Menominee Tribe of Indians v. United States/Dissent Stewart

by Potter Stewart

United States Supreme Court

391 U.S. 404

Menominee Tribe of Indians  v.  United States

 Argued: April 26, 1968. --- Decided: May 27, 1968

Mr. Justice STEWART, with whom Mr. Justice BLACK joins, dissenting.

By the Treaty of Wolf River in 1854, 10 Stat. 1064, the United States granted to the Menominee Tribe of Indians a reservation 'to be held as Indian lands are held.' As the Court says, this language unquestionably conferred special hunting and fishing rights within the boundaries of the reservation. One hundred years later, in the Menominee Indian Termination Act of 1954, 68 Stat. 250, 25 U.S.C. §§ 891-902, Congress provided for the termination of the reservation and the transfer of title to a tribal corporation. The Act provided that upon termination of the reservation,

'(T)he laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.' 25 U.S.C. § 899. ^[1]

The reservation was formally terminated on April 30, 1961, seven years after the Termination Act, and the State of Wisconsin has ever since subjected the Menominees, just as any other citizens, to its hunting and fishing regulations. State v. Sanapaw, 21 Wis.2d 377, 124 N.W.2d 41.

The Menominees instituted this proceeding against the United States, asking compensation for the taking of their special rights. Shoshone Tribe, etc. v. United States, 299 U.S. 476, 57 S.Ct. 244, 81 L.Ed. 360. The Court of Claims denied compensation on the ground that the Termination Act had not in fact extinguished those rights, and that they remained immune from regulation by Wisconsin. The Court today agrees. I do not.

The statute is plain on its face: after termination the Memominees are fully subject to state laws just as other citizens are, and no exception is made for hunting and fishing laws. Nor does the legislative history contain any indication that Congress intended to say anything other than what the unqualified words of the statute express. ^[2] In fact two bills which would have explicitly preserved hunting and fishing rights ^[3] were rejected in favor of the bill ultimately adopted ^[4]-a bill which was opposed by counsel for the Menominees because it failed to preserve their treaty rights. ^[5]

The Court today holds that the Termination Act does not mean what it says. The Court's reason for reaching this remarkable result is that it finds 'in pari materia' another statute which, I submit, has nothing whatever to do with this case.

That statute, Public Law 280, 67 Stat. 588, as amended, 68 Stat. 795, 18 U.S.C. § 1162 and 28 U.S.C. § 1360, granted to certain States, including Wisconsin, general jurisdiction over 'Indian country' within their boundaries. ^[6] Several exceptions to the general grant were enumerated, including an exception from the grant of criminal jurisdiction for treaty-based hunting and fishing rights. 18 U.S.C. § 1162(b). But this case does not deal with state jurisdiction over Indian country; it deals with state jurisdiction over Indians after Indian country has been terminated. Whereas Public Law 280 provides for the continuation of the special hunting and fishing rights while a reservation exists, the Termination Act provides for the applicability of all state laws without exception after the reservation has disappeared. ^[7]

The Termination Act by its very terms provides:

'(A)ll statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe * * *.' 25 U.S.C. § 899.

Public Law 280 is such a statute. It has no application to the Menominees now that their reservation is gone. ^[8]

The 1854 Treaty granted the Menominees special hunting and fishing rights. The 1954 Termination Act, by subjecting the Menominees without exception to state law, took away those rights. The Menominees are entitled to compensation.

I would reverse the judgment of the Court of Claims.

Notes

1. The Termination Act was adopted in response to an earlier congressional resolution which stated in part:
2. I cannot attach any significant weight to an offhand remark in a speech made by one Senator after the enactment of the bill. Ante, at 413.
3. H.R. 7135 and S. 2813, 83d Cong., 2d Sess.
4. H.R. 2828, 83d Cong., 2d Sess.
5. 'I think it is clear that (the bill) does affect those treaty rights and that those treaties are abrogated. Certainly it abolishes the tribal right to exclusive hunting and fishing privileges, because automatically upon the final termination date, the Menominee Reservation so far as hunting and fishing is concerned, would become subject to the laws of Wisconsin.' Joint Hearings on S. 2813, H.R. 2828, and H.R. 7135, Subcommittees of Committees on Interior and Insular Affairs, 83d Cong., 2d Sess., Pt. 6, pp. 692, 708.
6. 'Indian country' is defined in 18 U.S.C. § 1151 as land within Indian reservations, dependent Indian communities, and Indian allotments.
7. The only real relevance of Public Law 280 lies in its demonstration that when Congress wants to except treaty rights from jurisdictional grants, it knows how to do so. Cf. Klamath Termination Act, 68 Stat. 718, 25 U.S.C. § 564 et seq., enacted by the same Congress that enacted the Menominee Termination Act, which explicitly preserves fishing rights. 25 U.S.C. § 564m(b).
8. If, as the Court seems to say, the exceptions enumerated in Public Law 280 continue in effect after termination of Indian country, it follows that Wisconsin cannot now tax, or otherwise regulate the use of, property owned by the Memominees. 18 U.S.C. § 1162(b); 28 U.S.C. § 1360(b). Cf. Snohomish County v. Seattle Disposal Co., 70 Wash.2d 668, 425 P.2d 22, holding that Public Law 280 prohibits zoning regulation of a garbage dump on reservation land leased to non-Indians. Certiorari was denied, 389 U.S. 1016, 88 S.Ct. 585, 19 L.Ed.2d 662, MR. JUSTICE DOUGLAS, joined by MR. JUSTICE WHITE, dissenting.