Mille Lacs Band of Chippewa Indians v. Minnesota, Civ. No. 4-90-605.

Citation861 F. Supp. 784
Decision Date24 August 1994
Docket NumberCiv. No. 4-90-605.
PartiesMILLE LACS BAND OF CHIPPEWA INDIANS, Arthur Gahbow, Walter Sutton, Carleen Benjamin, and Joseph Dunkley, Plaintiffs, and United States of America, Plaintiff-Intervenor, v. STATE OF MINNESOTA, Minnesota Department of Natural Resources, and Rod Sando, Commissioner of Natural Resources, Defendants, and John W. Thompson, Jenny Thompson, Joseph N. Karpen, LeRoy Burling, Glenn E. Thompson, and Gary M. Kiedrowski, and the Counties of Aitkin, Benton, Crow Wing, Isanti, Kanabec, Mille Lacs, Morrison, Pine, and Sherburne, Defendant-Intervenors.
CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota

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James M. Genia, Mille Lacs Band of Ojibwe, Onamia, MN, Marc D. Slonim, John B. Arum, Ziontz Chestnut Varnell Berley & Slonim, Seattle, WA, for plaintiffs Mille Lacs Band of Chippewa Indians, Arthur Gahbow, Walter Sutton, Carleen Benjamin, Joseph Dunkley.

James M. Johnson, Johnson Law Office, Olympia, WA, Jennifer Ann Fahey, Joint Powers Bd., Mora, MN, for intervenors County of Aitkin, County of Benton, County of Chisago, Sherburne County, Substituted for Chisago County, County of Crow Wing, County of Isanti, County of Kanabec, County of Mille Lacs, County of Morrison, County of Pine.

William Arthur Szotkowski, Stephen Bruce Masten, Jerilyn K. Aune, Sp. Asst. Atty. Gen., Michelle E. Beeman, MN Atty. Gen., St. Paul, MN, for defendants State of Minnesota, Minnesota Dept. of Natural Resources, Joseph Alexander, Com'r of Natural Resources.

Lawrence A.G. Moloney, Gregg J. Tucek, Doherty Rumble & Butler, Minneapolis, MN, for intervenor-defendant Save Lake Mille Lacs Ass'n.

Gary E. Persian, Persian MacGregor & Thompson, Minneapolis, MN, for intervenors-defendants John W. Thompson, Jenny Thompson, Joseph N. Karpen, LeRoy Burling, Glenn E. Thompson.

Stephen G. Froehle, Persian MacGregor & Thompson, Minneapolis, MN, for intervenor-defendant Gary M. Kiedrowski.

George Cardinal, Me-Da-We Grand Medicine Soc., pro se.

Zenas Baer, Wefald & Baer, Hawley, MN, for intervenors Dale Hanks, Chief Hole in the Day VII, individually, and on behalf of Mississippi Band of Chippewa Indians.

Robert Michael Small, U.S. Atty. Office, Minneapolis, MN, William A. White, Sheila A. Hackett, U.S. Dept. of Justice, Indian Resources Section, Washington, DC, for intervenor-plaintiff U.S.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

DIANA E. MURPHY, Chief Judge.

This case is about hunting, fishing, and gathering rights in a large territory that the Chippewa Indians ceded to the United States in a 1837 treaty. The area includes the beautiful Minnesota land surrounding Lake Mille Lacs. Although game and fish are not as plentiful there as they once were, the area is highly valued by Indians and other Minnesota people. Many have a love of the woods and lakes of the region, of hunting and fishing, and of harvesting and protecting the natural resources in the area.

There is widespread interest in this case within the district, and there are fears about the possible impact of any court decision. The court is respectful of all those before it and of the varying interests in the outcome, but it must be guided in its task of decision by the legal precedents and a fair evaluation of the evidence developed in the record and at trial.

The complaint was filed on August 13, 1990 by plaintiffs the Mille Lacs Band of Chippewa Indians, a federally recognized Indian tribe, and four enrolled members of the tribe, Arthur Gahbow, Walter Sutton, Carleen Benjamin, and Joseph Dunkley, (collectively the Band) against defendants the State of Minnesota, the Minnesota Department of Natural Resources, and Rod Sando in his official capacity as Commissioner of Natural Resources (collectively the State). Members of the Mille Lacs Band continue to live near Lake Mille Lacs on reservation lands first settled by the Chippewa in 1750 after they defeated the Sioux who had lived there previously.

Plaintiffs claim that the State has adopted and enforced natural resource laws and regulations that violate the privilege of hunting, fishing, and gathering guaranteed them by the 1837 treaty. They seek a declaratory judgment that "the privilege of hunting, fishing, and gathering the wild rice upon the lands, the rivers and the lakes included in the territory ceded ... during the pleasure of the President" continues to exist. Article V, 1837 treaty, 7 Stat. 536 (1837 treaty).1 They also seek a declaration stating the permissible scope of state regulation of those activities and an injunction prohibiting enforcement of state fish and game laws against members of the Band unless the regulation is within the scope of the declaratory judgment. They do not seek access to private lands2 or money damages.

Jurisdiction is invoked under several statutes: 28 U.S.C. § 1331 (action arises under the Constitution, laws, and treaties of the United States); 28 U.S.C. § 1343(a)(3) and (4) (42 U.S.C. § 1983 action for interference with the exercise of rights under the 1837 treaty, due process rights, and the Supremacy Clause); and 18 U.S.C. § 1362 (action brought by an Indian band with a governing body duly recognized by the Secretary of the Interior arising under the Constitution, laws, and treaties of the United States).

The defendants believe that the temporary privilege granted to the Chippewa in 1837 was extinguished by President Zachary Taylor in a 1850 executive order. Even if the privilege still existed after the 1850 executive order, however, any remaining interest was ceded in a 1855 treaty between the Chippewa and the United States when the Chippewa relinquished their right, title or interest in and to any other lands in the territory of Minnesota or elsewhere.

The plaintiffs believe that the hunting, fishing, and gathering privilege guaranteed by the 1837 treaty could only be extinguished if the Chippewa made trouble or misbehaved. They believe that this interpretation of the 1837 treaty and their continuous good behavior is supported by the historical record and the case law. They do not believe that any subsequent action by the United States has affected the privilege.

Intervenors have joined the litigation on both sides. Nine counties3 (the Counties) and six landowners4 (the Landowners) are defendant-intervenors. The other party to the 1837 treaty, the United States of America, is a plaintiff-intervenor.

The procedure for addressing the issues in the case was discussed at an early stage. In March of 1991 the parties agreed that the case should be bifurcated into two phases, and the court adopted their stipulation in an order issued on April 9, 1991. The order specified that the issues for Phase I include whether the 1837 privilege continues to exist, whether it extends to lands now, or previously, in private ownership, and the general nature of any rights guaranteed by the privilege. Phase II was to follow if it were determined that the privilege continues. Resource allocation issues and the validity of particular measures affecting the exercise of the privilege would be decided in Phase II. The management of natural resources and the regulation of their taking are not part of the legal questions presented in Phase I.

After a ruling on several motions for summary judgment was issued on May 13, 1994, a three week trial was held on the remaining Phase I issues starting on June 13 and concluding on July 6, 1994. Fourteen witnesses testified at trial, and more than 400 exhibits were received. The largest part of the evidence was presented by eleven expert witnesses who submitted most, but not all, of their direct testimony in advance in the form of written reports. Their testimony was then extensively explored and tested on cross examination.

The plaintiffs called six expert witnesses. Dr. Charles C. Cleland, an anthropologist and ethnohistorian, testified about the Chippewa5 economy; the Chippewa use of natural resources; the Indian treaties of 1837, 1842, 1854, 1855, and 1864; the effort to remove the Chippewa in the 1850's; and off-reservation hunting, fishing, and gathering after the 1855 treaty. Dr. Thomas A. Lund, a legal historian who specializes in American wildlife law, testified about common law rights in game and fish and what the drafters of the 1837 and 1855 treaties likely intended by the language used in key phrases. Dr. James M. McClurken, an anthropologist and ethnohistorian specializing in the history and culture of the Chippewa, testified about the ethnohistory of the Mille Lacs Band and its reservation during the late nineteenth and early twentieth centuries, including treaties negotiated during this time. Dr. John D. Nichols, a linguist specializing in the Chippewa language, testified about how key phases in the 1837 and 1855 treaties were likely translated into Chippewa. Dr. Helen H. Tanner, a historian who specializes in the ethnohistory of the Indians of the Great Lakes region, testified about the 1855 treaty negotiations. Dr. Bruce M. White, a historian and anthropologist who specializes in the history of relations between Indians and non-Indians in the Old Northwest, testified about the 1850 executive order and its subsequent suspension.

The State called three expert witnesses. Mr. Alan S. Newell, a historian, testified about the 1837 and 1855 treaties and the 1850 executive order. Dr. John C. Massman, a historian specializing in Minnesota history, testified about the settlement and development of Minnesota from 1819 through 1860. Dr. Paul Driben, an anthropologist, testified about the Chippewa culture and historical developments at the time of the 1855 treaty.

The Landowners called two witnesses. Dr. Donavan L. Hofsommer, a historian with particular expertise in the role of the railroad in western expansion, testified about the expansion of settlers to new territories during the nineteenth century and the manifest...

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