Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968), is a case in which the Supreme Court ruled that the Menominee Indian Tribe kept their historical hunting and fishing rights even after the federal government ceased to recognize the tribe.. It was a landmark decision in Native American case law.
The Menominee Indian Tribe had entered into a series of treaties with the United States that did not specifically state that they had hunting and fishing rights. In 1961, Congress terminated the tribe's federal recognition, ending its right to govern itself, federal support of health care and education programs, police and fire protection, and tribal rights to land. In 1963, three members of the tribe were charged with violating Wisconsin's hunting and fishing laws on land which had been a reservation for over 100 years. The tribe members were acquitted, but when the state appealed, the Wisconsin Supreme Court held that the Menominee tribe no longer had hunting and fishing rights because of the termination action by Congress.
The tribe sued the United States for compensation in the US Court of Claims, which ruled that tribal members still had hunting and fishing rights and that Congress had not abrogated the rights. The opposite rulings by the state and federal courts brought the issue to the Supreme Court. In 1968, the Supreme Court held that the tribe retained its hunting and fishing rights under the treaties involved and the rights were not lost after federal recognition was ended by the Menominee Indian Termination Act without a clear and unequivocal statement by Congress removing the rights.
Background
Early treaties
Ancestors of the Menominee Indian Tribe may have lived in the states of Wisconsin and Michigan for the last 10,000 years.Menominee Indian Tribe of Wisconsin History (June 22, 2010) (archived from original, Sep. 25, 2010); David S. Brose, Late Prehistory of the Upper Great Lakes Area, in 13 578 (William C. Sturtevant ed., 1978); , 218 (5th ed. 2011). Their traditional territory was about 10 million acres (4 million hectares). They first acknowledged that they were under the protection of the United States in the Treaty of St. Louis (1817).Treaty with the Menominee, Mar. 30, 1817, ; Menominee Tribe of Indians, 388 F.2d 998, 1001 (Ct. Cl. 1967); 2 138 (Charles J. Kappler ed., 1904). In 1825 and 1827, the treaties of Prairie du ChienTreaty with the Sioux, etc., Aug. 19, 1825, ; Menominee Tribe of Indians, 388 F.2d at 1001; Kappler at 250-55. and Butte des MortsTreaty with the Chippewa, etc., Aug. 11, 1827, ; Menominee Tribe of Indians, 388 F.2d at 1001; Kappler at 281-83. answered boundary questions. None of the early treaties addressed hunting and fishing rights.; ; Kappler at 138, 250-55, 281-83. In 1831, the tribe entered into the Treaty of Washington,Treaty with the Menominee, Feb. 8, 1831, ; Treaty with the Menominee, Feb. 17, 1831, ; Treaty with the Menominee, Oct. 27, 1832, ; Menominee Tribe of Indians, 388 F.2d at 1001; Kappler at 319-25, 377-82. which ceded about to the federal government. These two treaties reserved hunting and fishing rights for the tribe on the ceded land until the President of the United States ordered the land surveyed and sold to settlers. In 1836, the tribe entered into the Treaty of Cedar Point,Treaty with Menominee, Sept. 3, 1836, ; Menominee Tribe of Indians, 388 F.2d at 1001; Kappler at 463-66. under which were ceded to the federal government. The treaty did not mention hunting or fishing rights.
In 1848, the tribe entered into another treaty with the United States, the Treaty of Lake Poygan,Treaty with the Menominee, Oct. 18, 1848, ; Menominee Tribe of Indians, 388 F.2d at 1001; Kappler at 572-574. which ceded the tribe's remaining approximately in exchange for west of the Mississippi River in present-day Minnesota. This treaty was contingent on the tribe examining the land proposed for them and accepting it as suitable. In 1850, Chief Oshkosh led a delegation to the Crow Wing area and determined that the land was not suitable for the tribe, mainly because the proposed reservation was located between two warring tribes, the Dakota and Ojibwe. Oshkosh then pressed for a new treaty, stating that he "preferred a home somewhere in Wisconsin, for the poorest region in Wisconsin was better than the Crow Wing."MITW History – Chief Oshkosh, , (Sept. 22, 2009).
Treaty of 1854 The tribe had been living in an area near the Wolf River. They entered into the Treaty of Wolf River with the United States in 1854.Treaty with the Menominee, May 12, 1854 ; Menominee Tribe of Indians, 388 F.2d at 1002; Kappler at 626-27. The United States set aside of land for a reservation in present-day Menominee County, Wisconsin. In return, the tribe ceded the land in Minnesota back to the federal government. None of the previous treaties except the Treaty of Washington addressed the tribe's retained hunting and fishing rights,; Kappler at 322. but stated that the reservation was "to be held as Indian lands are held".; Menominee Tribe of Indians, 391 U.S. 404, 406 n.2 (1968); Kappler at 626-27.
Since the Treaty of Wolf River, this area has been the tribe's home, and they were free from state taxation, regulation and court jurisdiction. Of the original land, of prime timberland remained under the tribe's control, while the remaining land was transferred to the Mahican and Lenape (the latter also known as the Delaware or Munsee) tribes. During this period, the Menominee enjoyed complete freedom to regulate hunting and fishing on the reservation, with the acquiescence of Wisconsin.Menominee Tribe of Indians, 388 F.2d at 1002.
Tribal termination In the mid- to late-1940s, the Menominee tribe was considered by a government survey to identify tribes for termination, a process in which federal recognition of the tribe would be withdrawn and the tribe would no longer be dependent on the Bureau of Indian Affairs (BIA) to support them., 52-77 (2006). The Menominee were thought to be a tribe that could be terminated because they were one of the richest tribes in the nation.Verna Fowler, Termination and Restoration, in 31 (Kathleen Tigerman ed. 2006). The federal government thought that termination would allow the tribal members to be assimilated into mainstream American culture, becoming hard-working, tax-paying, productive citizens.Determination of Rights and Unity for Menominee Shareholders (DRUMS) Committee, Menominee Termination, in 34 (Kathleen Tigerman ed. 2006). In 1954, Congress terminated the federally recognized status of the tribe with the Menominee Indian Termination Act.Menominee Termination Act, June 17, 1954, , codified at ; , 109-11 (2007). According to the terms of the Termination Act, the federally recognized status was to end in 1958. The tribe and the state of Wisconsin successfully lobbied for a delay in the implementation of termination until 1961. The tribe was opposed to termination for a number of reasons; their concerns included the loss of tribal culture, the loss of land due to tax liens, the possibility of bankruptcy and loss of the tribal timber industry, and the lack of tribal members who were trained to run a county government. at 107-09. The state of Wisconsin was concerned that with no industry for the tribe to tax, the state would be responsible for the large financial outlay that would be required to maintain governmental operations for the former reservation. at 107-09.
On termination, the Menominee, which was one of the wealthiest tribes prior to termination, became one of the poorest. In 1954, the tribe's timber operations allowed it to be self-sufficient. The tribe, which owned utility companies, paid for a hospital, BIA salaries, local schools, and a stipend to tribal members. The tribe was forced to use its reserve funds to develop a termination plan that they did not want and instead of having a reserve, they entered into termination with a $300,000 deficit. at 53-57. Menominee County was created out of the old reservation boundaries and the tribe immediately had to finance its own police and fire protection. Without federal support and with no tax base, the situation became dire. The tribe closed the hospital, sold its utility company, and contracted those services to neighboring counties. at 53-57. The Menominee Enterprises, Inc., formed to care for the tribe's needs after termination, was unable to pay property taxes and began to consider selling off tribal property.Fowler at 31. Many Menominee tribal members believed that the sponsor of the termination bill, Senator Arthur Wilkins of Utah, intended to force the loss of rich tribal lands to non-Indians.Fowler at 31. In 1962, the state of Wisconsin took the position that the hunting and fishing rights were abrogated by the termination act and that the tribal members were subject to state hunting and fishing regulations. With the poverty in the former reservation, the loss of hunting rights meant the loss of one of their last remaining means of survival., 130 (1996).
State enforcement actions In 1962, tribal members Joseph L. Sanapaw, William J. Grignon, and Francis Basina were charged with violating state hunting and fishing regulations.Menominee Tribe of Indians, 391 U.S. at 407;State v. Sanapaw, 124 N.W.2d 41 (Wis., 1963). All three admitted to the acts in open court, but claimed that the Wolf River Treaty gave them the right to hunt. The state trial court agreed and acquitted the three. The state was given leave to pursue a writ of error and appealed to the Wisconsin Supreme Court to answer whether the Termination Act canceled those rights retained by treaty.Sanapaw, 124 N.W.2d at 41.
The Wisconsin Supreme Court in State v. Sanapaw held that the treaty rights were terminated by Congress.Sanapaw, 124 N.W.2d at 46-47. In analyzing the case, the Wisconsin Supreme Court first had to determine whether the tribe had hunting and fishing rights under treaties with the United States. It found that although the Wolf River Treaty did not specifically mention hunting and fishing rights, the term "to be held as Indian lands are held"; Kappler at 626-27. was clear. Indians have always been able to hunt and fish on their own land, and if a term in a treaty with Indians is ambiguous, the Wisconsin Supreme Court found that it must be resolved in favor of the tribe. Since the tribe originally had hunting and fishing rights under the treaty, the Wisconsin Supreme Court then looked to determine whether Congress had removed those rights by enacting the Menominee Termination Act. The Wisconsin Supreme Court held that Congress had used its plenary power to abrogate those rights.Sanapaw, 124 N.W.2d at 44.
The Wisconsin Supreme Court placed special emphasis on the phrase "all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe, and the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction."Sanapaw, 124 N.W.2d at 45 (emphasis in original). The Wisconsin Supreme Court held that the latter section was controlling, despite the tribal members' argument that hunting rights were retained by treaty rather than by statute. The Wisconsin Supreme Court held that the tribe had lost their hunting and fishing rights.Sanapaw, 124 N.W.2d at 46-47. The tribal members appealed to the U.S. Supreme Court, which declined to hear the appeal.Sanapaw v. Wisconsin, .
Federal Court of Claims