Menominee Tribe of Indians v. United States, No. 187

CourtUnited States Supreme Court
Writing for the CourtDOUGLAS
Citation88 S.Ct. 1705,20 L.Ed.2d 697,391 U.S. 404
Decision Date27 May 1968
Docket NumberNo. 187
PartiesMENOMINEE TRIBE OF INDIANS, Petitioner, v. UNITED STATES. Re

391 U.S. 404
88 S.Ct. 1705
20 L.Ed.2d 697
MENOMINEE TRIBE OF INDIANS, Petitioner,

v.

UNITED STATES.

No. 187.
Reargued April 26, 1968.
Decided May 27, 1968.

Page 405

Charles A. Hobbs, Washington, D.C., for petitioner.

Louis F. Claiborne, Washington, D.C., for respondent.

Bronson C. LaFollette, Madison, Wis., for State of Wisconsin, as amicus curiae, at the invitation of the Court.

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 of Indians v. United States, 95 Ct.Cl. 232, 240—241 (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

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, 388 F.2d 998, 179 Ct.Cl. 496, 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, 88 S.Ct. 51, 19 L.Ed.2d 67. 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. Moreover, counsel for the Menominees spoke against the bill, arguing that its silence would by implication abolish those hunting and fishing rights.7 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 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 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 from the provision of the Termination Act that the laws of Wisconsin 'shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within (its) jurisdiction.'

The provision of the Termination Act (25 U.S.C. § 899) that 'all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe' plainly refers to the termination of federal supervision. The use of the word 'statutes' is potent evidence that no treaty was in mind.

We decline to construe the Termination Act as a backhanded way a abrogating the hunting and fishing rights of these Indians. While the power to abrogate those

Page 413

rights exists (see Lone Wolf v. Hitchcock, 187 U.S. 553, 564—567, 23 S.Ct. 216, 220—222, 47 L.Ed. 299) 'the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.' Pigeon River, etc., Co. v. Charles W. Cox, Limited, 291 U.S. 138, 160, 54 S.Ct. 361, 367, 78 L.Ed. 695. See also Squire v. Capoeman, 351 U.S. 1, 76 S.Ct. 611, 100 L.Ed. 883.

Our conclusion is buttressed by the remarks of the legislator chiefly responsible for guiding the Termination Act to enactment, Senator Watkins, who stated upon the occasion of the signing of the bill that it 'in no way violates any treaty obligation with this tribe.'13

We find it difficult to believe that Congress, without explicit statement, would subject the United States to a claim for compensation14 by destroying a property rights conferred by treaty, particularly when Congress was purporting by the Termination Act to settle the Government's financial obligations toward the Indians.15

Accordingly the judgment of the Court of Claims is affirmed.

Affirmed.

Mr. Justice MARSHALL took no part in the consideration or decision of this case.

Mr. Justice STEWART, with whom Mr. Justice BLACK joins, dissenting.

By the Treaty of Wolf River in 1854, 10 Stat. 1064, the United States granted to the Menominee Tribe of

Page 414

Indians a reservation 'to be held as Indian lands are held.' As the Court says, this language unquestionably conferred special hunting and fishing rights within the boundaries of the reservation. One hundred years later, in the Menominee Indian Termination Act of...

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240 practice notes
  • Akins v. Saxbe, Civ. No. 2031 N. D.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • June 20, 1974
    ...L.Ed.2d 129 (1973); Choctaw Nation v. Oklahoma, 397 U.S. 620, 631, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970); Menominee Tribe v. United States, 391 U.S. 404, 406, n. 2, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Peoria Tribe v. United States, 390 U.S. 468, 472-473, 88 S.Ct. 1137, 20 L.Ed.2d 39 (1968)......
  • U.S. & Coeur D'Alene Tribe v. State (In re Csrba Case No. 49576 Subcase No. 91-7755), Docket Nos. 45381
    • United States
    • Idaho Supreme Court
    • September 5, 2019
    ..."the language ‘to be held as Indian lands are held’ includes the right to fish and to hunt." Menominee Tribe of Indians v. United States , 391 U.S. 404, 406, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). As such, it does not appear that Congress intended to eliminate the Tribe's ability to hunt or ......
  • Mattz v. Superior Court, No. S002805
    • United States
    • United States State Supreme Court (California)
    • August 22, 1988
    ...United States v. Winans (1905) 198 U.S. 371, 381-382, 25 S.Ct. 662, 664-665, 49 L.Ed. 1089; Menominee Tribe v. United States (1968) 391 U.S. 404, 406, 88 S.Ct. 1705, 1707, 20 L.Ed.2d 697; F. [758 P.2d 618] Cohen, Handbook of Federal Indian Law (1982 ed.) ch. 8, § B2, pp. The People addition......
  • Parravano v. Babbitt, No. C 93-2003 TEH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 29, 1994
    ...a reservation "for Indian purposes" encompasses the right to hunt and fish on that reservation. citing Menominee Tribe of Indians v. U.S., 391 U.S. 404, 405, 88 S.Ct. 1705, 1707, 20 L.Ed.2d 697 Pacific Coast Federation of Fishermen's Asso. v. Secretary of Commerce, 494 F.Supp. 626, 632 (N.D......
  • Request a trial to view additional results
238 cases
  • Akins v. Saxbe, Civ. No. 2031 N. D.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • June 20, 1974
    ...L.Ed.2d 129 (1973); Choctaw Nation v. Oklahoma, 397 U.S. 620, 631, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970); Menominee Tribe v. United States, 391 U.S. 404, 406, n. 2, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Peoria Tribe v. United States, 390 U.S. 468, 472-473, 88 S.Ct. 1137, 20 L.Ed.2d 39 (1968)......
  • U.S. & Coeur D'Alene Tribe v. State (In re Csrba Case No. 49576 Subcase No. 91-7755), Docket Nos. 45381
    • United States
    • Idaho Supreme Court
    • September 5, 2019
    ..."the language ‘to be held as Indian lands are held’ includes the right to fish and to hunt." Menominee Tribe of Indians v. United States , 391 U.S. 404, 406, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). As such, it does not appear that Congress intended to eliminate the Tribe's ability to hunt or ......
  • Mattz v. Superior Court, No. S002805
    • United States
    • United States State Supreme Court (California)
    • August 22, 1988
    ...United States v. Winans (1905) 198 U.S. 371, 381-382, 25 S.Ct. 662, 664-665, 49 L.Ed. 1089; Menominee Tribe v. United States (1968) 391 U.S. 404, 406, 88 S.Ct. 1705, 1707, 20 L.Ed.2d 697; F. [758 P.2d 618] Cohen, Handbook of Federal Indian Law (1982 ed.) ch. 8, § B2, pp. The People addition......
  • Parravano v. Babbitt, No. C 93-2003 TEH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 29, 1994
    ...a reservation "for Indian purposes" encompasses the right to hunt and fish on that reservation. citing Menominee Tribe of Indians v. U.S., 391 U.S. 404, 405, 88 S.Ct. 1705, 1707, 20 L.Ed.2d 697 Pacific Coast Federation of Fishermen's Asso. v. Secretary of Commerce, 494 F.Supp. 626, 632 (N.D......
  • Request a trial to view additional results
4 books & journal articles
  • CONGRESSIONAL RULES OF INTERPRETATION.
    • United States
    • William and Mary Law Review Vol. 63 Nbr. 6, May 2022
    • May 1, 2022
    ...738-39 (1986); Washington v. Wash. State Com. Passenger Fishing Vessel Ass'n, 443 U.S. 658, 690 (1979); Menominee Tribe v. United States, 391 U.S. 404, 412-13 (1968). See generally Barrett, supra note 30, at 152 (describing the evolution of the canon from applying to treaties to applying to......
  • Application of the ESA to Indian Tribes and Their Lands
    • United States
    • Endangered species deskbook
    • April 22, 2010
    ...v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 9 ELR 20517 (1979); Menominee Tribe v. United States, 391 U.S. 404 (1968); Kimball v. Callahan, 493 F.2d 564, 566 (9th Cir. 1974), cert. denied , 419 U.S. 1019 (1974); Idaho v. Tinno, 497 P.2d 1386 (1974). See also......
  • Back to Basics: The Supreme Court's Return to Fundamental Principles of Federal Indian Law in McGirt v. Oklahoma Ahead of Equal Protection Challenge to the Indian Child Welfare Act of 1978.
    • United States
    • Suffolk University Law Review Vol. 55 Nbr. 1, January 2022
    • January 1, 2022
    ...congressional intent to diminish boundaries of Indian reservation "must be clear"); Menominee Tribe of Indians v. United States, 391 U.S. 404, 412-13 (1968) (stating intent to abrogate or modify treaty not lightly imputed to Congress). As the Court explained, "a congressional decision [to a......
  • LAWYERING THE INDIAN CHILD WELFARE ACT.
    • United States
    • Michigan Law Review Vol. 120 Nbr. 8, June 2022
    • June 1, 2022
    ...William C. Canby, Jr., American Indian Law in a Nutshell 78 (7th ed. 2020). (13.) See, e.g., Menominee Tribe of Indians v. United States, 391 U.S. 404 (14.) E.g., Herrera v. Wyoming, 139 S. Ct. 1686 (2019). (15.) E.g., Wash. State Dep't of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000 (201......

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