No. 97-1337. Argued December 2, 1998--Decided March 24, 1999
124 F. 3d 904, affirmed.
O'Connor, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, Kennedy, and Thomas, JJ., joined. Thomas, J., filed a dissenting opinion.
Justice O'Connor
delivered the opinion of the Court.In 1837, the United States entered into a Treaty with several Bands of Chippewa Indians. Under the terms of this Treaty, the Indians ceded land in present-day Wisconsin and Minnesota to the United States, and the United States guaranteed to the Indians certain hunting, fishing, and gathering rights on the ceded land. We must decide whether the Chippewa Indians retain these usufructuary rights today. The State of Minnesota argues that the Indians lost these rights through an Executive Order in 1850, an 1855 Treaty, and the admission of Minnesota into the Union in 1858. After an examination of the historical record, we conclude that the Chippewa retain the usufructuary rights guaranteed to them under the 1837 Treaty.
In 1837, several Chippewa Bands, including the respondent Bands here, were summoned to Fort Snelling (near present-day St. Paul, Minnesota) for the negotiation of a treaty with the United States. The United States representative at the negotiations, Wisconsin Territorial Governor Henry Dodge, told the assembled Indians that the United States wanted to purchase certain Chippewa lands east of the Mississippi River, lands located in present-day Wisconsin and Minnesota. App. 46 (1837 Journal of Treaty Negotiations). The Chippewa agreed to sell the land to the United States, but they insisted on preserving their right to hunt, fish, and gather in the ceded territory. See, e.g., id., at 70, 75-76. In response to this request, Governor Dodge stated that he would "make known to your Great Father, your request to be permitted to make sugar, on the lands; and you will be allowed, during his pleasure, to hunt and fish on them." Id., at 78. To these ends, the parties signed a treaty on July 29, 1837. In the first two articles of the 1837 Treaty, the Chippewa ceded land to the United States in return for 20 annual payments of money and goods. The United States also, in the fifth article of the Treaty, guaranteed to the Chippewa the right to hunt, fish, and gather on the ceded lands:
"The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied [sic] to the Indians, during the pleasure of the President of the United States." 1837 Treaty with the Chippewa, 7 Stat. 537.
In 1842, many of the same Chippewa Bands entered into another Treaty with the United States, again ceding additional lands to the Federal Government in return for annuity payments of goods and money, while reserving usufructuary rights on the ceded lands. 1842 Treaty with the Chippewa, 7 Stat. 591. This Treaty, however, also contained a provision providing that the Indians would be "subject to removal therefrom at the pleasure of the President of the United States." Art. 6, id., at 592.
In the late 1840's, pressure mounted to remove the Chippewa to their unceded lands in the Minnesota Territory. On September 4, 1849, Minnesota Territorial Governor Alexander Ramsey urged the Territorial Legislature to ask the President to remove the Chippewa from the ceded land. App. 878 (Report and Direct Testimony of Dr. Bruce M. White) (hereinafter White Report). The Territorial Legislature complied by passing, in October 1849, "Joint Resolutions relative to the removal of the Chippewa Indians from the ceded lands within the Territory of Minnesota." App. to Pet. for Cert. 567 (hereinafter Joint Resolution). The Joint Resolution urged:
"[T]o ensure the security and tranquility of the white settlements in an extensive and valuable district of this Territory, the Chippewa Indians should be removed from all lands within the Territory to which the Indian Title has been extinguished, and that the privileges given to them by Article Fifth [of the 1837 Treaty] and Article Second [of the 1842 Treaty] be revoked." Ibid.
The Territorial Legislature directed its resolution to Congress, but it eventually made its way to President Zachary Taylor. App. 674 (Report and Direct Testimony of Professor Charles E. Cleland) (hereinafter Cleland Report). It is unclear why the Territorial Legislature directed this resolution to Congress and not to the President. One possible explanation is that, although the 1842 Treaty gave the President authority to remove the Chippewa from that land area, see 1842 Treaty with the Chippewa, Art. 6, 7 Stat. 592, the 1837 Treaty did not confer such authority on the President. Therefore, any action to remove the Chippewa from the 1837 ceded lands would require congressional approval. See App. 674 (Cleland Report).
The historical record provides some clues into the impetus behind this push to remove the Chippewa. In his statement to the Territorial Legislature, Governor Ramsey asserted that the Chippewa needed to be removed because the white settlers in the Sauk Rapids and Swan River area were complaining about the privileges given to the Chippewa Indians. Id., at 878 (White Report). Similarly, the Territorial Legislature urged removal of the Chippewa "to ensure the security and tranquility of the white settlements" in the area. App. to Pet. for Cert. 567 (Joint Resolution). The historical evidence suggests, however, that the white settlers were complaining about the Winnebago Indians, not the Chippewa, in the Sauk Rapids area. See App. 671-672 (Cleland Report). There is also evidence that Minnesotans wanted Indians moved from Wisconsin and Michigan to Minnesota because a large Indian presence brought economic benefits with it. Specifically, an Indian presence provided opportunities to trade with Indians in exchange for their annuity payments, and to build and operate Indian agencies, schools, and farms in exchange for money. The presence of these facilities in an area also opened opportunities for patronage jobs to staff these facilities. See id., at 668-671; id., at 1095 (White Report). See also id., at 149-150 (letter from Rice to Ramsey, Dec. 1, 1849) ("Minnesota would reap the benefit [from the Chippewa's removal]--whereas now their annuities pass via Detroit and not one dollar do our inhabitants get"). The District Court concluded in this case that "Minnesota politicians, including Ramsey, advocated removal of the Wisconsin Chippewa to Minnesota because they wanted to obtain more of the economic benefits generated by having a large number of Indians residing in their territory." 861 F. Supp. 784, 803 (Minn. 1994).
Whatever the impetus behind the removal effort, President Taylor responded to this pressure by issuing an Executive Order on February 6, 1850. The order provided:
"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; and the right granted to the Chippewa Indians of the Mississippi and Lake Superior, by the Second Article of the treaty with them of October 4th 1842, of hunting on the territory which they ceded by that treaty, `with the other usual privileges of occupancy until required to remove by the President of 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." App. to Pet. for Cert. 565.
The officials charged with implementing this order understood it primarily as a removal order, and they proceeded to implement it accordingly. See Record, Doc. No. 311, Plaintiffs' Exh. 88 (letter from Brown to Ramsey, Feb. 6, 1850); App. 161 (letter from Ramsey to Livermore, Mar. 4, 1850). See also 861 F. Supp., at 805 (citing Plaintiffs' Exh. 201 (letter from Livermore to Ramsey, April 2, 1850)) (describing circular prepared to notify Indians of Executive Order); App. 1101-1102 (White Report) (describing circular and stating that "the entire thrust" of the circular had to do with removal).
The Government hoped to entice the Chippewa to remove to Minnesota by changing the location where the annuity payments--the payments for the land cessions--would be made. The Chippewa were to be told that their annuity payments would no longer be made at La Pointe, Wisconsin (within the Chippewa's ceded lands), but, rather, would be made at Sandy Lake, on unceded lands, in the Minnesota Territory. The Government's first annuity payment under this plan, however, ended in disaster. The Chippewa were told they had to be at Sandy Lake by October 25 to receive their 1850 annuity payment. See B. White, The Regional Context of the Removal Order of 1850, §6, pp. 6-9--6-10 (Mar. 1994). By November 10, almost 4,000 Chippewa had assembled at Sandy Lake to receive the payment, but the annuity goods were not completely distributed until December 2. Id., at 6-10. In the meantime, around 150 Chippewa died in an outbreak of measles and dysentery; another 230 Chippewas died on the winter trip home to Wisconsin. App. 228-229 (letter from Buffalo to Lea, Nov. 6, 1851).
The Sandy Lake annuity experience intensified opposition to the removal order among the Chippewa as well as among non-Indian residents of the area. See id., at 206-207 (letter from Warren to Ramsey, Jan. 21, 1851); id., at 214 (letter from Lea to Stuart, June 3, 1851) (describing opposition to the order). See also Record, Doc. No. 311, Plaintiffs' Exh. 93 (Michigan and Wisconsin citizens voice their objections to the order to the President). In the face of this opposition, Commissioner of Indian Affairs Luke Lea wrote to the Secretary of the Interior recommending that the President's 1850 order be modified to allow the Chippewa "to remain for the present in the country they now occupy." App. 215 (letter from Lea to Stuart, June 3, 1851). According to Commissioner Lea, removal of the Wisconsin Bands "is not required by the interests of the citizens or Government of the United States and would in its consequences in all probability be disastrous to the Indians." Ibid. Three months later, the Acting Commissioner of Indian Affairs wrote to the Secretary to inform him that 1,000 Chippewa were assembled at La Pointe, but that they could not be removed from the area without the use of force. He sought the Secretary's approval "to suspend the removal of these Indians until the determination of the President upon the recommendation of the commissioner is made known to this office." Id., at 223-224 (letter from Mix to Graham, Aug. 23, 1851). Two days later, the Secretary of the Interior issued the requested authorization, instructing the Commissioner "to suspend the removal of the Chippeway [sic] Indians until the final determination of the President." Id., at 225 (letter from Abraham to Lea, Aug. 25, 1851). Commissioner Lea immediately telegraphed the local officials with instructions to "[s]uspend action with reference to the removal of Lake Superior Chippewas for further orders." Ibid. (telegram from Lea to Watrous, Aug. 25, 1851). As the State's own expert historian testified, "[f]ederal efforts to remove the Lake Superior Chippewa to the Mississippi River effectively ended in the summer of 1851." Id., at 986 (Report of Alan S. Newell).
Although Governor Ramsey still hoped to entice the Chippewa to remove by limiting annuity payments to only those Indians who removed to unceded lands, see id., at 235-236 (letter from Ramsey to Lea, Dec. 26, 1851), this plan, too, was quickly abandoned. In 1853, Franklin Pierce became President, and he appointed George Manypenny as Commissioner of Indian Affairs. The new administration reversed Governor Ramsey's policy, and in 1853, annuity payments were once again made within the ceded territory. See, e.g., Record, Doc. No. 311, Plaintiffs' Exh. 119, p. 2 (letter from Gorman to Manypenny, Oct. 8, 1853); Plaintiffs' Exh. 122 (letter from Herriman to Gorman, Nov. 10, 1853); see also Plaintiffs' Exh. 120 (letter from Wheeler to Parents, Oct. 20, 1853). As Indian Agent Henry Gilbert explained, the earlier "change from La Pointe to [Sandy Lake] was only an incident of the order for removal," thus suggesting that the resumption of the payments at La Pointe was appropriate because the 1850 removal order had been abandoned. App. 243 (letter from Gilbert to Manypenny, Dec. 14, 1853).
In 1849, white lumbermen built a dam on the Rum River (within the Minnesota portion of the 1837 ceded Territory), and the Mille Lacs Band of Chippewa protested that the dam interfered with its wild rice harvest. This dispute erupted in 1855 when violence broke out between the Chippewa and the lumbermen, necessitating a call for federal troops. In February 1855, the Governor of the Minnesota Territory, Willis Gorman, who also served as the ex officio superintendent of Indian affairs for the Territory, wrote to Commissioner Manypenny about this dispute. In his letter, he noted that "[t]he lands occupied by the timbermen have been surveyed and sold by the United States and the Indians have no other treaty interests except hunting and fishing." Id., at 295-296 (letter of Feb. 16, 1855) (emphasis added). There is no indication that Commissioner Manypenny disagreed with Governor Gorman's characterization of Chippewa treaty rights. In June of the same year, Governor Gorman wrote to Mille Lacs Chief Little Hill that even if the dam was located within the Mille Lacs Reservation under the 1855 Treaty, the dam "was put there long before you had any rights there except to hunt and fish." Record, Doc. No. 163, Plaintiffs' Exh. 19 (letter of June 4, 1855). Thus, as of 1855, the federal official responsible for Indian affairs in the Minnesota Territory acknowledged and recog-
nized Chippewa rights to hunt and fish in the 1837 ceded Territory.
On the other hand, there are statements by federal officials in the late 19th century and the first half of the 20th century that suggest that the Federal Government no longer recognized Chippewa usufructuary rights under the 1837 Treaty. See, e.g., App. 536-539 (letter from Acting Commissioner of Indian Affairs to Heatwole, Dec. 16, 1898); id., at 547-548 (letter from Commissioner of Indian Affairs Collier to Reynolds, Apr. 30, 1934); App. to Pet. for Cert. 575-578 (letter from President Roosevelt to Whitebird, Mar. 1, 1938). But see, e.g., App. 541 (letter from Meritt to Hammitt, Dec. 14, 1925) (Office of Indian Affairs noting that "[a]pparently, . . . there is merit in the claims of the Indians" that they have hunting and fishing rights under the 1837 Treaty); Additional Brief for United States in United States v. Thomas, O. T. 1893, No. 668, pp. 2-3 (with respect to the 1842 Treaty, arguing that no executive order requiring Chippewa removal had ever been made).
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A little over three years after the 1855 Treaty was signed, Minnesota was admitted to the Union. See Act of May 11, 1858, 11 Stat. 285. The admission Act is silent with respect to Indian treaty rights.
In 1990, the Mille Lacs Band of Chippewa Indians and several of its members filed suit in the Federal District Court for the District of Minnesota against the State of Minnesota, the Minnesota Department of Natural Resources, and various state officers (collectively State) seeking, among other things, a declaratory judgment that they retained their usufructuary rights under the 1837 Treaty and an injunction to prevent the State's interference with those rights. The United States intervened as a plaintiff in the suit; nine counties and six private landowners intervened as defendants. The District Court bifurcated the case into two phases. Phase I of the litigation would determine whether, and to what extent, the Mille Lacs Band retained any usufructuary rights under the 1837 Treaty, while Phase II would determine the validity of particular state measures regulating any retained rights.
In the first decision on the Phase I issues, the District Court rejected numerous defenses posed by the defendants and set the matter for trial. 853 F. Supp. 1118 (Minn. 1994) (Murphy, C. J.). After a bench trial on the Phase I issues, the District Court concluded that the Mille Lacs Band retained its usufructuary rights as guaranteed by the 1837 Treaty. 861 F. Supp., at 784…
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…In Phase II, the State and the Bands agreed to a Conservation Code and Management Plan to regulate hunting, fishing, and gathering in the Minnesota portion of the territory ceded in the 1837 Treaty. Even after this agreement, however, several resource allocation and regulation issues remained unresolved; the District Court resolved these issues in a final order issued in 1997. See 952 F. Supp. 1362 (Minn.) (Davis, J.).
On appeal, the Court of Appeals for the Eighth Circuit affirmed. 124 F. 3d 904 (1997)…
We are first asked to decide whether President Taylor's Executive Order of February 6, 1850, terminated Chippewa hunting, fishing, and gathering rights under the 1837 Treaty. The Court of Appeals began its analysis of this question with a statement of black letter law: " `The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.' " 124 F. 3d, at 915 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 585 (1952)). The court considered whether the President had authority to issue the removal order under the 1830 Removal Act (hereinafter Removal Act), 4 Stat. 411. The Removal Act authorized the President to convey land west of the Mississippi to Indian tribes that chose to "exchange the lands where they now reside, and remove there." Id., at 412. According to the Court of Appeals, the Removal Act only allowed the removal of Indians who had consented to removal. 124 F. 3d, at 915-916. Because the Chippewa had not consented to removal, according to the court, the Removal Act could not provide authority for the President's 1850 removal order. Id., at 916-917.
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Because the Removal Act did not authorize the 1850 removal order, we must look elsewhere for a constitutional or statutory authorization for the order. In this Court, only the landowners argue for an alternative source of authority; they argue that the President's removal order was authorized by the 1837 Treaty itself. See ibid. There is no support for this proposition, however. The Treaty makes no mention of removal, and there was no discussion of removal during the Treaty negotiations. Although the United States could have negotiated a treaty in 1837 providing for removal of the Chippewa--and it negotiated several such removal treaties with Indian tribes in 18374 --the 1837 Treaty with the Chippewa did not contain any provisions authorizing a removal order. The silence in the Treaty, in fact, is consistent with the United States' objectives in negotiating it. Commissioner of Indian Affairs Harris explained the United States' goals for the 1837 Treaty in a letter to Governor Dodge on May 13, 1837. App. 42. In this letter, Harris explained that through this Treaty, the United States wanted to purchase Chippewa land for the pine woods located on it; the letter contains no reference to removal of the Chippewa. Ibid. Based on the record before us, the proposition that the 1837 Treaty authorized the President's 1850 removal order is unfounded. Because the parties have pointed to no colorable source of authority for the President's removal order, we agree with the Court of Appeals' conclusion that the 1850 removal order was unauthorized.
The State argues that even if the removal portion of the order was invalid, the 1837 Treaty privileges were nevertheless revoked because the invalid removal order was severable from the portion of the order revoking Chippewa usufructuary rights…
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We think it is clear that President Taylor intended the 1850 order to stand or fall as a whole. The 1850 order embodied a single, coherent policy, the predominant purpose of which was removal of the Chippewa from the lands that they had ceded to the United States. The federal officials charged with implementing the order certainly understood it as such…
When the 1850 order is understood as announcing a removal policy, the portion of the order revoking Chippewa usufructuary rights is seen to perform an integral function in this policy. The order tells the Indians to "go," and also tells them not to return to the ceded lands to hunt and fish…
There is also no evidence that the Treaty privileges themselves--as opposed to the presence of the Indians--caused any problems necessitating the revocation of those privileges. In other words, there is little historical evidence that the Treaty privileges would have been revoked for some other purpose…Common sense explains the logic of this strategy: If the legislature was concerned with ensuring "the security and tranquility of the white settlements," App. to Pet. for Cert. 567 (Joint Resolution), this concern was not addressed by merely revoking Indian Treaty rights; the Indians had to be removed.
We conclude that President Taylor's 1850 Executive Order was ineffective to terminate Chippewa usufructuary rights under the 1837 Treaty. The State has pointed to no statutory or constitutional authority for the President's removal order, and the Executive Order, embodying as it did one coherent policy, is inseverable. We do not mean to suggest that a President, now or in the future, cannot revoke the Chippewa usufructuary rights in accordance with the terms of the 1837 Treaty. All we conclude today is that the President's 1850 Executive Order was insufficient to accomplish this revocation because it was not severable from the invalid removal order.
The State argues that the Mille Lacs Band of Chippewa Indians relinquished its usufructuary rights under the 1855 Treaty with the Chippewa. Specifically, the State argues that the Band unambiguously relinquished its usufructuary rights by agreeing to the second sentence of Article 1 in that Treaty:
"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." 10 Stat. 1166.
This sentence, however, does not mention the 1837 Treaty, and it does not mention hunting, fishing, and gathering rights. The entire 1855 Treaty, in fact, is devoid of any language expressly mentioning--much less abrogating--usufructuary rights. Similarly, the Treaty contains no language providing money for the abrogation of previously held rights. These omissions are telling because the United States treaty drafters had the sophistication and experience to use express language for the abrogation of treaty rights. In fact, just a few months after Commissioner Manypenny completed the 1855 Treaty, he negotiated a Treaty with the Chippewa of Sault Ste. Marie that expressly revoked fishing rights that had been reserved in an earlier Treaty…
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To summarize, the historical record provides no support for the theory that the second sentence of Article 1 was designed to abrogate the usufructuary privileges guaranteed under the 1837 Treaty, but it does support the theory that the Treaty, and Article 1 in particular, was designed to transfer Chippewa land to the United States. At the very least, the historical record refutes the State's assertion that the 1855 Treaty "unambiguously" abrogated the 1837 hunting, fishing, and gathering privileges. Given this plausible ambiguity, we cannot agree with the State that the 1855 Treaty abrogated Chippewa usufructuary rights. We have held that Indian treaties are to be interpreted liberally in favor of the Indians, Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S., at 675-676; Choctaw Nation v. United States, 318 U. S., at 432, and that any ambiguities are to be resolved in their favor, Winters v. United States, 207 U. S. 564, 576-577 (1908). See also County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 269 (1992).
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Finally, the State argues that the Chippewa's usufructuary rights under the 1837 Treaty were extinguished when Minnesota was admitted to the Union in 1858. In making this argument, the State faces an uphill battle. Congress may abrogate Indian treaty rights, but it must clearly express its intent to do so. United States v. Dion, 476 U. S. 734, 738-740 (1986); see also Washington v. Washington State Commercial Passenger Fishing Vessel Assn., supra, at 690; Menominee Tribe v. United States, 391 U. S. 404, 413 (1968). There must be "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." United States v. Dion, supra, at 740. There is no such "clear evidence" of congressional intent to abrogate the Chippewa Treaty rights here. The relevant statute--Minnesota's enabling Act--provides in relevant part:
"[T]he State of Minnesota shall be one, and is hereby declared to be one, of the United States of America, and admitted into the Union on an equal footing with the original States in all respects whatever." Act of May 11, 1858, 11 Stat. 285.
This language, like the rest of the Act, makes no mention of Indian treaty rights; it provides no clue that Congress considered the reserved rights of the Chippewa and decided to abrogate those rights when it passed the Act. The State concedes that the Act is silent in this regard, Brief for Petitioners 36, and the State does not point to any legislative history describing the effect of the Act on Indian treaty rights.
With no direct support for its argument, the State relies principally on this Court's decision in Ward v. Race Horse, 163 U. S. 504 (1896). In Race Horse, we held that a Treaty reserving to a Tribe " `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' " terminated when Wyoming became a State in 1890. Id., at 507 (quoting Art. 4 of the Treaty). This case does not bear the weight the State places on it, however, because it has been qualified by later decisions of this Court.
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But Race Horse rested on a false premise. As this Court's subsequent cases have made clear, an Indian tribe's treaty rights to hunt, fish, and gather on state land are not irreconcilable with a State's sovereignty over the natural resources in the State. See, e.g., Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658 (1979); see also Antoine v. Washington, 420 U. S. 194 (1975). Rather, Indian treaty rights can coexist with state management of natural resources. Although States have important interests in regulating wildlife and natural resources within their borders, this authority is shared with the Federal Government when the Federal Government exercises one of its enumerated constitutional powers, such as treaty making. U. S. Const., Art. VI, cl. 2. See, e.g., Missouri v. Holland, 252 U. S. 416 (1920); Kleppe v. New Mexico, 426 U. S. 529 (1976); United States v. Winans, 198 U. S., at 382-384; United States v. Forty-three Gallons of Whiskey, 93 U. S. 188 (1876). See also Menominee Tribe v. United States, supra, at 411, n. 12. Here, the 1837 Treaty gave the Chippewa the right to hunt, fish, and gather in the ceded territory free of territorial, and later state, regulation, a privilege that others did not enjoy. Today, this freedom from state regulation curtails the State's ability to regulate hunting, fishing, and gathering by the Chippewa in the ceded lands. But this Court's cases have also recognized that Indian treaty-based usufructuary rights do not guarantee the Indians "absolute freedom" from state regulation. Oregon Dept. of Fish and Wildlife v. Klamath Tribe, 473 U. S., at 765, n. 16. We have repeatedly reaffirmed state authority to impose reasonable and necessary nondiscriminatory regulations on Indian hunting, fishing, and gathering rights in the interest of conservation. See Puyallup Tribe v. Department of Game of Wash., 391 U. S. 392, 398 (1968); Washington v. Washington State Commercial Passenger Fishing Vessel Assn., supra, at 682; Antoine v. Washington, supra, at 207-208. This "conservation necessity" standard accommodates both the State's interest in management of its natural resources and the Chippewa's federally guaranteed treaty rights. Thus, because treaty rights are reconcilable with state sovereignty over natural resources, statehood by itself is insufficient to extinguish Indian treaty rights to hunt, fish, and gather on land within state boundaries.
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Accordingly, the judgment of the United States Court of Appeals for the Eighth Circuit is affirmed.
It is so ordered.
Chief Justice Rehnquist, with whom Justice Scalia, Justice Kennedy and Justice Thomas join, dissenting.
The Court holds that the various Bands of Chippewa Indians retain a usufructuary right granted to them in an 1837 Treaty. To reach this result, the Court must successively conclude that: (1) an 1850 Executive Order explicitly revoking the privilege as authorized by the 1837 Treaty was unlawful; (2) an 1855 Treaty under which certain Chippewa Bands ceded "all" interests to the land does not include the treaty right to come onto the land and hunt; and (3) the admission of Minnesota into the Union in 1858 did not terminate the discretionary hunting privilege, despite established precedent of this Court to the contrary. Because I believe that each one of these three conclusions is demonstrably wrong, I dissent.
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…Although the Court sensibly concludes that the Removal Act of 1830 is inapplicable to this case, it then curiously rejects the notion that the 1837 Treaty authorizes removal, largely on the grounds that "[t]he Treaty makes no mention of removal." Ante, at 16. The Court is correct that the Treaty does not mention removal, but this is because the Treaty was essentially a deed of conveyance--it transferred land to the United States in exchange for goods and money. After the Treaty was executed and ratified, the ceded lands belonged to the United States, and the only real property interest in the land remaining to the Indians was the privilege to come onto it and hunt during the pleasure of the President. When the President terminated that privilege (a legal act that the Court appears to concede he had a right to make, ante, at 20), he terminated the Indians' right to come onto the ceded lands and hunt. The Indians had no legal right to remain on the ceded lands for that purpose, and the removal portion of the order should be viewed in this context. Indeed, the Indians then had no legal rights at all with respect to the ceded lands, in which all title was vested in the United States. And this Court has long held that the President has the implied power to administer the public lands. See, e.g., United States v. Midwest Oil Co., 236 U. S. 459 (1915). Dealing with persons whose legal right to come onto the lands and hunt had been extinguished would appear to fall squarely under this power. Whether the President chose to enforce his revocation through an order to leave the land or the ambiguous lesser "measures to ensure that the Chippewa were not hunting, fishing, or gathering" proposed by the Court, ante, at 20 n. 5, is not ours to second-guess a century and a half later. Indeed, although the Court appears to concede that the President had the power to enforce the revocation order, it is difficult to imagine what steps he could have taken to prevent hunting other than ordering the Chippewa not to come onto the land for that purpose. The ceded lands were not a national park, nor did the President have an army of park rangers available to guard Minnesota's wildlife from Chippewa poachers. Removal was the only viable option in enforcing his power under the Treaty to terminate the hunting privilege. Thus, in my view, the final part of the Executive Order discussing removal was lawful.
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No party has questioned the President's power to terminate the hunting privilege; indeed, the only other evidence in the record of a President's intent regarding the Executive Order is a 1938 letter from President Franklin Roosevelt to one of the Chippewa, in which he stated his understanding that the Indians had "temporarily" enjoyed "the right to hunt and fish on the area ceded by them until such right was revoked by the President" in the 1850 Executive Order. App. to Pet. for Cert. 575 (letter from President Roosevelt to Whitebird, Mar. 1, 1938). President Roosevelt went on to add that since the right to hunt and fish was terminated in 1850, the Chippewa "now have no greater right to hunt or fish on the ceded area ... than do the other citizens of the State. Therefore, the Indians who hunt or fish ... are amenable to the State game laws and are subject to arrest and conviction [f ]or violation thereof." Id., at 576.
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Finally, I note my disagreement with the Court's treatment of the equal footing doctrine, and its apparent overruling sub silentio of a precedent of 103 years' vintage. In Ward v. Race Horse, 163 U. S. 504 (1896), we held that a Treaty granting the 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 the Indians on the borders of the hunting districts" did not survive the admission of Wyoming to the Union since the Treaty right was "temporary and precarious." Id., at 515.
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Without saying so, this jurisprudential bait-and-switch effectively overrules Ward, a case which we reaffirmed as recently as 1985 in Oregon Dept. of Fish and Wildlife v. Klamath Tribe, 473 U. S. 753 (1985). Ward held merely that treaty rights which were only "temporary and precarious," as opposed to those which were "of such a nature as to imply their perpetuity," do not survive statehood. 163 U. S., at 515. Here, the hunting privileges were clearly, like those invalidated in Ward, temporary and precarious: The privilege was only guaranteed "during the pleasure of the President"; the legally enforceable annuity payments themselves were to terminate after 20 years; and the Indians were on actual notice that the President might end
the rights in the future, App. 78 (1837 Journal of Treaty Negotiations).
Justice Thomas, dissenting.
I join The Chief Justice's dissent, but also write separately because contrary to the majority's assertion, in dicta, ante, at 31-32, our prior cases do not dictate the conclusion that the 1837 Treaty curtails Minnesota's regulatory authority.
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To be sure, Indians do not have absolute freedom from state regulation of their off-reservation activities. Indeed, the general rule is that the off-reservation activities of Indians are subject to a State's nondiscriminatory laws, absent express federal law to the contrary. See, e.g., Oregon Dept. of Fish and Wildlife v. Klamath Tribe, 473 U. S. 753, 765, n. 16 (1985); New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 335, n. 18 (1983). The majority, however, overlooks the fact that the scope of a State's regulatory authority depends upon the language of the treaty in question. At a minimum, States may issue and enforce those regulations of Indians' off-reservation usufructuary activities that are necessary in the interest of conservation. Our decisions suggest that state regulatory authority is so limited when, with the treaty in question, the Indians reserved a right to fish, hunt, or gather on ceded lands. But it is doubtful that the so-called "conservation necessity" standard applies in cases, such as this one, where Indians reserved no more than a privilege to hunt, fish, and gather.