, we think it is both helpful and necessary to explain in detail the history of the treaty process between the United States and the Menominee Tribe. In 1831, the Menominee Indian Tribe and the United States signed a treaty resolving various disputes involving land in the state of Wisconsin that was traditionally used and occupied by the Menominee Indians. The Tribe agreed to "cede and forever relinquish to the United States, all their country [in Wisconsin] on the southeast side of Winnebago lake [sic], Fox river [sic], and Green bay [sic]." 1831 Treaty Art. Third, 7 Stat. 342, 343 (Feb. 8, 1831). The government intended to survey and sell the Wisconsin land east of the Fox River to white settlers. 1831 Treaty Art. Sixth. The Tribe also ceded a large tract of land west of the Fox River in the state of Wisconsin. 1831 Treaty Art. First. The government wanted to relocate several tribes from New York to the state of Wisconsin and settle them on the Menominee lands west of the Fox River. The Treaty, however, provided that if the New York tribes did not occupy these lands, "such portion as would have belonged to said [New York] Indians, had it been occupied, shall revert to the United States ... to be laid off by the President." 1831 Treaty Art. First. In exchange for the land, the government agreed to protect, pay and provide various goods and services 1 to the Menominee Tribe. See 1831 Treaty Arts. Third, Fourth, Fifth, and Sixth p 3.

In the 1831 Treaty, the Tribe reserved the right to use the land ceded on the east side of the Fox for hunting and fishing. 1831 Treaty Art. Sixth at p 1. Specifically, the Treaty states:

The Menomonee [sic] tribe of Indians shall be at liberty to hunt and fish on the lands they have now ceded to the United States, on the east side of Fox river [sic] and Green bay [sic], with the same privileges they at present enjoy, until it be surveyed and offered for sale by the President; they conducting themselves peaceably and orderly.

1831 Treaty Art. Sixth at p 1. Additionally, the Treaty reserved to the Tribe hunting rights in the Wisconsin land west of the Fox "until the President of the United States, shall deem it expedient to extinguish their title." 1831 Treaty Art. Sixth at p 2. The parties do not dispute that the Wisconsin land east of the Fox was shortly thereafter surveyed and offered for sale to white settlers.

In 1836, the Tribe and the United States entered into another treaty, in which the Tribe ceded additional lands west of the Fox River. 1836 Treaty Art. First pp 1, 2, 7 Stat. 506, 506-507 (Sept. 3, 1836). The 1836 Treaty contains no explicit reservation of any use rights, but it provides that the Tribe would leave the ceded lands within one year of the treaty's ratification. 1836 Treaty Art. Fourth p 1.

In 1848, the Tribe signed another treaty in which it agreed "to cede, ... sell, and relinquish to the United States all [its] lands in the State of Wisconsin wherever situated." 1848 Treaty Art. II, 9 Stat. 952, 952 (Oct. 18, 1848). The United States, in exchange, agreed to give the Tribe at least 600,000 acres of land located in Minnesota 2 and $350,000. 1848 Treaty Arts. III, IV. Further, the government agreed to finance a Menominee delegation "[t]o enable the said Indians to explore and examine their new country, and as an inducement to an early removal thereto." 1848 Treaty Art. VI. Article VIII provided:

It is agreed that the said Indians shall be permitted, if they desire to do so, to remain on the land hereby ceded for and during the period of two years from the date hereof, and until the President shall notify them that the same are wanted.

The Menominee Tribe never left Wisconsin. Instead, in 1850, at the end of the two-year period, the Tribe requested and received the President's permission to remain temporarily on land located in Wisconsin at the Wolf and Oconto Rivers. 1854 Treaty Preamble at p 2, 10 Stat. 1064, 1064 (May 12, 1854).

On May 12, 1854, the Menominee Tribe and the government signed their fourth and final treaty. The preamble to the 1854 Treaty describes the terms of the 1848 Treaty, stating that the Tribe ceded all of its land in the state of Wisconsin to the United States in exchange for land in Minnesota. 1854 Treaty Preamble at p 2. It then recounts the "manifestation of great unwillingness on the part of said Indians to remove to the country west of the Mississippi River ... and a desire to remain in the State of Wisconsin." 1854 Treaty Preamble at p 3. Finally, the preamble states that the purpose of the Treaty is to assuage the Tribe's interest in establishing a permanent home in Wisconsin. 1854 Treaty Preamble at p 4. To this end, the Menominee Tribe ceded their Minnesota lands (obtained in the 1848 Treaty) to the United States in exchange for a small reservation in Wisconsin at the mouth of the Oconto and Wolf Rivers. 1854 Treaty Arts. 1, 2. In addition to providing funds for various goods and services, the government agreed to pay the difference between the value of the Minnesota land ceded by the Tribe and the value of the Wisconsin reservation granted by the government. 1854 Treaty Art. 4.

B. The Procedural History of this Case

The Menominee Tribe brought this lawsuit seeking a declaration of their usufructuary rights off-reservation The Tribe contended that the 1831 Treaty reserved their right to hunt and fish on the lands they ceded both to the east and west of the Fox River, and that the right to fish and hunt on those lands had not been terminated by any subsequent treaty or act of Congress. Additionally, the Tribe asserted that it retains aboriginal fishing rights in Lake Winnebago and along the Wisconsin shores of Lake Michigan and the Wisconsin River. Finally, the Tribe claimed the right to harvest sturgeon off-reservation to compensate for the decrease in on-reservation sturgeon populations. The Tribe requested an injunction ordering the defendants to allow Menominee Indians to exercise their alleged off-reservation usufructuary rights free from regulation by the State.

The defendants moved to dismiss the lawsuit, arguing that the Tribe should be judicially estopped from asserting usufructuary rights arising out of the 1831 Treaty based on positions taken by the Tribe in prior litigation, and that the Treaties of 1848 and 1854 terminated any treaty-reserved or aboriginal rights the Menominee may have had on off-reservation lands. Additionally, the defendants argued that the 1831 Treaty while reserving limited usufructuary rights for the Tribe, provided that certain events would extinguish or cancel those limited rights. Specifically, the defendants claimed that the terms of the 1831 Treaty limiting the Tribe's right to use the land east of the Fox River would terminate when the president offered the land for sale, and that the Tribe's right to use the land west of the Fox River was dependant upon having title to that land. The defendants contended that those terminating events (i.e. the president offered the land east of the river for sale and the Tribe ceded title to the land west of the river) occurred more than a century and a half ago and, therefore, the Tribe retains no off-reservation usufructuary rights. Finally, the defendants argued that the 1854 Treaty did not guarantee the Tribe any specific amount of sturgeon and, in any event, that the district court did not have the authority to grant the Tribe off-reservation fishing rights.

The district court judge granted the defendants' motion to dismiss. The district court dismissed the plaintiffs' sturgeon claim because it concluded that the Menominee Tribe reserve neither off-reservation fishing rights nor the right to a specific proportion of the sturgeon catch and, therefore, that the court did not have the authority to grant the relief requested. Menominee Indian Tribe of Wisconsin v. Thompson, 922 F.Supp. 184, 214-15 (W.D.Wis.1996). The district judge concluded that the treaties were not ambiguous and therefore that the court was competent to interpret them. The court went on to hold that any...

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