Mille Lacs Band of Chippewa Indians v. State of Minn., No. 3-94-1226.

CourtMinnesota Supreme Court
Writing for the CourtDavis
Citation952 F.Supp. 1362
PartiesMILLE LACS BAND OF CHIPPEWA INDIANS, Arthur Gahbow, Walter Sutton, Carleen Benjamin, and Joseph Dunkley, Plaintiffs, United States of America, Plaintiff-Intervenor, St. Croix Chippewa Indians, et al., Lac Du Flambeau Band, et al., Bad River Band Of Lake Superior, et al., Lac Courte Oreilles Indians, et al., Sokaogan Chippewa Community, et al., Red Cliff Band of Lake Superior, et al., Plaintiffs-Intervenors, v. STATE OF MINNESOTA, Minnesota Department of Natural Resources, and Rod Sando, Commissioner of Natural Resources, Defendants, Counties of Aitkin, Benton, et al., John W. Thompson, et al., Defendants-Intervenors, Save Lake Mille Lacs Association, Amicus Curiae. FOND DU LAC BAND OF CHIPPEWA INDIANS, et al. Plaintiffs, v. Arne CARLSON, et al., Defendants.
Decision Date29 January 1997
Docket NumberNo. 3-94-1226.,No. 5-92-159.
952 F.Supp. 1362
MILLE LACS BAND OF CHIPPEWA INDIANS, Arthur Gahbow, Walter Sutton, Carleen Benjamin, and Joseph Dunkley, Plaintiffs,
United States of America, Plaintiff-Intervenor,
St. Croix Chippewa Indians, et al., Lac Du Flambeau Band, et al., Bad River Band Of Lake Superior, et al., Lac Courte Oreilles Indians, et al., Sokaogan Chippewa Community, et al., Red Cliff Band of Lake Superior, et al., Plaintiffs-Intervenors,
v.
STATE OF MINNESOTA, Minnesota Department of Natural Resources, and Rod Sando, Commissioner of Natural Resources, Defendants,
Counties of Aitkin, Benton, et al., John W. Thompson, et al., Defendants-Intervenors,
Save Lake Mille Lacs Association, Amicus Curiae.
FOND DU LAC BAND OF CHIPPEWA INDIANS, et al. Plaintiffs,
v.
Arne CARLSON, et al., Defendants.
No. 3-94-1226.
No. 5-92-159.
United States District Court, D. Minnesota, Third Division.
January 29, 1997.

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COPYRIGHT MATERIAL OMITTED

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James M. Genia, Mille Lacs Band of Ojibwe, Onamia, MN, Marc D. Slonim and John

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B. Arum, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, for Mille Lacs Band of Chippewa Indians, Arthur Gahbow, Walter Sutton, Carleen Benjamin and Joseph Dunkley.

James M. Johnson, Johnson Law Office, Olympia, WA, Jennifer Ann Fahey, Joint Powers Board, Milaca, MN, for 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, Morrison County, and County of Pine.

Larry Burton Leventhal, Leventhal Law Office, Minneapolis, MN, James M. Jannetta, Sault Ste Marie Tribe of Chippewas, Sault Ste Marie, MI, for Bad River Band of Lake Superior Chippewa Indians.

Milton Rosenberg, Rosenberg Law Office, Madison, WI, Donald R. McNeil, Jr., Bennett Brown, Minneapolis, MN, for Red Cliff Bank of Lake Superior Chippewa.

William Arthur Szotkowski, Stephen Bruce Masten, Jerilyn K. Aune, Michelle E. Beeman, Joseph Patrick Lally, Minnesota Attorney General, St. Paul, MN, for State of Minn., Minnesota Dept. of Natural Resources, Joseph Alexander, Com'r of Natural Resources, Arne Carlson, Governor of Minn., Rodney Sando, Com'r of Natural Resources and Raymond B. Hitchcock, Asst. Com'r of Operations.

Douglas B.L. Endreson, Ann Doris Noto, Sonosky, Chambers, Sachse & Endreson, Washington, DC, Henry M. Buffalo, Jr., Jacobson, Buffalo, Schoessler & Magnuson, Minneapolis, MN, Dennis J. Peterson, Fond du Lac Band of Lake Superior Chippewa, Cloquet, MN, for Fond du Lac Band of Chippewa, Robert Peacock, Peter DeFoe, Clifton Rabideaux, Herman Wise and George Dupuis.

Lawrence A.G. Moloney, Doherty, Rumble & Butler, Minneapolis, MN, for Save Lake Mille Lacs Association.

Gary E. Persian, Stephen G. Froehle, Persian MacGregor & Thompson, Minneapolis, MN, for John W. Thompson, Jenny Thompson, Joseph N. Karpen, Leroy Burling, Glenn E. Thompson, and Gary M. Kiedrowski.

George Cardinal, pro se.

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

Robert Michael Small, U.S. Attorney's Office, Minneapolis, MN, William A. White, Sheila A. Hackett, U.S. Department of Justice, Indian Resources Section, Washington, DC, for U.S.

Kenneth E. Tilsen, Hamline Law School, St. Paul, MN, Howard J. Bichler, St. Croix Chippewa Law Office, St. Croix Chippewa Center, Hartel, WI, for St. Croix Chippewa Indians.

Steven T. Zobbi, Sokaogon Chippewa Community, Crandon, WI, Guy C. Charlton, Charlton Law Office, Milwaukee, WI, Marcia A. Cordes, Cordes Law Office, Minneapolis, MN, Kevin C. Potter, Brennan Steil Basting & MacDougall, Madison, WI, for Sokaogon Chippewa Community.

Carol Brown Biermeier, Brown Law Office, Sun Prairie, WI, for Lac Du Flambeau Band of Lake Superior Chippewa.

M. Joan Warren, Warren Law Office, Minneapolis, MN, for Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin.

Stephen G. Froehle, Persian, MacGregor & Thompson, Minneapolis, MN, for Amicus Proper Economic Resource Management Inc., for Amicus Minnesota Deer Hunters Association, for John Thompson, Jenny Thompson, Glenn Thompson, Joseph Karpen, Leroy Burling, and Gary Kiedrowski.

MEMORANDUM OPINION AND ORDER

DAVIS, District Judge.


PROCEDURAL HISTORY

The Mille Lacs Band filed its Complaint on August 13, 1990 claiming the State has adopted and enforced natural resource laws and regulations that violate their privilege of hunting, fishing and gathering guaranteed them by the 1837 Treaty entered into between the United States of America and the Chippewa Indians. In this litigation, the Mille Lacs Band seeks a declaratory judgment

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that the usufructuary rights granted under the 1837 Treaty continue to exist. The Mille Lacs Band also seeks a declaratory judgment defining the nature and scope of those rights and defining the permissible scope of state regulation upon their usufructuary privileges. Additionally, Mille Lacs seeks an injunction prohibiting enforcement of state fish and game laws against members of the Mille Lacs Band except as authorized in the Court's declaratory judgment.

The parties agreed to bifurcate the case into two phases. In Phase I, the issues to be determined involved whether the 1837 Treaty privileges continue to exist, whether the 1837 Treaty privilege extends to lands now, or previously, in private ownership, and the general nature of any rights guaranteed by the privilege. If the privilege was found to continue, Phase II of the case would address issues of resource allocation and the validity of particular measures affecting the exercise of the privilege.

Trial on Phase I commenced on June 13, 1994 and concluded on July 6, 1994. Based upon the testimony of fourteen witnesses, and over 400 exhibits, Judge Murphy issued her Findings of Fact, Conclusions of Law and Order, holding that the usufructuary rights granted the Mille Lacs Band pursuant to the 1837 Treaty continue to exist. Mille Lacs Band of Chippewa Indians et al. v. State of Minnesota et al., 861 F.Supp. 784, 841 (D.Minn.1994) (Mille Lacs II). The general nature of this privilege was determined to be that the Indians understood they had given up their right to harvest timber, but that they did not understand the Treaty imposed any other limitations on the types of resources they could harvest, or that there were any restrictions on the time, place, or manner of the exercise of the privilege. Mille Lacs II, at 838. It was noted, however, that the validity of particular measures to regulate the taking or harvesting of resources, including resources taken for commercial purposes, was for Phase II. Id. Finally, it was held the 1837 Treaty privileges were not limited to the use of any particular techniques, methods, devices, or gear and whether specific techniques could be regulated for conservation or public health and safety again was reserved for Phase II. Id. The Court also delineated the legal standards for state regulation of hunting, fishing and gathering, while reserving the application of these standards to Phase II. Id., at 838-39.

In September 1994, the Court entered a pretrial order for the Phase II portion of the case. Pursuant to that Order, the parties exchanged pre-trial statements. Plaintiff and Plaintiff-intervenor United States filed a joint statement identifying the state laws and regulations they believed violated the standards for state regulation set forth in the Court's Phase I decision. Attached to their joint statement was a proposed Band conservation code to regulate hunting, fishing and gathering by Band members in the Minnesota Ceded Territory. The State also filed a statement which identified the state laws or regulations it believes is applicable to the Bands and which also identified the State's concerns over the Band's proposed conservation code. Thereafter, a revised joint pretrial statement was filed by the Mille Lacs Band and the United States and a revised Band conservation code submitted on behalf of the six Wisconsin Bands who were applying for intervention.

In March 1995, the Wisconsin Bands were allowed to intervene as plaintiffs in this case. Thereafter, the State, Counties and Landowners moved for summary judgment to limit the exercise of the Wisconsin Bands rights to exercise their privileges in the Minnesota Ceded Territory. This Court denied the motions and held that all Phase I determinations applied equally to the Wisconsin Bands.

Since the exchange of the pre-trial statements, the Mille Lacs Band, the Wisconsin Bands, and the State defendants held numerous meetings and exchanged a vast amount of information in an effort to narrow the issues raised in the pre-trial statements. The result of this effort is a Conservation Code and Commissioner's Orders to implement the Code prepared by the Bands. The Bands have also drawn up a Management Plan which includes a series of measures to govern their management of their members' hunting, fishing and gathering activities. The Bands and the State have agreed to a series of Protocols to coordinate harvest

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management and resource assessment in the Minnesota Ceded Territory. Based on the Bands' Conservation Code, Commissioner's Orders, Management Plan and Protocols, the Bands and the State have identified specific state laws and regulations that do not, under the present circumstances, meet the standards for state regulation in the Court's Phase I decision, leaving a few specifically identified state laws and regulations as "Unresolved." The resolved and unresolved laws and regulations are identified in Exhibit E to a Stipulation entered into by the Mille Lacs Band, the Wisconsin Bands, the United States of America, and the State of Minnesota.1 By this Stipulation, the executing parties agree, inter alia, that

1. Upon adoption of the Band Code, including authorization of State of Minnesota Department of Natural...

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9 practice notes
  • Rainforest Cafe, Inc. v. Amazon, Inc., No. 97-459 (MJD/AJB).
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • September 30, 1999
    ...expert reports when deciding motions for summary judgment. See, e.g., Mille Lacs Band of Chippewa Indians v. State of Minnesota, 952 F.Supp. 1362, 1381 (D.Minn.1997); In re Potash Antitrust Litigation, 954 F.Supp. 1334, 1381 (D.Minn.1997). Defendant does not cite this Court to any case, how......
  • Mille Lacs Band of Chippewa Indians v. State of Minn., Nos. 97-1757
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 17, 1997
    ...and gathering rights under both the 1837 Treaty and the 1854 Treaty. 5. Mille Lacs IV (Mille Lacs Band of Chippewa Indians v. Minnesota, 952 F.Supp. 1362 In June 1996, the district court consolidated Phase II of the Mille Lacs case with the portion of the Fond du Lac case relating to the 18......
  • U.S. v. Gotchnik, No. 98-262 ADM/RLE.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • May 28, 1999
    ...682, 99 S.Ct. 3055 (upholding state regulations protecting anadromous fish species); Mille Lacs Band of Chippewa v. State of Minnesota, 952 F.Supp. 1362 (D.Minn.1997) (deer, walleye pike, and muskellunge); Lac Courte, 707 F.Supp. at 1034 (walleye and muskellunge). The question remains as to......
  • Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Dept. of Natural Resources, No. 96-1168
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 10, 1998
    ...term for GTB's interest because they have a right to take fish from the waters, see, e.g., Mille Lacs Band of Chippewa v. Minnesota, 952 F.Supp. 1362, 1376 (D.Minn.1997), aff'd 124 F.3d 904 (8th Cir.1997) (defining profit a pendre ), the distinction is not determinative for purposes of this......
  • Request a trial to view additional results
9 cases
  • Rainforest Cafe, Inc. v. Amazon, Inc., No. 97-459 (MJD/AJB).
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • September 30, 1999
    ...expert reports when deciding motions for summary judgment. See, e.g., Mille Lacs Band of Chippewa Indians v. State of Minnesota, 952 F.Supp. 1362, 1381 (D.Minn.1997); In re Potash Antitrust Litigation, 954 F.Supp. 1334, 1381 (D.Minn.1997). Defendant does not cite this Court to any case, how......
  • Mille Lacs Band of Chippewa Indians v. State of Minn., Nos. 97-1757
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 17, 1997
    ...and gathering rights under both the 1837 Treaty and the 1854 Treaty. 5. Mille Lacs IV (Mille Lacs Band of Chippewa Indians v. Minnesota, 952 F.Supp. 1362 In June 1996, the district court consolidated Phase II of the Mille Lacs case with the portion of the Fond du Lac case relating to the 18......
  • U.S. v. Gotchnik, No. 98-262 ADM/RLE.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • May 28, 1999
    ...682, 99 S.Ct. 3055 (upholding state regulations protecting anadromous fish species); Mille Lacs Band of Chippewa v. State of Minnesota, 952 F.Supp. 1362 (D.Minn.1997) (deer, walleye pike, and muskellunge); Lac Courte, 707 F.Supp. at 1034 (walleye and muskellunge). The question remains as to......
  • Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Dept. of Natural Resources, No. 96-1168
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 10, 1998
    ...term for GTB's interest because they have a right to take fish from the waters, see, e.g., Mille Lacs Band of Chippewa v. Minnesota, 952 F.Supp. 1362, 1376 (D.Minn.1997), aff'd 124 F.3d 904 (8th Cir.1997) (defining profit a pendre ), the distinction is not determinative for purposes of this......
  • Request a trial to view additional results

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