MILLE LACS BAND v COUNTY OF AITKIN
United States Court of Appeals
for the eighth circuit
___________
No. 97-1757
___________
Mille Lacs Band of Chippewa *
Indians; Arthur Gahbow; Walter *
Sutton; Carleen Benjamin; Joseph*
Dunkley; *
*
Plaintiffs-Appellees, *
*
United States of America; St. *
Croix Chippewa Indians of *
Wisconsin; Lac du Flambeau Band *
of Lake Superior Chippewas; Bad *
River Band of Lake Superior *
Chippewa Indians; Lac Courte *
Oreilles Band of Lake Superior *
Chippewa Indians of Wisconsin; *
Sokaogan Chippewa Community; Red*
Cliff Band of Lake Superior *
Chippewa; *
*
Intervenors-Plaintiffs- *
Appellees, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
State of Minnesota; Minnesota *
Department of Natural Resources;*
Rodney Sando, Commissioner of *
Natural Resources; *
*
Defendants, *
*
County of Aitkin; County of *
Benton; County of Sherburne; *
County of Crow Wing; County of *
Isanti; County of Kanabec; *
County of Mille Lacs; County *
of Morrison; County of Pine; *
Intervenors-Defendants- *
Appellants, *
------------------------------ *
Fond du Lac Band of Chippewa *
Indians; Robert Peacock; Peter *
Defoe; Clifton Rabideaux; Herman*
Wise; George Dupuis; *
*
Plaintiffs-Appellees, *
*
v. *
*
Arne Carlson, Governor of *
Minnesota; Rodney Sando, *
Commissioner of the *
Minnesota Department of Natural *
Resources; Raymond B. Hitchcock,*
Assistant Commissioner of *
Operations, Minnesota Department*
of Natural Resources; *
*
Defendants, *
*
County of Aitkin; County of *
Benton; County of Sherburne; *
County of Crow Wing; County of *
Isanti; County of Kanabec; *
County of Mille Lacs; *
County of Morrison; County of *
Pine; *
*
Movants-Appellants. *
___________
No. 97-1764
___________
Mille Lacs Band of Chippewa *
Indians; *
Arthur Gahbow; Walter Sutton; *
Carleen Benjamin; Joseph *
Dunkley; *
*
Plaintiffs-Appellees, *
*
United States of America; St. *
Croix Chippewa Indians of *
Wisconsin; Lac du Flambeau Band *
of Lake Superior Chippewas; Bad *
River Band of Lake *
Superior Chippewa Indians; Lac *
Courte Oreilles Band of Lake *
Superior Chippewa Indians of *
Wisconsin; Sokaogan Chippewa *
Community; Red Cliff Band of *
Lake Superior Chippewa; *
*
Intervenors-Plaintiffs- *
Appellees, *
*
v. *
*
State of Minnesota; Minnesota *
Department of Natural Resources;*
*
Defendants, *
*
County of Aitkin; County of *
Benton; County of Sherburne; *
County of Crow Wing; County of *
Isanti; County of Kanabec; *
County of Mille Lacs; County *
of Morrison; County of Pine; *
*
Intervenors-Defendants, *
*
John W. Thompson; Jenny *
Thompson; Joseph Karpen; Leroy *
Burling; Glenn Thompson; Gary *
Kiedrowski; *
*
Intervenors-Defendants- *
Appellants. *
___________
No. 97-1768
___________
Fond du Lac Band of Chippewa *
Indians; Robert Peacock; Peter *
Defoe; Clifton Rabideaux; Herman*
Wise; George Dupuis; *
*
Plaintiffs-Appellees, *
*
v. *
*
John Thompson; Jenny Thompson; *
Glenn Thompson; Joseph Karpen; *
Leroy Burling; Gary Kiedrowski; *
*
Movants-Appellants, *
*
Robert J. Edmonds; Michael *
Sheff; *
*
Movants, *
*
Arne Carlson, Governor of *
Minnesota; Rodney Sando, *
Commissioner of the *
Minnesota Department of Natural *
Resources; Raymond B. Hitchcock,*
Assistant Commissioner of *
Operations, Minnesota Department*
of Natural Resources; *
*
Defendants, *
*
County of Aitkin; County of *
Benton; County of Sherburne; *
County of Crow *
Wing; County of Isanti; County *
of Kanabec; County of Mille *
Lacs; County of Morrison; County*
of Pine; *
*
Movants. *
___________
___________
No. 97-1770
___________
Fond du Lac Band of Chippewa *
Indians; Robert Peacock; Peter *
Defoe; Clifton Rabideaux; Herman*
Wise; George Dupuis; *
*
Plaintiffs-Appellees, *
*
v. *
*
John Thompson; Jenny Thompson; *
Glenn Thompson; Joseph Karpen; *
Leroy Burling; Gary Kiedrowski; *
*
Movants, *
*
Arne Carlson, Governor of *
Minnesota; Rodney Sando, *
Commissioner of the *
Minnesota Department of Natural *
Resources; Raymond B. Hitchcock,*
Assistant Commissioner of *
Operations, Minnesota Department*
of Natural Resources; *
*
Defendants, *
*
County of Aitkin; County of *
Benton; *
County of Sherburne; County of *
Crow Wing; County of Isanti; *
County of Kanabec; County of *
Mille Lacs; County *
of Morrison; County of Pine; *
*
Movants, *
*
Robert J. Edmonds; Michael *
Sheff, *
*
Intervenors-Defendants- *
Appellants. *
___________
No. 97-1771
___________
Fond du Lac Band of Chippewa *
Indians; Robert Peacock; Peter *
Defoe; Clifton Rabideaux; Herman*
Wise; George Dupuis; *
*
Plaintiffs-Appellees, *
*
v. *
*
John Thompson; Jenny Thompson; *
Glenn Thompson; Joseph Karpen; *
Leroy Burling; Gary Kiedrowski; *
*
Movants, *
*
Arne Carlson, Governor of *
Minnesota; Rodney Sando, *
Commissioner of the *
Minnesota Department of Natural *
Resources; Raymond B. Hitchcock,*
Assistant Commissioner of *
Operations, Minnesota Department*
of Natural *
Resources; *
*
Defendants-Appellants, *
*
County of Aitkin; County of *
Benton; County of Sherburne; *
County of Crow Wing; County of *
Isanti; County of Kanabec; *
County of Mille Lacs; County *
of Morrison; County of Pine; *
*
Movants, *
*
Robert J. Edmonds; Michael *
Sheff, *
*
Intervenors-Defendants. *
___________
No. 97-1772
___________
Mille Lacs Band of Chippewa *
Indians; Arthur Gahbow; Walter *
Sutton; Carleen Benjamin; Joseph*
Dunkley; *
*
Plaintiffs-Appellees, *
*
United States of America; St. *
Croix Chippewa Indians of *
Wisconsin; Lac du Flambeau Band *
of Lake Superior Chippewas; Bad *
River Band of Lake Superior *
Chippewa Indians; Lac Courte *
Oreilles Band of Lake Superior *
Chippewa Indians of Wisconsin; *
Sokaogan Chippewa Community; Red*
Cliff Band of Lake Superior *
Chippewa; *
*
Intervenors-Plaintiffs- *
Appellees, *
*
v. *
*
State of Minnesota; Minnesota *
Department of Natural Resources;*
Rodney Sando, Commissioner of *
Natural Resources; *
*
Defendants-Appellants, *
*
County of Aitkin; County of *
Benton; County of Sherburne; *
County of Crow Wing; County of *
Isanti; County of Kanabec; *
County of Mille Lacs; County *
of Morrison; County of Pine; *
*
Intervenors-Defendants. *
___________
No. 97-1774
___________
Mille Lacs Band of Chippewa *
Indians; Arthur Gahbow; Walter *
Sutton; Carleen Benjamin; Joseph*
Dunkley; *
*
Plaintiffs-Appellees, *
*
United States of America; St. *
Croix Chippewa Indians of *
Wisconsin; Lac du Flambeau Band *
of Lake Superior Chippewas; Bad *
River Band of Lake Superior *
Chippewa Indians; Lac Courte *
Oreilles Band of Lake Superior *
Chippewa Indians of Wisconsin; *
Sokaogan Chippewa Community; Red*
Cliff Band of Lake Superior *
Chippewa; *
*
Intervenors-Plaintiffs- *
Appellees, *
*
v. *
*
State of Minnesota; Minnesota *
Department of Natural Resources;*
Rodney Sando, Commissioner of *
Natural Resources; *
*
Defendants, *
*
County of Aitkin; County of *
Benton; County of Sherburne; *
County of Crow Wing; County of *
Isanti; County of Kanabec; *
County of Mille Lacs; County *
of Morrison; County of Pine; *
*
Intervenors-Defendants- *
Appellants. *
___________
No. 97-1937
___________
Mille Lacs Band of Chippewa *
Indians; *
*
Plaintiffs-Appellants, *
*
Arthur Gahbow; Walter Sutton; *
Carleen Benjamin; Joseph *
Dunkley; *
*
Plaintiffs, *
*
United States of America; *
*
*
Intervenors-Plaintiffs, *
*
St. Croix Chippewa Indians of *
Wisconsin; Lac du Flambeau Band *
of Lake Superior Chippewas; Bad *
River Band of Lake Superior *
Chippewa Indians; Lac Courte *
Oreilles Band of Lake Superior *
Chippewa Indians of Wisconsin; *
Sokaogan Chippewa Community; *
Red Cliff Band of Lake *
Superior Chippewa; *
*
Intervenors-Plaintiffs- *
Appellants, *
*
v. *
*
State of Minnesota; Minnesota *
Department of Natural Resources;*
County of Aitkin; County of *
Benton; County of Sherburne; *
County of Crow Wing; County of *
Isanti; County of Kanabec; *
County of Mille Lacs; County *
of Morrison; County of Pine; *
*
Defendants-Appellees, *
*
John W. Thompson; Jenny *
Thompson; Joseph Karpen; Leroy *
Burling; Glenn Thompson; Gary *
Kiedrowski; *
*
Intervenor-Defendant-Appellees. *
___________
No. 97-1938
___________
Fond du Lac Band of Chippewa *
Indians; Robert Peacock; Peter *
Defoe; Clifton Rabideaux; Herman*
Wise; George Dupuis; *
*
Plaintiffs-Appellants, *
*
v. *
*
John Thompson; Jenny Thompson; *
Glenn Thompson; Joseph Karpen; *
Leroy Burling; Gary Kiedrowski; *
*
Movants-Appellees, *
*
Arne Carlson, Governor of *
Minnesota; Rodney Sando, *
Commissioner of the *
Minnesota Department of Natural *
Resources; Raymond B. Hitchcock,*
Assistant Commissioner of *
Operations, Minnesota Department*
of Natural Resources; *
*
Defendants-Appellees, *
*
Robert J. Edmonds; Michael *
Sheff, *
*
Intervenors-Defendants- *
Appellees. *
___________
Submitted: June 12, 1997
Filed: August 26, 1997
___________
Before McMILLIAN, LAY, and JOHN R. GIBSON, Circuit Judges.
___________
LAY, Circuit Judge.
I. BACKGROUND
A. Introduction
One hundred sixty years ago, near Fort Snelling, Minnesota,
representatives of the United States and representatives of twelve
bands of the Chippewa Nation negotiated a treaty which ceded
Indian(1) title to certain lands in the Upper Midwest. Historical
documents demonstrate that the government was interested in
purchasing the land for purposes of harvesting its pine timber.
See 1837 Treaty Journal 131; Letter from Commissioner of Indian
Affairs Carey A. Harris to Henry Dodge, Wisconsin Territorial
Governor, and General W.R. Smith (May 13, 1837). On July 29, 1837,
the Bands signed a treaty ceding over thirteen million acres of
land in present-day Wisconsin and Minnesota to the United States in
exchange for money, goods, and supplies. Treaty with the
Chippewas, July 29, 1837, 7 Stat. 536 . Article V of the Treaty
provided, "[T]he privilege of hunting, fishing, and gathering the
wild rice, upon the lands, the rivers and the lakes included in the
territory ceded, is guarantied to the
Indians, during the pleasure of the President of the United
States." These usufructuary rights form the subject matter of the
present litigation.
In 1990, the Mille Lacs Band of Chippewa Indians and some of
its individual members (the Mille Lacs Band), later joined by the
Fond du Lac Band of Chippewa Indians and some of its individual
members(2) (the Fond du Lac Band) and several Wisconsin Bands of
Chippewa Indians (the Wisconsin Bands)(3) (collectively "the Bands")
sought a declaratory judgment in federal district court as to the
continued existence of their usufructuary rights in the Minnesota
portion of the territory they ceded in the 1837 Treaty. The Bands
also sought injunctive relief to enforce these treaty rights to
hunt, fish, and gather in the ceded lands free of state regulation.
1. Mille Lacs I (Mille Lacs Band of Chippewa Indians v.
Minnesota,
853 F. Supp. 1118 (D. Minn. 1994))
In the Mille Lacs case, the Mille Lacs Band initially sued the
State, the Minnesota Department of Natural Resources, and the
Commissioner of Natural Resources (collectively "the State"). Nine
Minnesota counties(4) and six Minnesota
landowners(5) intervened as defendants, and the United States
intervened as a plaintiff. Mille Lacs I, 853 F. Supp. at 1123.
The district court bifurcated the Mille Lacs case into two
phases. Phase I was to decide whether the Mille Lacs Band's rights
to hunt, fish, and gather under the 1837 Treaty continue to exist
and the general nature of any such rights, including whether they
extend to lands now or previously in private ownership. Phase II
was to decide resource allocation issues and the validity of
particular measures to regulate the exercise of the rights. Id.
In Mille Lacs I, on cross-motions for summary judgment, the
district court (6) held that (1) various delay-based defenses do not
bar the Mille Lacs Band's claims, id. at 1124-26, 1127-28, 1138-39,
(2) the Mille Lacs Band and the Commissioner of Natural Resources
are persons within the meaning of 42 U.S.C. 1983, id. at 1126-27,
(3) the suit is not barred by the Eleventh Amendment, id. at 1128-
29, (4) the Commissioner of Natural Resources is not exempt from
suit under the doctrine of qualified immunity and other parties
urged by the State are not indispensable, id. at 1129-31, and (5)
the Band's claims are not precluded by res judicata or collateral
estoppel, id. at 1132-38. The court also rejected the State's
motion for summary judgment which argued that an 1850 Executive
Order and an 1855 Treaty extinguished the Band's usufructuary
rights. Id. at 1142-43. Finally, the court dismissed
counterclaims the six Minnesota landowners brought against the
United States. Id. at 1143-46.
2. Mille Lacs II (Mille Lacs Band of Chippewa Indians v.
Minnesota,
861 F. Supp. 784 (D. Minn. 1994))
After a trial held on Phase I issues, the district court ruled
that the Mille Lacs Band had a continuing right to hunt, fish, and
gather pursuant to the 1837 Treaty. Mille Lacs II, 861 F. Supp. at
841. Specifically, the court held that neither the 1850 Executive
Order nor the 1855 Treaty extinguished the usufructuary rights
reserved in the 1837 Treaty. Id. at 823-35. In addition, the
court held that the usufructuary rights reserved by the Band
included the rights to harvest resources for commercial purposes,
and were not limited to use of any particular techniques, methods,
devices or gear. Id. at 838. Finally, it ruled that any
regulation imposed by the State must be necessary to ensure public
health and safety, and that the State could not impose its own
regulations if the Chippewa could establish tribal regulations
adequate to meet conservation, public health and public safety
needs. Id. at 838-39.(7)
3. Mille Lacs III (Mille Lacs Band of Chippewa Indians v.
Minnesota,
No. 3-94-1226 (D. Minn. Mar. 29, 1996))
After the Phase I order in Mille Lacs II, several Wisconsin
Bands(8) of Chippewa were allowed to intervene as plaintiffs. The
State moved for summary judgment against the Wisconsin Bands,
arguing that previous litigation before the Court of Claims and the
Indian Claims Commission barred their claims, and that a treaty
signed by the Wisconsin Bands in 1854 extinguished any usufructuary
rights guaranteed in the 1837 Treaty. Mille Lacs III, slip op. at
7. The Counties moved for summary judgment
against the Wisconsin Bands as well, arguing that at the time of
the 1837 Treaty, the Wisconsin Bands did not occupy lands or
exercise hunting and fishing rights in Minnesota, and that this
fact barred their claim. The Counties also argued, despite the
ruling in Mille Lacs I, that the 1850 Executive Order extinguished
the Wisconsin Bands' rights. Id. The six Minnesota landowners
also moved for summary judgment against the Wisconsin Bands, and
the Wisconsin Bands and the Mille Lacs Band moved for summary
judgment dismissing various defenses. Id. at 7-8. The district
court(9) issued summary judgment in favor of the Wisconsin Bands, and
denied the defendants' motions for summary judgment. Id. at 41-42.
4. Fond du Lac (Fond du Lac Band of Chippewa Indians v.
Carlson,
No. 5-92-159 (D. Minn. Mar. 18, 1996))
In 1992, the Fond du Lac Band brought a separate suit against
state officials, also claiming continuing rights to hunt, fish, and
gather pursuant to the 1837 Treaty and its 1854 Treaty. Two
Minnesota landowners intervened as defendants.(10) The district court
issued a bifurcation order similar to the order signed in the Mille
Lacs case. In October 1994, the court (11) held that the Fond du Lac
Band's claims were not barred by Eleventh Amendment, indispensable
parties or statute of limitations defenses. This court affirmed
the rejection of the Eleventh Amendment defense in an interlocutory
appeal. Fond du Lac Band of Chippewa Indians v. Carlson, 68 F.3d
253 (8th Cir. 1995). In March 1996, the district court issued a
ruling on Phase I issues, holding that
the Fond du Lac Band retains hunting, fishing, 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 (D. Minn. 1997))
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 1837 Treaty. In the consolidated Phase II, the State and
the Bands stipulated to a Conservation Code and Management Plan,
under which tribal hunting, fishing, and gathering would be
regulated. Though the State and the Bands were able to resolve
many issues through this stipulation, some issues remained
unresolved, and were submitted to the district court on motions for
summary judgment. On January 29, 1997, the district court(12) issued
an order resolving these issues. It approved the Conservation Code
and Management Plan and rejected defendants' arguments to make a
further allocation of the resources affected by the Code and Plan.
Mille Lacs IV, 952 F. Supp. at 1385-94. The court also held that
exercise of treaty rights on private lands would be limited to
those open to the public by operation of state law, but that the
Bands may not hunt on unposted, unenclosed, nonagricultural lands
open to public hunting pursuant to state statute. Id. at 1376-79.
The Fond du Lac case and the Mille Lacs case were consolidated
on appeal. (13) The basic issues presented on appeal are (1) whether
the suit is barred in federal court under the Eleventh Amendment;
(2) whether the 1850 Executive Order issued by President Zachary
Taylor revoked the Bands' usufructuary rights; (3) whether
subsequent treaties of 1854 and 1855 have extinguished the
usufructuary rights; (4) whether the claims asserted by the Bands
have been precluded by prior litigation; (5)
whether the Bands' rights were repealed, under the equal footing
doctrine, by Minnesota's admission into the Union; (6) whether the
rights, if they still exist, are limited by the "moderate living"
doctrine; (7) whether several other affirmative defenses were
erroneously rejected by the district court; and (8) in the Bands'
cross-appeal, whether the district court erred in barring the Bands
from hunting on unposted, unenclosed, nonagricultural lands open to
public hunting.
II.
Eleventh Amendment
We turn initially to the Landowners' arguments that these
suits are barred in federal court because of the sovereign immunity
of the State of Minnesota.(14) The Eleventh Amendment provides: "The
Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State." The Bands are
accorded the same status as a foreign sovereign. Blatchford v.
Native Village of Noatak,
501 U.S. 775, 780
(1991).
In Mille Lacs, the State raised the defense of sovereign
immunity before the district court,(15) which rejected it on two
grounds. First, the court noted that the claims by the United
States are not barred by the Eleventh Amendment, citing Blatchford,
501 U.S. at 782
-83, and United States v. Minnesota,
270 U.S. 181,
195
(1926). Mille Lacs I, 853 F. Supp. at 1128. Therefore, the
court held that because "the Band and the United States seek the
same relief in this action, Minnesota's sovereign immunity is not
compromised." Id. (citing Arizona v. California,
460 U.S. 605,
613-14
(1983)). Second, the court ruled that the Band's claim for
prospective relief against the Commissioner of Natural Resources in
his official capacity falls within the Eleventh Amendment exception
set out in Ex parte Young,
209 U.S. 123
(1908).(16) Mille Lacs I, 853
F. Supp. at 1128-29.(17)
As to the court's first holding, the Landowners urge that the
United States did not initiate the suit and appears only as a
trustee intervening in the action. This observation, while true,
is not controlling. The United States has fully participated in
all proceedings on behalf of the Bands. As an intervenor, it has
the right to continue the suit even without the presence of the
Bands. See Diamond v. Charles,
476 U.S. 54, 68
(1986). Therefore,
because the United States has the right to bring these claims in
federal court, the State's sovereign immunity is not compromised
and the Eleventh Amendment does not bar these claims. See Arizona
v. California,
460 U.S. at 614
("Nothing in the Eleventh Amendment has ever been seriously
supposed to prevent a State [from] being sued by the United
States.") (internal quotations omitted).
In Fond du Lac, the district court denied the defendant state
officials' motion for summary judgment based on Eleventh Amendment
immunity. Our affirmance rejected this defense on the ground that
the claims fell within the Ex parte Young exception to the Eleventh
Amendment. Fond du Lac, 68 F.3d at 256-57. As such, that ruling
is the law of the case in Fond du Lac, unless superseded by an
intervening Supreme Court case. See Uhl v. Swanstrom, 79 F.3d 751,
755 (8th Cir. 1996) (noting that the "`law of the case' doctrine
does not apply when an intervening decision from a higher tribunal
renders a prior determination erroneous").
The Landowners filed a 28(j) letter, with which the State
concurred, asserting that this court's ruling in Fond du Lac was in
error and has now been superseded by the Supreme Court's decision
in Idaho v. Coeur d'Alene Tribe of Idaho, 117 S.Ct. 2028 (1997).
We disagree. In Coeur d'Alene, the Coeur d'Alene Tribe and several
individual tribe members sued the State of Idaho and various state
officials and agencies in federal court "[a]lleging ownership in
the submerged lands and bed of Lake Coeur d'Alene and of the
various navigable rivers and streams that form part of its water
system." Id. at 2032. The Court held that the action was barred
in federal court because it was the "functional equivalent of a
quiet title action which implicates special sovereignty interests"
and therefore did not fall within the Ex parte Young exception to
the Eleventh Amendment. Id. at 2040.
The principal decision, written by Justice Kennedy, espouses
a case-by-case balancing approach for applying the Ex parte Young
exception. See id. at 2038-40. However, the majority of the
Court, including the four dissenters and the concurring opinion
signed by three Justices, rejects Justice Kennedy's balancing test.
Regardless, Coeur d'Alene does not make the Ex parte Young
exception inapplicable to this case. Our conclusion that this case
falls within the exception is supported by the concurring
opinion's appraisal of Ex parte Young: "[A] Young suit is
available where a plaintiff alleges an ongoing violation of federal
law, and where the relief sought is prospective rather than
retrospective." Id. at 2046 (O'Connor, J., concurring) (emphasis
omitted). Moreover, the principal opinion reaffirmed the Young
principle, noting that "where prospective relief is sought against
individual state officers in a federal forum based on a federal
right, the Eleventh Amendment, in most cases, is not a bar." Id.
at 2038 (citation omitted). Neither the State nor the Landowners
present factors from this case which would counsel against applying
the Ex parte Young exception even under Justice Kennedy's balancing
approach.
Justice O'Connor, in the concurring opinion, distinguished
Coeur d'Alene from Ex parte Young as follows:
First, as the Tribe concedes, the suit is the functional
equivalent of an action to quiet its title to the bed of
Lake Coeur d'Alene. . . . Second, the Tribe does not
merely seek to possess land that would otherwise remain
subject to state regulation, or to bring the State's
regulatory scheme into compliance with federal law.
Rather, the Tribe seeks to eliminate altogether the
State's regulatory power over the submerged lands at
issueÄto establish not only that the State has no right
to possess the property, but also that the property is
not within Idaho's sovereign jurisdiction at all.
Id. at 2043-44 (emphasis added).
We hold that the Eleventh Amendment does not bar any of the
claims before us. In Mille Lacs, where the State is a party, the
United States has intervened and seeks the same relief as the
Bands. The remaining claims in Mille Lacs and the claims in Fond
du Lac seek prospective injunctive relief against state officials
in their official capacities for continuing violations of the
Bands' federal treaty rights. As such, they fall squarely within
the Ex parte Young exception to the Eleventh Amendment.
III.
1850 Executive Order
On February 6, 1850, President Zachary Taylor issued the
following Executive Order:
The privileges granted temporarily to the Chippewa
Indians of the Mississippi by the Fifth Article of the
Treaty made with them on the 29th of July 1837, "of
hunting, fishing and gathering the wild rice, upon the
lands, the rivers and the lakes included in the territory
ceded" by that treaty to the United States . . . are
hereby revoked; and all of the said Indians remaining on
the lands ceded as aforesaid, are required to remove to
their unceded lands.(18)
The district court in Mille Lacs II rejected the defendants'
argument that this order validly terminated usufructuary rights
reserved by the Bands in the 1837 Treaty. First, the court held
that President Taylor did not have authority to order the Bands to
remove, and that the portion of the Executive Order revoking the
Bands' usufructuary rights was not severable from the portion of
the document ordering removal. Mille Lacs II, 861 F. Supp. at 824-
26. In the alternative, the court held that even if the Order were
backed by the necessary authority or if the revocation portion were
severable, the Order did not effect a revocation because the 1837
Treaty did not grant the President
unfettered discretion to revoke the usufructuary rights it
preserved. Id. at 826-27. The Seventh Circuit had used this
approach in Lac Courte Oreilles Band of Lake Superior Chippewa
Indians v. Voigt, 700 F.2d 341 (7th Cir. 1983) (LCO), where it held
that the 1837 Treaty conferred upon the President discretion to
revoke the usufructuary rights only if the Bands misbehaved. See
id. at 357 (interpreting the 1837 Treaty and a separate treaty
signed in 1842 to allow revocation of usufructuary rights "only if
the Indians were instrumental in causing disturbances with white
settlers").(19)
Again in the alternative, the district court held that the
entire 1850 Order was unlawful because it violated the United
States' duty to act in good faith in its dealings with Indians.
Mille Lacs II, 861 F. Supp. at 826-27. Finally, the court
determined that even if the 1850 Order were valid and gave the
President unfettered discretion, it was repealed by implication
because it was never enforced. Id. at 829-30.
The State, the Counties, and the Landowners argue that the
district court erred in each of these holdings. They advocate that
the Executive Order is valid because the 1837 Treaty gave the
President unfettered discretion to revoke the Bands' rights.
Before we can analyze the 1837 Treaty and the scope of the
President's discretion, it is necessary to determine whether
President Taylor had the power to issue the 1850 Executive Order.
(20)
The rule to be followed in examining executive orders is that
"[t]he President's power, if any, to issue the order must stem
either from an act of Congress or from the Constitution itself."
Youngstown,
343 U.S. at 585
. An executive order without
congressional or constitutional authority is unconstitutional. Id.
"When the President takes measures incompatible with the expressed
or implied will of Congress, his power is at its lowest ebb, for
then he can rely only upon his own constitutional powers minus any
constitutional powers of Congress over the matter." Id. at 637
(Jackson, J., concurring), adopted in Dames & Moore v. Regan,
453
U.S. 654, 669
(1981). The Bands argue that Congress required Indian
consent as a prerequisite to removal, that it was not present here,
and that the Order was therefore against congressional will and the
dictates of Youngstown.
The 1830 Removal Act authorized the President to convey lands
west of the Mississippi to "such tribes or nations of Indians as
may choose to exchange the lands where they now reside, and remove
there." 1830 Removal Act, ch. 148, 4 Stat. 411 (emphasis added).
Though President Jackson advocated an aggressive policy, including
possible use of force to achieve Indian removal, it is clear the
Removal Act was "entirely permissive." Wilcomb E. Washburn, 3 The
American Indian and the United States: A Documentary History 2169
(1973).
The requirement of Indian consent is easily drawn from the
language of the statute. It is buttressed, however, by the
statements and actions of congresses and presidents in and after
1830. For example, President Jackson, in his 1829 State of the
Union Address, proffered a removal policy and urged that it "should
be voluntary, for it would be as cruel as unjust to compel the
aborigines to abandon the graves of their fathers and seek a home
in a distant land." 1 The State of the Union Messages of the
Presidents, 1790-1966, at 310 (Fred L. Israel ed., 1966). In his
1835 State of the Union Address, President Jackson advocated
further Indian removal "as fast as their consent can be obtained."
Id. at 438, quoted in Mille Lacs II, 861 F. Supp. at 824. Indian
consent is also exemplified by the many treaties between the United
States and various Indian tribes made after 1830 where removal was
negotiated. See Mille Lacs II, 861 F. Supp. at 794 n.7 (listing
four such treaties). In 1837, Congress passed an appropriations
act specifically to fund the negotiations that led to the 1837
Treaty and others like it. Act of March 3, 1837, ch. 31, 5 Stat.
158. If removal could have been effected through a simple
executive order, the difficult process of treaty negotiation would
have been unnecessary. The Removal Act did not authorize the
President to achieve removal through unilateral means; rather, it
"authorized the President to negotiate with selected tribes and to
induce them, if possible, to exchange their eastern and southern
homelands for substitute reserves lying across the Mississippi . .
. ." John W. Ragsdale, Jr., Indian Reservations and the
Preservation of Tribal Culture, 59 U.M.K.C. L. Rev. 503, 509 (1991)
(emphasis added).
The defendants do not cite to any evidence indicating that the
President was authorized to remove the Bands without their consent.
The State argued below that the Executive Order was valid because
"[b]y the 1830s, the policy of both Congress and the President was
clear: to remove the Indians to locations west of the Mississippi,
by
treaty if possible, by force if necessary."(21) However, such
unilateral and unlawful action cannot control the clear meaning and
intent of the Treaty.
It is clear to us that the Bands in this litigation did not
give consent for removal. Defendants do not point to a single
document indicating that the 1837 treaty negotiations included
discussion of removal.(22) In 1837, before negotiations began,
Commissioner of Indian Affairs Carey A. Harris sent a letter to
Wisconsin Territorial Governor Henry Dodge instructing him on the
object of the treaty, which was to "procure from [the] Indians a
tract [of land] . . . valuable for its pine woods which cover it."
Letter from Commissioner of Indian Affairs Carey A. Harris to Henry
Dodge
and General W. R. Smith (May 13, 1837). As the district court
noted, "The letter did not contain any reference to the removal of
the Chippewa, the 1830 Removal Act, or the 1837 appropriations
act." Mille Lacs II, 861 F. Supp. at 794. The district court
concluded, "Neither Dodge nor the Chippewa intended or understood
that any provision of the 1837 Treaty was to provide for removal
from the ceded territory." Id. at 798. Given the evidence, most
prominently the treaty itself, that the Bands did not approve
removal, we cannot conclude that the finding that the Bands did not
consent to removal is clearly erroneous.(23)
If Congress required consent for removal, and the Bands did
not consent, then President Taylor had no authority for his 1850
Executive Order of removal. This conclusion does not, however, end
our inquiry into the matter of the Executive Order. Defendants
argue that the portion of the Order extinguishing the 1837
usufructuary rights is separate and severable from the portion of
the Order requiring removal.
The test for whether a valid portion of an otherwise
unconstitutional statute can be severed also applies to executive
orders. Matter of Reyes, 910 F.2d 611, 613 (9th Cir. 1990). In
the early case of Champlin Rfg. Co. v. Commission,
286 U.S. 210,
234
(1932), the Court established its test for severability:
The unconstitutionality of a part of an Act does not
necessarily defeat or affect the validity of its
remaining provisions. Unless it is evident that the
legislature would not have enacted those provisions which
are within its power, independently of that which is not,
the invalid part may be dropped if what is left is fully
operative as a law.
See also New York v. United States,
505 U.S. 144, 186
(1992) (using
this test); Alaska Airlines, Inc. v. Brock,
480 U.S. 678, 684
(1987) (same).
On its face, the Order contains two provisions that seem
separateÄone ordering revocation of treaty rights, and one ordering
removal. However, the test for severability requires us to look at
more than the text of the Order. As is the case with a court's
construction of statutory law, the bottom line in assessing
severability turns on the intent of the drafter, in this case
President Taylor, and the purpose of the text, in this case the
Executive Order. See EEOC v. CBS, Inc., 743 F.2d 969, 971 (2d Cir.
1984) ("Whether or not we should sever an unconstitutional
provision from the remainder of the statute in which it appears is
primarily an issue of legislative intent."); Scheinberg v. Smith,
659 F.2d 476, 481 (5th Cir. 1981) ("[T]he question is . . .
whether, at the time the statute was enacted, the legislature would
have passed it absent the constitutionally objectionable
provision."), overruled on other grounds by Planned Parenthood v.
Casey,
505 U.S. 833
(1992). The task before us, therefore, is to
determine whether President Taylor would have issued an executive
order revoking the Bands' treaty rights without also ordering
removal. The district court found that the revocation portion of
the Order was included in order "to encourage removal." Mille
Lacs II, 861 F. Supp. at 826. While the court determined that this
observation argues against severability, the observation could cut
the other way. A strong argument could be made (although it is
not) that the President would have issued a revocation order
without the removal provision, because it would have "encouraged"
Bands to remove from the ceded territory without actually ordering
them to do so. If the Bands were denied their rights to hunt,
fish, and gather, they would be deprived of their sustenance to
exist on the ceded lands, and thus would be forced to remove. As
such, a revocation order standing alone would have allowed the
President to attempt to do indirectly what he could not do
directly.
Notwithstanding these arguments, on the basis of the record
before us, we agree with the district court that the revocation
portion of the Order cannot be severed from
its companion provision. The purpose of the Order was to mandate
removal, and this purpose was integral to the entire Order. See
Zbaraz v. Hartigan, 763 F.2d 1532, 1545 (7th Cir. 1985) ("Severance
is improper if the unconstitutional provision is an integral part
of the statutory enactment viewed in its entirety.") (internal
quotation omitted), aff'd by an equally divided court,
484 U.S. 171
(1986). Other than our above-stated conjecture, there is no
evidence that revocation of usufructuary rights would have been
made independently of the removal mandate. We may envision a
scenario where this indirect method of removal could have been
followed, but we have in the record no statement by anyone
indicating such a plan had ever been considered, much less
employed.(24) All of the historical evidence surrounding the Order
relates to removal. Without evidence that the scenario we have
outlined had even been contemplated, we
cannot sever the revocation portion of the Order and hold that it
is valid standing alone. See Scheinberg, 659 F.2d at 482 ("[W]e
cannot judicially sever a portion of an enactment on the authority
of a wholly speculative, and insupportable, interpretation of
legislative intent."). We hold that the entire 1850 Executive
Order is invalid because it was issued without presidential
authority.(25)
IV.
1854 Treaty
By 1854, Congress began to pursue a reservation policy to
replace its failing removal policy. Commissioner Manypenny
indicated in his 1854 Annual Report that reservations should be
established for the Chippewa still living in the lands ceded by the
1837 and 1842 Treaties. An authorization act for this purpose was
debated in May 1854, but it failed to pass the Senate.
Nonetheless, negotiations went forward, and a treaty resulted.
Treaty with the Chippewas, Sept. 30, 1854, 10 Stat. 1109. The
Wisconsin Bands and the Fond du Lac Band, but not the Mille Lacs
Band, were signatories to the Treaty, which created reservations
within the lands ceded in the 1837 and 1842 Treaties in exchange
for cession of title to various other tracts of land. The
Landowners and the State argued below that the 1854 Treaty, through
the creation of reservations, extinguished the 1837 Treaty rights
of the Wisconsin Bands. This argument does not apply to the Mille
Lacs Band, because it was not a signatory to the
Treaty, nor to the Fond du Lac Band, because defendants have not
pursued this argument against that Band.(26) The district court
rejected the State's and the Landowners' arguments and held that
the 1854 Treaty did not extinguish the usufructuary rights reserved
under the 1837 Treaty. Mille Lacs III, slip op. at 33. On appeal,
the Landowners urge us to reverse the district court.(27)
The Landowners rely on United States v. Santa Fe Pac. R.R.,
314 U.S. 339
(1941), where the Supreme Court determined that
creation of a reservation by the United States and acceptance of it
by the Walapai Indians "amounted to a relinquishment of any tribal
claims to lands which they might have had outside that
reservation." Id. at 357-58 (footnote omitted). The Court made
it clear that mere establishment of a reservation does not
automatically extinguish rights to lands outside the reservation,
but it determined that the facts and circumstances of the case
indicated extinguishment of title. In 1865, Congress had
established a reservation for the Walapai Indians in an effort to
induce them to abandon their ancestral lands. Id. at 351-53. The
Tribe did not accept the reservation at that time, and the Court
determined that its rights to the land were not extinguished by the
mere passage of the act creating the reservation. Id. at 353-54.
In 1881, however, the Tribe accepted the reservation. The Court
determined that "[i]n view of this historical setting, it cannot
now be fairly implied that tribal rights of the Walapais in lands
outside the reservation were preserved." Id. at 358.
The district court distinguished Santa Fe: "Not only is the
historical context completely different, the Court's analysis was
based upon aboriginal title whereas in this case, the usufructuary
rights at issue have been found to be treaty rights." Mille Lacs
III, slip op. at 28. We agree. The circumstances involved in
Santa Fe, where the argument was over aboriginal title rather than
usufructuary rights reserved by treaty, are not present here.(28) See
LCO, 700 F.2d at 351-52 (explaining the legally significant
differences between aboriginal title and treaty-recognized rights).
Most importantly, however, the evidence is overwhelming that
neither party intended the 1854 Treaty to disturb usufructuary
rights. The Treaty established reservations and ceded lands
different from the lands ceded in the 1837 Treaty, and explicitly
preserved usufructuary rights on the newly ceded lands. See id. at
364 ("[T]he inclusion in the 1854 treaty of a reservation of
usufructuary rights by the Minnesota Chippewas suggests, in our
view, that the LCO band believed their usufructuary rights
[reserved in the 1837 and 1842 Treaties] to be secure and
unaffected by the treaty."); Mille Lacs II, 861 F. Supp. at 815
(concluding that the government did not intend to extinguish
usufructuary rights in a different treaty with the Chippewa in part
because the Treaty does not contain references to the rights, and
"[w]hen the United States extinguished reserved rights of fishing
in other treaties, it included explicit language ending those
rights and providing monetary compensation").
V.
1855 Treaty
In December 1854, Congress passed the previously rejected bill
establishing authority for treaty negotiations. The bill provided
retroactive authority for the 1854 Treaty, and authority to
negotiate a follow-up treaty. On January 4, 1855, Commissioner
Manypenny directed Governor Gorman to begin the negotiation process
for a new treaty with the Chippewa "respecting their claim to lands
in Minnesota." Mille Lacs II, 861 F. Supp. at 812 (citation
omitted). The new treaty was negotiated from February 12 to
February 22, 1855. It was signed by the Mississippi, Pillager, and
Lake Winnibigoshish Bands of Chippewa, a group which includes the
Mille Lacs Band but not the Fond du Lac Band or the Wisconsin
Bands. Article 1 of the Treaty ceded a ten million acre tract of
land located north and northwest of the 1837 ceded territory.
Treaty with the Chippewas, Feb. 22, 1855, art. 1, 10 Stat. 1165.
Article 1 also states, "And the said Indians do further fully and
entirely relinquish and convey to the United States, any and all
right, title, and interest, of whatsoever nature the same may be,
which they may now have in, and to any other lands in the Territory
of Minnesota or elsewhere." The Treaty established the Mille Lacs
reservation in the 1837 ceded territory, but it does not mention
hunting, fishing, and gathering rights at all, and the usufructuary
rights in the 1837 Treaty were never mentioned in treaty
negotiations. Mille Lacs II, 861 F. Supp. at 815.
The State, the Counties and the Landowners contend that the
language in the 1855 Treaty conveying "all right, title, and
interest, . . . in, and to any other lands in the Territory of
Minnesota or elsewhere" extinguished the Mille Lacs Band's
usufructuary rights on off-reservation lands. The district court
in Mille Lacs II, after "a careful examination of the historical
record established at trial," made the following findings: (1) the
government did not intend for the 1855 Treaty to extinguish the
usufructuary rights reserved in the 1837 Treaty, 861 F. Supp. at
815-16, 821; (2) the Chippewa did not intend to give up their 1837
Treaty privilege and they did not understand the 1855 Treaty to
have that effect, id. at 816-18; and (3) both the Band and the
United States believed that the 1837 Treaty rights continued to
exist after the 1855 Treaty was signed, id. at 818-821.
The 1855 Treaty is void of explicit language extinguishing the
Band's usufructuary rights, nor does it mention the 1837 Treaty.
In analyzing the broad language of the 1855 Treaty, we must view it
in its historical context to determine whether the parties meant it
to revoke usufructuary rights. The circumstances surrounding the
Treaty do not indicate that either side intended or understood the
treaty to work such a revocation. We look first at the
interpretation understood by the Bands. See Washington v.
Washington State Commercial Passenger Fishing Vessel Ass'n,
443
U.S. 658, 676
(1979) (A "treaty must . . . be construed, not
according to the technical meaning of its words to learned lawyers,
but in the sense in which they would naturally be understood by the
Indians."). The historical evidence demonstrates that the Bands
signing the 1855 Treaty did not intend to give up their
usufructuary rights. During the negotiations, a Chippewa
representative repeatedly indicated that he understood that the
purpose of the Treaty was to purchase land. Mille Lacs II, 861 F.
Supp. at 813. Chippewa representatives also indicated during
negotiations that they would continue to hunt, fish, and gather
after the Treaty was negotiated. Id. at 814. Indeed, the district
court found that in the years after the Treaty was signed, the
Chippewa complained to federal officials that state enforcement of
game regulations violated their rights under the 1837 Treaty. Id.
at 831-32.
As to the United States, we note first that the United States
knew how to draft a treaty to revoke usufructuary rights, and did
not do so in this case. See, e.g., Treaty with the Middle Oregons,
Nov. 15, 1865, art. I, 14 Stat. 751 ("[T]he right to take fish,
erect houses, hunt game, gather roots and berries, and pasture
animals upon lands without the reservation set apart by the treaty
aforesaidÄ[is] hereby relinquished."); Treaty with Chippewas of
Sault St. Marie, Aug. 2, 1855, art. I, 11 Stat. 631 ("The said
Chippewa Indians surrender to the United States the right of
fishing at the falls of St. Mary's, and of encampment, convenient
to the fishing-ground, secured to them by the treaty of June 16,
1820."); Treaty with the Winnebago Indians, Oct. 13, 1846, art. IV,
9 Stat. 878 (paying "forty thousand dollars for release of hunting
privileges, on the lands adjacent to their present home"); Treaty
with the Sacs and Foxes, Oct. 21, 1837,
art. I, 7 Stat. 543 (revoking "the right to locate, for hunting or
other purposes, on the land ceded in the first article of the
treaty of July 15th 1830"). In addition, the authorization act for
the 1855 Treaty directed the President to negotiate a treaty with
the Chippewa "for the extinguishment of their title to all the
lands owned and claimed by them in the Territory of Minnesota and
State of Wisconsin." The United States was clearly concerned about
extinguishment of title, not usufructuary rights.
The district court's factual findings regarding the intention
of the parties to the 1855 Treaty are well supported, and we cannot
conclude they are clearly erroneous. Given the absence of any
mention of the 1837 Treaty or its usufructuary rights in the 1855
Treaty or its negotiation process, and the lack of evidence that
the parties intended to extinguish these rights, we conclude that
the 1855 Treaty did not revoke the 1837 Treaty's usufructuary
rights.(29)
Defendants argue, however, that Oregon Dept. of Fish &
Wildlife v. Klamath Indian Tribe,
473 U.S. 753
(1985) compels a
different result. The Klamath Indian Tribe (the Tribe) had signed
an 1864 Treaty ceding lands in Oregon to the United States. The
Treaty also created a reservation for the Tribe and secured to them
"the exclusive right of taking fish in the streams and lakes,
included in said reservation." Id. at 755. The Treaty did not
expressly reserve Indian rights to hunt or fish outside the
reservation. A large portion of the intended reservation was
excluded as a result of survey error.
In 1901, the Tribe agreed to "cede, surrender, grant, and
convey to the United States all their claim, right, title and
interest in and to" the land mistakenly excluded
from the 1864 Treaty. Id. at 760. The 1901 Agreement did not
contain any reference to hunting and fishing rights. When the
State of Oregon enforced its conservation laws against the Tribe on
the lands ceded in the 1901 Agreement, the Tribe brought suit. The
Supreme Court interpreted the 1864 Treaty and the 1901 Agreement to
extinguish hunting and fishing rights on ceded lands. Id. at 770.
In coming to its decision, the Klamath Court considered that the
1864 Treaty established an exclusive right to hunt and fish on the
reservation. Thus the hunting and fishing rights "did not exist
independently of the reservation itself" and were ceded in 1901
when the reservation was diminished. Id. at 768.
The 1864 Treaty rights in Klamath were exclusive and on-
reservation rights, and thus logically extinguished with a
relinquishment of a portion of the reservation. The rights at
issue in this litigation are non-exclusive and off-reservation
rights, reserved in a treaty not mentioned in the 1855 Treaty or
its negotiations. The situations are not analogous and do not
compel the same outcome. We hold that Klamath does not require
reversal, and affirm the district court's holding that the 1855
Treaty did not extinguish the usufructuary rights that are the
subject of this litigation.
VI.
Preclusive Effect of Prior Litigation
A. Court of Claims (Mole Lake) Litigation
In 1940, several Wisconsin Chippewa Bands, including some of
the Bands which are plaintiffs in this action, brought a claim
against the United States in the Court of Claims. The action was
brought pursuant to an ad hoc jurisdictional statute waiving
federal sovereign immunity, which was designed to enable Indian
claims for loss of
aboriginal title.(30) Mole Lake Band v. United States, 126 Ct. Cl.
596, 598 (Ct. Cl. 1953); Act of August 30, 1935, Pub. L. No. 74-
410, 49 Stat. 1049. The Fond du Lac Band intervened in the Mole
Lake litigation on August 30, 1940. Mole Lake, 126 Ct. Cl. at 598-
99. Neither the Mille Lacs Band nor the State was a party to the
case.
The original Mole Lake petition set forth multiple claims
under various treaties, mostly seeking compensation for lands ceded
under the treaties. A portion of the petition included claims
contending that federal officials had violated the plaintiffs'
usufructuary rights under the treaties.(31) Severed from the original
petition were causes of action relating to certain tracts of swamp
land and causes of action relating to "public school sections" of
land. The swamp land claims were resolved in Mole Lake Band v.
United States, 139 F. Supp. 938 (Ct. Cl. 1956). The school land
claims were dismissed in Mole Lake Band v. United States, 82 F.
Supp. 342 (Ct. Cl. 1949). The remainder of the petition was
narrowed to include only seven claims. Mole Lake, 126 Ct. Cl. at
597. The Court of Claims stated that the reason for the narrowing
of claims was the severance of the swamp land and school land
claims, the "institution of suits before the Indian Claims
Commission," and the "abandonment of some of the claims not severed
out of the petition." Id. None of the swamp land claims, the
school land
claims, or the seven remaining claims included allegations of the
denial of usufructuary rights.
The defendants argued to the district court that the Mole Lake
litigation collaterally estops the Bands' claims in this action.
In order for collateral estoppel (issue preclusion) to bar
litigation of an issue,
(1) the issue sought to be precluded must be the same as
that involved in the prior action; (2) the issue must
have been litigated in the prior action; (3) the issue
must have been determined by a valid and final judgment;
and (4) the determination must have been essential to the
prior judgment.
Stoebner v. Parry, 91 F.3d 1091, 1094 (8th Cir. 1996). In
addition, the estopped party must be a party or in privity with a
party to the prior litigation. Wellons, Inc. v. T.E. Ibberson Co.,
869 F.2d 1166, 1168 (8th Cir. 1989).
The district court in Mille Lacs I found that although the
Mille Lacs Band was a signatory to the 1837 Treaty, it was not in
privity with the Bands in the Mole Lake litigation.(32) The court
then found in the alternative that Mole Lake did not adjudicate
whether the Bands retained their usufructuary rights under the 1837
Treaty.(33)
In Mille Lacs III, the district court considered whether issue
preclusion barred the Wisconsin Bands' claims. In determining that
the Wisconsin Bands were not barred by the issues tried in Mole
Lake, the court adhered to the earlier alternate ruling
in Mille Lacs I that the issues were not identical and therefore
could not serve as a bar under principles of collateral estoppel.
Mille Lacs III, slip op. at 25. The district court also considered
collateral estoppel in Fond du Lac, and determined that the Fond du
Lac Band was not given a full and fair opportunity to litigate the
issue of usufructuary rights in Mole Lake. The court concluded,
"There is no evidence that a resolution of the usufructuary rights
issue was necessary to the final judgment rendered by the Court of
Claims in Mole Lake." Fond du Lac, slip op. at 16. Thus,
collateral estoppel did not bar the Fond du Lac Band's claims.
Id.(34)
On appeal, the Landowners, the Counties, and the State
challenge all three of these decisions. They argue that the
original petition in the Mole Lake proceeding collaterally estops
the Bands from bringing their claims in this litigation. A close
review of the petition refutes their argument. While the parties
dispute whether the usufructuary rights claims in the petition were
later litigated, they overlook the fact that the petition does not
include any claims under the 1837 Treaty that underlies the Bands'
claims here. The petition lists twenty-six treaties which form the
basis of the plaintiffs' claims in Mole Lake. The list does not
include the July 29, 1837 Treaty at issue in this case. We can end
our collateral estoppel analysis as to the original petition here.
Even if the petition can be read to include usufructuary rights
claims, it cannot collaterally estop the Bands from later bringing
claims for usufructuary rights under a different treaty. This is
what they have done here, and we hold that they are not barred by
the original Mole Lake petition from doing so.
We come to the same conclusion when we examine the swamp land
cause of action(35). Under the elements of collateral estoppel set
out above, the issue to be barred
must have been actually litigated and necessary to the final
judgment in the prior action. Stoebner, 91 F.3d at 1094. The
cause of action in the swamp land proceeding was for damages for
the value of land and timber within reservations established in the
1854 Treaty discussed in this opinion. Plaintiffs did not seek
relief, as they do here, for the denial of usufructuary rights
reserved in the 1837 Treaty. Mole Lake, 139 F. Supp. at 939-40;
see also United States v. Gurley, 43 F.3d 1188, 1196 (8th Cir.
1994) ("In the final analysis the test would seem to be whether the
wrong for which redress is sought is the same in both actions.")
(quotations and citations omitted; emphasis by the Gurley court)
cert. denied, 116 S.Ct. 73 (1995).
Though the swamp land decision discussed the 1850 Executive
Order, it did not decide any issues relating to it, because the
court had no reason to do so. See Mole Lake, 139 F. Supp. at 939-
40; see also LCO, 700 F.2d at 360 ("Although the judge discussed
the Removal Order in the context of the historical events which
culminated in the grant of the reservations lands in 1854 . . . he
neither expressed nor had reason to consider the validity of the
Removal Order.") (emphasis in original). The general discussion of
the Executive Order in the swamp land decision cannot support the
conclusion that the Order presented an issue necessary to that
decision. We hold that the usufructuary rights issue was not
actually litigated in the swamp land proceeding. The elements of
collateral estoppel are not met, and the doctrine does not work to
bar the Bands' claims.(36)
The Landowners also urge this court to apply judicial estoppel
to various claims made by the Bands in the Mole Lake proceedings.(37)
The Bands argue that the Landowners did not assert this claim in
the district court, and that we should therefore reject it here.
None of the district court opinions includes a discussion of
judicial estoppel, nor can we find the argument in the record.
Thus, the Landowners are precluded from raising it on appeal. See
Bursch v. Beardsley & Piper, 971 F.2d 108, 113 (8th Cir. 1992)
(refusing to discuss an argument not raised before the district
court).
B. Indian Claims Commission Litigation
In 1946, Congress created the Indian Claims Commission (ICC)
to hear tribal claims arising under the Constitution, laws,
treaties, or executive orders, and accruing before August 13, 1946.
Indian Claims Commission Act of 1946, ch. 959, 60 Stat. 1049
(formerly codified at 25 U.S.C. 70(a)). In January 1948, many
Minnesota Bands of Chippewa, including the Fond du Lac Band but
not, initially, the Mille Lacs Band, brought claims for
compensation for lands ceded under the 1837, 1842, 1854, and 1855
Treaties discussed earlier in this opinion. The original petition
before the ICC stated that usufructuary rights were "a material
consideration" for ceding the lands. It also alleged, "The United
States has deprived the plaintiffs and other Indians of the right
to hunt and fish upon the ceded lands and upon the land retained by
them . . . ." This original petition was assigned to the ICC's
Docket 18, which was then severed into three parts: Docket 18-C
included claims under the 1837 Treaty and additional treaties;
Docket 18-B included claims under the 1855 Treaty; and Docket 18-U
included claims under the 1854 Treaty.
On August 9, 1949, the plaintiffs drew up a new petition for
Docket 18-C. The complaint alleged that "there was reserved for
the various parties to said treaties, and the defendant [the United
States] undertook to conserve the same, hunting, fishing and other
rights in various lands, all of which were a material consideration
for the ceding thereof." In the United States' answer to the
complaint, it admitted that the treaties reserved hunting and
fishing rights, but denied that it had violated the rights in any
way.
On October 23, 1957, the ICC issued an order severing Docket
18-C further, separating causes of action based on treaties other
than the 1837 Treaty. The ICC then required the plaintiffs to file
a new Docket 18-C complaint, asserting only their claims under the
1837 Treaty. The order provided that the amended complaint "shall
be considered as having been filed on August 9, 1949, and shall
take the place of said original petition." On August 5, 1959, the
Mille Lacs Band joined the existing plaintiffs to file an amended
complaint pursuant to the court's order. This amended complaint
alleged that the amount paid by the United States for the land
ceded in the 1837 Treaty was "grossly inadequate and
unconscionable." The complaint did not refer to any hunting,
fishing, or gathering rights.
The ICC adjudication of the claims in Docket 18-C spanned
several decades and resulted in three different decisions, found at
19 Ind. Cl. Comm. 514 (1968), 26 Ind. Cl. Comm. 22 (1971), and 32
Ind. Cl. Comm. 192 (1973). The ICC responded to the Bands' claims
for compensation by valuing the land ceded in the 1837 Treaty for
its "highest and most valuable uses," which, the Bands' experts
determined, were pine timber and agriculture. The ICC found that
the fair market value of the land at the time of the Treaty was
$9,875,000. 26 Ind. Cl. Comm. at 59. It subtracted the $847,440
that the United States paid the Bands for the land and awarded the
Bands $9,027,560 in full satisfaction of their claims. 32 Ind. Cl.
Comm. at 200. The ICC did not, in any of its opinions, mention the
hunting, fishing, and gathering rights reserved under Article V of
the 1837 Treaty.
In Mille Lacs I, the district court analyzed the ICC
proceedings under the collateral estoppel doctrine, examined the
pleadings and the record of the ICC litigation, and determined that
the issue of usufructuary rights was not actually litigated and
necessary to the outcome of the case. Mille Lacs I, 853 F. Supp.
at 1137. The court concluded that the ICC's award of compensation
for the lands based on their highest and best valuation "does not
indicate that the ICC concluded that the usufructuary rights had
been extinguished." Id. Therefore, it rejected the defendants'
argument that the Mille Lacs Band was collaterally estopped by the
ICC litigation.
As to the Wisconsin Bands, the court followed the Mille Lacs
I ruling, and held that the Bands "are not precluded under the
doctrine of collateral estoppel from asserting their claims in this
litigation by the prior litigation before the ICC in Docket 18C
because the issue of the continued existence of the 1837 privileges
were [sic] not litigated." Mille Lacs III, slip op. at 25.
As to the Fond du Lac Band, the court again held that the Band
is not collaterally estopped by the ICC litigation. First, it
determined that the original Docket 18 petition does not provide a
bar, because "[o]nce a pleading has been amended, the old pleading
serves no function in the litigation." Fond du Lac, slip op. at
16-17. Second, it concluded that the ICC's valuation of the land
for "highest and best use" did not settle the issue of usufructuary
rights. Id. at 17. The court distinguished Klamath, which the
defendants argued necessitated a contrary conclusion, by noting
that the Klamath decision involved a treaty that was silent as to
off-reservation hunting and fishing rights, whereas the Treaty here
explicitly reserved off-reservation hunting and fishing rights.
Fond du Lac, slip op. at 20 n.12.
This second issue is the one on which both the State and the
Landowners concentrate on appeal. They argue that the value of
usufructuary rights was subsumed in the ICC award, because the
award was based on the highest and best use of the
land.(38) This measurement, according to the State and the
Landowners, represents the total value of the land. If the
measurement was not intended to include usufructuary rights, these
parties contend, the ICC would have made a specific deduction from
the calculated value of the land for the value of still-existing
usufructuary rights. Since it did not, the argument goes, the ICC
award includes payment for the 1837 Treaty rights, and they are
extinguished, thus collaterally estopping the Bands from bringing
their claims here.
The defendants urge that the Supreme Court's decision in
Klamath supports their collateral estoppel argument. They contend
that Klamath stands for the proposition that an ICC award that is
silent as to usufructuary rights automatically subsumes and estops
future usufructuary rights claims.
In Klamath, the ICC had awarded in 1969 over four million
dollars to the Tribe as additional compensation for the lands ceded
by the 1901 Agreement.
473 U.S. at 762
. The amount of the award
"was based on the estimated value of the land for stock grazing and
timber harvesting, which the parties had agreed constituted the
`highest and best uses' for the land." Id. The ICC opinion in
Klamath did not mention hunting or fishing rights. Part of the
Tribe's argument that its usufructuary rights survived the 1901
Agreement was that the absence of any ICC payment for hunting and
fishing rights demonstrated that the parties did not intend for
them to be extinguished. Id. at 773. The Supreme Court rejected
the Tribe's contention, holding that "had the parties actually
intended to preserve independent hunting and fishing rights for the
Tribe on the ceded lands, the [ICC] presumably would have computed
the value of such rights and
explicitly subtracted that amount from the price to be paid for
land so encumbered." Id.
The State and the Landowners seize upon this language,
asserting that it requires this court to interpret the ICC's
silence as to usufructuary rights as extinguishment of those
rights. Their argument, however, fails to appreciate crucial
distinctions between the treaty here and the treaty involved in
Klamath. Here, the 1837 Treaty explicitly reserves off-reservation
usufructuary rights. In Klamath, the treaty at issue was silent as
to off-reservation usufructuary rights. As the district court
herein observed:
The critical distinction of whether the rights to hunt and
fish were reserved in a prior treaty leads to a critical
difference in the way the ICC's silence on those rights should
be treated. If the rights were reserved in a treaty, the ICC
would have had to find that the rights had been extinguished;
thus, silence implies no determination as to those rights. If
the rights were not reserved, silence would imply that the
rights were determined to have been disposed of by the cession
of the land. Klamath deals with the latter situation; this
case presents the former.
Fond du Lac, slip op. at 20 n.12. The ICC opinions in this case
are not cursory. We cannot accept the conclusion that they
extinguished an important body of rights bargained for and
explicitly reserved in a treaty without any mention of those
rights. Cf. Swim v. Bergland, 696 F.2d 712, 718 (9th Cir. 1983)
(rejecting the contention that a party could rely, for collateral
estoppel purposes, "solely on general language of [ICC] settlement
documents to sweep in Article IV grazing rights" where "all
specific language in the pertinent documents, including the
original petition, refers only to the low compensation paid for
lands ceded in Article I").(39)
The defendants' argument also fails to appreciate another
difference between this case and Klamath. In Klamath, the Supreme
Court used the ICC's silence on the issue of hunting and fishing
rights as one factor indicating that the 1901 Agreement
extinguished hunting and fishing rights on ceded lands.
473 U.S.
at 773
. The Court concluded, "The absence of specific compensation
for the rights at issue is entirely consistent with our
interpretation of the 1901 Agreement." Id. at 774. The ICC's
silence was used by the Court to buttress its conclusion as to the
interpretation of the Tribe's agreement with the United States. To
view the ICC's silence in this case to mandate preclusion of
hunting and fishing rights claims is to give Klamath an
interpretation it simply cannot bear. We therefore hold that the
ICC proceedings do not collaterally estop the Bands from bringing
usufructuary rights claims here.
VII.
Equal Footing Doctrine
The defendants argue that any rights the Bands acquired under
the 1837 Treaty were extinguished upon Minnesota's admission into
the Union in 1858.(40) They assert that under the "equal footing
doctrine," those rights became void when Minnesota was granted
statehood and acquired the sovereign trust and police power over
its natural resources. The district court rejected this as a basis
for defeating the Bands' usufructuary rights. We affirm.
On May 11, 1858, the thirty-fifth Congress passed legislation
admitting the State of Minnesota into the Union. Minnesota was
admitted "on an equal footing with the original states in all
respects," and there was no reservation or exception made for
rights secured to the Bands. An Act for the Admission of the State
of Minnesota into the Union, ch. 31, 11 Stat. 285 (1858). The
equal footing doctrine, a reflection of Congress' language
admitting the states, "requires that all states admitted into the
Union after the original thirteen states be admitted on `equal-
footing' with the original states; the newly admitted states must
have the same rights and sovereignty at the time of admission as
the original states." Crow Tribe of Indians v. Repsis, 73 F.3d 982,
990-91 (10th Cir. 1995) (citations omitted), cert. denied,
116 U.S.
1851
(1996). The basis for the defendants' argument for applying
the doctrine herein is an amalgamation of two related points: (1)
any rights conferred by the federal government in the 1837 Treaty
were extinguished when Minnesota became a state and acquired the
same rights and sovereignty reserved under the Tenth Amendment(41) to
the original thirteen states, and (2) in the act admitting
Minnesota into the Union, Congress' silence regarding the Bands'
usufructuary rights constituted an abrogation of those rights.
The defendants argue that the controlling law is found in Ward
v. Race Horse,
163 U.S. 504
(1896), and Repsis, 73 F.3d 982. In
Ward, the relevant treaty provision secured to the Bannock Indians
the "right to hunt on the unoccupied lands of the United States, so
long as game may be found thereon, and so long as peace subsists
among the whites and Indians on the borders of the hunting
districts."
163 U.S. at 507
. The Court described this right as
"temporary and precarious," noted that the legislation admitting
Wyoming into the Union did not reserve any rights for the Indians,
and held the right to hunt did not survive Wyoming's statehood.
Id. at 515. In Repsis, the Tenth Circuit analyzed an 1868 Treaty
with the same relevant language as Ward. Repsis, 73 F.3d
at 987. The Tenth Circuit affirmed the dismissal of the Tribe's
action based on rights under the 1868 Treaty, holding that the
Supreme Court's interpretation in Ward of the same treaty language
controlled and therefore the Tribe's rights were "repealed by the
act admitting Wyoming into the Union." Id. at 992 (citing Ward,
163
U.S. at 514
). The Tenth Circuit found important the distinction
between treaty-based rights which are temporary and those which are
continuing:
[T]he equal-footing doctrine does not prevent the United
States from creating a right in a territory which would
be binding on the state upon its admission into the
Union. However, in order for such a right to be binding
on the state, it must be a continuing or perpetual
rightÄa right that is intended at its formation to be
continuing against the United States and its grantees,
including the state.
Repsis, 73 F.3d at 991.
The State argues that in applying the equal footing doctrine,
this court must use a two-part analysis to determine whether the
1837 Treaty rights survived Minnesota's admission into the Union:
first, we must decide whether the rights were intended to be
"temporary" or "permanent"; second, if the right is temporary, we
must decide whether it conflicts with the state's sovereignty. As
to the first question, the State asserts that the right is
temporary because the phrase "during the pleasure of the President"
expressly provides for the potential revocation of the right.
Whether or not a misbehavior standard was understood to modify the
President's discretion, the State contends that the simple fact
that under some scenario the rights could be revoked proves that
they were intended to be temporary in nature. As to the second
question, the State argues that the rights are irreconcilable with
its sovereignty, and therefore were extinguished, because any right
to hunt and fish off-reservation in violation of state law
conflicts with its right to control the natural resources within
its borders.
We reject the application of the equal footing doctrine
defense for several reasons. First, the district court noted the
language in the 1837 Treaty securing the Bands' usufructuary rights
must be distinguished from the "temporary and precarious" rights
addressed in Ward and Repsis. Mille Lacs III, slip op. at 22; see
also Fond du Lac, slip op. at 31 (analyzing similar usufructuary
rights in the 1854 Treaty). The treaties in Ward and Repsis
reserved rights on the "unoccupied lands of the United States."
The standard of when "unoccupied" lands become "occupied" is
certainly vague, and could logically include the granting of
sovereignty to a newly formed state. See Fond du Lac, slip op. at
31. Moreover, in Ward, the Court interpreted the treaty rights
therein to secure the right to hunt in hunting districts on lands
owned by the United States. See Ward,
163 U.S. at 509
-10.
Therefore, the Court found the rights to be tied to the United
States' ownership of the lands. In contrast, the rights secured to
the Bands in Article 5 of the 1837 Treaty are in no way tied to
ownership, but instead were intended to be continuing rights.(42)
Second, the Bands' usufructuary rights are not irreconcilable
with the State's sovereignty. This second part of the two-part
analysis poses the important question of whether in our
constitutional system of dual sovereignty the rights secured to the
Bands in a treaty with the federal government can bind the State.
In United States v. Winans,
198 U.S. 371
(1905), the Supreme Court
analyzed a treaty which reserved on ceded lands the "right of
taking fish at all usual and accustomed places, in common with
citizens of the Territory." Id. at 378. The Court rejected the
argument that these rights were repealed upon Washington's
admission into the Union, concluding:
The extinguishment of the Indian title, opening the land for
settlement and preparing the way for future States, were
appropriate to the objects for which the United States held
the Territory. And surely it was within the competency of
the Nation to secure to the Indians such a remnant of the
great rights they possessed as "taking fish at all usual and
accustomed places." Nor does it restrain the State
unreasonably, if at all, in the regulation of the right. It
only fixes in the land such easements as enables the right to
be exercised.
Id. An important part of the Court's analysis was recognition of the
fact that the United States had not granted usufructuary rights to the
Indians in the territory. "[T]he treaty was not a grant of rights to
the Indians, but a grant of rights from themÄa reservation of those not
granted." Id. at 381. As such, the United States did not convey to
the Indians anything which the State could claim the right to control,
but rather the United States secured title to vast areas of land for
the benefit of the future state in exchange for the Indians'
reservation of usufructuary rights. Cf. United States v. Forty-Three
Gallons of Whiskey,
93 U.S. 188, 197-98
(1876) (rejecting the argument
that Minnesota's sovereignty is infringed by enforcement of a treaty
provision making federal law prohibiting the sale or introduction of
liquor applicable to lands ceded in the treaty).
In Tulee v. Washington,
315 U.S. 681
(1942), the Court followed
Winans and reconciled similar off-reservation usufructuary rights with
the state's regulatory authority. The Court upheld an Indian's right
to rely on off-reservation treaty rights that conflict with state law
unless the state regulations are necessary for conservation of the
resource in question. Id. at 684. We think Winans and Tulee show that
usufructuary rights reserved by the Bands on lands ceded to the United
States in a treaty are not hopelessly in conflict with Minnesota's
regulatory authority.(43) Because
the federal government clearly had the power to enter into the 1837
Treaty, and because the Bands' rights can be reconciled with the
State's regulation of the natural resources within its borders, we
conclude that upholding the Bands' usufructuary rights does not
offend the State's sovereignty.(44)
Finally, the rule that Congress can abrogate treaty rights
with the Indians only when its intention is expressed clearly and
plainly counsels against application of the equal footing doctrine
herein. In United States v. Dion,
476 U.S. 734
(1986), a unanimous
opinion, the Supreme Court stated that "[w]hat is essential is
clear evidence that Congress actually considered the conflict
between its intended action on the one hand and Indian treaty
rights on the other, and chose to resolve that conflict by
abrogating the treaty." Id. at 739-40. The defendants have
presented no evidence surrounding the legislation admitting
Minnesota into the Union from which we could conclude that Congress
intended to abrogate the 1837 Treaty rights.
VIII.
Moderate Living Doctrine
In Fishing Vessel, the Supreme Court first articulated the
"moderate living doctrine." The Court held that certain treaty
language entitled the plaintiff Indian tribes to a presumptive
fifty percent share of all harvestable fish passing through "usual
and accustomed" fishing runs.
443 U.S. at 670
. The Court then
limited its holding by stating that this presumptive fifty percent
take is a maximum, not a minimum, and can be reduced "if tribal
needs may be satisfied by a lesser amount." Id. at 685. The Court
emphasized that "the central principle here must be that Indian
treaty rights to a natural resource that once was thoroughly and
exclusively exploited by the Indians secures so much as, but no
more than, is necessary to provide the Indians with a
livelihoodÄthat is to say, a moderate living." Id. at 686.
The Landowners and the Counties contend that this language
from Fishing Vessel should be applied in this litigation to mean
that "the level of treaty harvest allowable is measured by the
Bands' economic need." These parties contend that the court should
take all sources of income to the Bands into account, find that the
Bands
have achieved a moderate standard of living, and hold that the
treaty right has either been extinguished or limited to exercise
for ceremonial purposes only.(45)
The district court addressed these arguments in Mille Lacs IV,
splitting them into two separate issues. 952 F. Supp. at 1385-94.
First, the court assessed whether resource allocation was
necessary at all. See id. at 1385-89. It determined, agreeing
with the Bands, that "before a party can receive the equitable
relief of allocation, the party seeking an allocation must
establish that their right to a fair share of a particular
harvestable resource has been substantially or irreparably injured
as a result of the other party's harvest of such resource." Id. at
1389.
The court then addressed the moderate living doctrine.
According to the court, all defendants below argued that "before
the allocation of a resource should be quantified, the Court must
first determine whether or not the Bands have achieved a moderate
standard of living," looking to all sources of income to make this
determination. Id. The court concluded, examining Fishing Vessel,
that
[w]hat Passenger Fishing Vessel and its predecessors
establish is this: if an allocation of a resource must be
made, such allocation should be quantified to fulfill the
purposes of the treaty, while at the same time
recognizing the rights of non-Indian harvesters to a
resource. Thus, the threshold issue is not whether the
Bands have achieved a moderate standard of living, but
what was the purpose and intent of the treaty, and what
amount of resources are needed to fulfill such purpose
and intent.
Where it is determined that the resource cannot meet the
needs of both the non-Indians and the Bands, an
allocation should be made.
Mille Lacs IV, 952 F. Supp. at 1393. It then determined that the
1837 Treaty provides the Bands "the right to continue a way of life
based on hunting, fishing and gathering." Id. (emphasis omitted).
Since the Bands had not yet had the opportunity to choose to
continue with such a way of life, the court declined to address the
moderate living doctrine. Id. at 1394.
We first address whether the district court erred in refusing
to make an allocation, beginning with a discussion of Fishing
Vessel, which is crucial to our understanding of the issue.(46) The
litigation which led to the Fishing Vessel decision was a dispute
over tribal fishing rights in the Pacific Northwest, obtained under
various treaties negotiated by Isaac Stevens, Governor and
Superintendent of Indian Affairs in Washington Territory in the
1850s (the Stevens Treaties). The signatory tribes ceded lands to
the United States, but reserved "the right of taking fish, at all
usual and accustomed grounds and stations . . . in common with all
citizens of the Territory." In 1970, the United States, on its own
and as trustee for seven Indian Tribes, brought suit
against the State of Washington, seeking an interpretation of the
treaties and an injunction requiring the State to protect the
Tribes' share of runs of anadromous fish. Fishing Vessel,
443 U.S.
at 669
-70. The Supreme Court rejected the State's argument that
the language in the Stevens Treaties reserves to the Tribes only an
equal opportunity to take fish passing through traditional tribal
fishing areas. Id. at 681-83. It held instead that the treaties
secured the right to take a share of each run of fish. See id. at
683 ("[T]he treaty secured the Tribe's right to a substantial
portion of the run, and not merely a right to compete with
nontreaty fishermen on an individual basis."). It then noted that
"an equitable measure of the common right should initially divide
the harvestable portion of each run that passes through a `usual
and accustomed' place into approximately equal treaty and non-
treaty shares, and should then reduce the treaty share if tribal
needs may be satisfied by a lesser amount." Id. at 685. The
district court "start[ed] with a 50-50 division and adjust[ed]
slightly downward on the Indians' side when it became clear that
they did not need a full 50%." Id. The Supreme Court affirmed
this apportionment.
The Court's discussion of apportionment and the context of
the Fishing Vessel litigation make it clear that the Court's
concern in apportioning the fish harvest was twofold. First, it
saw the district court's apportionment as necessary to protect the
scarce natural resources at stake. See id. at 669 ("[N]either
party realized or intended that their agreement would determine
whether, and if so how, a resource that had always been thought
inexhaustible would be allocated between the native Indians and the
incoming settlers when it later became scarce."); id. at 686
(noting that the district court "realized that some ceiling should
be placed on the Indians' apportionment to prevent their needs from
exhausting the entire resource and thereby frustrating the treaty
rights of `all [other] citizens of the Territory'"); see also Dana
Johnson, Comment, Native American Treaty Rights to Scarce Natural
Resources, 43 U.C.L.A. L. Rev. 547, 549 (1995) (asserting that the
Fishing Vessel litigation began because in the period preceding the
institution of the suit, the anadromous fish stock in Washington
had drastically declined). Second, the Court interpreted the
Stevens
Treaties as securing to "both sides . . . a right to take a fair
share of the available fish." Fishing Vessel,
443 U.S. at 684
-85
(emphasis added). According to this interpretation, the "in common
with" language included in the treaty guarantees fishing rights to
both treaty and nontreaty fishers. Thus, the Court was
concerned that its decision ensure that "neither party . . .
deprive the other of a `fair share' of the runs." Id. at 684.
Such deprivation was possible and even had begun to happen in
Fishing Vessel, because of the migratory nature of anadromous fish,
which hatch in fresh water, migrate to the ocean where they reach
mature size, and eventually complete their life cycle by returning
to the fresh-water place of their origin to spawn. Id. at 662.
This life cycle, and the modern fishing practices of nontreaty
fishers, meant that the nontreaty fishers "had the potential to
harvest all of the steelhead and salmon before they ever reached
the Indians' fishing grounds." LCO III, 653 F. Supp. at 1434.
Nontreaty fishers had dominated the fisheries and excluded most
treaty fishers from participation. Fishing Vessel,
443 U.S. at
668
-69. Thus, Indian treaty rights which had once been exercised
freely had become significantly impinged, leading to the lawsuit
and ultimately, to allocation.
The dual concerns of the Fishing Vessel Court which led to an
equitable apportionment (and subsequent reduction under the
moderate living doctrine) are simply not present in the litigation
at bar. First, there has been no showing here that any resource at
issue is in ecological danger. See LCO III, 653 F. Supp. at 1434
(refusing allocation because "[n]either party has presented
evidence that any particular species is endangered in the ceded
territory"). The State and the Bands have agreed to a Conservation
Code and Management Plan which will govern the Bands' management of
their members' hunting, fishing, and gathering activities. Mille
Lacs IV, 952 F. Supp. at 1366. The State and the Bands have also
agreed to "a series of Protocols to coordinate harvest management
and resource assessment." Id. at 1366-67. At oral argument, the
State conceded that its position was that under the Code, there was
no danger of depletion of resources. It appears to us that the
parties have taken careful steps to ensure conservation of
Minnesota's natural resources, and should be
commended for doing so. The Conservation Code and Management Plan
they have drawn up is in effect an allocation of resources between
treaty and nontreaty harvesters. It is understandable that the
Counties and Landowners, neither of which was a party to the
stipulation agreeing to the Code and Plan, dispute the de facto
allocation made therein. However, the Counties and Landowners have
not made a showing of scarcity of a resource under the Code and
Plan that convinces this court that the district court should have
used its equitable powers and mandated a further allocation.
The second concern of the Court in Fishing Vessel was the
infringement of the treaty rights of the Indians. This concern was
noted by the district court in this case, which held that "before
a party can receive the equitable relief of allocation, the party
seeking an allocation must establish that their right to a fair
share of a particular harvestable resource has been substantially
or irreparably injured as a result of the other party's harvest of
such resource." Mille Lacs IV, 952 F. Supp. at 1389. We agree
that this rule, when combined with an allowance for apportionment
for conservation necessity, is the standard set by Fishing Vessel.
It must be remembered, however, that the standard was applied
only after a determination that each party had a right to a fair
share of the resource, based on the Court's interpretation of the
treaty language. See Fishing Vessel,
443 U.S. at 680
-85. There
has been no argument or ruling here regarding the existence and
nature of nontreaty fishers' rights under the language of this
treaty. In addition, the Counties and Landowners have not made a
showing that their right, whatever it may be, to any resource has
been harmed. For these reasons, we must reject their pleas for
apportionment.
The above discussion of apportionment, however, does not
entirely answer the defendants' arguments in this area. The
Counties and Landowners contend that the moderate living doctrine
establishes a separate right to apportionment whenever it can be
proven that holders of a treaty right have achieved a moderate
standard of living
through any source or sources of income. We agree with the Bands'
assertion to the court belowÄthat this analysis is "a serious
misconception about the function of the moderate standard of living
doctrine." Mille Lacs IV, 952 F. Supp. at 1389. The doctrine was
applied by the Supreme Court in Fishing Vessel after the district
court had made an apportionment of a natural resource between
treaty and nontreaty users of that resource. The moderate living
doctrine does not establish a right to apportionment, but is rather
a part of the method of apportionment once a court has determined
that division of a resource is necessary. See Fishing Vessel,
443
U.S. at 685
-86. Since we have determined that apportionment is not
necessary in this case, we, like the district court, have no
occasion to consider the moderate living doctrine.
In sum, we hold that under Fishing Vessel, an equitable
apportionment in a treaty case such as this is not appropriate
unless one of two conditions is met: (1) conservation of the
resource makes apportionment necessary; or (2) the existence and
scope of a party's right to the resource has been determined, and
that right is substantially harmed due to another party's harvest
of that resource. Further, we hold that the moderate living
doctrine itself cannot be applied to require apportionment.
Rather, the doctrine may be appropriate to consider if in the
future an allocation under the above standard is necessary.(47)
IX.
Additional Defenses Claimed by the Counties
The Counties appeal the denial of two additional defenses.
First, they contend that because the Wisconsin Bands sued Wisconsin
officials for violating their 1837 Treaty rights in LCO, they are
barred by res judicata from suing Minnesota officials for violating
the same rights. They contend that Nevada v. United States,
463
U.S. 110
(1983), where the Supreme Court carved out a narrow
exception to the mutuality rule, applies here to bar the Bands'
suit. We disagree. The proceedings in Nevada were unique; they
involved comprehensive water rights adjudication, in which many
non-party water appropriators had relied on a prior decree as much
as the parties to the action, making res judicata appropriate
because of the special need to finally quantify reserved water
rights. See Nevada,
463 U.S. at 143
-44. The district court was
correct in holding that res judicata does not apply. See Mille
Lacs III, slip op. at 34-36.
Second, the Counties argue that the Wisconsin and Fond du Lac
Bands do not hold usufructuary rights in the Minnesota portion of
the 1837 ceded territory because, allegedly, none of these Bands
used and occupied the area at the time of the Treaty. The district
court rejected the argument. See Mille Lacs III, slip op. at 39;
Fond du Lac, slip op. at 36-37. All of the cases cited by the
Counties in support of its argument include treaty language which
supports a limitation on the scope of the right. The 1837 Treaty
does not tie usufructuary rights to historic use or occupancy, and
thus the Counties' urgings defy the plain language of the Treaty.
We affirm the district court on this issue.
X.
Additional Defenses Claimed by the Landowners
The Landowners make myriad additional arguments, including
(but not limited to) the following:(48) (1) the Bands' claims are
barred by various statutes of limitations; (2) the district court
lacked 1983 jurisdiction; (3) Landowners are entitled to a new
Phase I trial because the district court exhibited a "pattern of
unfairness" which prejudiced the Landowners; (4) the government's
survey and sale of land to settlers constituted a revocation of the
1837 Treaty rights; (5) treaties of 1863 and 1864 and the Nelson
Act establish state regulation over the hunting and fishing
activities of the Bands; and (6) this court should reinstate the
Landowners' counterclaims against the
United States if we determine that the 1837 Treaty rights exist.
We have given these arguments full consideration and have
determined them to be without merit.
XI.
The Bands' Cross-Appeal
In Phase I of the Mille Lacs case, the district court held
that since the 1837 Treaty rights do not include a right of access,
Band members may exercise their rights only on public lands and
private lands open to public hunting, fishing, and gathering.
Mille Lacs II, 861 F. Supp. at 836. In Phase II, the parties
sought a definition of "private lands open to public hunting,
fishing, and gathering." Mille Lacs IV, 952 F. Supp. at 1376. The
Bands argued that the phrase included "private lands that are
undeveloped, non-agricultural and non-posted lands, which,
according to statute, are open to the public for hunting." Id. at
1377 (citing Minn. Stat. 97B.001). Minn. Stat. 97B.001
provides that any person may hunt on private land that fits the
above description if such person has not been notified orally that
they may not enter the land by the owner, occupant, or lessee of
the private land. The court in Phase II held that the lands
falling under Minn. Stat. 97B.001 are not lands upon which the
Bands may exercise their rights, because "allowing the exercise of
the usufructuary rights by owner consent would potentially provide
individual Band members more rights than other Band members."
Mille Lacs IV, 952 F. Supp. at 1378-79.
The Bands challenge this ruling on appeal, arguing that it is
inconsistent with the Phase I decision. In response, the State
argues that the second ruling merely clarified the first, and that
the two rulings are consistent. We affirm. The Phase I and Phase
II decisions are not inconsistent. In Phase I, the district court
held that generally, the rights extend to "private lands open to
public hunting, fishing, and gathering." Mille Lacs II, 861 F.
Supp. at 836. The court, interpreting this holding in Phase II,
accepted the State's argument that a "distinction between private
lands open to the public
generally and indiscriminately and private lands to which owner
consent is necessary is crucial." Mille Lacs IV, 952 F. Supp. at
1378. The distinction is well-reasoned and should not be disturbed
by this court. See id. at 1378-79 (noting that if the Bands were
allowed to fish and hunt on private lands subject to the discretion
of the private landowners, law enforcement officers "would have the
undue burden of having to contact private land owners to determine
if consent was provided to certain individuals before being able to
determine whether laws were violated").
XII.
Conclusion
For the reasons set forth above, we affirm the district
court's rulings in Mille Lacs I, Mille Lacs II, Mille Lacs III,
Mille Lacs IV, and Fond du Lac. These five district court
opinions, as well as this appeal, represent only a fraction of the
effort extended by the parties and their counsel. We commend all
of these participants for their work in presenting the important
and complex issues involved in this expedited appeal.
Despite the 160 years that have passed since the signing of
the Treaty, it remains good law. One of the hallmarks of our
constitutional system is respect for the law, regardless of
changing circumstances or the inevitable passage of time. This
court is fully cognizant of the significant rights and interests
maintained by all of the parties in this litigation. The parties
have attempted in good faith by negotiation to resolve their
differences. Failing to do so, the courts have the responsibility
to decide the issues under prevailing rules of law. We are aware
of the professed hardships and compromises all litigants on both
sides of this litigation must endure. Yet we are confident that
all parties recognize that we are a court of limited jurisdiction,
and do not possess the power to rewrite the treaties or interpret
them contrary to principles of settled law to accommodate one group
over the other.
We commend particularly the State of Minnesota and the various
Bands for their willingness to reach agreement regarding the
valuable resources in the Conservation Code and Management Plan.
We can only express hope that such spirit of cooperation will
continue to prevail and that all parties will recognize the mutual
rights of one another as now declared in this opinion.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(1)
The plaintiff Bands in this case have referred to themselves
throughout as Bands of Chippewa Indians, though, as the district
court noted, "Chippewa," "Ojibwa," or "Ojibwe" are all terms "used
by experts and others to refer to the same group of Native American
people." Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F.
Supp. 784, 790 n.5 (D. Minn. 1994). We echo and adopt the district
court's conclusion: "Since the words Chippewa and Indians are those
which have been used legally [and by the parties], they are adopted
in this opinion." Id.
(2)
The Fond du Lac Band and its members filed suit separately,
under both the 1837 Treaty and a separate treaty signed in 1854.
(3)
The Wisconsin Bands include the St. Croix Chippewa Indians,
Lac du Flambeau Band, Bad River Band of Lake Superior, Lac Corte
Oreilles Indians, Sokaogan Chippewa Community, and Red Cliff Band
of Lake Superior. The Wisconsin Bands' treaty rights in the
Wisconsin portion of the 1837 ceded territory have been adjudicated
in litigation in federal courts in Wisconsin. See Lac Courte
Oreilles Band of Chippewa Indians v. Voigt, 700 F.2d 341 (7th Cir.
1983) (LCO); see also infra note 19 (explaining the LCO
litigation).
(4)
The counties are Aitkin, Benton, Crow Wing, Isanti, Kanabec,
Mille Lacs, Morrison, Pine, and Sherburne; they will be referred to
throughout this opinion as "the Counties."
(5)
The landowners are John W. Thompson, Jenny Thompson, Joseph
N. Karpen, LeRoy Burling, Glenn E. Thompson, and Gary M.
Kiedrowski.
(6)
The Honorable Diana E. Murphy, then-Chief United States
District Judge for the District of Minnesota.
(7)
After the Phase I trial, the State, the Counties, and the six
Minnesota landowners immediately appealed the Mille Lacs II
decision. See 861 F. Supp. at 840. This court dismissed the
appeals from the district court's Phase I order as premature. 48
F.3d 373 (8th Cir. 1995). The Counties and the six Minnesota
landowners also moved for a preliminary injunction to prevent the
Mille Lacs Band from violating state and federal conservation laws
pending resolution of the case. The district court denied their
request, 864 F. Supp. 102 (D.Minn. 1994), and this court affirmed,
66 F.3d 332 (8th Cir. 1995) (unpublished table decision).
(8)
See supra n.2.
(9)
The Honorable Michael J. Davis, United States District Judge
for the District of Minnesota.
(10)
These landowners are Robert J. Edmonds and Michael Sheff.
All eight landowners (the two in Fond du Lac and the six in Mille
Lacs) will be referred to throughout this opinion as "the
Landowners."
(11)
The Honorable Richard H. Kyle, United States District Judge
for the District of Minnesota.
(12)
The Honorable Michael J. Davis, United States District
Judge for the District of Minnesota.
(13)
Jurisdiction of this appeal is authorized under 28 U.S.C.
1291.
(14)
The State does not raise the Eleventh Amendment defense in
its brief, and we question whether the Landowners have standing to
raise the defense on behalf of the State. However, the Landowners
filed a letter pursuant to F.R.A.P. 28(j) asserting as additional
authority to support the Eleventh Amendment claim the Supreme
Court's recent decision of Idaho v. Coeur d'Alene Tribe of Idaho,
117 S.Ct. 2028 (1997). In response, the State filed a letter
joining in the Landowners' defense. Normally, if an issue is not
raised in the brief itself, nor argued at the time of oral
argument, it is deemed waived. Bechtold v. City of Rosemount, 104
F.3d 1062, 1068 (8th Cir. 1997). Nonetheless, assuming without
deciding that the issue is properly before us, we reject it on the
merits.
(15)
The State is a defendant in the Mille Lacs suit, but not in
the Fond du Lac suit.
(16)
The Ex parte Young doctrine excepts from the Eleventh
Amendment bar suits "brought in federal court against state
officials in their official capacities for prospective injunctive
relief to prevent future violations of federal law." Fond du Lac,
68 F.3d at 255.
(17)
The district court in Mille Lacs III similarly rejected the
argument by the State and the Landowners that the Wisconsin Bands'
claims must be dismissed on Eleventh Amendment grounds. The court
relied on the earlier decision in Mille Lacs I, and on this court's
opinion in Fond du Lac. Mille Lacs III, slip op. at 11.
(18)
In the years in and around the execution of the 1837 Treaty,
removal of tribes was the official policy of the United States
government. President Andrew Jackson, one of the most vigorous
proponents of the policy, began pushing for removal legislation
shortly after his election in 1829. "After one of the bitterest
debates in the history of Congress," the Removal Act was enacted
into law on May 28, 1830. Grant Foreman, Indian Removal 21 (1932).
The Act authorized the President to enter into treaties exchanging
lands for compensation and removal. Many removal treaties (not
including the 1837 Treaty at issue here) followed.
(19)
In the LCO litigation, the Lac Courte Oreilles Band of
Chippewa Indians, which signed the 1837 Treaty, brought suit
against the State of Wisconsin and state officials seeking a
declaratory judgment that it retained usufructuary rights under the
1837 Treaty and a separate 1842 Treaty. Id. at 343-44. The court
held that the rights continue to exist. The scope of the LCO
Band's rights has been the subject of continued litigation in
federal district court and the Seventh Circuit. See, e.g., Lac
Courte Oreilles Band of Lake Superior Chippewa Indians v.
Wisconsin, 760 F.2d 177 (7th Cir. 1985) (LCO II); 653 F. Supp. 1420
(W.D. Wis. 1987) (LCO III), 668 F. Supp. 1223 (W.D. Wis. 1988) (LCO
IV); 686 F. Supp. 226 (W.D. Wis. 1988) (LCO V); 707 F. Supp. 1034
(W.D. Wis. 1989) (LCO VI); 740 F. Supp. 1400 (W.D. Wis. 1990) (LCO
VII); 775 F. Supp. 321 (W.D. Wis. 1991) (LCO VIII); see also
Kenneth D. Nelson, Comment, Wisconsin, Walleye, and the Supreme Law
of the Land: An Overview of the Chippewa Indian Treaty Rights
Dispute in Northern Wisconsin, 11 Hamline J. Pub. L. & Pol'y 381
(1990).
(20)
The Counties have argued that judicial review of the 1850
Order is barred by the political question doctrine. We find this
argument to be foreclosed by Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579
(1952), which sets out the standards by which courts
review executive orders. In addition, review of the 1850 Order
does not fall within any of the categories of nonjusticiable
political questions set out in Baker v. Carr,
369 U.S. 186, 217
(1962)
.
(21)
The State is partially correct. Scholars have noted that the
law of voluntary removal was not always faithfully followed. See,
e.g., Jill Norgren, Protection of What Rights They Have: Original
Principles of Federal Indian Law, 64 N.D. L. Rev. 73, 98 (1988)
(noting that the "Removal Act articulated a voluntary process of
removal to be agreed upon through a process of law," but that the
reality of removal was "something quite the contrary"); Siegfried
Wiessner, American Indian Treaties and Modern International Law, 7
St. Thomas L. Rev. 567, 578-79 (1995) ("Generally speaking,
treaties of removal appear to often have been imposed by force or
fraud, tainted by corruption or lack of authority by Indian
representatives."); see also Carol Chomsky, The United States-
Dakota War Trials: A Study in Military Injustice, 43 Stan. L. Rev.
13, 38 n.150 (1990) (observing that a removal act passed in 1863
"was the first time the United States had chosen to remove Indians
unilaterally by statute, without even the semblance of agreement by
treaty").
(22)
Justice Jackson's three categories of presidential authority
set forth in his concurring opinion in Youngstown indicate that
where, as here, an executive order contravenes congressional will,
the order can stand if the President can draw on his constitutional
powers. Youngstown,
343 U.S. at 637
(Jackson, J., concurring); see
also Regan,
453 U.S. at 668
-69 (adopting Justice Jackson's
categories as "analytically useful"). The Constitution does not
help President Taylor here, however, because it confers upon
Congress, not the President, authority over Indian affairs. U.S.
Const. art II, 2, cl. 2 (conferring treaty power to the President
but only with the advice and consent of the Senate); id. at art. I,
8, cl. 3 (Indian commerce clause); see also LCO, 700 F.2d at 361
n.14.
(23)
Neither did the Bands consent to removal after the 1837
Treaty was signed. The defendants do not point to any conduct
indicating as much, nor can we find any in the record.
(24)
Indeed, even the direct order of removal and the
corresponding revocation of usufructary rights were never
implemented. On August 23, 1851, the Acting Commissioner of Indian
Affairs wrote to the Secretary of the Interior and recommended
abandoning the removal policy and modifying the Executive Order.
Thereafter, Commissioner of Indian Affairs Luke Lea ordered
suspension of the Order. The new Commissioner of Indian Affairs,
George Manypenny, adopted this policy of abandoning removal in his
1854 report. When President Franklin Pierce took office in 1853,
his administration "replaced the old removal policy with a policy
of creating reservations for the Chippewa on lands ceded in earlier
treaties." Mille Lacs II, 861 F. Supp. at 808. In 1854 and 1855,
the government negotiated treaties which followed this new policy
creating Chippewa reservations still in place today. See infra
Parts IV, V (discussing the 1854 and 1855 Treaties).
As to the revocation order, Minnesota Territorial Governor
Willis Gorman wrote to Commissioner Manypenny in 1855 regarding a
dispute over a dam, and stated that the Bands retained hunting and
fishing rights in the area of the dam. See id. at 810. Annuity
payments made after the 1850 Order included equipment for hunting
and trapping. See id. at 808 (listing lead, shot, powder, guns,
and traps as provisions paid to the Bands). The district court
found that "[g]overnment policy between 1851 and 1860 indicates
that the government no longer expected the Chippewa to remove and
that it expected the Chippewa to continue to hunt, fish, and gather
on their ceded lands with the assistance of goods provided by the
government." Id.
(25)
As we noted previously, the defendants challenge each of the
district court's alternative rulings on this issue. Our holding as
to the validity of the Order, however, obviates any need to
consider the district court's alternative rulings and the
defendants' remaining arguments. We therefore decline to discuss
the misbehavior standard read into the 1837 Treaty by the LCO and
Mille Lacs II courts, the good faith doctrine which the district
court held was violated by the United States in issuing the 1850
Order, and the alleged repeal by implication.
(26)
The 1854 Treaty also reserved to various Bands, including the
Fond du Lac Band, a right to hunt and fish on the newly ceded
lands. Claims for these usufructuary rights were brought by the
Fond du Lac Band, but are not a part of this consolidated case.
See Fond du Lac, slip op. at 22-34 (determining that the 1854
Treaty granted usufructuary rights in Minnesota to the Fond du Lac
Band, but declining to decide the scope of those rights until Phase
II of the case).
(27)
The State has not addressed the 1854 Treaty in this court.
(28)
We note also the distinction in the law between usufructuary
rights, at issue here, and title or occupancy, at issue in Santa
Fe. See LCO, 700 F.2d at 352 ("[T]reaty-recognized rights of use
depend neither on title nor right of permanent occupancy.").
(29)
The Landowners argue that the usufructuary rights were not
mentioned because "the 1850 Order had already been issued revoking
the privilege, negating any need to reference it in 1855." If
anything, this point indicates that the parties did not intend for
the 1855 Treaty to revoke usufructuary rights that were, in their
minds, nonexistent.
(30)
The Mole Lake litigation was against the United States. The
Bands could not have joined the officers of the State of Minnesota,
its counties, or the Landowners in the Court of Claims litigation.
The Court of Claims had exclusive jurisdiction over claims against
the United States. We note that the United States supports the
Bands' argument that the Mole Lake litigation does not serve to bar
the present litigation under the rules of issue preclusion.
(31)
For example, the petition alleged that the United States
destroyed "the natural habitat of fish, game and fur bearing
animals," and thus "deprived plaintiffs of a great part of the
consideration" due them for cessions of land. It also alleged that
the United States "failed to protect" the plaintiffs' rights to
"unrestricted use [of ceded lands] for hunting, fishing, trapping
and camping."
(32)
The Landowners argued that the Mille Lacs Band was in privity
with the Bands in the Mole Lake litigation by way of membership in
a common tribe.
(33)
The State's brief is not helpful in this regard since it
merges the Mole Lake litigation with the later Indian Claims
Commission claims. As our discussion indicates, these are separate
questions requiring separate resolution.
(34)
Unlike the Mille Lacs Band, the Fond du Lac Band had
intervened in the Mole Lake litigation, and thus privity was not an
issue.
(35)
The two remaining decisions of the Court of Claims mention
neither the 1837 Treaty nor the 1850 Executive Order. See Mole
Lake, 126 Ct. Cl. 596; Mole Lake, 82 F. Supp. 342.
(36)
Res judicata (claim preclusion) bars a subsequent suit
between the same parties or their privies based on the same cause
of action. Parklane Hosiery Co. v. Shore,
439 U.S. 322, 326
n.5
(1979)
. The district court noted in Mille Lacs I that the State
abandoned its res judicata defense because in this case there are
different parties than were in the Mole Lake and Indian Claims
Commission proceedings.
(37)
For example, in their brief to the Court of Claims on the
swamp land claims, the Wisconsin Bands involved in the litigation
stated, "The right of occupancy provided in the Treaties of 1837
and `42 was terminated by an executive order of February 6, 1850."
The Landowners argue on appeal that the doctrines of judicial
estoppel and collateral estoppel bar the Bands from arguing
otherwise here.
(38)
To the extent that the State and the Landowners rely on the
original ICC petition to provide a bar, we agree with the district
court's decision in Fond du Lac that a complaint that has been
amended cannot be revived for purposes of res judicata or
collateral estoppel. See Fond du Lac, slip op. at 16-17.
(39)
This conclusion applies equally to the defendants' arguments
under Western Shoshone Nat'l Council v. Molini, 951 F.2d 200 (9th
Cir. 1991). There, the Ninth Circuit determined that claims for
hunting and fishing rights did not survive an ICC extinguishment of
title and correlating award, but it emphasized that the treaty at
issue did not expressly reserve hunting and fishing rights. Id. at
202-03.
(40)
The "equal footing" defense was presented below in Fond du
Lac and in Mille Lacs with respect to the Wisconsin Bands, but not
with respect to the Mille Lacs Band. However, because this is a
question of law, fully briefed by the parties and addressed twice
by the district court, we think the issue is properly before us as
to all of the Bands. See Shannon v. Ford Motor Co., 72 F.3d 678,
684 (8th Cir. 1996).
(41)
The Tenth Amendment to the Constitution provides, "The powers
not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people."
(42)
The defendants argue that because the rights could be revoked
by the President under some standard, they are similar to the
"temporary and precarious" rights analyzed in Ward and Repsis.
However, the fact that the rights could be revoked by the
President, or abrogated by Congress like any other treaty right,
does not deprive them of their "continuing" nature.
(43)
Though the State has stipulated to the applicability of a
Conservation Code and Management Plan, the Counties and Landowners
argue that the Bands should be subject to existing state regulation
rather than writing their own. The district court held, "The State
may not impose its own regulations if the Band can effectively
self-regulate and if tribal regulations are adequate to meet
conservation, public health, and public safety needs." Mille Lacs
II, 861 F. Supp. at 839. The Supreme Court has consistently
rejected arguments that Indian treaties reserve to the Indians no
more fishing rights than those enjoyed by non-Indian citizens.
Instead, the Court has established a "conservation necessity"
standard, under which "nontreaty fishermen might be subjected to
any reasonable state fishing regulation serving any legitimate
purpose, [but] treaty fishermen are immune from all regulation save
that required for conservation." Fishing Vessel,
443 U.S. at 682
(citing Antoine v. Washington,
420 U.S. 194, 207-08
(1975);
Puyallup Tribe v. Department of Game,
391 U.S. 392, 398
(1968);
Tulee,
315 U.S. at 684
; Winans,
198 U.S. at 384
; Ward,
163 U.S. at
504
). We will not decide today whether, as the district court
held, these cases mean that the State must allow treaty fishers to
establish their own code. However, the stipulation between the
Bands and the State appears to meet the conservation necessity
standard, and thus we will not disturb it at this time.
(44)
The Landowners called our attention to the Supreme Court's
recent opinion in Printz v. United States, 117 S.Ct. 2365 (1997).
In Printz, the Court struck down a portion of the Brady Act which
required state officers to implement a federal regulatory program
as violative of the Tenth Amendment. Printz is not relevant to the
decision in this case. There is no federal law commanding state
regulation here. In fact, the State voluntarily stipulated to the
Bands' Conservation Code and Management Plan regarding regulatory
issues. In addition, this is a case about state law infringing on
rights guaranteed by federal law, and there is no question that
federal courts have the power to order state officials to comply
with federal law. Printz, 117 S.Ct. at 2382 n.16 (citing New York
v. United States,
505 U.S. 144, 179
(1992)); see also Fond du Lac,
68 F.3d at 256 n.3.
(45)
The Landowners connect this argument to an equal protection
argument, urging that economic need is the only "compelling
interest" that might justify "different treatment" between "two
classes of citizens." Even if this argument were otherwise
properly raised and applicable, it ignores the obvious fact that
the "class of citizens" with treaty rights is not Native Americans
generally, but only those Bands which signed the 1837 Treaty.
(46)
Below, the State had asserted that allocation was necessary
because the demand for certain resources exceeded the available
supply. Mille Lacs IV, 952 F. Supp. at 1386. The State was
following the reasoning of LCO VII, 740 F. Supp. at 1414, which
allocated harvest of antlerless deer because of heavy competition
for the species. See Mille Lacs IV, 952 F. Supp. at 1386-88. On
appeal, the State does not challenge the district court's decision
not to make an allocation on this basis. Although the Landowners
and the Counties term their arguments as driven by the moderate
living doctrine, they hit upon the initial allocation issue. There
is of course significant overlap between the issue of allocation
and the moderate living doctrine issue; therefore, we shall address
them both. We do not, however, express an opinion on the
appropriateness of the allocation made in LCO VII. For further
explanation of the LCO litigation and its numerous district court
opinions, see Mille Lacs IV, 952 F. Supp. at 1388.
(47)
We note that a portion of Mille Lacs IV could be read to
indicate otherwise. At one point in that opinion the court states
that the moderate living doctrine should be applied to fulfill the
purpose and intent of a treaty, "while at the same time recognizing
the rights of non-Indian harvesters to a resource." 952 F. Supp.
at 1393. The court then acknowledges the Mille Lacs I's
determination as to the purpose of the treaty, which was to provide
the Bands "the right to continue a way of life based on hunting,
fishing and gathering." Id. at 1393. Finally, the court holds
that
the Bands must be given the opportunity to choose whether
or not to continue with a way of life that is based on
hunting, fishing and gathering. At this time, the Bands
have not had the opportunity to make that choice, as the
State has not allowed them to exercise their rights
without the threat of state regulation. Until the Bands
have had a reasonable opportunity to exercise their
treaty rights, this Court will not address the moderate
standard of living doctrine.
Id. at 1394. We are concerned that this portion of this discussion
could be misconstrued to allow reduction of the Bands' portion of
a harvestable resource if the Bands choose not to continue a way of
life based on hunting, fishing, and gathering. We therefore
emphasize that the district court states clearly that it will not
address the allocation issue until a showing has been made under
"Section III, A" of its opinion, which determines that allocation
is appropriate only where a party's fair share of a resource has
been substantially or irreparably injured. Id. at 1389. As noted
above, we add to this holding by reading Fishing Vessel to require
allocation when an allocation is necessary to conserve a natural
resource or a party's right to a portion of the resource at issue.
(48)
The Landowners' briefs do not help us to sort out the
substantive arguments they make. While their combined briefs deal
substantively with approximately twenty-three issues, the briefs
list forty-seven issues in a "Statement of Issues" spanning
thirteen pages not numbered to be included in the page count. This
technique is, of course, an attempt to avoid reasonable page
limitations imposed by this court. For the sake of brevity, we
have not mentioned each and every argument raised by the
Landowners, but those we do not mention, we have considered and
reject.