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1
FEDERAL PREEMPTION OF STATE ACTION OVER USUFRUCTUARY
RIGHTS OF INDIANS
ABSTRACT
This article discusses the relationship between Indians, the federal government, and state
governments and the unique nature of that relationship in the context of usufructuary rights that
are guaranteed in treaties between Indians and the federal government. That relationship in one
illustration of the sui generis nature of Indian affairs and traditional doctrines of preemption and
treaty interpretation cannot be applied in the usual manner by courts to Indians. To do so would
be an injustice not just to the future of Indians and Indian affairs, but to the future of the
relationship between Indians, the federal government, and the state governments.
TABLE OF CONTENTS
I. INTRODUCTION …………………………………………………………………. 1 II. PREEMPTION
1. DOCTRINE ……………………………………………………………….. 4 2. FEDERAL PREEMPTION OF STATE LAW ……………………………. 5
III. INHERENT RIGHTS, “ACTUAL STATE OF THINGS”, AND THE MINNESOTA
CASE 1. THE TREATY PROCESS AND U.S. SUPREME COURT CHIEF JUSTICE
JOHN MARSHALL ………………………………………………………. 7 2. TRIBAL SOVEREIGNTY ………………………………………………... 11 3. MINNESOTA V. MILLE LACS BAND OF CHIPPEWA INDIANS …… 13
IV. ISSUES RAISED BY MINNESOTA 1. TRIBAL COROLLARY RIGHTS ……………………………………….. 16
2. VALIDITY OF USUFRUCTUARY RIGHTS OUTSIDE THE 1837 TREATY CEDED TERRITORY ……………………………………………………. 18
3. CONSERVATION OF NATURAL RESOURCES, STATE LAWS, AND
INDIANS …………………………………………………………………. 20 V. CO-MANAGEMENT OF USUFRUCTUARY RIGHTS
1. GREAT LAKES INDIAN FISH AND WILDLIFE COMMISSION (GLIFWC) ………………………………………………………………… 22
2. CONCLUSION …………………………………………………………… 26
I. INTRODUCTION
The relationship between Indian tribes, the federal government, and state governments is
unique. Usufructuary rights is one of the ways to illustrate the unique nature of this relationship
and how these rights further define and shape the relationship not only between Indians and the
federal government, but with the state governments as well. In addition, “treaties also
2
established a dependent relationship of the tribes to the federal government. The tribes place
themselves under the United States protection, and the federal government undertook to
guarantee that protection.”1 The status of Indians within this relationship is also unique and has
been referred to as sui generis. The whole area of federal Indian law is sui generis. This sui
generis nature describes the way the federal and the state governments are to approach issues
involving Indians and Indian affairs. “The resort to some new and different rule, better adapted
to the actual state of things, was unavoidable.”2 The usual rules, doctrines, and procedures
cannot and do not apply as they would in dealing with other entities or nations.
Tribal governments are often overlooked by the rest of society since they tend to operate
on reservation lands within their traditional territories. They usually come to the attention of
society when then there is a conflict between laws of the tribe and laws of the state and these
conflicts end up in court. One of these conflicts involves hunting, fishing and gathering rights or
the usufructuary rights of Indian tribes. “Usufructuary rights are rights of enjoyment to another’s
property allowing the holder to generate income off of the property without obtaining
ownership.”3
One of the most intense legal battles waged between Indians and non-Indians has dealt with whether states can regulate off-reservation treaty fishing. Protection of wildlife and
the regulation if it’s taking are within the police power of the states. But the states’ power in this area are limited by…the operation of the Supremacy Clause when there is
an applicable federal statute or treaty. Thus, state regulation of Indian hunting and fishing must give way to Indian rights secured by federal treaty or statute.4
With regard to Indians and usufructuary rights, these are rights they have retained in exchange
for ceding land to the federal government through the treaty process. ”Treaty agreements
1 Felix S. Cohen, Handbook of Federal Indian Law 273 (Rennard Strickland et al. eds., 1982). 2 Johnson v. M’Intosh, 21 U.S. 543, 591 (1823). 3 Matthew Steffes, Implications for the Mille Lacs Fishery with Continued Enforcement of the
1837 Treaty of St. Peters, 35 Hamline J. Pub. L. & Pol’y 367, 369 (2014). 4 Cohen, supra note 1, at 459.
3
entered into by the federal government and Native American tribes are contracts between two
sovereign nations…Treaties between Native American tribes and the federal government usually
consist of a forfeiture of rights by native tribes to large quantities of land, with retention of
fishing and hunting rights and confinement to reservations, in exchange for goods and money.”5
This is the treaty process that Indian tribes and the federal government engaged in.
The conflicts occur when the state governments seek to exercise their powers over the
Indians and Indian affairs who are situated within their state borders and when the exercise of
those powers involve the hunting, fishing, and gathering rights of the Indians. The federal
government has had to intervene in these conflicts on behalf of the Indians and they have had to
preempt state power over the Indians. The federal government has preempted state power by
virtue of the Supremacy Clause in the past, but has also relied upon an Indian treaty to preempt
state power. A recurring theme within all this is tribal sovereignty, which is still exercised by
Indians in the management of their affairs and their members.
Using an Indian treaty to preempt state power not only invalidates state law but it also
raised additional issues in the area of Indians, the federal and state governments, and
usufructuary rights. One of these issues is the creation and implementation of co-management
models between the states and Indians in the area of conservation of natural resources. One
model is the Great Lakes Indian and Fish Wildlife Commission (GLIFWC) which has shown it
to be a success. There could be a variety of reasons for the success the GLIFWC has enjoyed.
One reason is the sui generis nature of Indians and the area of federal Indian law. That sui
generis includes the continued exercise of tribal sovereignty, the importance of history in Indians
5 Steffes, supra note 3, at 371-372.
4
and Indian affairs, and recognizing that the usual doctrines and rules may not apply in an
effective manner to Indians.
II. PREEMPTION
1. DOCTRINE OF PREEMPTION
In the case of a conflict between the laws of two governments, the courts have applied the
doctrine of preemption, where one law preempts the other on the basis of the Supremacy
Clause.6 This has been the usual case between the federal and state governments. “Application
of the Supremacy Clause to the myriad subjects where federal and state laws arguably come into
conflict is a diverse field of law in which the Supreme Court has a major role. The Court often
says that the intent of Congress controls, but the practical meaning of this formula is that
Congress’ legislative purposes should be sustained against state law interference.”7 One of the
myriad subjects is the area of Indian affairs.
“Indian affairs occupy a unique place in Supremacy Clause law and theory.”8 There have
been instances where the federal government will preempt state authority over tribal reservations
and members if it conflicts with federal law, or if it unlawfully infringes upon the right of Indians
to make their own laws and be ruled by them. The courts have tended to use federal law to
preempt state laws in this regard, but they have also used an Indian treaty to preempt state law.
That was the case where the United States Supreme Court used the 1837 Treaty to preempt state
action over the Chippewa Indians.9 “Although states have important interests in regulating
wildlife and natural resources within their borders, this authority is shared with the Federal
6 U.S. Const. art. VI, cl. 2. 7 Cohen, supra note 1, at 271. 8 Id. at 272. 9 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999).
5
Government when the Federal Government exercises one of its enumerated constitutional
powers, such as treaty making.”10
2. FEDERAL PREEMPTION OF STATE LAW
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.11
This clause from the United States Constitution is commonly referred to as the
“Supremacy Clause” and it refers to the supremacy of not only the Constitut ion and federal laws,
but all treaties made under the authority of the United States as well. This means that treaties,
including treaties made between the United States and Indian tribes are part of the supreme law
of the land and a state may be bound by those treaties, in addition to being bound by federal
laws. “Treaty provisions [between United States and Indian nations] are supreme over the
constitution and laws of a state.”12 “Treaties made during the confederal period between the
United States and Indian nations are entitled to the same respect as treaties made with foreign
nations and both equally became the supreme law of the land under the Constitution. ”13 Treaties
are on a par and share the same footing as federal law and the Constitution, so as part of the
supreme law of the land, states can be preempted by them if there is a conflict. By virtue of the
supremacy clause, and in certain circumstances, a state’s authority may be overridden, or
preempted, by a federal law or by a treaty if there is a conflict between that state law and the
federal law or treaty. Under the doctrine of preemption, a federal law will override or preempt a
state law on the same subject.
10 Id. at 204. 11 U.S. Const. art. VI, cl. 2. 12 Skokomish Indian Tribe v. France, 269 F.2d. 555, 562 (9th Cir. 1959). 13 Oneida Indian Nation of New York v. State of N.Y., 860 F. 2d 1145, 1155 (2nd Cir. 1988).
6
State law can be preempted in three ways: express preemption; field preemption; and
conflict preemption. Express preemption is when the words or language of the federal law states
an intent to override state law on that particular subject. Field preemption occurs when a federal
law occupies an entire field of a subject area. Conflict preemption occurs when a state law
actually conflicts with a federal law.
With regards to Indian treaties, state laws may be preempted by field or conflict
preemption. They may be preempted by field preemption because the federal government
occupies the field of Indian treaties, Indian law and Indian people. The federal government has
jurisdiction over Indians and Indian affairs. State laws may also be preempted by conflict
preemption when states seek to impose their own laws and regulations on Indian people within
the Indian’s territory, or where those state law and regulations would infringe upon the exercise
of Indian treaty rights, whether on or off the reservation.
Since Indians fall under the exclusive jurisdiction of the federal government, it has
usually been federal laws that have preempted state laws and regulations when there is a conflict.
The United States Supreme Court set forth a balancing test to determine whether state authority
would conflict with federal law calling for a federal preemption. The court stated:
This inquiry is not dependent on mechanical or absolute conceptions of state or tribal sovereignty, but has called for a particularized inquiry into the nature of the state, federal,
and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law.14
The court also relied upon other principles and the historical origins of tribal sovereignty in
coming to its conclusion. The Indian Commerce Clause is the basis for the power of Congress to
regulate tribal affairs.15 “This congressional authority and the ‘semi-independent position’ of
Indian tribes have given rise to two independent but related barriers to the assertion of state
14 White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145 (1980). 15 U.S. Const. art. I, § 8, cl. 3.
7
regulatory authority over tribal reservations and members. First, the exercise of such authority
may be pre-empted by federal law. Second, it may unlawfully infringe ‘on the right of
reservation Indians to make their own laws and be ruled by them.”16 On tribal sovereignty, the
court stated:
The unique historical origins of tribal sovereignty make it generally unhelpful to apply to
federal enactments regulating Indian tribes those standards of pre-emption that have emerged in other areas of the law. Tribal reservations are not states, and the differences in the form and nature of their sovereignty make it treacherous to import to one notions of
pre-emption that are properly applied to the other. The tradition of Indian sovereignty over the reservation and tribal members must inform the determination whether the
exercise of state authority has been pre-empted by operation of federal law.17 Because of the sui generis nature of tribal sovereignty as the source of treaty hunting, fishing and
gathering rights, the preemption doctrine cannot be applied in the usual manner as it is applied
when there is a conflict between the federal government and one of the states. Tribal sovereignty
also provides an important backdrop against which to measure vague or ambiguous federal
enactments.18 The usual manner of applying the preemption doctrine is not applicable to Indians
due to the sui generis nature of the treaty rights and the relationship between the Indians and the
federal government. The uniqueness of the preemption analysis in Indian affairs takes on its
own sui generis nature. Applying a preemption analysis requires not only examining the nature
of the conflict, but also the issue of tribal sovereignty.
III. INHERENT RIGHTS, “ACTUAL STATE OF THINGS, AND THE MINNESOTA CASE
1. THE TREATY PROCESS AND U.S. SUPREME COURT JUSTICE JOHN MARSHALL
“The British took the land from the Indians and gave them very little in return. This left
the new country with a set of unique problems. In an effort to make ‘peace’ with the Indians, the
16 See Bracker, 448 U.S. at 143. 17 Id. at 143. 18 Id. at 143.
8
United States decided to forge a unique relationship with them.”19 “Unique” is the term or
characteristic that keeps surfacing when the discussion turns to issues involving Indians, the
federal government, treaties and treaty rights, and sovereignty. This uniqueness stems from the
manner in which the federal government asserted its title over the territory and the people of the
United States. Chief Justice Marshall may have thought the means of federal title assertion was
not equitable to the Indians. That assertion was based on what has been termed the “discovery
doctrine”; ‘discovery gave an exclusive right to extinguish the Indian title of occupancy, either
by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the
circumstances of the people would allow them to exercise.”20 These rights must be exclusive or
absolute, so it cannot be questioned in the event of a conflict with other rights to title and
sovereignty. Discovery is the way the federal government justified the way it preempted the
Indians’ power over their territory and their affairs. In formulating the status of Indians as a
nation, or nations, Marshall does not go so far as say they are foreign nations; instead he states
“They may, more correctly, perhaps, be denominated domestic dependent nations.”21 While
Marshall may have thought the discovery doctrine was an inequitable one, he may have also
realized he was bound by the legal system in which he had to operate. This is the “actual state of
things”22 that he refers to in his judgments.
With regards to the sui generis and fiduciary nature of the federal-tribe relationship, he
points out that “the relation of the Indians to the United States is marked by peculiar and cardinal
19 Richard L. Barnes, A Woman of the West, but not the Tribes: Justice Sandra Day O’Connor and the State-Tribe Relationship, 58 Loy. L. Rev. 39, 41 (2012). 20 Johnson v. M’Intosh, 21 U.S. 543, 587 (1823). 21 Id. at 17. 22 Id. at 591, See also Worcester v. Georgia, 31 U.S. 515, 543 (1832).
9
distinctions which exist nowhere else.23 He further states that the Indians’ “relation to the United
States resembles that of a ward to his guardian.”24 A ward-guardian relationship usually has a
fiduciary nature to it. Using “peculiar” and ‘cardinal” to describe something or someone has the
effect of setting that something or someone apart from others, which is what a sui generis nature
does.
Tribes have had to go to court to have their rights recognized and upheld in order to
continue to exercise their rights as they always have. In the courts, as elsewhere, cultural
differences between the Indian tribes and the United States courts have made it difficult and
frustrating to make decisions that equitably balance the interests of the parties involved. Over
time, the courts have developed a sui generis approach to treaties:
Although the language of particular treaties may vary, there are common principles that courts use when they interpret treaty provisions. These general rules are called canons;
they derive from contract law and recognize that there are instances in which parties to a contract are not equal, as might be the case where the language of the contract is not
spoken by one the parties, or where the drafters of the contract have the ability to slant the language to their advantage. The canons of treaty construction are that: i) ambiguous expressions must be resolved in favor of the Indian parties concerned, ii) Indian treaties
must be interpreted as the Indian themselves would have understood them, and iii) Indian treaties must be liberally construed in favor of the Indians.25
These canons of treaty interpretation were originally formulated by Marshall.
In the Treaty of Hopewell between the Cherokee and the United States, one of its articles
included the terms “allotted” and “hunting ground” which the Cherokee may or may not have
understood, since they could not write, and their verbal English may not have been very good
either. If this was the case, “it may very well be supposed that they might not understand the
23 Cherokee Nation v. Georgia, 30 U.S. 1, 16 (1831). 24 Id. at 17. 25 Treaty Rights Recognition and Affirmation, Great Lakes Indian Fish and Wildlife Commission
(GLIFWC), http:// www.glifwc.org/Recogntion_Affirmation/affirming.html (last visited Jan. 1, 2016).
10
term employed…If the term would admit of no other signification, which is not conceded, its
being misunderstood is so apparent, results so necessarily from the whole transaction; that it
must, we think, be taken in the sense in which is was most obviously used.”26 The term
“allotted” could have been an unknown and ambiguous term to the Cherokee at that time, so it
needed to be construed the way the Cherokee would have sought to understand it, with any
ambiguities resolved in the Cherokee’s favor. Interpreting “allotted” in this manner would have
been a liberal construction of that term in favor of the Cherokee. Marshall also mentioned that
the true meaning of the articles in the treaties between Indians and the federal government
needed to be ascertained in interpreting the treaties. He did this by looking at the history of that
period of time, at the context in which the treaties were negotiated, and if the interpretation was
consistent with the spirit of the treaties, that spirit which recognizes the rights of the Indians and
the United States as nations.
This was part of the historical context of the treaty process. Marshall laid down the
foundation of tribal sovereignty to explain the relationship between Indian tribes and the federal
government and tribal sovereignty as the basis for the tribal power to make binding treaties.27 In
the cases referred to as the Marshall Trilogy28,” Marshall set out an apologetic justification for
the federal dominance over tribes that were neither citizens, nor, technically speaking, within the
limits of the nation.”29 In this manner, he made a political, as well as a legal judgment, and
possibly, a moral judgment. Whatever his reasons and motivations, by the end of the Marshall
Trilogy, the Chief Justice:
26 Worcester v. Georgia, 31 U.S. 515, 553 (1832). 27 Barnes, supra note 19, at 46-47. 28 Johnson v. M’Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832). 29 Barnes, supra note 19, at 49.
11
had established Indian territory as sovereign, Indians as having a right of exclusive use and occupation and Indian governance of their territory as forbidding interference by the
States. Indian land was firmly in the ownership, at least so far as title, of the United States while the tribes retained the right to occupy it, use it, and govern it exclusive of
state power.30 Marshall laid the foundation for federal Indian law which includes the principles of tribal
sovereignty, the sui generis nature of the federal-tribe relationship, the fiduciary nature of the
that relationship, and principles of treaty interpretation.
2. TRIBAL SOVEREIGNTY
The most significant factor setting federal Indian law apart from preemption law in other fields is the role of the tribes as distinct political sovereigns within the federal system. Federal treaties and statutes have been consistently construed to reserve the right of self-
government to the tribes…If state laws were applied to Indians in Indian country, retained self-government would be greatly restricted and have little importance…For this
reason broad preemption of state laws in Indian country has been consistently recognized as a necessary implication from the federal policy protecting tribal sovereignty.31
Tribes have always exercised the inherent right of tribal sovereignty and self-government.
Indians are a dependent sovereign within the larger sovereign of the federal government; they are
not separate nations, which is the usual way two sovereigns would deal with each other. .
“Indians have reserved use rights, and their sovereignty stems from the right to live on and
govern those reservations.”32 Since the Indian’s territory is located within the larger territory,
there is also the possibility of interference from outside forces, such as one of the state
governments. “Thus, it must be that the federal government has an obligation to protect them.
Protection would seem to include the exclusion of others who would threaten them or even just
seek to extend their influence over them. Neither is to be tolerated if reserved rights are to have
30 Id. at 47. 31 Cohen, supra note 1, at 273. 32 Barnes, supra note 19, at 54.
12
any meaning.”33 This is the unique or sui generis nature of the relationship between the federal
government and the various Indian tribes. Tribal sovereignty also comes from the federal
policy of promoting tribal self-sufficiency and economic development. “Tribal sovereignty in its
pristine, prediscovery form encompassed the full panoply of powers held by all self-governing,
sovereign, political communities. Conquest and the subsequent incorporation of tribes into the
territorial boundaries of the United States, however, subjected the tribal sovereign to the plenary
power of the conqueror.”34 Congress has plenary power to unilaterally abrogate treaty rights.35
Abrogation of rights is the situation in which “Indian hunting and fishing rights can be totally
eliminated so that the Indians have rights that are no different from other citizens. These rights
can also be modified or altered so they are substantially less valuable than when they were
reserved in treaties or in the creation of reservations.”36 In addition, in determining whether
Congress intended to abrogate Indian treaty rights, “What is essential is 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.”37 The
intent by Congress to abrogate treaty rights must be clear. But Congress has also encouraged
tribal self-government and self-sufficiency. Tribes retain their sovereignty, which includes
tribal control over their members and their territory, unless surrendered through treaty or
inconsistent with Congress. One way federal recognition of tribal sovereignty may occur is from
treaty language granting hunting, fishing, and gathering rights, to name a few.
33 Id. at 54. 34 Laurie Reynolds, Indian Hunting and Fishing Rights: The Role of Tribal Sovereignty and Preemption, 62 N.C. L. Rev. 743, 756 (1984). 35 Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903). 36 Cohen, supra note 1, at 467. 37 United States v. Dion, 476 U.S. 734, 739-740 (1986).
13
3. MINNESOTA V. MILLE LACS BAND OF CHIPPEWA INDIANS
“[C]ourts have struggled to ensure ample protection of Indian treaty rights while
recognizing legitimate state conservation interests.”38
In 1837, the United States entered into a treaty with several bands of Chippewa Indians,
one of which is the Mille Lacs Band. Under the terms of this treaty, the Indian ceded land to the
United States, and the United States guaranteed to the Indians certain hunting, fishing, and
gathering rights on the ceded land.
In 1990, the Mille Lacs Band and individual members sued Minnesota, its Department of
Natural Resources, and state officials, for a declaratory judgment that they retained their
usufructuary rights and an injunction to prevent the State’s interference with those rights. The
United States and several counties intervened. The issue in the case was whether the
usufructuary rights of the Mille Lacs Band were extinguished by: the President Taylor’s
Executive Order of February 6, 1850; or by the 1855 Treaty; or by the admittance of Minnesota
into the Union in 1848. The Supreme Court held that the Chippewa retain the usufructuary
rights guaranteed to them under the 1837 Treaty. Justice O’Connor, in delivering the decision of
the court, stated:
Here, the 1837 Treaty gave the Chippewa the right to hunt, fish, and gather in the ceded territory free from 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. 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.39
38 Reynolds, supra note 34, at 750. 39 Minnesota v. Mille Lacs, 526 U.S. 172, 204-205 (1999).
14
The dissent by Chief Justice Rehnquist stated that usufructuary rights are by definition
“of limited duration.”40 Chief Justice Rehnquist concluded that “Pursuant to a Treaty, the
President terminated the Indians’ hunting and fishing privileges in an Executive Order.”41 The
dissent by Justice Thomas stated “it is doubtful that the so-called ‘conservation necessity’
standard applies in cases, where Indians reserved no more than a privilege to hunt, fish and
gather.”42 Justice Thomas also stated that “in the appropriate case we must explain whether
reserved treaty privileges limit States’ ability to regulate Indians’ off-reservation usufructuary
activities in the same way as a treaty reserving rights.”43 Both justices appeared to base their
dissents on framing the hunting, fishing, gathering of the Mille Lacs Band as privileges, rather
than as rights. In their view, privileges did not carry as much weight as rights so they were not
entitled to the same protection afforded to rights. However, Justice O’Connor pointed out
“There is no evidence that the Chippewa understood any fine legal distinctions between rights
and privileges.”44 Any ambiguities are to be resolved in the favor of the Indians.
Rather than applying or even discussing the Bracker test, the court looked to the treaties,
the historical record and the larger context within which the treaties were negotiated and signed
in making its deliberation. In this way, the court used the treaty in its preemption analysis,
although it did not state as much. The court did not even mention preemption. Justice O’Connor
“examined the historical record and considered the context of the treaty negotiations to discern
what the parties intended by their choice of words. This review of the history and the
40 Id. at 220 (Rehnquist, C.J., dissenting). 41 Id. at 216 (Rehnquist, C.J., dissenting). 42 Id. at 223 (Thomas, J. dissenting). 43 Id. at 226 (Thomas, J. dissenting). 44 Id. at 206.
15
negotiations of the agreements is central to the interpretation of treaties.”45 In her conclusion,
Justice O’Connor stated “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.”46
That is where the preemption can occur. The state has authority to regulate natural resources
within their borders, but this authority can become superseded by the federal government treat-
making power. This treat-making power derives from the Supremacy Clause. The preemption
in this situation would be a field preemption, since the federal government occupies the field of
treaty-making, to the exclusion of the states. It could also be a conflict preemption, since the
state’s authority would conflict with treaty rights guaranteed under the treaty made by the federal
government. The treaty rights guaranteed under or through that treaty-making power also
curtail the state’s authority to regulate those treaty rights, subject only to conservation measures.
Minnesota argued that an 1850 Executive Order issued by President Zachary Taylor
revoked the Chippewa usufructuary rights under the 1837 Treaty and ordered the removal of the
Chippewa to un-ceded territory; that the 1855 Treaty abrogated all Chippewa claims; and that the
1858 Minnesota entry into the Union abrogated the Chippewa claims.47 The court held that the
Executive Order did not abrogate the usufructuary rights of the Chippewa; that there was no
mention of usufructuary rights in the 1855 Treaty; and Minnesota’s entry into the Union did not
have any impact on rights in treaties between the United States and the Chippewa.48 The court
reached these conclusions based on its examination of treaty language and historical context.
45 Id. at 202. 46 Id. at 204. 47 Id. at 168-169. 48 Id. at 169-178.
16
This approach requires the recognition of the sui generis or unique nature of Indians and Indian
issues. The application of traditional doctrines of preemption and interpretation is not effective
to areas of Indian law and issues. That is what Chief Justice John Marshall realized and how
Justice O’Connor approached the Mille Lacs case. If a traditional approach is taken, the result is
one that is not based on equity or fairness because it does not take into account the unique nature
of Indians.
IV. ISSUES RAISED BY MINNESOTA
1. TRIBAL COROLLARY RIGHTS
“The utmost good faith shall always be observed towards the Indians; their lands and
property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars
authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs done to them, and for preserving peace and friendship with them.”49
The 1837 Treaty preempted state power over the Chippewa Indians. One issue that has
come out of the Mille Lacs decision is how far do those treaty rights extend within what is now
Minnesota. The decision in Mille Lacs covers on-reservation usufructuary rights within ceded
territory, but an argument has been made that the protection of those rights extends to off-
reservation as well. “Indian tribes like the Ojibwe frequently hold special off-reservation
usufructuary rights that limit a state’s management options. It is crucial to note that these rights
are in no way jurisdictional, but remain a property right, tied to the resource in the usufructuary
right.”50 “Until the mid-19th century, the Ojibwe people were the primary users of the resources
and took advantage of resource abundance by moving throughout their home-land harvesting
49 1787 Northwest Ordinance. An Ordinance for the Government of the Territory of the United States Northwest of the River Ohio ch. 8, art. 3, 1 Stat. 50, 52 (1787). 50 Jason D. Sanders, Wolves, Lone and Pack: Ojibwe Treaty Rights and the Wisconsin Wolf
Hunt, 2013 Wis. L. Rev. 1263, 1286 (2013).
17
resources as the resources became seasonally available.”51 Indians tend to follow the resource,
whatever that resource may be and wherever it may go, so artificial man-made borders and
boundaries have little or no meaning to them. In a similar way, usufructuary rights have little
meaning if there is no inclusion of related tribal rights that maintain or manage that resource.
These tribal corollary rights have gained some recognition and respect in the courts. “Implicitly
and explicitly, courts have recognized that Indian tribes have rights correlated to treaty resource
rights—some courts have determined those corollary rights to be managerial, while others have
determined that the only right corollary to a resource is the perpetuation of the resource.”52 A
resource right means nothing if that resource becomes non-existent or unusable due to damage or
pollution. Another corollary right is consultation or co-management. “While courts sometimes
hesitate to explicitly declare off-reservation tribal corollary management rights, courts recognize
the necessity of some tribal input into the management of that resource, ensuring—at bare
minimum—the right to the perpetuation of that resource.”53 These rights can be defined
narrowly or broadly, on a case-by-case basis, depending on the resources involved.
Framing usufructuary rights as property interests, they can also be protected as any other
intangible property interest, such as sub-surface mineral rights.54 Natural resources have tended
to be considered as a form of property interests. Since usufructuary rights include a right to a
modest living, it follows that they need to be afforded protection as property rights on a par with
rights such as sub-surface mineral rights, so that Chippewa band members can exercise the right
51 Tom Busiahn and Jonathan Gilbert, The Role of Ojibwe Tribes in the Co-Management of Natural Resource in the Upper Great Lakes Region: A Success Story, Great Lakes Indian Fish &
Wildlife Commission (GLIFWC), http:// www.glifwc.org/minwaajimo/Papers/Co-management%20Paper%20Busiahn%20%20FINALpdf (last visited Jan. 11, 2016). 52Sanders, supra note 50, at 1286-1287. 53 Id. at 1289-1290. 54 Id.at 149.
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to a modest living. That protection would also include the continuing opportunity to make a
modest living through maintaining and perpetuating the existence and sustainability of the
usufructuary property rights.
2. VALIDITY OF USUFRUCTUARY RIGHTS OUTSIDE THE 1837 TREATY CEDED
TERRITORY
An argument has also been made that the treaty-guaranteed usufructuary rights of the
Chippewa extend to cover areas of Minnesota outside the 1837 ceded territory and that those
usufructuary rights are just as valid as the rights within the 1837 ceded territory. “Treat-
guaranteed usufructuary property interests in the whole of Northern Minnesota, that are still valid
today, would have a significant impact on the environmental and economic future of Northern
Minnesota and its native people.”55 The impact would affect both the Chippewa and the non-
native people of Minnesota. This shared impact could potentially cause tension and strained
relations between the Chippewa and non-native people but it could also provide an incentive to
find ways to work together in the area of resource management that would serve the interests of
both parties in the long run.
The source of the usufructuary rights that could potentially cover territory in northern
Minnesota that is outside the 1837 ceded territory are treaties that were signed before the 1837
Treaty. These treaties did not cede land to the United States but were “peace and friendship”
treaties and are another potential source of usufructuary property rights to the Chippewa.
Though they did not cede land, they include usufructuary rights that were guaranteed under those
treaties and they cover land that is outside the 1837 Treaty-ceded territory.
55 Peter Erlinder, Minnesota v. Mille Lacs Band of Chippewa: 19th Century U.S. Treaty-Guaranteed Usufructuary Property Rights, The Foundation for 21st Century Indigenous
Sovereignty, 33 Law & Ineq. 143, 148 (2015).
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It was a peace treaty and “A peace treaty with the tribes and a promise of loyalty to the
United States served the interests of the new nation, and treaty negotiator General Anthony
Wayne’s respect for Indian property was matched with a guarantee of continued rights of a
usufructuary nature.”56 During this period of time in the treaty-making process, the United
States was in the midst of being formed, so peace and friendship with the tribes was the goal of
treaties, rather than the acquisition of land. In the 1825 Treaty, “Although the United States did
not seek lands cessions for itself from the Anishinabe, the 1825 Treaty did serve the interests of
the United States on a frontier that was difficult to defend, considering it was ratified only a
decade after the War of 1812—a war in which many Indian tribes in the Northwest Territory had
openly sided with the British.”57 They needed the peace of tribes in those territories while the
United States established its political independence as a nation.
The 1826 Treaty was a secondary treaty that was entered into in order to explain the
terms of the 1825 Treaty to the tribal members who were not present at the 1825 Treaty. “The
1826 Treaty provides, on its face, the evidence that both U.S. treaty negotiators and the
Anishinabe understood that the ability of Anishinabe to live off the land was essential to their
survival.”58 Although the 1825 and 1826 Treaties did not concern the cession of land to the
United States from the Chippewa, they “had memorialized the usufructuary rights…and
guaranteed their continued existence in a treaty, ratified by the government of the Untied
States.”59 Usufructuary rights as necessary to Indians for a modest living. The United States
was more interested in acquiring land, but the Chippewa were more interested in their hunting,
56 Id. at 157. 57 Id.at 159. 58 Id. at 161. 59 Id. at 163.
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fishing, and gathering rights and retaining the rights to continue those activities for their survival,
or a modest living.
The 1837 Treaty was the first land cession treaty in Minnesota. By this point in history,
the relationship between the United States and the tribes, as well as United States policy towards
the tribes, had changed and shifted from “peace and friendship” to acquiring land to
accommodate settlement. “The Treaty did not abrogate, and specifically retained the
usufructuary property rights of the Chippewa that ran with the land area described in the Treaty.
The Treaty did not terminate…the usufructuary rights guaranteed in the rest of Minnesota in the
Treaties of 1825 and 1826 that remained outside the 1837 cession area.”60 Justice O’Connor
stated that “After an examination of the historical record, we conclude that the Chippewa retain
the usufructuary rights guaranteed to them under the 1837 Treaty.”61 The Chippewa retained
their usufructuary rights in exchange for ceding land. “To secure Anishinabe ‘consent’, United
States treaty negotiators took the approach of severing formal title to land from the continued use
of the land for traditional means of survival, thus guaranteeing usufructuary rights to the use of
the land, separate from transfer of title to the land to the United States.”62 Those usufructuary
rights have carried on up to the present and did not pass with title to the United States and could
possibly include the territory outside the 1837 Treaty area as well.
3. CONSERVATION OF NATURAL RESOURCES, STATE LAWS, AND INDIANS
State regulation of tribal usufructuary rights is allowed only for conservation reasons.
“The Minnesota DNR is responsible for implementing conservation and regulatory rules
regarding the care, condition, and sustainability of Minnesota’s public land, water and
60 Id. at 167. 61 Minnesota v. Mille Lacs, 526 U.S. 172, 176 (1999). 62 Erlinder, supra note 55, at 167-168.
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animals.”63 Which brings up another issue of under what types of circumstances would it be
acceptable for state regulations to apply to tribal usufructuary rights. Conservation reasons are
the way to validate the application of state laws, but how would those reasons be determined, and
how would they justify the use of state laws? States can rely upon their police powers but must
meet certain criteria first.
States are able to effectuate regulations over tribes through the use of the state’s police power. A state’s use of its police power must not discriminate against Native Americans,
and must be “reasonably necessary” in improving a public health or safety risk. For a state regulation to be considered “reasonably necessary” a state must satisfy a three part
test by showing that: (1) “there is a public health or safety need to regulate a particular resource in a particular area;” (2) the regulation sought is “necessary to the prevention or amelioration of the public health or safety hazard;” and (3) regulation of “the tribes is
necessary to effectuate the particular public health or safety interest.”64
The regulations must also be the least restrictive option available to the state. Balancing the
interests of the tribe and the state in the area of natural resource management is the goal of the
three part test. “As a result of the 1999 Minnesota v. Mille Lacs Band of Chippewa Indians case,
the Chippewa are granted some autonomy to create and manage their own conservation efforts
while working with the DNR.”65 It would also require some cooperation between the tribe and
the state in gathering information and evaluating that information to determine if taking
conservation measure would meet the test. Because of the Mille Lacs decision, both Minnesota
and the Chippewa are in a position to deal with issues of conservation.
Another issue that has come out of the Mille Lacs decision is co-management of natural
resources by the states and tribes. “Cooperative management is the best-known model for
enacting the Tribe’s rights while advancing Wisconsin’s legitimate interest in wolf depredation.
The alternatives include protracted and bitter public disputes and/or lengthy, expensive litigation
63 Steffes, supra note 3, at 382. 64 Id. at 375. 65 Id. at 382.
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that will sow uncertainty over wolf policy.”66 This is the situation that occurs when two
sovereigns are both seeking to advance their interests in the same territory involving the same or
similar resources.
Indian tribes ceded land and territory to European settlers in exchange for reserving
sovereign territory and reserving explicit and implicit rights protected by the federal government. This is an important distinction: tribes did not gain rights by treaty, but
rather guaranteed the perpetuation of rights they always held as sovereign people. These sovereign reserved rights have been a source of conflict and cooperation.67
Neither the states nor the tribes can afford the time, expense, and effort that prolonged litigation
can entail. These cases can be in the court system for years before they get set for trial and the
outcome is usually not certain for either side. Negotiation and collaboration would serve the
interest of both parties because it could result in a decision reached by them, rather than a
judgment imposed on them. In addition, there are Indian tribes that are not in a financial position
to cover the costs of litigation. Negative fallout and adverse publicity from heated public
disputes hurts both sides as well, internally and externally.
V. CO-MANAGEMENT OF USUFRUCTUARY RIGHTS
1. GREAT LAKES INDIAN FISH AND WILDLIFE COMMISSION (GLIFWC)
An example of success in the area of co-management is the Great Lakes Indian Fish and
Wildlife Commission (GLIFWC). The GLIFWC was established:
in 1984 through the merger of two already existing entities—the Voigt Intertribal Task Force and the Great Lakes Indian Fisheries Commission. GLIFWC is governed by a
Board of Commissioners that sets policy; a Voigt Intertribal Task Force that focuses on issues in the 1837 and inland portion of the 1842 ceded territory; and a Great Lakes
Indian Fisheries Committee, whose focus is Lake Superior. GLIFWC’s existence is based upon the sovereignty of each of its member tribes and it is an agency of delegated
66 Sanders, supra note 50, at 1268. 67 Id. at 1269.
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authority from those tribes. It is structured to facilitate intertribal consensus on issues of common concern regarding off-reservation treaty rights.68
The values and practices of sharing and consensus are common among Indian people. That is
the customary manner of dealing with issues and concerns that may impact the community.
The GLIFWC was formed by 11 Ojibwe tribes who had the usufructuary rights to hunt,
fish, and gather natural resources from the ceded territories.69 “The GLIFWC is a co-
management and licensing body created by Anishinabe bands in the 1854 Treaty territory to
implement the resource sharing concept required by the treaty guarantees.”70 Usufructuary rights
are the rights to use and occupy the land and resources, but they also include the right to modest
living and “where these property rights have been guaranteed by treaty with the federal
government, shared management and shared income as co-equals with state governments is
mandated, either through joint state/native management or state leasing of treaty-guaranteed
usufructuary rights.”71 Working together to manage, maintain, and perpetuate natural resources
is no longer optional if there are to be any viable resources left for anyone.
Working together can also provide opportunities to learn from each other that will serve
the interest of all parties concerned so cultural differences do not have to stand in the way as they
have in the past.
In the early 1900’s a conservation ethic developed among non-Indian users that was embodied by the ‘North American Wildlife Model’. The model’s basic principles were that fish and wildlife belong to all North American citizens, and fish and wildlife should
be managed in such a way that their populations will be sustained forever. In practice, the States encouraged use of less efficient gear, with restricted seasons and bag limits, to
68 Treaty Rights Implementation—The Nature and Scope of the Rights, Great Lakes Indian Fish
and Wildlife Commission (GLIFWC), http://www.glifwc.org/Recogntion_Affirmation/affirming.html (last visited Jan. 1, 2016). 69 Busiahn, supra note 51. 70 Erlinder, supra note 55, at 206. 71 Id.at 151.
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accommodate an ever-increasing number of users. Harvest regulations were enacted to implement this inefficiency.72
The principles behind that Wildlife Model did not work out in practice very well. However,
“[u]ntil the mid-19th century, Ojibwe people were the primary users of the resources and took
advantage of resource abundance by moving throughout their home land harvesting resources as
the resources became seasonally available.”73 The principles behind the non-Indian and the
Chippewa views regarding natural resources and their use and management differ in their
worldviews, beliefs and values. “Tribes have managed ceded territory resources and harvest for
hundreds of years.”74 Because worldviews are different, there is ample opportunity for
misunderstandings and resistance. “State fish and wildlife managers had great difficulties
accepting the exercise of treaty rights because it challenged their fundamental worldview. The
exercise of treaty-protected harvesting rights off-reservation by tribal members under their own
culturally appropriate rules challenged the principle that fish and wildlife was to be managed by
states for all citizens.”75 Recognition and affirmation of treaty rights of the Indians allowed the
Indians to have a voice in the management of natural resources. Having a voice allows for
contributions that can work with the States to further the sustainability of the natural resources
within their territories. This is co-management or shared management.
The 1837 Treaty preempted state power over the Chippewa, which allows an
organization like the GLIFWC to exercise its power on and off the reservations. “In treaties
signed in 1836, 1837, 1842, and 1854, the tribes reserved hunting, fishing, and gathering rights
in the areas (land and water) ceded to the United States. It must be emphasized that these ceded
72 Busiahn, supra note 51. 73 Id. 74 GLIFWC, supra note 68. 75 Busiahn, supra note 51.
25
territory rights were not given or granted by the United States, but were reserved by the tribes for
themselves.”76 The land that was ceded includes land in northern Michigan, Wisconsin, and
Minnesota. These rights are an important part of the culture and way of life of Indian people.
Taking a child or a youth to teach them how to hunt, fish and gather not only teaches them the
mechanics of those activities but it is also a good time for teaching the cultural values behind
those activities and why they have been important and continue to be important to the Chippewa.
“In proper perspective, this reservation of sovereign rights is part of the Ojibwe’s ongoing
struggle to preserve a culture—a way of life and as set of deeply held values—that is best
understood in terms of the tribes’ relationship to Aki (earth) and the circle of the seasons.”77
They do not just provide for sustenance needs, but also contribute to the religious, medicinal,
ceremonial, and teaching needs of the Chippewa.
Treaty rights that are recognized and affirmed are one thing, but determining and
implementing the scope of those rights may be another one. Responsibilities are included in the
exercise of those rights and they may also have to be coordinated with the rights of other tribes
and non-Indians.
In addressing how tribes can preempt state regulation of their ceded territory rights, courts have said that the tribes must be able to effectively regulate themselves and protect
legitimate state conservation, health, and safety interests. This necessarily involves another aspect of co-management—communication and coordination with non-tribal
governments that exercise management authority within the ceded territory. The requirement that tribes have in place effective self-regulation has a variety of implications in a shared rights context. Tribes must, individually as well as collectively, 1) undertake
effective management programs and adopt and enforce regulations consistent wit the standards above (ie. reasonable and necessary for conservation, public health and public
safety), 2) remain within the tribal allocation of resources, and 3) engage in intertribal co-management to accomplish effective self-regulation.78
76 GLIFWC, supra note 25. 77 Id. 78 GLIFWC, supra note 68.
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For co-management to be successful, there needs to cooperation, communication, and
collaboration, which requires the parties to share information, responsibilities, and authority.
This can result in a sharing of the natural resources and a shared income from those resources.
One practical way that the GLIFWC exercises their treaty rights is through the issuance
of permits and tags for off-reservation treaty hunting, trapping, and gathering. A tribal picture
identification is required for a permit and tag and they can be obtained at the tribal registration
station or the tribal conservation office. The territories include the 1837 and 1842 ceded
territories of Michigan, Wisconsin, and Minnesota. The GLIFWC has an Enforcement Division
which is “primarily responsible for monitoring all off-reservation treaty harvest seasons in the
ceded territories and enforcing the tribal codes that regulate each season.”79 The Enforcement
Division has their own officers and wardens whose duties include both patrolling and monitoring
within the ceded territories of Michigan, Wisconsin, and Minnesota. “GLIFWC wardens
routinely patrol and monitor treaty harvest activities in the ceded territories of Michigan,
Wisconsin, and Minnesota, checking for infractions of tribal codes governing treaty harvest
seasons. Violations are cited into tribal courts.”80 The goal includes protection of the natural
resources through monitoring and enforcement.
2. CONCLUSION
Federal preemption of state control over Indians and Indian affairs through Indian treaties
is another way to illustrate the sui generis nature of Indian law in the legal system as well as the
sui generis nature of the relationship of Indians and the federal government. This sui generis
nature has its roots in the inherent tribal sovereignty of Indians as well as the historical context in
79 Enforcement Division, Great Lakes Indian Fish and Wildlife Commission (GLIFWC), http:// www.glifwc.org/Enforcement/enforcement.html (last visited Jan. 11, 2016). 80 Id.
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which the treaties were negotiated and signed. In the area of preemption, where the sui generis
nature has been recognized, it becomes apparent that the states are not Indian tribes and the
doctrine of preemption cannot be applied in the traditional manner. To do so would produce a
result that would be inequitable and unfair to the Indians, in that it would disregard their tribal
sovereignty. The word “unique’ comes up frequently in cases and articles that involve Indians
and Indian affairs. That is because of their sui generis nature. When faced with an issue that
concerns Indians and Indian affairs, the courts, governments and Indians, recognizing that sui
generis nature, will be able to arrive at equitable and fair outcomes to disputes.