Menominee Tribe of Indians v. United States/Opinion of the Court

by William O. Douglas

United States Supreme Court

391 U.S. 404

Menominee Tribe of Indians  v.  United States

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

The Menominee Tribe of Indians was granted a reservation in Wisconsin by the Treaty of Wolf River in 1854. 10 Stat. 1064. By this treaty the Menominees retroceded certain lands they had acquired under an earlier treaty and the United States confirmed to them the Wolf River Reservation 'for a home, to be held as Indian lands are held.' Nothing was said in the 1854 treaty about hunting and fishing rights. Yet we agree with the Court of Claims ^[1] that the language 'to be held as Indian lands are held' includes the right to fish and to hunt. The record shows that the lands covered by the Wolf River Treaty of 1854 were selected precisely because they had an abundance of game. See Menominee Tribe of Indians v. United States, 95 Ct.Cl. 232, 240-241 (1941). The essence of the Treaty of Wolf River was that the Indians were authorized to maintain on the new lands ceded to them as a reservation their way of life which included hunting and fishing. ^[2]

What the precise nature and extent of those hunting and fishing rights were we need not at this time determine. For the issue tendered by the present decision of the Court of Claims, 388 F.2d 998, 179 Ct.Cl. 496, is whether those rights, whatever their precise extent, have been extinguished.

That issue arose because, beginning in 1962, Wisconsin took the position that the Menominees were subject to her hunting and fishing regulations. Wisconsin prosecuted three Menominees for violating those regulations and the Wisconsin Supreme Court held ^[3] that the state regulations were valid, as the hunting and fishing rights of the Menominees had been abrogated by Congress in the Menominee Indian Termination Act of 1954. 68 Stat. 250, as amended, 25 U.S.C. §§ 891-902.

Thereupon the tribe brought suit in the Court of Claims against the United States to recover just compensation for the loss of those hunting and fishing rights. ^[4] The Court of Claims by a divided vote held that the tribe possessed hunting and fishing rights under the Wolf River Treaty; but it held, contrary to the Wisconsin Supreme Court, that those rights were not abrogated by the Termination Act of 1954. We granted the petition for a writ of certiorari in order to resolve that conflict between the two courts. 389 U.S. 811, 88 S.Ct. 51, 19 L.Ed.2d 67. On oral argument both petitioner and respondent urged that the judgment of the Court of Claims be affirmed. The State of Wisconsin appeared as amicus curiae and argued that that judgment be reversed.

In 1953 Congress by concurrent resolution ^[5] instructed the Secretary of the Interior to recommend legislation for the withdrawal of federal supervision over certain American Indian tribes, including the Menominees. Several bills were offered, one for the Menominee Tribe that expressly preserved hunting and fishing rights. ^[6] But the one that became the Termination Act of 1954, viz., H.R. 2828, did not mention hunting and fishing rights. Moreover, counsel for the Menominees spoke against the bill, arguing that its silence would by implication abolish those hunting and fishing rights. ^[7] It is therefore argued that they were abolished by the Termination Act.

The purpose of the 1954 Act was by its terms 'to provide for orderly termination of Federal supervision over the property and members' of the tribe. Under its provisions, the tribe was to formulate a plan for future control of tribal property and service functions theretofore conducted by the United States. On or before April 30, 1961, the Secretary was to transfer to a tribal corporation or to a trustee chosen by him all property real and personal held in trust for the tribe by the United States. ^[8]

The Menominees submitted a plan, looking toward the creation of a county in Wisconsin out of the former reservation and the creation by the Indians of a Wisconsin corporation to hold other property of the tribe and its members. The Secretary of the Interior approved the plan ^[9] with modifications; the Menominee Enterprises, Inc., was incorporated; ^[10] and numerous ancillary laws were passed by Wisconsin integrating the former reservation into its county system of government. The Termination Act provided that after the transfer by the Secretary of title to the property of the tribe, all federal supervision was to end and 'the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.'

It is therefore argued with force that the Termination Act of 1954, which became fully effective in 1961, submitted the hunting and fishing rights of the Indians to state regulation and control. We reach, however, the opposite conclusion. The same Congress that passed the Termination Act also passed Public Law 280, 67 Stat. 588, as amended, 18 U.S.C. § 1162. The latter came out of the same committees of the Senate and the House as did the Termination Act; and it was amended ^[11] in a way that is critical here only two months after the Termination Act became law. As amended, Public Law 280 granted designated States, including Wisconsin, jurisdiction 'over offenses committed by or against Indians in the areas of Indian country' named in the Act, which in the case of Wisconsin was described as 'All Indian country within the State,' But Public Law 280 went on to say that 'Nothing in this section * * * shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.' (Emphasis added.) That provision on its face contains no limitation; it protects any hunting, trapping, or fishing right granted by a federal treaty. Public Law 280, as amended, became the law in 1954, nearly seven years before the Termination Act became fully effective in 1961. In 1954, when Public Law 280 became effective, the Menominee Reservation was still 'Indian country' within the meaning of Public Law 280.

Public Law 280 must therefore be considered in pari materia with the Termination Act. The two Acts read together mean to us that, although federal supervision of the tribe was to cease and all tribal property was to be transferred to new hands, the hunting and fishing rights granted or preserved by the Wolf River Treaty of 1854 ^[12] survived the Termination Act of 1954.

This construction is in accord with the overall legislative plan. The Termination Act by its terms provided for the 'orderly termination of Federal supervision over the property and members' of the tribe. 25 U.S.C. § 891. (Emphasis added.) The Federal Government ceded to the State of Wisconsin its power of supervision over the tribe and the reservation lands, as evident from the provision of the Termination Act that the laws of Wisconsin 'shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within (its) jurisdiction.'

The provision of the Termination Act (25 U.S.C. § 899) that 'all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe' plainly refers to the termination of federal supervision. The use of the word 'statutes' is potent evidence that no treaty was in mind.

We decline to construe the Termination Act as a backhanded way a abrogating the hunting and fishing rights of these Indians. While the power to abrogate those rights exists (see Lone Wolf v. Hitchcock, 187 U.S. 553, 564-567, 23 S.Ct. 216, 220-222, 47 L.Ed. 299) 'the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.' Pigeon River, etc., Co. v. Charles W. Cox, Limited, 291 U.S. 138, 160, 54 S.Ct. 361, 367, 78 L.Ed. 695. See also Squire v. Capoeman, 351 U.S. 1, 76 S.Ct. 611, 100 L.Ed. 883.

Our conclusion is buttressed by the remarks of the legislator chiefly responsible for guiding the Termination Act to enactment, Senator Watkins, who stated upon the occasion of the signing of the bill that it 'in no way violates any treaty obligation with this tribe.' ^[13]

We find it difficult to believe that Congress, without explicit statement, would subject the United States to a claim for compensation ^[14] by destroying a property rights conferred by treaty, particularly when Congress was purporting by the Termination Act to settle the Government's financial obligations toward the Indians. ^[15]

Accordingly the judgment of the Court of Claims is affirmed.

Affirmed.

Mr. Justice MARSHALL took no part in the consideration or decision of this case.

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

Notes

1. Menominee Tribe of Indians v. United States, 388 F.2d 998, 1002, 179 Ct.Cl. 496, 503-504.
2. As stated by the Supreme Court of Wisconsin:
3. State v. Sanapaw, 21 Wis.2d 377, 124 N.W.2d 41.
4. See Shoshone Tribe, etc. v. United States, 299 U.S. 476, 57 S.Ct. 244, 81 L.Ed. 360.
5. H.R.Con.Res. 108, 83d Cong., 1st Sess., 67 Stat. B132.
6. S. 2813 and H.R. 7135, 83d Cong., 2d Sess.
7. Joint Hearings, Subcommittees of Committees on Interior and Insular Affairs, 83d Cong., 2d Sess., Pt. 6, on S. 2813, H.R. 2828, and H.R. 7135, pp. 697, 704.
8. The Termination Act also provided for a closing of the membership roll of the tribe with distribution to the enrollees of certificates of beneficial interest in the tribal property. The roll was closed in December 1957. 22 Fed.Reg. 9951.
9. 26 Fed.Reg. 3726.
10. Wisconsin questions whether Menominee Enterprises, Inc., to which all tribal assets were conveyed pursuant to the termination plan (26 Fed.Reg. 3726), should be viewed as the successor entity to the tribe and the present holder of the hunting and fishing rights, and, if so, to what extent the corporation or the tribal members thereof can withhold or parcel out these rights.
11. As originally enacted Public Law 280 exempted the Menominees from its provisions. The House Reports on Pub.L. 280 (H.R. 1063, 83d Cong., 1st Sess.) and on Pub.L. 661 (H.R. 9821, 83d Cong., 2d Sess.) indicate that the Menominees had specifically asked for exemption from the provisions of the bill that eventually became Pub.L. 280, on the ground that their tribal law and order program was functioning satisfactorily. Subsequently, the tribe reconsidered its position and sponsored H.R. 9821, amending Pub.L. 280 to extend its provisions to the Menominee Reservation. The Department of the Interior recommended favorable action on the proposed amendment, and the amendment was enacted into law on August 24, 1954 (68 Stat. 795), two months after the passage of the Menominee Termination Act. See H.R.Rep.No. 848, 83d Cong., 1st Sess., 6 (1953); H.R.Rep.No. 2322, 83d Cong., 2d Sess. (1954).
12. The Act creating the Wisconsin Territory (5 Stat. 10) contained an express reservation of Indian rights, though both the Enabling Act of 1846 (9 Stat. 56), and the Act admitting Wisconsin to the Union in 1848 (9 Stat. 233) were silent on the subject. It was only a few months after Wisconsin achieved statehood that the Menominees ceded all of their Wisconsin lands to the United States in anticipation of the tribe's removal to other lands west of the Mississippi. Treaty of October 18, 1848, 9 Stat. 952. But as already noted, this removal never fully succeeded, and the Menominee Reservation created by the Treaty of Wolf River was carved out of the lands the Indians had previously ceded to the United States.
13. 100 Cong.Rec. 8538.
14. See n. 4, supra.
15. Compare the hearings on the Klamath Termination bill, which took place shortly before the Menominee bills were reached, in which Senator Watkins expressed the view that perhaps the Government should 'buy out' the Indians' hunting and fishing rights rather than preserve them after termination. See Joint Hearings, Subcommittees of the Committees on Interior and Insular Affairs, 83d Cong., 2d Sess., Pt. 4, on S. 2745 and H.R. 7320, pp. 254-255.