391 U.S. 404 (1968), 187, Menominee Tribe of Indians v. United States

Docket Nº:No. 187
Citation:391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697
Party Name:Menominee Tribe of Indians v. United States
Case Date:May 27, 1968
Court:United States Supreme Court

Page 404

391 U.S. 404 (1968)

88 S.Ct. 1705, 20 L.Ed.2d 697

Menominee Tribe of Indians

v.

United States

No. 187

United States Supreme Court

May 27, 1968

Argued January 22, 1968

Reargued April 25, 1968

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS

Syllabus

The Menominee Tribe of Indians brought this action in the Court of Claims to recover compensation for the loss of their hunting and fishing rights, which the Wisconsin Supreme Court in another proceeding had held had been abrogated by the Menominee Termination Act of 1954. The Termination Act, which did not become fully effective until 1961, provided for the termination of federal supervision over the property and members of the tribe, whereupon state laws were to become applicable to them in the same manner as they applied to others. The same Congress that passed that Act also enacted Public Law 280, which, two months after the Termination Act became law, was amended to apply specifically to the Menominee Reservation. Public Law 280 granted to certain States, including Wisconsin, general jurisdiction over "Indian country" within their boundaries, but with the proviso that

Nothing in this section . . . shall deprive any Indian or Indian tribe . . . of any right, privilege, or immunity afforded under Federal treaty . . . with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.

The Court of Claims in light of Public Law 280 held that the Termination Act did not extinguish the tribe's hunting and fishing rights, but that these were retained under the Treaty of Wolf River of 1854, whereby the United States had set aside land for the Menominees "for a home, to be held as Indian lands are held." Both petitioner and respondent on oral argument here have urged affirmance of the Court of Claims judgment; the State of Wisconsin, appearing as amicus curiae, has argued for reversal.

Held:

1. The language in the Treaty of Wolf River "to be held as Indian lands are held" includes the right to fish and to hunt. Pp. 405-106.

2. The Menominee Tribe's hunting and fishing rights under the Treaty survived the Termination Act of 1954. Pp. 410-413.

(a) In 1954, when Public Law 280, as amended, took effect the Menominee Reservation was still "Indian country" within the meaning of that law. P. 411.

Page 405

(b) Public Law 280 must be considered in pari materia with the Termination Act, and the two Acts, read together, mean that, although federal supervision of the tribe was to cease and all tribal property was to be transferred to new hands, the hunting and fishing rights granted or preserved by the Treaty survived the Termination Act. Pp. 411-413.

(c) The purpose to abrogate treaty rights of Indians is not to be lightly imputed to Congress. Pp. 412-413.

179 Ct.Cl. 496, 388 F.2d 998, affirmed.

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

The Menominee Tribe of Indians was granted a reservation in Wisconsin by the Treaty of Wolf River in 1854. 10 Stat. 1064. By this treaty, the Menominees retroceded certain lands they had acquired under an earlier treaty and the United States confirmed to them the Wolf River Reservation "for a home, to be held as Indian lands

Page 406

are held." Nothing was said in the 1854 treaty about hunting and fishing rights. Yet we agree with the Court of Claims1 that the language "to be held as Indian lands are held" includes the right to fish and to hunt. The record shows that the lands covered by the Wolf River Treaty of 1854 were selected precisely because they had an abundance of game. See Menominee Tribe v. United States, 95 Ct.Cl. 232, 24241 (1941). The essence of the Treaty of Wolf River was that the Indians were authorized to maintain on the new lands ceded to them as a reservation their way of life, which included hunting and fishing.2

Page 407

[88 S.Ct. 1708] What the precise nature and extent of those hunting and fishing rights were we need not at this time determine. For the issue tendered by the present decision of the Court of Claims, 179 Ct.Cl. 496, 388 F.2d 998, is whether those rights, whatever their precise extent, have been extinguished.

That issue arose because, beginning in 1962, Wisconsin took the position that the Menominees were subject to her hunting and fishing regulations. Wisconsin prosecuted three Menominees for violating those regulations and the Wisconsin Supreme Court held3 that the state regulations were valid, as the hunting and fishing rights of the Menominees had been abrogated by Congress in the Menominee Indian Termination Act of 1954. 68 Stat. 250, as amended, 25 U.S.C. §§ 891-902.

Thereupon, the tribe brought suit in the Court of Claims against the United States to recover just compensation for the loss of those hunting and fishing rights.4 The Court of Claims, by a divided vote, held that the tribe possessed hunting and fishing rights under the Wolf River Treaty; but it held, contrary to the Wisconsin Supreme Court, that those rights were not abrogated by the Termination Act of 1954. We granted the petition for a writ of certiorari in order to resolve that conflict between the two courts. 389 U.S. 811. On oral argument, both petitioner and respondent urged that the judgment of the Court of Claims be affirmed. The State of Wisconsin appeared as amicus curiae and argued that that judgment be reversed.

Page 408

In 1953, Congress by concurrent resolution5 instructed the Secretary of the Interior to recommend legislation for the withdrawal of federal supervision over certain American Indian tribes, including the Menominees. Several bills were offered, one for the Menominee Tribe that expressly preserved hunting and fishing rights.6 But the one that became the Termination Act of 1954, viz., H.R. 2828, did not mention hunting and fishing rights.7 Moreover, counsel for the Menominees spoke against the bill, arguing that its silence would, by implication, abolish those hunting and fishing rights. It is therefore argued that they were abolished by the Termination Act.

The purpose of the 1954 Act was, by its terms, "to provide for orderly termination of Federal supervision over the property and members" of the tribe. Under its provisions, the tribe was to formulate a plan for future control of tribal property and service functions theretofore conducted by the United States. On or before April 30, 1961, the Secretary was to transfer to a tribal corporation or to a trustee chosen by him all property real and personal held in trust for the tribe by the United States.8

The Menominees submitted a plan, looking toward the creation of a county in Wisconsin out of the former reservation and the creation by the Indians of a Wisconsin corporation to hold other property of the tribe and its members. The Secretary of the Interior approved the plan9 [88 S.Ct. 1709] with modifications; the Menominee

Page 409

Enterprises, Inc., was incorporated;10 and numerous ancillary laws were passed by Wisconsin integrating the former reservation into its county system of government.

Page 410

The Termination Act provided that, after the transfer by the Secretary of title to the property of the tribe, all federal supervision was to end and

the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.

It is therefore argued with force that the Termination Act of 1954, which became fully effective in 1961, submitted the hunting and fishing rights of the Indians to state regulation and control. We reach, however, the opposite conclusion. The same Congress that passed the Termination Act also passed Public Law 280, 67 Stat. 588, as amended, 18 U.S.C. § 1162. The latter came out of the same committees of the Senate and the House as did the Termination Act, and it was amended11 in a way that is critical here [88 S.Ct. 1710] only two months after the Termination Act became law. As amended, Public Law 280 granted designated States, including Wisconsin, jurisdiction "over offenses committed by or against Indians in the areas of Indian country" named in the Act, which, in the case of Wisconsin, was described as "All Indian country within the State." But Public Law 280 went on to say that

Nothing in this section . . . shall deprive any

Page 411

Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.

(Emphasis added.) That provision, on its face, contains no limitation; it protects any hunting, trapping, or fishing right granted by a federal treaty. Public Law 280, as amended, became the law in 1954, nearly seven years before the Termination Act became fully effective in 1961. In 1954, when Public Law 280 became effective, the Menominee Reservation was still "Indian country" within the meaning of Public Law 280.

Public Law 280 must therefore be considered in pari materia with the Termination Act. The two Acts, read together, mean to us that, although federal supervision of the tribe was to cease and all tribal property was to be transferred to new hands, the hunting and fishing rights granted or preserved by the Wolf River Treaty of 185412 survived the Termination Act of 1954.

Page 412

This construction is in accord with the overall legislative plan. The Termination Act, by its terms, provided for the "orderly termination of Federal supervision over the property and members" of the tribe. 25 U.S.C. § 891. (Emphasis added.) The Federal Government ceded to the State of Wisconsin its power of supervision over the tribe and the reservation lands, as evident fro the provision of the Termination Act that the laws of Wisconsin "shall apply to the [88 S.Ct. 1711] tribe and its members in the same manner as they apply to other...

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    ...an explicit congressional command, a court should be reluctant to abrogate tribal rights. Menominee Tribe of Indians v. United States, 391 U.S. 404, 412-13, 88 S.Ct. 1705, 20 L.Ed.2d 697 (discussing treaty There are colorable arguments on both sides regarding Federal Defendants' authority t......
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    ...is asserting a right or preference as a member of a tribe? So what is a tribe? The Supreme Court held in Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1967) that treaty rights of Indians survive the termination of supervision over a tribe unless Congress cle......
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