Menominee Tribe v. United States
Encyclopedia
Menominee Tribe v. United States, 391 U.S. 404
(1968), was a case in which the Supreme Court
ruled that the tribal hunting and fishing rights which were retained by treaty were not abrogated by the Menominee Termination Act without a clear and unequivocal statement to that effect by Congress
. The Menominee Indian Tribe
had entered into a series of treaties with the United States which did not specifically state that they had hunting and fishing rights. In 1961 Congress terminated the tribe's federal recognition
, ending the tribe's right to govern itself, federal support of health care and education programs, police and fire protection, and tribal rights to land. In 1963, three members of the tribe were charged with violating Wisconsin
's hunting and fishing laws on what had formerly been reservation land
for over 100 years. A series of court cases brought the issue to the Supreme Court. The court held that the tribe retained its hunting and fishing rights under the treaties involved. This case has since become recognized as a landmark case in Native American case law.
Indian Tribe lived in the states of Wisconsin
and Michigan
for at least 10,000 years. They first acknowledged that they were under the protection of the United States in the Treaty of St. Louis
in 1817. In 1825 and 1827 the treaties of Prairie du Chien
and Butte des Morts answered boundary questions. None of the early treaties addressed hunting and fishing rights. In 1831 the tribe entered into another treaty, the Treaty of Washington
( (1831) and (1832)), which ceded about 3000000 acre to the federal government. These two treaties reserved hunting and fishing rights for the tribe on the ceded land until the President
surveyed and sold the land. In 1836 the tribe entered into the Treaty of Cedar Point , where 4184000 acres (16,932.1 km²) was ceded to the federal government. There was no mention of hunting or fishing rights in this treaty.
In 1848 the tribe entered into another treaty with the United States, the Treaty of Lake Poygan
, where the tribe ceded their remaining approximately 4000000 acres (16,187.4 km²) in exchange for 600000 acres (2,428.1 km²) west of the Mississippi River
in present-day Minnesota
. This treaty was contingent on the tribe examining the land proposed for them and accepting it as suitable. Chief Oshkosh
led a delegation in 1850 to the Crow Wing area
and determined that the land was not suitable for the tribe, primarily due to the location of the proposed reservation being between two warring tribes, the Dakota and Ojibwe. Oshkosh then pressed for a new treaty, stating that he "preferred a home somewhere in Wisconsin, for the poorest region in Wisconsin was better than the Crow Wing."
. They then entered into the Treaty of Wolf River with the United States in 1854. The United States set aside 276480 acre (1,118.9 km²; 432 sq mi) of land for a reservation in present day Menominee County, Wisconsin. In return, the tribe ceded the land in Minnesota back to the federal government. All of the previous treaties but one did not provide for hunting and fishing rights, but stated that the reservation was "to be held as Indian lands are held".
From that date forward for 100 years, this area has been the home of the tribe, and they were free from state interference. Of the original land, 230000 acre (930.8 km²; 359.4 sq mi) of prime timberland remained under the control of the tribe, while the remaining land was transferred to the Mahican
and Lenape
tribe. During this period, the tribe enjoyed complete freedom to regulate hunting and fishing on the reservation, with the complete acquiescence of Wisconsin.
, a process in which federal recognition of the tribe would be withdrawn and the tribe would no longer be dependent on the Bureau of Indian Affairs
(BIA) to support them. The Menominee were thought to be a tribe that would be able to be terminated due to being one of the richest tribes in the nation. The thought of the federal government was that termination would allow the tribal members to be assimilated
into mainstream American culture, becoming hard-working, tax-paying productive citizens. In 1954, Congress terminated the federally recognized status of the Menominee in Menominee Indian Termination Act, codified at . According to the terms of the Termination Act, the federally recognized status was to end in 1958. The tribe and the state of Wisconsin successfully lobbied to delay the termination to 1961.
On termination, the Menominee went from being one of the wealthiest tribes to one of the poorest. In 1954, the tribe was paying its own way due to its timber operations. The tribe paid for a hospital, BIA salaries, local schools, and owned utility companies, plus a stipend to tribal members. The tribe was forced to use its reserve funds to develop a termination plan that they did not want, and instead of having a reserve, entered into termination with a US$300,000 deficit. Menominee County was created out of the old reservation boundaries, and the tribe immediately had to provide for its own police and fire protection. Without federal support and with no tax base, the situation became dire. The tribe closed the hospital and sold its utility company, and contracted those services to neighboring counties. The Menominee Enterprises, Inc., formed to care for the tribe's needs after termination, was unable to pay property taxes and began to consider selling off tribal property. Many Menominee tribal members believed that the sponsor of the termination bill, Senator Arthur Wilkins
of Utah
, intended to force the loss of rich tribal lands to non-Indians. In 1962, the state of Wisconsin took the position that the hunting and fishing rights were abrogated by the termination act and that the tribal members were subject to state hunting and fishing regulations. With the poverty in the former reservation, the loss of hunting rights meant the loss of one of their last remaining means of survival.
to answer the question if the Termination Act canceled those rights retained by treaty.
The Wisconsin Supreme Court in State v. Sanapaw, 124 N.W.2d 41 (Wis., 1963), held that the treaty rights were terminated by Congress. In analyzing the case, the court found first that although the Wolf River Treaty did not specifically mention hunting and fishing rights, the term "to be held as Indian lands are held" was clear. Indians have always been able to hunt and fish on their own land, and if a term in a treaty with Indians is ambiguous, the court found that it must be resolved in favor of the tribe. Since the tribe had hunting and fishing rights under the treaty, the court then looked to determine if Congress had removed that right by enacting the Menominee Termination Act. The court held that Congress had used its plenary power
to abrogate those rights.
The key point to the court was the phrase "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 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."[Emphasis by the court.] The court held that the latter section was controlling, despite the argument by the tribal members that hunting rights were retained by treaty, not statute. The court held that the tribe had lost their hunting and fishing rights. The tribal members appealed to the U.S. Supreme Court, which declined to hear the appeal.
.
The Court looked at whether the tribe had hunting and fishing rights, and drew the same conclusion as the Wisconsin Supreme Court—that the terms of the treaty had to be resolved in the favor of the tribe, citing The Menominee Tribe of Indians v. United States, 95 Ct.Cl. 232 (Ct.Cl., 1941). In that decision, the court had observed that the reason the tribe had agreed to the current reservation was that it was well suited for hunting, with plenty of game. The hunting rights by treaty were therefore confirmed.
The court had to determine if the Menominee Termination Act had taken away that right. If it had, the tribe would have had a valid claim for compensation; but if not, then there would be no compensation. The court denied the claim, stating that the hunting and fishing rights had not been abrogated. In arriving at this decision, it commented that the legislative history included two witnesses who stated that the law would not affect hunting and fishing rights acquired by treaty, but would abrogate any such rights acquired by statute. Additionally, the court observed that Congress also amended Public Law 280
so that Indian hunting and fishing rights were protected in Wisconsin.
The U.S. Supreme Court granted certiorari
(a writ to the lower court to send the case to them for review) to resolve the conflict between the state court and the federal court.
, argued that the lower court should be reversed.
delivered the opinion of the court. The decision of the U.S. Court of Claims was affirmed. Douglas noted that Public Law 280 had been enacted and was fully in force for approximately seven years before the Termination Act became effective. The section of that law that dealt with Wisconsin provided that hunting and fishing rights in "Indian Country" were protected from state regulation and action. Thus from 1954 until termination in 1961, the Menominee's hunting and fishing rights were not interfered with by Wisconsin. The Termination Act stated that all federal statutes dealing with the tribe were no longer in force, but Douglas noted that it was silent as to treaties. The act did not specifically address the hunting and fishing rights, and Douglas stated that the court would "decline to construe the Termination Act as a backhanded way of abrogating the hunting and fishing rights of these Indians." He noted that in a similar bill for the Klamath Tribe, there was a discussion on paying the tribe to buy out their hunting and fishing rights, a clear indication that Congress was aware of the implications. Douglas found it hard to believe that Congress would subject the United States to a claim for compensation without an explicit statement to that effect. He found that without a specific abrogation of those rights, the tribe retained those rights.
Justice Potter Stewart
, joined by Justice Hugo Black
, dissented. Stewart acknowledged that the Wolf River Treaty "unquestionably" conferred hunting and fishing rights on the tribe and its members. He stated that the Termination Act subjected the members of the tribe to the same laws that all other citizens of Wisconsin were held to, including hunting and fishing regulations. In Stewart's opinion, Public Law 280 had no bearing on the case and the rights were not protected by the Termination Act, so they were lost. Stewart did note that this would have also made the claim for compensation valid under Shoshone Tribe v. United States, regardless of whether Congress intended it or not. He would have reversed the decision of the Court of Claims.
.
articles as of September 2010. A good number of these articles note that while Congress may terminate tribal and treaty rights, it must show a "specific intent to abrogate them." It has also been pointed out that hunting and fishing rights are a valuable property right, and if the rights are taken away by the government, those holding those rights must be compensated for their loss. Courts must also construe treaty rights and statutes liberally in favor of the Indians, even when the treaty does not specifically speak of hunting and fishing.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1968), was a case in which the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
ruled that the tribal hunting and fishing rights which were retained by treaty were not abrogated by the Menominee Termination Act without a clear and unequivocal statement to that effect by Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
. The Menominee Indian Tribe
Menominee
Some placenames use other spellings, see also Menomonee and Menomonie.The Menominee are a nation of Native Americans living in Wisconsin. The Menominee, along with the Ho-Chunk, are the only tribes that are indigenous to what is now Wisconsin...
had entered into a series of treaties with the United States which did not specifically state that they had hunting and fishing rights. In 1961 Congress terminated the tribe's federal recognition
Native American recognition in the United States
Native American recognition in the United States most often refers to the process of a tribe being recognized by the United States federal government, or to a person being granted membership to a federally recognized tribe. There are 565 federally recognized tribal governments in the United States...
, ending the tribe's right to govern itself, federal support of health care and education programs, police and fire protection, and tribal rights to land. In 1963, three members of the tribe were charged with violating Wisconsin
Wisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
's hunting and fishing laws on what had formerly been reservation land
Indian reservation
An American Indian reservation is an area of land managed by a Native American tribe under the United States Department of the Interior's Bureau of Indian Affairs...
for over 100 years. A series of court cases brought the issue to the Supreme Court. The court held that the tribe retained its hunting and fishing rights under the treaties involved. This case has since become recognized as a landmark case in Native American case law.
Early treaties
The MenomineeMenominee
Some placenames use other spellings, see also Menomonee and Menomonie.The Menominee are a nation of Native Americans living in Wisconsin. The Menominee, along with the Ho-Chunk, are the only tribes that are indigenous to what is now Wisconsin...
Indian Tribe lived in the states of Wisconsin
Wisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
and Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
for at least 10,000 years. They first acknowledged that they were under the protection of the United States in the Treaty of St. Louis
Treaty of St. Louis
The Treaty of St. Louis is one of many treaties signed between the United States and various Native American tribes.-1804 - Sauk and Fox :...
in 1817. In 1825 and 1827 the treaties of Prairie du Chien
Treaty of Prairie du Chien
The Treaty of Prairie du Chien may refer to any of several treaties made and signed in Prairie du Chien, Wisconsin between the United States, representatives from the Sioux, Sac and Fox, Menominee, Ioway, Winnebago and the Anishinaabeg Native American peoples.-1825:The first treaty of Prairie du...
and Butte des Morts answered boundary questions. None of the early treaties addressed hunting and fishing rights. In 1831 the tribe entered into another treaty, the Treaty of Washington
Treaty of Washington, with Menominee (1831)
The Treaty of Washington was a treaty between the Menominee and the United States Government. The treaty was initially made and signed on February 8, 1831 in Washington, D.C.. In the treaty, the Menominee ceded about of their land in Wisconsin primarily adjacent to Lake Michigan...
( (1831) and (1832)), which ceded about 3000000 acre to the federal government. These two treaties reserved hunting and fishing rights for the tribe on the ceded land until the President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
surveyed and sold the land. In 1836 the tribe entered into the Treaty of Cedar Point , where 4184000 acres (16,932.1 km²) was ceded to the federal government. There was no mention of hunting or fishing rights in this treaty.
In 1848 the tribe entered into another treaty with the United States, the Treaty of Lake Poygan
Treaty of Lake Poygan
The Treaty of Lake Poygan arranged for the sale of of Menominee Indian lands to the government of the United States for $350,000 plus in Crow Wing County, Minnesota, to which the Menominees were asked to move. It was negotiated on October 18, 1848 at Lake Poygan,near Winneconne, Wisconsin...
, where the tribe ceded their remaining approximately 4000000 acres (16,187.4 km²) in exchange for 600000 acres (2,428.1 km²) west of the Mississippi River
Mississippi River
The Mississippi River is the largest river system in North America. Flowing entirely in the United States, this river rises in western Minnesota and meanders slowly southwards for to the Mississippi River Delta at the Gulf of Mexico. With its many tributaries, the Mississippi's watershed drains...
in present-day Minnesota
Minnesota
Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...
. This treaty was contingent on the tribe examining the land proposed for them and accepting it as suitable. Chief Oshkosh
Chief Oshkosh
Chief Oshkosh was the chief of the Menominee Indian tribe from 1827 until his death. He played a key role in treaty negotiations as the Menominee tribe tried to protect their lands in Wisconsin from the resettling New York Indians and the American pioneers...
led a delegation in 1850 to the Crow Wing area
Long Prairie River
The Long Prairie River is a tributary of the Crow Wing River, 92 miles long, in central Minnesota in the United States. Via the Crow Wing River, it is part of the watershed of the Mississippi River, draining an area of 892 square miles in a generally rural region.-History:Prior to settlement by...
and determined that the land was not suitable for the tribe, primarily due to the location of the proposed reservation being between two warring tribes, the Dakota and Ojibwe. Oshkosh then pressed for a new treaty, stating that he "preferred a home somewhere in Wisconsin, for the poorest region in Wisconsin was better than the Crow Wing."
Treaty of 1854
In the meantime, the tribe had been living in an area near the Wolf RiverWolf River (Fox River)
The Wolf River, long, is one of the two National Scenic Rivers in Wisconsin, along with the St. Croix River. The scenic portion is long. It rises in the north woods of the state, with the northernmost fork stemming from Pine Lake in Forest County. The river then flows south through Langlade and...
. They then entered into the Treaty of Wolf River with the United States in 1854. The United States set aside 276480 acre (1,118.9 km²; 432 sq mi) of land for a reservation in present day Menominee County, Wisconsin. In return, the tribe ceded the land in Minnesota back to the federal government. All of the previous treaties but one did not provide for hunting and fishing rights, but stated that the reservation was "to be held as Indian lands are held".
From that date forward for 100 years, this area has been the home of the tribe, and they were free from state interference. Of the original land, 230000 acre (930.8 km²; 359.4 sq mi) of prime timberland remained under the control of the tribe, while the remaining land was transferred to the Mahican
Mahican
The Mahican are an Eastern Algonquian Native American tribe, originally settling in the Hudson River Valley . After 1680, many moved to Stockbridge, Massachusetts. During the early 1820s and 1830s, most of the Mahican descendants migrated westward to northeastern Wisconsin...
and Lenape
Lenape
The Lenape are an Algonquian group of Native Americans of the Northeastern Woodlands. They are also called Delaware Indians. As a result of the American Revolutionary War and later Indian removals from the eastern United States, today the main groups live in Canada, where they are enrolled in the...
tribe. During this period, the tribe enjoyed complete freedom to regulate hunting and fishing on the reservation, with the complete acquiescence of Wisconsin.
Tribal termination
In the mid to late-1940s, the tribe was part of a survey to identify tribes for terminationIndian termination policy
Indian termination was the policy of the United States from the mid-1940s to the mid-1960s. The belief was that Native Americans would be better off if assimilated as individuals into mainstream American society. To that end, Congress proposed to end the special relationship between tribes and the...
, a process in which federal recognition of the tribe would be withdrawn and the tribe would no longer be dependent on the Bureau of Indian Affairs
Bureau of Indian Affairs
The Bureau of Indian Affairs is an agency of the federal government of the United States within the US Department of the Interior. It is responsible for the administration and management of of land held in trust by the United States for Native Americans in the United States, Native American...
(BIA) to support them. The Menominee were thought to be a tribe that would be able to be terminated due to being one of the richest tribes in the nation. The thought of the federal government was that termination would allow the tribal members to be assimilated
Americanization (of Native Americans)
The Americanization of Native Americans was an assimilation effort by the United States to transform Native American culture to European-American culture between the years of 1790–1920. George Washington and Henry Knox were first to propose, in an American context, the cultural transformation of...
into mainstream American culture, becoming hard-working, tax-paying productive citizens. In 1954, Congress terminated the federally recognized status of the Menominee in Menominee Indian Termination Act, codified at . According to the terms of the Termination Act, the federally recognized status was to end in 1958. The tribe and the state of Wisconsin successfully lobbied to delay the termination to 1961.
On termination, the Menominee went from being one of the wealthiest tribes to one of the poorest. In 1954, the tribe was paying its own way due to its timber operations. The tribe paid for a hospital, BIA salaries, local schools, and owned utility companies, plus a stipend to tribal members. The tribe was forced to use its reserve funds to develop a termination plan that they did not want, and instead of having a reserve, entered into termination with a US$300,000 deficit. Menominee County was created out of the old reservation boundaries, and the tribe immediately had to provide for its own police and fire protection. Without federal support and with no tax base, the situation became dire. The tribe closed the hospital and sold its utility company, and contracted those services to neighboring counties. The Menominee Enterprises, Inc., formed to care for the tribe's needs after termination, was unable to pay property taxes and began to consider selling off tribal property. Many Menominee tribal members believed that the sponsor of the termination bill, Senator Arthur Wilkins
Arthur Vivian Watkins
Arthur Vivian Watkins was a Republican U.S. Senator from 1947 to 1959. He was influential as a proponent of terminating federal recognition of American Indian tribes.-Biography:...
of Utah
Utah
Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
, intended to force the loss of rich tribal lands to non-Indians. In 1962, the state of Wisconsin took the position that the hunting and fishing rights were abrogated by the termination act and that the tribal members were subject to state hunting and fishing regulations. With the poverty in the former reservation, the loss of hunting rights meant the loss of one of their last remaining means of survival.
State enforcement actions
In 1962, Joseph L. Sanapaw, William J. Grignon, and Francis Basina were charged with violating state hunting and fishing regulations. All three were members of the tribe and admitted to the acts in open court, but claimed that the Wolf River Treaty gave them the right to hunt. The state trial court agreed, and acquitted the three. The state was given leave to pursue a writ of error, and appealed to the Wisconsin Supreme CourtWisconsin Supreme Court
The Wisconsin Supreme Court is the highest appellate court in the state of Wisconsin. The Supreme Court has jurisdiction over original actions, appeals from lower courts, and regulation or administration of the practice of law in Wisconsin.-Location:...
to answer the question if the Termination Act canceled those rights retained by treaty.
The Wisconsin Supreme Court in State v. Sanapaw, 124 N.W.2d 41 (Wis., 1963), held that the treaty rights were terminated by Congress. In analyzing the case, the court found first that although the Wolf River Treaty did not specifically mention hunting and fishing rights, the term "to be held as Indian lands are held" was clear. Indians have always been able to hunt and fish on their own land, and if a term in a treaty with Indians is ambiguous, the court found that it must be resolved in favor of the tribe. Since the tribe had hunting and fishing rights under the treaty, the court then looked to determine if Congress had removed that right by enacting the Menominee Termination Act. The court held that Congress had used its plenary power
Plenary power
A plenary power or plenary authority is the separate identification, definition, and complete vesting of a power or powers or authority in a governing body or individual, to choose to act on a particular subject matter or area...
to abrogate those rights.
The key point to the court was the phrase "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 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."
Federal Court of Claims
The Menominee sued to recover compensation for the loss of the hunting and fishing rights in the U.S. Court of Claims. The court first clarified that the Menominee Termination Act did not abolish the tribe or its membership, but merely ended Federal supervision of the tribe. Since the Menominee was still a tribe, although not one under federal trusteeship, the tribe had a right to assert a claim arising out the Wolf River Treaty in accordance with the Indian Claims Commission Act and the Tucker ActTucker Act
Through the Tucker Act , the United States government has waived its sovereign immunity with respect to certain lawsuits....
.
The Court looked at whether the tribe had hunting and fishing rights, and drew the same conclusion as the Wisconsin Supreme Court—that the terms of the treaty had to be resolved in the favor of the tribe, citing The Menominee Tribe of Indians v. United States, 95 Ct.Cl. 232 (Ct.Cl., 1941). In that decision, the court had observed that the reason the tribe had agreed to the current reservation was that it was well suited for hunting, with plenty of game. The hunting rights by treaty were therefore confirmed.
The court had to determine if the Menominee Termination Act had taken away that right. If it had, the tribe would have had a valid claim for compensation; but if not, then there would be no compensation. The court denied the claim, stating that the hunting and fishing rights had not been abrogated. In arriving at this decision, it commented that the legislative history included two witnesses who stated that the law would not affect hunting and fishing rights acquired by treaty, but would abrogate any such rights acquired by statute. Additionally, the court observed that Congress also amended Public Law 280
Public Law 280
Public Law 280 is a federal law of the United States establishing "a method whereby States may assume jurisdiction over reservation Indians," as stated by Arizona Supreme Court Justice Stanley G. Feldman. Public Law 280 is a federal law of the United States establishing "a method whereby States...
so that Indian hunting and fishing rights were protected in Wisconsin.
The U.S. Supreme Court granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
(a writ to the lower court to send the case to them for review) to resolve the conflict between the state court and the federal court.
Opinion of the Court
In an interesting twist, both the appellee (the Menominee) and the appellant (the United States) argued that the decision of the Court of Claims should be affirmed. The State of Wisconsin, as amicus curiaeAmicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
, argued that the lower court should be reversed.
Majority opinion
Justice William O. DouglasWilliam O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
delivered the opinion of the court. The decision of the U.S. Court of Claims was affirmed. Douglas noted that Public Law 280 had been enacted and was fully in force for approximately seven years before the Termination Act became effective. The section of that law that dealt with Wisconsin provided that hunting and fishing rights in "Indian Country" were protected from state regulation and action. Thus from 1954 until termination in 1961, the Menominee's hunting and fishing rights were not interfered with by Wisconsin. The Termination Act stated that all federal statutes dealing with the tribe were no longer in force, but Douglas noted that it was silent as to treaties. The act did not specifically address the hunting and fishing rights, and Douglas stated that the court would "decline to construe the Termination Act as a backhanded way of abrogating the hunting and fishing rights of these Indians." He noted that in a similar bill for the Klamath Tribe, there was a discussion on paying the tribe to buy out their hunting and fishing rights, a clear indication that Congress was aware of the implications. Douglas found it hard to believe that Congress would subject the United States to a claim for compensation without an explicit statement to that effect. He found that without a specific abrogation of those rights, the tribe retained those rights.
Dissent
Potter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
, joined by Justice Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
, dissented. Stewart acknowledged that the Wolf River Treaty "unquestionably" conferred hunting and fishing rights on the tribe and its members. He stated that the Termination Act subjected the members of the tribe to the same laws that all other citizens of Wisconsin were held to, including hunting and fishing regulations. In Stewart's opinion, Public Law 280 had no bearing on the case and the rights were not protected by the Termination Act, so they were lost. Stewart did note that this would have also made the claim for compensation valid under Shoshone Tribe v. United States, regardless of whether Congress intended it or not. He would have reversed the decision of the Court of Claims.
Subsequent developments
The case has been identified as one of the landmark cases in Native American law, primarily in the area of reserved tribal rights. It has been used in college courses to explain tribal sovereignty rights, even if the tribe has been terminated as the Menominee tribe was. The opinion has been noted as a leading case in holding that the Federal government acted as a trustee, under normal trustee rules. The case has even been discussed internationally (such as Australia), as to the relevance of indigenous or aboriginal titleAboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
.
Law reviews and journals
The case has been cited in over 200 law reviewLaw review
A law review is a scholarly journal focusing on legal issues, normally published by an organization of students at a law school or through a bar association...
articles as of September 2010. A good number of these articles note that while Congress may terminate tribal and treaty rights, it must show a "specific intent to abrogate them." It has also been pointed out that hunting and fishing rights are a valuable property right, and if the rights are taken away by the government, those holding those rights must be compensated for their loss. Courts must also construe treaty rights and statutes liberally in favor of the Indians, even when the treaty does not specifically speak of hunting and fishing.