State v. Sanapaw
| Decision Date | 01 November 1963 |
| Citation | 21 Wis.2d 377,124 N.W.2d 41 |
| Parties | STATE of Wisconsin, Plaintiff in Error, v. Joseph L. SANAPAW and William J. Grignon, Defendants in Error. STATE of Wisconsin, Plaintiff in Error, v. Francis BASINA, Defendant in Error. |
| Court | Wisconsin Supreme Court |
George Thompson, Atty. Gen., Lyle E. Strahan, Deputy Atty. Gen., John H. Bowers, Special Counsel, Madison, for plaintiff in error.
Ken Traeger, Gresham, for defendants in error.
The question presented by the writs of eror is:
Upon termination of federal supervision and control over the Menominee Indian Tribe and the Menominee Indian Reservation, did the enrolled members of the Tribe and their lands become subject to the same Wisconsin game laws as other persons and lands within the state?
In order to resolve this question it is necessary to review the pertinent historical facts. These commence with the treaty of October 18, 1848, between the United States and the Menominee Tribe (9 U.S. Stat. at L. 952). By this treaty the Menominees ceded, sold and relinquished to the United States 'all their lands in the State of Wisconsin wherever situated.' 1 The treaty further provided that, in consideration for this cession, the United States give the Indians 'for a home, to be held as Indians' lands are held' a large tract of land west of the Mississippi river, and that the Menominees 'shall be permitted, if they desire to do so, to remain on the lands hereby ceded for and during the period of two years from the date hereof, and until the President shall notify them that the same are wanted.' In 1850 an exploring party found that the lands west of the Mississippi were unsuited to the Menominees' circumstances. As a result they then petitioned the President for permission to stay longer on the ceded lands. Thereafter, Elias Murray, Superintendent of Indian Affairs, accompanied by three of the Menominee chiefs, explored lands on the Wolf and Oconto rivers in Wisconsin, and Murray recommended as a home for the Menominees a tract 30 by 18 miles, comprising fifteen townships. 2
By further treaty made on May 12, 1854 (10 U.S.Stat. at L. 1064), the United States ceded to the Menominees a tract 24 by 18 miles on the Wolf river, consisting of twelve townships, 'to be held as Indian lands are held.' 3 The 1854 treaty stated that its articles were 'supplementary and amendatory' to the 1848 treaty. By the 1854 treaty the Menominees ceded back to the United States all lands west of the Mississippi. In 1856 the Menominees sold to the Stockbridge Indians two of their twelve townships. The remaining ten townships thus constituted the Menominee Indian Reservation. This reservation continued in existence until the 'Termination Act' (68 U.S.Stat. at L. 250, as amended, 70 U.S.Stat. at L. 549, 72 U.S.Stat. at L. 290, 74 U.S.Stat. at L. 867; 25 U.S.C. Secs. 891-902), passed originally by congress in 1954, became effective by the Secretary of Interior's proclamation of April 29, 1961 (26 Fed.Reg., No. 82, April 29, 1961, at page 3726). This proclamation proclaimed the transfer (pursuant to sec. 899 of the Termination Act) of all tribal property held in trust by the United States government, and the termination of all federal supervision and control over the Menominee Indians and the Menominee Indian Reservation effective midnight April 30, 1961. Title to the lands comprising the former Menominee Indian Reservation is now held by Menominee Enterprise, Inc., a Wisconsin corporation incorporated on January 23, 1961. The capital stock of this corporation is held in a voting trust for the benefit of the members of the Menominee Indian Tribe. The acts committed by defendants which led to the instant criminal prosecutions occurred on these lands.
In view of the foregoing history we are faced with the preliminary question of whether, at the time the Termination Act became effective, the Menominees had exclusive hunting rights free from the state's game laws which arose either by reservation under the 1848 treaty (as modified by the 1854 treaty), or by cession under the 1854 treaty.
This court in State v. Johnson (1933), 212 Wis. 301, 249 N.W. 284, 285, citing United States v. Winans (1905), 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089, held that where Indians cede part of their lands by treaty and retain other lands, for their own use, as to which no government patents have ever been issued, their rights to fish and hunt on their retained lands, without being subject to the state's fish and game laws, continue even though the treaty contains no express reservaiton to that effect. We do not consider, however, that this principle has any application to the instant cases for two reasons. First, on the record before us, we cannot determine whether the lands where the alleged offenses were committed were part of the lands then owned by the Menominees at the time of the 1848 treaty. Only part of the former Menominee Indian reservation was included in the tract ceded to the United States by that treaty. The other part of the reservation consisted of lands which the Chippewa Indians had ceded to the United States by treaty made October 4, 1842. 4 Secondly, the 1848 treaty ceded all Menominee lands in Wisconsin to the United States, and the 1854 treaty did not abrogate this cession, but made an entirely new cession of the twelve townships to the Menominees. This is so even though the 1854 treaty stated that it was 'supplementary and amendatory' to the 1848 treaty.
Therefore, if the Menominees, prior to the effective date of the Termination Act, had exclusive hunting rights over the lands embraced in their reservation free from the state's game laws, such rights must be grounded on the 1854 treaty provision whereby such lands were ceded to them 'to be held as Indian lands are held.' On the face of it this is an ambiguous provision. One permissible interpretation would be that the Menominees would enjoy the same rights with respect to the ceded lands as Indians are entitled to with respect to lands owned and occupied by them which have never been ceded by treaty. Among such rights would be that of hunting free from the restrictions of any state game laws. The rule of construction to be followed in interpreting Indian treaties is that in case of ambiguity they are to be interpreted in favor of the Indians. This was the holding in Winters v. United States (1908), 207 U.S. 564, 576-577, 28 S.Ct. 207, 211, 52 L.Ed. 340, wherein the court declared:
It would seem unlikely that the Menominees would have knowingly relinquished their special fishing and hunting rights which they enjoyed on their own lands, and have accepted in exchange other lands with respect to which such rights did not extend. They undoubtedly believed that these rights were guaranteed to them when these other lands were ceded to them 'to be held as Indian lands are held.' Construing this ambiguous provision of the 1854 treaty favorably to the Menominees, we determine that they enjoyed the same exclusive hunting rights free from the restrictions of the state's game laws over the ceded lands, which comprised the Menominee Indian Reservation, as they had enjoyed over the lands ceded to the United States by the 1848 treaty.
This brings us to the crucial question of whether these exclusive rights to hunt free of the state's game laws were ended by the taking effect of the Termination Act. Congress has plenary power to deal with the Indians and may abrogate by statute Indian privileges and rights, including treaty rights. This principle was clearly enunciated in Lone Wolf v. Hitchcock (1903), 187 U.S. 553, 565-566, 23 S.Ct. 216, 221, 47 L.Ed. 299, wherein the court stated:
For a recent federal case which acknowledges the existence of this plenary power of Congress over Indian tribes which cannot be limited by treaties, see Anderson v. Gladden (9th Cir.1961), 293 Fed.2d 463, affirmed by memorandum decision, 368 U.S. 949, 82 S.Ct. 390, 7 L.Ed.2d 344 (1961).
Sec. 891 of the Termination Act provides that the purpose 'is to provide for orderly termination of Federal supervision over the property and members of the Menominee Indian Tribe of Wisconsin.' Sec. 899 of the Act provides that upon the Secretary of the Interior publishing a proclamation in the Federal Register that all tribal property has been transferred in accordance with the Act, '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, and the laws of the...
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