Monday, June 25, 2007

Treaties remain Whimsical Political items


The US Supreme Court case of Minnesota v Mille Lacs Band of Chippewa Indians, No. 97-1337, decided March 24, 1999, is an interpretation of Native American current rights based on historical treaties. This case is a modern opinion upholding treaty rights from the early 1800s.

Full decision at:

The State of Minnesota argued that the State retained authority over the Chippewa land ceded in an earlier treaty between the Chippewa and the US Government. At issue was whether or not the Chippewa Indians could still hunt and fish on land which they ceded to the US government in an earlier treaty.

The court opinion delivered by Justice O'Connor, held that the Chippewa Indians retained these rights guaranteed to them by the 1837 Treaty. Pp. 15—35.

In 1990 the Mille Lacs Band of Chippewa Indians instituted suit in Federal District Court against the State of Minnesota, among others, seeking declaratory relief among other things, and an injunction against the State of Minnesota to prevent the state from interfering with their hunting and fishing rights granted in the 1837 Treaty. This gives tribes a viable venue for disputes with the States when they infringe on treaty rights.

Justice O'Connor goes into a lengthy discussion of the treaty language which states that the Chippewa Indians retained the right to hunt and fish on the ceded land. Later treaties left removal of the Chippewa Indians to the US President, with congressional approval or Constitutional authorization. Interesting in this opinion is the historical motivation for removal of the Indians from Wisconsin, that is the State of Minnesota felt the Indians were receiving annuity payments no part of which were going to benefit the state of Minnesota, therefore removal to the state of Minnesota would benefit the state. To further this aim, the Chippewas were told that their annuity payments would no longer be sent to their ceded land in Wisconsin but they would be sent to a location in the Minnesota Territory. Unfortunately many Chippewas died of measles and dysentery prior to the disbursement of the annuity payments. This experience forced the government to rethink it's position on removal finding it to be disastrous for the Indians.

The court further observed that in the treaty there was no inclusion or exclusion language of these hunting and fishing rights. The court then decided that absent express language including the relinquishment of these rights, they were retained by the tribe.

The court however left open the question as to whether or not the President may, now or in the future, revoke these rights. Their only decision was that the Executive order of 1850 was not severable from the invalid removal order and thus the hunting and fishing rights were retained by the Chippewa Indians to the ceded land. This is reminiscent of the Cherokee case in which the Supreme Court ruled in favor of the Cherokee Nation and invalidated a removal order only to have President Andrew Jackson commence removal anyway.

This decision is interesting in that it seems to throw the treaty rights of Native American into the political arena. Presidents might be more easily swayed into upholding treaty rights if Native American votes were to support their candidacy.

Both Justice Thomas and the Chief Justice Rehnquist filed dissents to the majority opinion.

The Chief Justice equates the payment of money to the relinquishment of land as also including any hunting and fishing rights without an express provision in the treaty to do so. He also gives Executive Orders an implied consent of Congress giving them full legal effect when made without any necessary approval process by Congress. Justice O'Connor appears to have decided this case based on contract theories including severability of provisions within a contract, whereas the Chief Justice looks to a unilateral decision by one branch of government to invalidate an agreement by two parties, the Chippewa Indians and the US government, presumably Congress was involved in the making of this treaty as well.

Justice Rehnquist further finds that the language in the treaty was broad enough to encompass all rights including hunting and fishing rights, but he fails to recognize the meeting of the minds between the two parties at the time of making the Treaty. Whether or not the Chippewa Indians understood the language to include hunting and fishing rights and such lack of understanding could itself create an ambiguity, resolution of which would be in the Indian's favor, that is, that they retained the hunting and fishing rights of the ceded land. Although the Chief Justice languishes on the 103 year old precedence of this court, he does not expound on the wisdom or inhumanity of such precedence, opinions clearly decided in an extremely biased environment, which all can see was clearly against Native Americans.

Justice Thomas' dissent is of equal interest, considering he himself is a minority. His major concern seems to be with whether or not the principles of Federalism have been followed. Interesting is his argument that the 1837 treaty did not make any provision for future state regulation, perhaps an example of the lack of foresight on the government officials and their Indian policies. Native American relations in modern America involve both areas of state rights and federal rights, it is after all the federal government that governs tribes but by necessity the tribes and tribal lands are within the state boundaries creating an overlapping of both state and federal into tribal sovereignty.

Further Justice Thomas appears to set up the next case in this line as leaving open for future decision the issue of the states authority to regulate Indians off reservation activity. The states regulation here was over environmental concerns which they believed the Indian hunting and fishing interfered with, however, of all people Native Americans are the most environmentally conscious. I suspect the concern had more to do with the fact that Native Americans enjoyed a right which the citizens of the state of Minnesota did not.

This might bring to mind the question of reciprocity between sovereigns, will Native American Tribes retain jurisdiction over non Indians on Tribal Land.

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