Menominee Tribe of Indians v. United States

Decision Date14 April 1967
Docket NumberNo. 339-65.,339-65.
Citation388 F.2d 998
PartiesThe MENOMINEE TRIBE OF INDIANS, suing on its own behalf and as the representative of its members, or their successors, as a class; and Menominee Enterprises, Inc., suing on its own behalf and as the representative of its stockholders, or their successors, as a class; and Gordon Dickie, James Frechette, Jerry Grignon, and George Kenote, each suing on his own behalf and as the representative of the members of the Menominee Tribe of Indians, or their successors, as a class, and as the representative of the stockholders of Menominee Enterprises, Inc., or their successors, as a class; and First Wisconsin Trust Company, suing as trustee on behalf of all the beneficiaries, or their successors, of the Menominee Assistance Trust Established Pursuant to the Menominee Termination Act of 1954, 25 U.S.C. §§ 891-902 v. The UNITED STATES.
CourtU.S. Claims Court

COPYRIGHT MATERIAL OMITTED

Charles A. Hobbs, Washington, D. C., attorney of record for plaintiffs. Wilkinson, Cragun & Barker and Angelo A. Iadarola, Washington, D. C., of counsel.

Ralph A. Barney, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

SKELTON, Judge.

The Menominee Tribe of Indians, suing on its own behalf and as the representative of its members, or their successors, as a class; and Menominee Enterprises, Inc., suing on its own behalf and as the representative of its stockholders, or their successors, as a class; and Gordon Dickie, James Frechette, Jerry Grignon, and George Kenote, each suing on his own behalf and as the representative of the members of the Menominee Tribe of Indians, or their successors, as a class, and as the representative of the stockholders of Menominee Enterprises, Inc., or their successors, as a class; and First Wisconsin Trust Company, suing as trustee on behalf of all the beneficiaries, or their successors, of the Menominee Assistance Trust established pursuant to the Menominee Termination Act of 1954, 68 Stat. 250, as amended, 25 U.S.C. §§ 891-902 (1964), have filed this suit to collect damages from the Government for the alleged loss of hunting and fishing rights on their reservation in Wisconsin which they claim were abrogated and cancelled by the Menominee Termination Act of 1954, supra, passed by the Congress of the United States. They assert that this Act enabled the State of Wisconsin to impose its hunting, fishing, and conservation laws upon the members of the tribe living on the reservation and this has extinguished their right to hunt and fish on their land "untrammeled by any state law or regulation"; that this is a valuable property right and the Government should compensate them for its loss. They admit they have the right to hunt and fish on the reservation on the same basis as exists for any non-Indian landowner on his land, but they claim the right to be free of any state hunting and fishing laws. They say they should recover damages for the loss of this freedom.

The Government has challenged the jurisdiction of this court and contends that the Menominee Termination Act, supra, abolished the Menominee Tribe of Indians and that the plaintiffs are not entitled to maintain this suit in this court. We do not agree. It is clear from the wording of the various sections of the Termination Act itself that it was contemplated the Menominee tribe would continue in existence after the Act became effective. For instance, the Act provided procedure for setting up a final roll of the members of the tribe and after the roll was completed, certificates were to be issued by the tribe to the members whose names appeared on the roll. Furthermore, the interest was to be alienable only in accordance with such regulations as may be adopted by the tribe. It provides further, that the Secretary of the Interior would transfer all tribal property to a trustee "for the benefit of the Menominee tribe." Finally, the Act states that after it becomes effective, the individual members of the tribe shall not be entitled to any of the services performed by the United States for Indians because of their status as Indians and all statutes of the United States applicable to Indians because of their status as Indians shall no longer be applicable to the members of the tribe and the laws of the several states shall apply to the tribe and its members and that nothing in the Act shall affect the status of the members of the tribe as citizens of the United States. The Termination Act did not abolish the tribe or its membership. It merely terminated Federal supervision over and responsibility for the property and members of the tribe. The Menominee Indians continue to constitute a tribe whose membership is composed of those persons whose names appear on the official roll of the tribe prepared in accordance with the terms of the Termination Act. The tribe continues to hold the beneficial and equitable interest in the property that was conveyed by the Secretary of Interior to plaintiffs, Menominee Enterprises, Inc., and First Wisconsin Trust Company, Trustees, in trust for the tribe. Certainly the Menominees constitute a "tribe, band, or other identifiable group of American Indians" within the meaning of the Indian Claims Commission Act of 1946, as amended, 28 U.S.C. § 1505 (1964), and they are asserting a claim in this case arising under the Treaty of 1854, infra, and the Termination Act, supra. Consequently, this court has jurisdiction of this case under the Indian Claims Commission Act, supra, and under the Tucker Act, 28 U.S.C. § 1491 (1964).

I

The Menominee Indians have lived as a tribe since time immemorial in Wisconsin. They have made various treaties with the United States through the years, most of which have nothing to do with the present lawsuit. However, by way of background, we will point out that by the Treaty of St. Louis, 7 Stat. 153 (1817), they acknowledge themselves to be under the protection of the United States. The Treaties of Prairie des Chiens, 7 Stat. 272 (1825), and Butte des Morts, 7 Stat. 303 (1827), settled certain boundary questions, while by the Treaty of Washington, 7 Stat. 342 (1831), and 7 Stat. 405 (1832), they ceded 3 million acres to our Government. They ceded about 4,184,000 acres to the United States by the Treaty of Cedar Point, 7 Stat. 506 (1836), and in 1848, ceded the balance of their land of approximately 4 million acres by the Treaty of Lake Pow-aw-hay-kon-nay, 9 Stat. 952, in exchange for about 600,000 acres west of the Mississippi River.

As a part of this last treaty and exchange, it was agreed that they could inspect the land west of the Mississippi before moving on it. They did so and reported dissatisfaction with it and refused to move to it. The Government then ceded them 276,480 acres of different land on Wolf River in Wisconsin which was acceptable to them and to which they moved in 1852.

In order to legalize this exchange of land, the Treaty of 1848 was amended by the Treaty of Wolf River, 10 Stat. 1064, 1065 (1854), by which the Menominees ceded back to the Government the lands west of the Mississippi which they had refused to accept and in return the Government gave to them the reservation on Wolf River "for a home, to be held as Indian lands are held, * * *." No mention was made in this treaty or in the Treaty of 1848 about hunting or fishing rights.

Except for two small tracts ceded by the Menominees in 1856, for use by the New York Indians, 11 Stat. 679, the Wolf River Reservation of about 230,000 acres has remained intact as the Menominee Reservation to the present time. It was occupied and governed by them according to the customs, laws, rules and regulations of the tribe without any outside interference by the state or anyone else during the 100 years from 1854 to 1954. This freedom from outside regulation and interference during this period extended to and included their hunting and fishing on the reservation, which was controlled only by the rules and regulations of the tribe itself.

II

We will consider first whether or not the Menominees had exclusive and unregulated hunting and fishing rights on their Wolf River Reservation. While it may be that the Menominees could establish a claim to such hunting and fishing rights by Indian title acquired by their ancestors through use and occupancy of land in Wisconsin for a long time, which may have included the land in their present reservation, these facts are not before us and we cannot speculate with reference to them. Actually, it is not necessary for us to pass upon any aboriginal claim to hunting and fishing rights, because the Menominees do not contend that their rights in this case are based on aboriginal title at all. Rather, they pitch their claim squarely on the hunting and fishing rights which they assert were given to them by the Government in the Treaty of Wolf River in 1854, supra.

That treaty, which created their present reservation, did not specifically or expressly mention hunting and fishing rights. Article 2 of the treaty (10 Stat. 1065) provided:

In consideration of the foregoing cession the United States agree to give, and do hereby give, to said Indians for a home, to be held as Indian lands are held, the land in question * *.

The Menominees say that the language "to be held as Indians lands are held" grants them an unqualified right to hunt and fish on the reservation in their own way free from all outside regulation or control. We think they are right. Cf. Oneida Tribe v. United States, 165 Ct. Cl. 487, 490-491 (1964), cert. denied, 379 U.S. 946, 85 S.Ct. 441, 13 L.Ed.2d 544. Moore v. United States, 157 F.2d 760 (9th Cir. 1946), cert. denied, 330 U.S. 827, 67 S.Ct. 867, 91 L.Ed. 1277. The primary reason they accepted this reservation as their new home was that it was filled with all kinds of game. We so held in the case of ...

To continue reading

Request your trial
14 cases
  • Menominee Indian Tribe of Wisconsin v. Thompson
    • United States
    • U.S. District Court — Western District of Wisconsin
    • February 26, 1996
    ...claim because it found that passage of the act had not extinguished the tribe's usufructuary rights. Menominee Tribe v. United States, 388 F.2d 998, 179 Ct.Cl. 496 (1967). In the Court of Claims' analysis, the Wisconsin supreme court had erred in reading the provision in the Termination Act......
  • U.S. v. Finch
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 22, 1976
    ...of buffalo and elk roaming the plains become extinct by accident of nature or decimation by man. Cf. Menominee Tribe of Indians v. United States, 388 F.2d 998, 179 Ct.Cl. 496, 1002 (1967), aff'd, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). We therefore decline to adopt an interpreta......
  • U.S. v. Long
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 20, 2003
    ...for the property and members of the tribe. The Menominee Indians continue to constitute a tribe." Menominee Tribe of Indians v. United States, 179 Ct.Cl. 496, 388 F.2d 998, 1000 (1967) (emphasis Two months after the Termination Act was enacted, Congress amended Public Law 280 to extend the ......
  • Northern Arapahoe Tribe v. Hodel
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 9, 1987
    ...atmosphere they breathed."); see also Menominee Tribe, 391 U.S. at 406 & n. 2, 88 S.Ct. at 1707 & n. 2; Menominee Tribe of Indians v. United States, 179 Ct.Cl. 496, 388 F.2d 998 (1967), aff'd, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Felix S. Cohen's Handbook of Federal Indian La......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT