Leech Lake Band of Chippewa Indians v. Herbst, 3-69 Civ-65

• Citation: 334 F. Supp. 1001
• Decision Date: 10 December 1971
• Docket Number: No. 3-69 Civ-65,3-70 Civ-228.,3-69 Civ-65
• Parties: LEECH LAKE BAND OF CHIPPEWA INDIANS et al., Plaintiffs, v. Robert L. HERBST, Commissioner of Natural Resources of the State of Minnesota, Defendant. UNITED STATES of America, Plaintiff, v. STATE OF MINNESOTA, Defendant.
• Court: U.S. District Court — District of Minnesota

334 F. Supp. 1001

LEECH LAKE BAND OF CHIPPEWA INDIANS et al., Plaintiffs, v. Robert L. HERBST, Commissioner of Natural Resources of the State of Minnesota, Defendant.

UNITED STATES of America, Plaintiff, v. STATE OF MINNESOTA, Defendant.

Nos. 3-69 Civ-65, 3-70 Civ-228.

United States District Court, D. Minnesota, Third Division.

December 10, 1971.

Bernard P. Becker, Minneapolis, Minn., Kent P. Tupper, Walker, Minn., for plaintiff, Leech Lake Band of Chippewa Indians, et al.

Robert G. Renner, U. S. Atty., Minneapolis, Minn., for plaintiff, United States of America.

Warren Spannaus, Atty. Gen., Morris M. Sherman, and Eldon G. Kaul, Sp. Asst. Attys. Gen., St. Paul, Minn., for defendant, State of Minnesota.

MEMORANDUM AND ORDER

DEVITT, Chief Judge.

The basic issue in these two jointly tried Declaratory Judgment actions is whether plaintiff, Chippewa Indians, may fish, hunt and harvest wild rice on the public lands and waters of the Leech Lake Indian Reservation without complying with Minnesota game and fish laws.

Plaintiffs base their claim that the Indians are not amenable to such Minnesota laws on three arguments. First, plaintiffs allege that the Indians possessed aboriginal rights to fish and hunt on the land in question. Second, plaintiffs claim that these rights were recognized in treaties with the white man; and finally, it is plaintiffs' position that the United States, vested with the sole authority to do so, has never abrogated these treaty rights.

The defendant, State of Minnesota, claims that any right to unrestricted fishing and hunting the Leech Lake Indians may have had was terminated in 1889 by the United States Congress when it enacted the Nelson Act (25 Stat. 642) which provided for "a complete extinguishment of the Indian title" to the lands of the Leech Lake Reservation. Accordingly, it is the position of the State that the game and fish laws must be enforced against Indians and non-Indians alike.

Jurisdiction is established. 28 U.S.C. § 1331(a) and § 1362. The matter was tried to the Court on November 2 and 3, 1971. Nineteen witnesses testified and many exhibits were received. Extensive written briefs were filed and oral argument held.

The Leech Lake Indian Reservation in north-central Minnesota consists of 588,684 acres of land occupying portions of Itasca, Cass and Beltrami counties.¹ The reservation was created by treaty in 1855 (10 Stat. 1165, 11 Kappler, p. 685; Defendant's Exhibit B), and continued under modifying provisions of subsequent treaties and executives orders. Eighty percent of the land in the reservation is now owned by county, state and federal governments with the Chippewa National Forest occupying the largest portion of the area. The land, generally swampy and unsuitable for agriculture, includes many lakes including Cass, Leech and Winnibigoshish and is a popular tourist area. Some of the best walleye fishing in Minnesota is to be found on the lakes of the reservation. According to the 1970 census, 2,795 members of the Leech Lake Band live within or adjacent to the reservation. Many of these Indians hunt and fish for their sustenance.

The Leech Lake Reservation is one of seven Chippewa reservations in the state. Although only the rights of the Leech Lake Band of Chippewa are at issue, counsel represent that a decision here will affect the rights of the Chippewa tribe on White Earth, Nett Lake, Fond du Lac, Mille Lacs and the Grand Portage Reservations.

The State does not seriously dispute plaintiffs' claim that the Leech Lake Indians once possessed the claimed fishing and hunting rights. Indeed the Minnesota Supreme Court in State v. Jackson, 218 Minn. 429, 16 N.W.2d 752 (1944), recognized this. But the State takes the position that such rights were terminated by Congress with the enactment of the Nelson Act in 1889. It is agreed that the Congress has the plenary power to so curtail treaty rights with Indians. Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903).

Minnesota points to the specific language of the Nelson Act which, in its view, terminated any fishing, hunting and ricing treaty rights of the Indians and disestablished the Leech Lake Reservation:

"* * * The acceptance and approval of such session and relinquishment by the President of the United States shall be deemed full and ample proof of the ascent of the Indians and shall operate as a complete extinguishment of the Indian title without any other or further act or ceremony whatsoever for the purposes and upon the terms in this act provided." (Emphasis supplied by defendant.) Defendant's Exhibit F.

Defendant calls attention to the written agreement between the United States and the Chippewa which provided:

"We do hereby grant, cede and relinquish and convey to the United States, for the purposes and upon the terms stated in said (Nelson) Act, all our right, title and interest in and to the lands reserved and set apart * * *." (Emphasis supplied by defendant.) H.R. Document 247 50th Congress, First Session (1889) Defendant's Exhibit GGG, page 49.

The State argues that this language is plain on its face and that what was being ceded by the Indians under authority of the Nelson Act was all Indian rights in the Leech Lake (and other Chippewa) lands including fishing and hunting rights.

The issue with which we are dealing has been a knotty and vexatious one for years.² The Indians persistently have claimed that their inherent right to fish and hunt on the Leech Lake Reservation is protected by treaty. Several Chippewa testified, in their native Ojibwa tongue through interpreters, of the understanding of their elders, and they in turn of their elders, that always in their dealings with the white man it was understood that they were to have unrestricted hunting and fishing rights on the Leech Lake Reservation. Just as persistently, Minnesota has sought to enforce its game and fish laws on all but the Indian allotted and trust lands on the Leech Lake Reservation; this exception made by virtue of the decision of the Minnesota Supreme Court in State v. Jackson, supra. Several Indians testified to their very recent game and fish violation arrests by Minnesota game wardens.

An examination of numerous letters and opinions of officials of the Interior Department and of its Bureau of Indian Affairs (Defendant's Exhibits H through DDD), reflects that it was a long held view of these officials that the Nelson Act terminated fishing and hunting rights of these Indians and that Minnesota properly could enforce its laws on all but Indian allotted and trust land on the reservation. But that is no longer the view of the United States. The United States, here as a plaintiff through its United States Attorney, urges a finding that the disputed rights are still vested in the Chippewa.

Defendant thus is forced into the anomalous position of attempting to show that the views of the two contracting parties, as these views are reflected in treaty, executive orders, laws and actual practice, are contrary to the position now urged by these contracting parties.

We start with the undisputed premise that at the time of the passage of the Nelson Act in 1889, the Indians possessed unrestricted hunting and fishing rights on the reservation. These rights, while perhaps in fact dating back many years to an aboriginal right were established in law by treaty with the United States in 1855, 1864 and 1867. (See Defendant's Exhibits B, C and D.)

The Nelson Act, although authorizing the United States to pass legal title to certain reservation lands to outsiders, said nothing about the Indian treaty rights to hunt and fish. The United States Supreme Court has counseled us that the abrogation of treaty rights is not to be lightly inferred. In Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 54 S.Ct. 361, 367, 78 L.Ed. 695 (1934), the Court said, "* * * the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress * * *."

The defendant argues that the Nelson Act disestablished the Leech Lake Reservation and that this disestablishment and subsequent passage of legal title to the land had the necessary effect of terminating the hunting and fishing rights.

The Nelson Act was one of a series of acts passed by the Congress starting in 1854, reflecting attempts "to civilize" the Indian and distribute part of his land to land hungry settlers for farming and lumbering.³

In the case of the Leech Lake Reservation the apparent objective of those urging enactment of the Nelson Act was to induce the Indian to take individual allotments of land on the White Earth Reservation where land suitable for farming was available to them and to sell the Leech Lake land to settlers and put the consideration paid in the U. S. Treasury in trust for the benefit of the tribe. When the Nelson Act was enacted, however, it provided that members of the tribe could alternatively accept allotments on their own Leech Lake Reservation. Less than one-fourth of the Indians actually moved to White Earth (Government's Exhibits 63, 64). The rest remained and many of them accepted allotments on the Leech Lake Reservation where they and their descendants continue to live.

It is apparent in light of events before and after the passage of the Nelson Act that its purpose was not to terminate the reservation or end federal responsibility for the Indian but rather to permit the sale of certain of his lands to homesteaders and others. The United States Supreme Court has held that it is the termination of federal responsibility and not the passing of legal land title within an area which determines whether a reservation exists in the eyes of the law. Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962).

An analogous factual situation existed in the Seymour case. The Congressional act there involved provided for the sale of mineral lands and the settlement of surplus...