Menominee Tribe of Indians v. United States – Oral Reargument – April 25, 1968

Media for Menominee Tribe of Indians v. United States

Audio Transcription for Oral Argument – January 22, 1968 in Menominee Tribe of Indians v. United States

Audio Transcription for Oral Reargument – April 25, 1968 in Menominee Tribe of Indians v. United States

Earl Warren:

Number 187, Menominee Tribe of Indians, petitioner versus United States.

Mr. Hobbs.

Charles A. Hobbs:

Mr. Chief Justice and may it please the Court.

Your Honors, this case involves the question whether the Menominee Indians still have the right to hunt and fish on their own land without regard to state bag limits, license fees and seasons.

We and the United States say that they are not subject to these regulations, contrary to the State of Wisconsin which says that they aren’t.

I will first give you a little background about the Menominee Tribe.

This tribe was discovered so to speak in 1634 by Father Nicolet.

These Indians, who today number about 3200, live in Eastern Wisconsin where they always have lived.

They originally occupy the very large section of Wisconsin about 12 million acres.

And through a series of sessions, they were reduced by 1854 to 230,000 acres which was remained the size of their reservation up to the present day, this country is forest and lake country.

The Menominee Reservation is 95% forest land.

Its good quality forest land aboriginally and up until the time of the treaties and today.

They have hunted and fished.

This is an excellent hunting and fishing country and also trapping.

The reservation abounds with deer, with trout and with poultries such as muskrat and beaver.

Potter Stewart:

Were you saying that it’s an eastern hunter State around Hayward or —

Charles A. Hobbs:

Around Green Bay.

Potter Stewart:

Green Bay.

Charles A. Hobbs:

Inland from Green Bay.

Potter Stewart:

Further south.

Charles A. Hobbs:

Yes.

Generally speaking, this tribe has enjoyed peaceful relations with United States.

They are not one of the hostile tribes with which United States have to deal.

As of 1954, which is the key or it was the beginning of the termination stage of this case, they have about 3200 members.

The reservation as I said consisted of about 230,000 acres.

On this reservation was a mill which belonged to the Menominee Tribe on the basis that United States held it in trust for the Menominee Tribe just as it held the reservation in trust for the Menominee Tribe.

This mill processed the products of the forest.

It logged the timber and then cut it into lumber and marketed it.

A number of Menominee’s several hundred, worked at this mill and those who did their average income is about $2300.00.

For those who did not, their average income was about $650.00.

Charles A. Hobbs:

The tribe owned a trust fund held by the United States in trust has about $9.5 million as of 1954.

This money, most of it arose from a judgment against United States for mismanagement of the tribe’s timber.

The Court acclaims after a long trial held that there had been mismanagement and that the damages were $8.5 million.

And this tribe up until 1954 like most other Indian tribes was under federal supervision or federal guardianship as it is sometimes called.

Unlike most tribes, this tribe paid for that guardianship.

Most of the federal services that came to the tribe, the tribe paid for because it had the money to do so, thanks to its mill and later its judgment fund.

Now, I will now go back to the treaty under which we claim our hunting and fishing rights.

In a two-step transaction in 1848 and 1854, the Menominees first seeded all of their land in Wisconsin.

The idea was if they’re going to move to the Red Wing reservation in Minnesota.

But it was understood at least by the Menominees and I think generally understood that they’re going to take a look at the Red Wing reservation and see whether they liked it or not.

Yes they did.

An exploration party went to the Minnesota reservation, inspected it and came back with stories that the hunting and fishing was no good there.

So the United States and the tribe refused to move.

So the United States suggested another location for them.

This time the Wolf River reservation which was just north of where they were then camping.

The Menominees inspected that and they notice that the hunting and fishing was excellent.

They so stated and agreed to take it and that’s what they did.

They moved to the Wolf River reservation which is a little north of where they were then camping.

Later, the State — that was in 1852.

In 1853, the State of Wisconsin consented to the setting aside of the Wolf River reservation and in 1854, we come to the treaty which is the basis of this case.

The 1854 Treaty confirmed these events that I’ve just finished describing.

The tribe retroceded its interest in the Red Wing reservation and acquired its interest in the Wolf River reservation and that reservation was given to them under the following language, to be held as a — for a home to be held as Indian lands are held.

Now that is the language under which we say we have acquired hunting and fishing rights.

This protected the Indian’s aboriginal customs to hunt and fish in accordance with their way of life.

Potter Stewart:

Where is that in our record?

Charles A. Hobbs:

The treaty language, Your Honor?

Earl Warren:

It’s on page 31 isn’t it of the Appendix?

Charles A. Hobbs:

Yes, that’s correct.

Thank you Your Honor?

Earl Warren:

Thank you.

Charles A. Hobbs:

Now, until this case arose in 1954, no one question these rights to hunt and fish for the state regulation.

But in 1954, the Congress passed an Act which terminated the federal supervision to which I have referred.

And in general terms, it made the state laws applicable to this reservation.

The 1954 Act said nothing about exempting the hunting and fishing rights for the state regulation but during the course of the Bill in Congress, the joint committee was told by the drafter of the Bill, the Department of Interior, that this Bill would not abrogate or affect any treaty rights.

Further, when the Bill was signed by President Eisenhower, the father of the bill, Senator Watkins announced proudly that this Bill, “The Bill in no way violates any treaty obligation with this tribe.”

In spite of these assurances as we will see, Wisconsin claims that the rights have been abrogated by this 1954 Act.

The 1954 Act gave the Menominees a period of time in which to adjust to the new conditions to make arrangements with the State with the new services which would be required and generally to transition from being under federal supervision to being on their own.

And it was not until 1961 that the Termination Act finally became effective.

The termination plan which was finally made effective in 1961 was as follows.

Prior to termination, the tribe governed itself, subject to general and federal supervision.The major tribal asset as I said was the Menominee forest and the mill.

And they also have this large cash trust fund.

The other assets — other tribe were tangible personal property associated with milling operation such as their lumber inventory or milling equipment.

And they had an additional asset which was their treaty hunting and fishing rights.

Now all of these assets except the hunting and fishing rights were owned by the United States entrust for the tribe.

The United States had the legal title to all of this property and the tribe had the beneficial title.

And the United States kept careful accounts of all these trust property and this excluded as I say the hunting and fishing rights.

Abe Fortas:

But why do you say that?

Charles A. Hobbs:

For several reasons.

Number one, the essential nature of this right is freedom from outside restriction and interference for the United States to be — to have a guardian’s possession of it is inconsistent with the right.

It was a treaty protected conduct, number one.

Number two, the United States kept track of all the property that it own for the tribe and this right did not appear on any of the ledgers or accounts that the United States kept.

Abe Fortas:

Is this — this is an important step in your argument, is it not?

Charles A. Hobbs:

Yes, it is.

For — as we will see, all of the trust property was conveyed to the Menominee Corporation which I’ll come to and I therefore will argue that this not being trust property was not conveyed and remained in the tribe.

Now with respect to the tribal property which was predominantly the forest and the mill.

The tribe decided that it would set up a private corporation, a business corporation under the laws of Wisconsin to own the land and the mill and to operate it.

It was felt that this would be the most efficient way to continue the business of logging and milling the lumber.

The profits would flow to the members of the tribe by making them stockholders of this corporation.

With respect to the tribal governmental powers, the plan was to make the reservation a county under the organic laws of Wisconsin and the county would govern itself subject to state supremacy just like any other county of Wisconsin.

Abe Fortas:

Forgive me — forgive me but to get back to the ownership of the hunting and fishing rights.

Abe Fortas:

Is it your argument that those were owned by the tribe — total title is in the tribe or that those hunting and fishing rights were owned by the members of the tribe?

Charles A. Hobbs:

No Your Honor.

Our position is that they were owned absolutely by the tribe which is customary — a customary form of ownership for Indian property and there are cases saying that tribal property — that hunting and fishing rights are owned by the tribe.

Abe Fortas:

And your argument is that the Menominee termination in fact did not terminate the existence of the tribe.

Charles A. Hobbs:

Correct.

Abe Fortas:

But it merely terminated the federal supervision of the tribe.

Charles A. Hobbs:

Yes and caused a severe or perhaps total lost of their sovereign powers.

Abe Fortas:

Of the tribe’s sovereign powers.

Charles A. Hobbs:

Yes.

Abe Fortas:

But that the tribes continued has some kind of an entity, legal, mystical or otherwise for purposes of continued ownership of the hunting and fishing rights.

Charles A. Hobbs:

Yes Your Honor but that is not the only purpose of their continued existence.

They have a number of local problems.

Byron R. White:

Didn’t they actually formalize their existence — their continued existence under the state law?

Charles A. Hobbs:

They did.

Byron R. White:

As a tribe?

Charles A. Hobbs:

Well —

Byron R. White:

Is it around incorporated to something —

Charles A. Hobbs:

They formed a membership corporation under the laws of Wisconsin.

That’s like an Indian putting on White man’s clothes.

It’s still an Indian underneath.

I don’t want to stress the corporation too much because still the tribe is function here although now they are using the organization of a state membership corporation.

Abe Fortas:

It could be a serious question when that is to whether the Indians could transfer their hunting and fishing rights an unincorporated association without destroying them.

Charles A. Hobbs:

I would say there is a question there but of course our position was there was no transfer that the tribe before and today, the tribe itself with no transfer or change of ownership owns the rights.

Abe Fortas:

In other words, your position is that the membership corporation is nothing whatever to do with the ownership of the hunting and fishing right.

Charles A. Hobbs:

That’s right.

We don’t say that could that corporation owns the rights.

The tribe owns the rights.

Byron R. White:

Right.

Charles A. Hobbs:

But they have taken on the form of a membership corporation for the purpose — they do have some business transactions they need to make.

Byron R. White:

At least there are evidence — the evidence is that the tribe’s intention to remain and exist.

Charles A. Hobbs:

Exactly, Your Honor.

Its proof —

William O. Douglas:

I asked you earlier for the reference in the record for the provision for hunting and fishing rights.

I gather there it is not expressed.

Charles A. Hobbs:

That’s correct Your Honor.

It’s —

William O. Douglas:

It’s only implied.

Charles A. Hobbs:

Implied from the language to be held as Indian lands are held.

So after 1961, well, I’ll make one more point.

After the plan was implemented, the United States made a number of deeds and accountings to the tribe whereby the property was transferred from the United States to the new business corporation which was called Menominee Enterprises, Inc.

There are two deeds dealing with lands.One for forest lands and one for non-forest lands, these was silent as to hunting and fishing rights.

The accountings as to the moneys were of course silent as to hunting and fishing rights, the accounting for the personal property which the mill inventory, mill equipment, office furniture and the like, all silent as to hunting and fishing.

In other words, what was transferred appears on paper somewhere.

Every bit of it was listed somewhere and no hunting and fishing rights appeared.

So that’s additional support for our position as there was no transfer of this hunting and fishing rights.

Abe Fortas:

Would that be any — would that come in any point of time when the tribe whether it could cease to exist for purposes of the ownership of the hunting and fishing right?

Charles A. Hobbs:

Yes.

Abe Fortas:

How could that come about?

Charles A. Hobbs:

We have covered that in the brief.

Our position is that if the tribe through blood delusion or let’s says the loss of their community relationship by dissipation among other towns and cities of the country.

If they lost their common traditions and existence as a tribe, a Court could examine the challenge to their continued existence and find whether or not they continued to exist as —

Abe Fortas:

So long as there were two Indians with a requisite blood characteristics living in this general area, the tribe would continue to exist.

Charles A. Hobbs:

If I were the judge handling the challenge to the continued existence of the tribe and now we’re faced with two Indians only, I might well hold that the tribe as such had ceased to exist.

Abe Fortas:

I might have to have ten.

Charles A. Hobbs:

Yes.

The judge would have to consider how many would be necessary.

Of course–

Byron R. White:

But in any event, I gather the fishing rights zone, by the tribe are exercisable by the members, but only by the members of the tribe —

Charles A. Hobbs:

Yes.

Byron R. White:

— also with qualified members.

Charles A. Hobbs:

Well, that is basically correct.

Although we do say that the tribe could license others to use them though not exempt from state hunting and fishing laws.

In other words, I guess that would be a land owner’s right to license others to use them.

Excuse me Mr. Justice Black.

Hugo L. Black:

What the Indians have been doing here?

Charles A. Hobbs:

Licensing others.

Hugo L. Black:

Yes.

Charles A. Hobbs:

No Your Honor, they do not license others.

Byron R. White:

But the tribe doesn’t own the property it ignores so it couldn’t license as landowners.

Charles A. Hobbs:

That’s correct.

I think it is probably true that they could only — that only their members could use it.

Byron R. White:

Fishing right.

Charles A. Hobbs:

The hunting and fishing right — rights meaning exemption from state hunting and fishing regulations.

Byron R. White:

But also rights which would override whoever owned the right which would be sort of the right to fishing and goes unconnected with the ownership of land, whoever owned that land would have to permit the Indians to fish on it.

That is our position, yes.

And a position upheld by this Court in two cases, the Winans and Suffolk cases which held that land formally owned by the tribe which receded to the United States and later patented to a White settler, nevertheless the Indians who had reserved a treaty right could come back on the land and climb the White owner’s fences and cross his land and reach their fishing stations.

We argue for the same attribute of our rights.

To proceed then after 61, after the Termination Act became effective, we have this situation.

The tribal forest in the middle, the tribal trust funds and the personal property was all owned and operated by the Menominee Enterprises, Inc. which was the business operation of the tribe.

The government of the reservation passed to the new county government.

The people — this people living together and sharing common traditions and culture setting them apart in some respect from their White neighbors, continued to exist as a tribe.

They had meetings, they elected leaders, they discussed local problems and protecting the hunting and fishing problem.

In short, they continued to be a tribe.

Now, when the State in 1962 declared that it was going to enforce state hunting and fishing regulations on this reservation, the business corporation didn’t care.

It had its profit to make.The county government didn’t care, only the tribe cared.

The tribe existed, it cared, it met and it resolved that it would fight this decision and later in the fall of 1962 when the State arrested three Menominee Indians for violation of regulations, this case began.

Abe Fortas:

Tell me again, I’ve forgotten.

Is all of the former reservation land now in private ownership?

Charles A. Hobbs:

If you consider Menominee Enterprises Inc. to be a private owner, then yes.

The reservation is probably 99% owned by Menominee Enterprises Inc.

Charles A. Hobbs:

There are a few private home lots and the — the roads belong to the State, but basically, it belongs to Menominee Enterprises Inc. whose stockholders are the Indians.

Potter Stewart:

And then Wisconsin formed a new county —

Charles A. Hobbs:

Yes.

Potter Stewart:

And does this county consist of anything else except the former reservation?

Charles A. Hobbs:

No, solely the former reservation.

Potter Stewart:

So the whole 90% — more than 90% of the whole county is owned by this corporation?

Charles A. Hobbs:

Yes.

Yes, Your Honor.

The local court after these three Menominees were arrested — the local Court acquitted them, and he gave a long of opinion, which has resided in our appendix.

He had held that the tribe still owned the hunting and fishing rights because they were treaty rights and you can’t abrogate treaty rights, he said, by mere implication unless there’s a clear intent to do so, and he didn’t find that intent in the 1954 Termination Act.

So he held they still existed.

The State appealed and the Wisconsin Supreme Court held.

Sure enough, the tribe did have the right originally but the Termination Act did abrogate that right.

And so, it held that the Indians were subject to fine.

We asked this Court to review the case at that time but the certiorari was denied.

That seemed to be the end of our attempt to vindicate our rights, so we went to the Court of Claims and asked for payment for the loss of those rights.

Then, to our surprise but pleasure, the Court of Claims held that we did indeed still own the rights and therefore could not recover compensation.

Well, this — we had lost our first prize, we thought, and we’re going for the consolation prize in the Court of Claims but we lost the consolation prize on the grounds that we’re entitled to the first prize.

So —

Potter Stewart:

The Court of Claims isn’t — there’s no question of the full face of credit in that case —

Charles A. Hobbs:

Full face in credit, giving credit to the Wisconsin judgment?

Potter Stewart:

Yes.

Charles A. Hobbs:

No, I suppose no more so than a conflict between two circuits or any state and federal court, which is well within your experience.

Potter Stewart:

Alright.

Charles A. Hobbs:

Well, the conflict of course was the occasion for this Court accepting the case for review.

Our position basically is that the Court of Claims was right.

Our clients, the Indians, would very clearly prefer to have the hunting and fishing rights than any compensation likely to be awarded for it.

But as an alternative, if they are not entitled to the first prize, then they want the consolation prize, which is compensation for the loss, and they do make that as an alternative position here.

Since it’s briefed, I’m not going to go into it in oral argument unless requested.

I have four simple points to make on oral argument.

Charles A. Hobbs:

Number one, the tribe acquired a treaty protected right to hunt and fish free of state regulation as of the — as of the 1854 Treaty.

Number two, the 1954 Termination Act did not cut off this right.

Number three, the 1954 Act did not terminate the existence of the tribe.

And number four, ergo, the tribe still owns the right today.

Point number one, the 1854 Treaty guaranteed the tribe’s hunting and fishing rights.

This of course is basic to our case and it is a point which has been accepted by every Court which has addressed it and by two Oregon Courts which have addressed a very similar question with respect to the Klamath Indians.

It’s fully briefed.

I don’t intend to dwell on it, but I’ll briefly cover the bases of it.

The Court of Claims in an earlier Menominee case, in my brief, blue brief at page six, I quote the Court of Claims’ findings in this earlier 1942 Menominee case.

The Court of Claims found as follows,”The bases, the background, the previous history, and the negotiations leading up to the 1854 Treaty show that the Indians were desirous of securing hunting lands and that the swamp lands were particularly suited for this purpose being filled with all kinds of game.”

Also, part of the inducement for the moving of the Indians from their former home to their new home, and one of the reasons for entering into the new treaty was the fact that the track in question contains swamp lands which were suitable for hunting.

What I’m saying is there was an expressed understanding here between the Indians and the United States that they were to — that hunting and fishing was important to these Indians and they were to have this right unrestricted when they moved on to their new reservation.

This understanding did not appear in the treaty but it was the same as if it had because of the expressed understanding of the parties.

Abe Fortas:

Do we have before us the plan that the Indians submitted pursuant to the Termination Act?

Charles A. Hobbs:

You do by reference to the Federal Register where the full plan was published.

Abe Fortas:

It’s not printed in any of these documents before us?

Charles A. Hobbs:

The State of Wisconsin has reprinted a good part of it in the appendix, their appendix in full.

Well, the Federal Register material is extremely voluminous.

In addition to the plan, they have a lot of other materials which bear on the plan, such as the bylaws of the Menominee Enterprises Inc.

Since the United States and the State of Wisconsin agree that we did have the rights, there’s no point to belabor this —

Byron R. White:

Well, don’t you have to consider whether or not this treaty, although it may have granted the fishing and hunting rights while the Indians own the land, nevertheless, the rights were not tied in the land?

I mean, it made the — certainly, they may have had it but the words of the treaty are that to — giving the land of the Indians for a home to be held as Indian lands are held.

And you say that because — that the way Indians held the land that they use for hunting and fishing.

But now that they’ve conveyed — where the tribe’s convey the way the land that the corporation may sell it off to private parties or allocate it to private individuals.

You say that nevertheless, the fishing rights survived the alienation of the land.

Charles A. Hobbs:

Yes.

Byron R. White:

Now, do you have any cases like that?

Charles A. Hobbs:

Well, Winans and Suffolk are directly in point, Your Honor.

Byron R. White:

Why?

Charles A. Hobbs:

Why?

Charles A. Hobbs:

Because in those cases, the tribe’s alien — the Yakama Tribe alienated the land and —

Byron R. White:

Well, yes, but what the — where did they get the right?

Charles A. Hobbs:

From the treaty.

Byron R. White:

And what does the treaty say in those cases?

Charles A. Hobbs:

They shall have the right to hunt and fish in common with the White settlers.

Byron R. White:

Well, that’s — that’s somewhat different language there in this treaty which have — which ties it to the land.

Charles A. Hobbs:

Well, to be sure, the Yakama Treaty was an expressed one but we say we have a right of equal power by implication, which was the expressed understanding of the parties which did not appear in the treaty, true, but was expressly understood by the parties.

Byron R. White:

Well, I think it would be quite understandable the intent of the treaty as long as they used it as a home and lived on the land.

Charles A. Hobbs:

That is a possible construction of that language.

It’s not a construction accepted by any of the Courts which have addressed the point so far.At Wisconsin Trial Court, Wisconsin Supreme Court, Court of Claims, U.S. District Court in Oregon and local state court in Oregon all have concluded that this — these rights did survive the alienation of the land.

But point number two, the 1954 Termination Act did not cut off the treaty rights.

The complete legislative history is given in my brief, and I won’t go in into too much detail here, but the salient points are number one, Congress was told by the drafters of the Bill that this Bill would not cut off any treaty rights.

Number two, the father of the Bill, Senator Watkins, announced on the signing of the Bill that this Bill did not violate any treaty rights.

Number three, the final termination plan incorporated as part of itself Public Law 280, which was a general Act of Congress extending state laws on to reservations.

And Public Law 280 expressly preserves hunting and fishing rights.

The termination plan incorporated Public Law 280 we say and the Court of Claims so found, which incorporated also the expressed protection of hunting and fishing rights.

And finally, the settled law of construction is that treaty rights, Indian treaty rights will not be deemed to be abrogated by implication unless absolutely required by an inconsistent statute.

The — as I say, the Wisconsin Trial Court held that the rights survived the Termination Act.

The U.S. District Court and this local state court in Oregon held that the Klamath rights survived the Klamath Termination Act and the dissent in the Wisconsin Appeals Court, the Court of — Wisconsin Supreme Court held that the rights survived the act and still exists.

My point — my third point is the Termination Act did not terminate the tribe.

This also is fully argued in the brief, the orange colored brief.

The Court of Claims — it was fully argued before the Court of Claims and they held that the Termination Act did not terminate the tribe, and we didn’t think it was going to be an issue up here, which is why we did not argue it originally.

When we did find it was an issue, we did present our material in the orange brief.

And basically, it is this, as federal Indian law says which is the authoritative textbook on Indian law, the mere termination of a tribe does not necessarily mean the termination — I mean the termination of federal supervision of a tribe does not necessarily mean termination of the tribe itself.

The —

William O. Douglas:

Do you have any question, the problem here is respecting future membership of the tribe, the enrolment by the Secretary of the Interior, the book has been closed I — as I understand.

Charles A. Hobbs:

The book was closed for purposes of distributing the tribal trust property, and that was the only purpose for that final rule.

The tribe continues and the tribe can continue to have new members through birth and other reasonable —

William O. Douglas:

What is the definition of Indians for this purpose of this treaty?

Charles A. Hobbs:

That’s one of the toughest questions in all Indian law, Your Honor.

Charles A. Hobbs:

What — we — we simply must focus on the precise — as narrow and as precise a question as possible.

I have reserved 15 minutes for rebuttal.

I’ll go into that in a little bit, and then we’ll sign off.

We’ll have to look as narrowly as possible at the definition of Indian for the particular case.

In this case, the definition — the relevant definition is Menominee Indian and we say it is what the — basically what the Menominee Tribe says it is, subject however to — if there’s a deviation from accepted — generally accepted Indian concepts of who is a member, then a Court could refuse to recognize the Menominee’s declaration that Mr. X was a member of the tribe.

William O. Douglas:

Do they — the only tribe I have any real acquaintance with is the tribe out west, the Yakama tribe?

They’re 3,000 — they’re only 300 full bloods and they take — that they, the tribe, count as an Indian.

Anybody was 164.

Is there any rule of thumb that your tribe —

Charles A. Hobbs:

Yes, Your Honor.

My tribe has a — an — in 1934, Congress passed an — an Enrolment Act for the Menominee Tribe, which was later amended.

Basically, it says that anyone with one quarter blood who was born to parents, one of whom was a resident of the reservation and a member of the tribe, he can be — he’s eligible to be a member of the Menominee Tribe.

So in short, a quarter-blood Menominee blood and parents who live on the reservation and one of them was a member of the tribe.

William O. Douglas:

So that means in that in time, this will — they’ll disappear then because there’s no reservation and nobody is being born in that place.

Charles A. Hobbs:

Well, people are being born.

William O. Douglas:

I know they’re being born but not on the reservation.

Charles A. Hobbs:

That’s a very good point.

I’m not sure the tribes thought of that.

I think they still consider this land as their own land.

But I do say the tribe is free to amend their — their membership requirements so that they could convert the reservation requirement into Menominee County requirement.

William O. Douglas:

Could they take me in?

Charles A. Hobbs:

They could, but the Court would not — surely would not recognize that because you do not maintain tribal relations with the tribe.

William O. Douglas:

If I go out there and hunt a fish, maybe I would.

Charles A. Hobbs:

The —

Hugo L. Black:

How many members of the tribe?

Charles A. Hobbs:

A little over 3200, Your Honor.

That was how many were on the final rule.

There have been some deaths and births since then.

My final point, which is that the tribe still owns the hunting and fishing right, is a secret there for my other three points.

If they originally got the right, if they didn’t lose it under the Termination Act, if the tribe still exists, then they still own the right because it was never conveyed away from them.

Charles A. Hobbs:

Only trust property was conveyed away from them.

And subject to questions, Your Honor, I will reserve the rest of my time for rebuttal.

Earl Warren:

You may Mr –.

Bronson C. Lafollette:

May it please the Court.

Earl Warren:

Mr.–

Bronson C. Lafollette:

I’m Bronson LaFollette, Attorney General of Wisconsin appearing here on behalf of the State of Wisconsin as amicus curiae at the invitation of this Court.

Earl Warren:

You may proceed, Mr. Attorney General.

Bronson C. Lafollette:

The State appears here as amicus curiae and has a — a very keen interest in the resolution of the issues presented by this case because the issues raised in this case have a direct and immediate impact on the sovereign power of the State of Wisconsin to protect and conserve the wildlife hab — habitat, which it holds in trust for all of its citizens, and also because it will have a direct and immediate impact upon the citizens of Wisconsin residing in Menominee County, this Court is fully aware of the facts of this case at having been argued previously and having been before the Court at an earlier date.

And the legal position of the State of Wisconsin is fully set forth in the briefs, and I won’t go into it in great detail, but so that the Court is absolutely clear, I would refer to it briefly.

First of all, Wisconsin contends that the hunting and fishing rights of the Menominee Tribe were acquired under the Treaty of 1854.

We contend that these rights were cut off by the 1954 Menominee Termination Act and the events which have taken place subsequent to and pursuant to that Act.

And we further contend that the cutting off of these viable rights was an act for which compensation is due and owing the Menominee Indians by the Federal Government.

First of all, the plain language of the Termination Act itself in our view events as an intent to end the tribal status of the Menominee Indians.

By looking at the very words of the Act itself, the language is clear in Section 899.

It says that the Menominees will not be entitled to any of the services performed by the United States for Indians because of their status as Indians and further, that the laws of the several states shall apply in the same manner as to other citizens.

We can glean an indication of the intent of Congress in passing these Termination Acts by the House Concurrent Congressional Resolution 108 which says that the purpose of termination is to make Indians subject to the same laws as other citizens and assume full responsibility as citizens, and to turn over the Federal Government’s trusteeship to a responsible Indian people.

The Menominee Termination Act is silent as to the question of hunting and fishing rights.

In our view, the legislative history, which is cited by the petitioner at the very best is inconclusive on this point and certainly does not support the contention of a peti — of the petitioners.

First of all, as to the testimony that was presented to the committee which consider — was considering, the Termina — the Menominee Termination Act, the tribe’s own attorney, Mr. Wilkinson on this very point testified that the passage of the Act in its –in the form then being considered by the Congress would have the effect of cutting off the Indians’ hunting and fishing rights, and this is set forth fully in the briefs.

Furthermore, this was not the only version of the Termination Act which was before the Congress at this particular time.

Byron R. White:

You mean cut — it would cut them off in the sense that it would subject them to state regulations?

Bronson C. Lafollette:

Yes, that’s correct.

Byron R. White:

Yes, but it wouldn’t their — the power to — to fish on the land?

Bronson C. Lafollette:

Not as ordinary other citizens if they conform to the regulations of the state.

Byron R. White:

But they could exclude others from fishing there?

Bronson C. Lafollette:

No, they could not.

This was not the testimony of Mr. Wilkinson who I was referring to when I made this point.

Byron R. White:

You mean as long — as long as they own the land, they couldn’t exclude others?

Bronson C. Lafollette:

That’s correct.

Mr. Wilkinson testified that the version of the Menominee Termination Act which finally passed the Congress would have the effect of cutting off the treaty rights of the Menominee Indians.

Bronson C. Lafollette:

It’s —

Byron R. White:

Do you understand that?

I mean, how it would do that?

Bronson C. Lafollette:

Yes, I do.

I — I will —

Byron R. White:

Alright.

Bronson C. Lafollette:

I — I hope to have the Court understand it as well.

In addition —

Hugo L. Black:

Well, he testified for the passing of the Bill or against it?

Bronson C. Lafollette:

He was testifying and I was just about to get to this point.

He was testifying in favor of two other bills, which also had been presented at the specific request of the tribe, which would have specifically preserved hunting and fishing rights for the Menominee Tribe.

And — but — but Congress, in view of this conflicting testimony and this specific testimony of the counsel for the tribe that the version that finally passed which was silent would have the effect of cutting off hunting and fishing rights, chose to pass the silent version.

And we contend that at best, the legislative history is inconclusive and all it shows is that Congress had two versions before it, one which specifically reserved the hunting and fishing rights, and the one which finally passed which was silent.

And therefore, the Congress passed the sil — with — with this testimony before the Congress passed the silent version.

And if anything, we contend that this supports our position that these rights were cut off because if they were to have any specific rights beyond ordinary citizenship, they should have been spelled out by the Congress.

This is exactly what the Congress did.

In the claimant — yes?

Abe Fortas:

I beg your pardon.

I suppose that at least theoretically, it’s possible to say that there are two questions presented by the Termination Act and the plan, one is whether the Indians’ hunting and fishing rights were terminated, cut off.

The other is whether the Indians, by entering into the treaty, agreed that although their hunting and fishing rights would survive in a certain sense, that those rights would then support the subject of the laws and regulations of the State of Wisconsin.

Bronson C. Lafollette:

Well, I think that that latter point is resolved by the body of law which says that the rights that accrue to the Indian tribe under all treaties is subject to being altered or amended in any way by an Act of the Congress.

Abe Fortas:

Well, I notice — I notice the quote there.

They’re brief anyway.

It sets forth the provisions in both the Termination Act and the plans submitted by the Indians to the effect that the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or person within their jurisdiction.

Now, let us assume for a moment that it was intended that that should apply to the hunting and fishing rights, as well as in other respects.

Would that satisfy the State of Wisconsin?

Bronson C. Lafollette:

Yes, it would.

Abe Fortas:

In other words, do you have to argue that the hunting and fishing rights cease to exist in all respects or merely that the hunting and fishing rights had to be exercised in accordance with the laws of the State of Wisconsin?

Bronson C. Lafollette:

That’s all we’re asking.

We make these other points because of the arguments raised by the petitioner and —

Potter Stewart:

What — what — then would hunting and fishing rights exist in that state of affairs that — that — that — that everybody does now?

Bronson C. Lafollette:

If — —

Abe Fortas:

This would mean — would this mean that if for example there were an alienation of the property by the Indians, the Indians would nevertheless continue to reserve the right of access or right to hunt and fish during alienation of the property without warrant?

Bronson C. Lafollette:

The rights which they acquired under the treaty were exclusive rights and if this Court were to hold that these exclusive rights were now subject to the laws of the State of Wisconsin and they could only exercise these rights in conformity with state law, then of course the Federal Government have to compensate the Indians for the loss of their exclusive rights.

But we are contending for no more than the right to apply our hunting and fishing laws to the citizens of Menominee County in the same manner that they apply to other citizens of the state.

Abe Fortas:

Yes, but it might be that the Indians won’t have a right to exclude others from the fishing grounds in Menominee County, whereas if the Indians have no rights or whatever, the public generally might have access to them.

Bronson C. Lafollette:

Yes.

Abe Fortas:

But suppose it were a navigable river on the reservation.

I don’t know, on the former reservation.

I don’t know if it is or not, to which ordinarily, if it weren’t Indian or prior Indian lands, the public generally would have access.

I suppose that that would be arguable that hunting and fishing rights survived as the property of the tribe to the extent that the tribe could exclude non-tribe members even though in the exercise of their hunting and fishing rights, the tribe would have to comply with the conservation regulations, etcetera, of the state.

Bronson C. Lafollette:

Well, our position that the Federal Government terminated these hunting and fishing rights would be inconsistent with their right to exclude.

Abe Fortas:

So non-Indians would have the full rights to — to hunt and fish in the reservation, former reservation as they would in any other part to the — of the State of Wisconsin?

Bronson C. Lafollette:

It is our position that the intention of Congress was to terminate the reservation as an Indian reservation and to terminate the status of the tribe as Indians.

Byron R. White:

Yes, but certainly, you couldn’t argue that they intended to deprive the Menominees of — of ownership of the land because they had conveyed the trust property.

They would have conveyed it to the tribe but they didn’t do it and conveyed it to the corporation the tribe designated.

And I would suppose that any owner — any owner of the land that exclude people from fishing, crossing his land to fish but it doesn’t exclude him from using the — floating in the river.

Bronson C. Lafollette:

That’s correct.

A — the owner of the land could exclude persons from trespassing as any other citizen would have the same right to do.

William J. Brennan, Jr.:

But not as the matter of Wisconsin.

Can I go to Wisconsin and cross farmer’s pasture to get to a creek to fish?

Bronson C. Lafollette:

No, you can’t.

You can float down the creek and — or walk down the banks of the creek to get there, but you can’t cross his land to get to the creek.

William J. Brennan, Jr.:

Well, that’s certainly not true in many states.

Bronson C. Lafollette:

Well, it is in ours.

In any event, our position is that —

Earl Warren:

We recess now.

Mr. Attorney General LaFollette, you may continue your argument.

Bronson C. Lafollette:

May it please the Court.

I’d like to briefly conclude the State’s discussion of the legal points that are in issue in this case.

Bronson C. Lafollette:

The petitioners argue again based on legislative history in interpreting the Menominee Termination Act that Public Law 280, which conferred jurisdiction to the State of Wisconsin and over the Menominee Indians for purposes of civil and — and criminal matters but contained a specific reservation of hunting and fishing rights.

This law became law about a month after the Menominee Termination Act was passed and the petitioners contend that this was — that the concurrent consideration by the same Congress of these two acts made it unnecessary to specifically reserve hunting and fishing rights when it passed the Menominee Termination Act because it was contained in Public Law 280, which was passed by the same Congress a month later.

I would merely say in response to the argument, which — which is in our position set forth more fully in the briefs, is that in the volumes and volumes of testimony that pertained to all the termination acts that were considered at the same time, there was not one single reference to Public Law 280, and the only reference to Public Law 280 in so far as the Menominee Indians are concerned comes about some seven years later in the language of the plan which was drafted by the — and submitted by the Indians pursuant to the original act.

And certainly, something which take place — takes place seven years later cannot possibly be considered as part of the legislative history on the original termination act.

And furthermore on this point, I would like to bring the Court’s attention to the fact that the original State Supreme Court decision was handed down in 1963, the Sanapaw case which held at the Termination Act did cut off the hunting and fishing rights.

That following the decision our State Supreme Court in the Sanapaw case, we had five years in which the Congress could have acted had it disagreed with the holding of the Court in the Sanapaw case.

And in fact, the Menominee Termination Act was amended by the Congress in 1966 and there was no effort by the Congress made at that time to overrule the decision of the State Supreme Court in the Sanapaw Case.

This point is not covered in our brief and I bring it to the Court’s attention.

As an additional argument, which supports the position of the State of Wisconsin, that the Sanapaw decision was concurred in by silence, by Congress, and the only inference that can be gained if any from that silence is that they concurred in the decision of our Court.

What was the nature of the subsequent Amendment?

Bronson C. Lafollette:

The subsequent Amendment in 1966 was an Amendment to provide for federal moneys to be paid to the State of Wisconsin to reimburse the State for unforeseen expenses that had accrued to the State as a result of the termination, and provided mainly for expenditures, for educational needs and welfare needs of the Indians on the reservation.

We also contend, and it’s set forth fully in our brief, that petitioners rely on Klamath cases is misplaced, and that in fact, the Klamath case supports the position of the State of Wisconsin.

First of all, I think we have to distinguish the Klamath case.

The case had an entirely different termination act.

There, the Indians were given an option of either remaining on the tribe, on the reservation as a continuing member of a — of the tribe, or to terminate and they had an actual election.

Those who voted to terminate, the land was sold and actual moneys were paid to those who elected to terminate, some $40,000.00 a piece.

Those who elected to remain on the reservation the proportionate amount of land was continued as a reservation.

The question before the Court in that case was whether or not the Klamath tribe, those members of the tribe who elected to remain on the reservation, whether their rights to hunt on the land that was formerly on the Klamath Reservation but had been sold and put in trust and became a national forest, whether their hunting rights acquired under their treaty survived this termination and this transfer on the old lands that were on the reservation.

The Court held no, they didn’t survive and that even though they were given under a treaty, they didn’t survive the transfer in that particular case.

Byron R. White:

I suppose that — you might argue they would be entitled to — they would have been entitled to compensation for that termination.

Bronson C. Lafollette:

Well, they were.

They were compensated fully when they elected to terminate because they were paid proportionate share of the proceeds of the sale.

In essence, this is the position of the State on the cases and the legislative history, which is applicable here.

But we feel that this abstract legal arguments are of — are of legal guidance to this Court in reaching the right result in this particular case.

And in our view, the other factors are — are much more important.

And first of all, I think that considering this case, we have to — and in considering the prior cases that dealt with this question and the legislative history, you have to realize that the Menominee Indian Treaty is different from any other treaty that is raised in the cases that are cited in any of the briefs.

And first of all, it’s different because it is a grant from the United States and not a ceding by the Indians.

In other words, this is new land that was given to the Menominee Tribe that they had not had any aboriginal claim of title to or of right to or of any other.

And therefore, when the Court — when the treaty was entered into and which it declared that these are to be — these lands are given to the Indians as a home to be held as Indian lands are held, this was a grant to the Indians.

And in the other treaties wherein the land was their aboriginal land and the treaty was entered into, there was always the reasoning going through the decisions that the treaty rights were a session from the Indians of — of rights that they already have and a reservation of those rights that were not mentioned.

Bronson C. Lafollette:

I will — I merely raise this point because I think that it should be taken into consideration in the — in studying and analyzing these cases.

Earl Warren:

Well, what did the Government get for — from the Indians for this?

Didn’t they make them law from other lands because they have –?

Bronson C. Lafollette:

Yes, they do.

Earl Warren:

And this was a quid pro quo, wasn’t it?

Bronson C. Lafollette:

Yes, it was.

Earl Warren:

Well, why is there any difference between that and the original land?

Bronson C. Lafollette:

Well, in the other cases —

Earl Warren:

Was it specified that the — it should be different.

Bronson C. Lafollette:

In the other cases, the Court has always held in interpreting the treaties and the provisions applicable.

Wherever there was silence in so far as the treaty itself was concerned on these points that it was understood by the Indians that they always had these rights and therefore, there was no need to mention them.

And it was not a granting away of any rights.

It was a reservation of those rights which were not specifically mentioned.

I think it — it very well could be argued that this is a distinction without a difference, but I merely raise it for the Court’s attention.

Our position is in the facts bear this out, that the lands are no longer in fact held as Indian lands are held.

And therefore, whatever rights that the Indians got under the original treaty, when the land was given them by the United States in 1854, are now extinguished because we feel that this treaty has to be construed in the light of the language that was used and in the conditions that existed at the time.

And this was the intent of the Congress at the time that they passed this particular Termination Act, however wrong they might have been by hindsight from a policy standpoint.

And another point I would mention here is again relating to the Klamath Termination Act.

When the Klamath Termination Act was passed, there was a specific reservation of rights.

And so, I think that the failure to reserve rights in this case was a specific congress — events — a specific congressional intent that termination should be absolute.

Not on — not only are the lands no longer held as Indian lands are held in this particular case, but the Indians no longer live as a tribe — as a tribe of Indians.

For over a hundred years prior to termination, the Menominees lived under tribal government supplemented by the federal agency supervision.

They had their own law enforcement, they had their own judicial powers, all of the land itself was held in common.

There was no individual ownership.

And these are the essential characteristics of an Indian tribe.

Since termination and consistent with the clear policy of the Congress, Wisconsin acting in concert with the Indians and with the Federal Government turned the land into a duly organized and fully-fledged county of the sovereign State of Wisconsin.

The reservation is now a county.

It forms a 72nd county of the State of Wisconsin.

It is governed —

Earl Warren:

May I ask — may I ask, Mr. Attorney General, what was the compensation to the Indians under your theory that — that these rights were abolished —

Bronson C. Lafollette:

The —

Earl Warren:

–by the Termination Act?

What did the Indians get for it?

Bronson C. Lafollette:

Well, they — they didn’t get anything yet.

That’s what they were suing for in the Court of Claims, for compensation for the termination of these rights, and we contend that their position was correct before the Court of Claims and that the Federal Government should compensate them.

That is our position.

They haven’t yet received any compensation for this.

Earl Warren:

But they didn’t.

They never have.

Bronson C. Lafollette:

They never have.

Earl Warren:

Do you think that that matter had been fully debated, that they would have taken these rights that you — you assert now away from them — without — without compensation, without something to the Indians to compensate for giving up those rights?

Bronson C. Lafollette:

The Congress knew of other Indian tribes that had been terminated and which had sued for compensation before the Court of Claims, and I suppose that it felt that this was a matter for judicial determination rather than for congressional determination.

In any event —

William O. Douglas:

You think — do you think United States is responsible —

Bronson C. Lafollette:

Absolutely.

William O. Douglas:

— for the damages

Bronson C. Lafollette:

Yes, we do.

William O. Douglas:

That we should reverse —

Bronson C. Lafollette:

Yes, we do.

That is our position.

William J. Brennan, Jr.:

Mr. Attorney General, I — is it consistently suggestive — I understood your argument that United States should compensate to the damages and yet that what they got was attached to the land and once they disposed off the land, the right disappeared.

It is consistent on that argument to suggest that United States is still liable?

Bronson C. Lafollette:

By passage of the Termination Act, Congress — the policy of the Congress at that time was to fully assimilate all Indian — Indians into complete citizenship along with every other citizen of the United States.

And that consistent with that policy, these acts were taken by the State of Wisconsin pursuant to this termination act.

And we feel that the question really involves this — this whole policy of Congress and whether or not —

William O. Douglas:

I don’t think any has become a citizen until much later don’t you think?

Bronson C. Lafollette:

The Indians became citizens —

William O. Douglas:

Oh, this is 1954.

Bronson C. Lafollette:

Yes.

William O. Douglas:

Yes, that’s right.

Bronson C. Lafollette:

Now, I’m not so sure I’ve responded to your question.

William J. Brennan, Jr.:

Well, no.

What — what I — what I’m getting at is this.

Obviously, when the Termination Act got the Indians out from under the Federal Government’s weighing, they were no longer words, they are now titled to take property and sell it, dispose of it, self government, they got all these things, didn’t they, as consequences of the Termination Act.

Well, I thought you still argue that nevertheless as to these hunting and fishing rights, the in — the Federal Government ought to compensate the Indians, although you suggest under the treaty itself, the — those rights attached only to the land and since the Indians have now availed themselves of what they got under the Termination Act, that is the right to dispose of these lands and they have disposed of them, that that in and of itself would have terminated the right.

Now, why does the Federal Government still owe them compensation?

That’s what I don’t quite follow.

Bronson C. Lafollette:

Well, the — going back a little bit of the history of the first passage of it — not the passage but the agreement on the part of the Indians to terminate was a conditional agreement.

As was mentioned by the petitioner in oral argument, the United States owed some $8 million or $9 million to the Indians for mismanagement of their tribal property and they wanted to receive compensation.

And as a condition to receive this compensation, they — the Congress told them you have to terminate in order to get this compensation.

So under those conditions, that is how the Indians — and they took a vote to terminate, and then the Indians agreed that they would terminate so that they could acquire this $8 million or $9 million, which was due and owing for the United States.

Byron R. White:

But if the Indians — if the Indians under the Termination Act and the plan they submitted had provided for the test property, namely this land to be conveyed to the tribe rather than to some private property corporation, which is one of the alternatives of the group, I suppose that ownership of the land can stay with the tribe with — at the very — at least in that situation that have fishing rights on the — on the waters except for — and — and — and perhaps the right to exclude as private property owners as anybody else.

But the Termination Act at the very minimum said that the fishing rights shall be subject to State law, which was not true before.

Bronson C. Lafollette:

That’s right.

Byron R. White:

And so, the state conservation laws apply.

That’s one — one thing that happened with the fishing rights.

Secondly, if under state law, other persons could have entered the property to fish by way of the river.

I suppose that’s another thing that’s another thing they have —

Bronson C. Lafollette:

That’s right.

Byron R. White:

— with those fishing rights at the very minimum.

Bronson C. Lafollette:

And that was done by the Federal Government.

Byron R. White:

Even if the Indians had maintained ownership of the property themselves.

At the minimum, that’s what would have happened with the fishing rights.

Bronson C. Lafollette:

That’s correct.

Byron R. White:

That still leaves with Mr. Justice Brennan’s question though of — that if the fishing rights were attached to the land, would the Indians decide to convey the land?

But I suppose if that happened afterwards, then that’s —

Bronson C. Lafollette:

It did happen afterwards, yes.

In any event, our position is that all the characteristics of an Indian tribe that of self government, and of — and of owning — ownership of communal property, and the maintenance of a — of a reservation are no longer in fact in existence.

In fact, there are over 500 individually owned home sites and farmlands owned by individuals within the confines of the reservation.

Now —

Byron R. White:

Non-Indians, I suspect?

Bronson C. Lafollette:

Yes, they’re — they are Indians.

Byron R. White:

They are Indians — all Indians or non-Indians?

Bronson C. Lafollette:

They are Indians but there’s no restriction as to ownership of that land, or if there is, it is — it is about to expire.

With all due respect to the — to the United States and to the petitioners, I think what they’re asking this Court to do without saying so in so many words is to declare what the policy of the United States toward these Indians ought to be now, not what the Congress intended at the time that it passed the Termination Act.

And we submit that such an interpretation will frustrate the obvious intent of the Congress in passing this Act in the first place.

And furthermore, we contend that should the Court disagree with our position in this case and decide that these rights do survive that this will lead to an absurd result.

In the petitioners’ brief, they argue that these hunting and fishing rights survived in this tribal corporation, not the Menominee Enterprises Incorporated with to which the Federal Government transferred all of the lands, but the tribal corporation which was set up over a year or approximately a year after termination became final, and — which is a — a non-stock corporation organized under the laws of the State of Wisconsin whose membership is open to anyone.

Byron R. White:

But the termin — the Termination Act really didn’t take effect until the plan was presented and approved and —

Bronson C. Lafollette:

That’s right.

(Voice Overlap) 1961, and that was —

Byron R. White:

And though the plan in effect at the same time as the Termination Act did?

Bronson C. Lafollette:

The —

Byron R. White:

I mean, it didn’t — the Termination Act had no consequence on the Menominees until this plan was approved and the conveyance was made.

Bronson C. Lafollette:

That’s right.

Byron R. White:

Except that it called for them to present a plan.

Bronson C. Lafollette:

Yeah.

It went into effect at the time that the plan was approved.

Potter Stewart:

I understood the counsel, Mr. Attorney General, emphasized quite clearly that he was — was not — that he was not claiming that the — that the — these hunting and fishing rights now are owned by this non-profit Wisconsin corporation at all —

Bronson C. Lafollette:

I was quite —

Potter Stewart:

–but rather by a tribe — by a tribe, at the tribe.

Bronson C. Lafollette:

Yes, and this is where we have had some difficulty in this case because at the time we first filed our brief, we had no knowledge that the Indians have changed their position that they maintained before the Court of Claims.

And at — in the petitioner’s reply brief, he maintains there and so does the United States that these rights survived in this non-profit corporation.

And on oral argument, he now contends that they survived in the individual Indians —

Potter Stewart:

Well in the tribe —

Bronson C. Lafollette:

In the tribe.

Potter Stewart:

To be enjoyed by the members of the tribe.

Bronson C. Lafollette:

Members of the tribe.

So really, we — we really don’t know how respond to these points because they seem to be changing quite a bit, but we would respectfully suggest to this Court that whether or not they survive in the non-profit corporation which is open to non-Indians, or whether they survive in the so-called tribe, which we contend really doesn’t exist anymore, but if they do — if they are held by this Court to survive in the tribe, then the rights which they do have in the — and to whomsoever they survive to control the hunting and fishing regulations within the confines of a duly organized country of the sovereign State of Wisconsin is an attribute of sovereignty.

Wisconsin was one of the states in the northwest territory and as such, when we became a State, we acquired all of the — the State of Wisconsin acquired the interest in the fish and game in the State of Wisconsin in trust for the benefit of all of its citizens.

Bronson C. Lafollette:

And we acquire our sovereignty extended to the lands in question here fully and compete before this was ever a Menominee Indian Reservation because we became a State in 1848 and our Constitution did not contain a disclaimer over Indian jurisdiction as other state constitutions did.

Therefore, the attributes of sovereignty which include the regulation of hunting and fishing in — and held in trust for the benefit of all of our citizens attached to the lands here in question before this ever became an Indian reservation.

When it became an Indian reservation, in effect, the sovereign power of the State of Wisconsin was somehow limited because in so far as the agreement between the United States and the Indians was concerned that law was the supreme law that governed, and we did not have the power to enforce our Indi — our hunting and fishing laws on that reservation.

We contend that the granting of this power at the present time over these lands to a private corporation or to a unde — almost indefinable nebulous group of — known as the tribe, whatever it — however it survives today as a legal entity is in effect transferring an attribute of the sovereign power of the State of Wisconsin to a private entity.

And if it’s transferred to this private corporation, it is transferring power to the corporation which is subject to the powers and the laws and the authority of the State of Wisconsin, which the State of Wisconsin has not given to a private corporation.

And if — if it transfers, to a tribe, we respectfully ask the guidance of this Court as to how the State of Wisconsin can enforce its hunting and fishing laws with respect to these lands and with respect to the Indians in question.

Byron R. White:

I suppose that the plan is provided like the Act contemplated for the management of the hunting and fishing rights, and it had specifically said that these fishing rights shall be held by the tribe.

Then, there would be no prob — question about the — about it with the —

Bronson C. Lafollette:

If the plan had —

Byron R. White:

If the plan had actually relate — expressly provided for the vesting of the hunting and fishing rights in the tribe, which shall maintain control over them and so on and so forth.I suppose Wisconsin would have a pretty tough time then.

Bronson C. Lafollette:

Well, we — contend that — that what we have to look to is what actually happened.

Byron R. White:

Yes.

Bronson C. Lafollette:

And I don’t know if I would be in a position to express an opinion on what our position would be if that had actually been incorporated into the plan.

We’d certainly reject the contention made by the petitioners that the reference and the plan to law and order con — was sufficient to include hunting and fishing rights.

There certainly is no basis for that holding.

In the — in summary, I should — I should like to discuss one — one more case, going back to the legal issue again, which is relied on by the petitioners, and that is the Winans Case.

Certainly, we reject any notion that this case is authority for the proposition that these rights survived in the Menominee Indian case because that treaty was different.

That treaty contemplated the ownership of the land by private persons because that treaty gave those Indians the rights to hunt in the usual and accustomed — customary places and to the same ext — along with the White settlers.

And the Court in that case held that to — to rule in any other — any other way would be a tantamount to a ruling that the treaty was meaningless and it didn’t grant them any rights at all.

And certainly, that case we feel is distinguishable from ours on that ground.

This is a case in our view a first impression and this Court is bound by no president for none is controlling.

The Court, in seeking to implement the intent of Congress, when passing the silent version of the Termination Act should be mindful of the diff — difficulties created for the State of Wisconsin if these rights do survive.

The Court should also bear in mind that it may easily accommodate the position of the Indians in this case as stated before the Court of Claims by reversing that Court and holding that the Indians are entitled to compensation for the loss of their valuable hunting and fishing rights.

In the event that this Court should hold that these rights do survive, Wisconsin respectfully asks the guidance of the Court in the administration of its duty under the trust doctrine to protect the fishing game of the State of Wisconsin for the benefit of all of our citizens.

In fact, that is our position and we respectfully request the Court to reverse the decision of the Court of Claims.

I have a question; (Inaudible)

Bronson C. Lafollette:

That is correct.

They do not arise in this case or not before this Court but we —

(Inaudible)

Bronson C. Lafollette:

I’m sure that we would have to carefully determine how, in — in light of the Court’s opinion how we would enforce our game laws.

Bronson C. Lafollette:

Well, we have no idea what the Court may —

William O. Douglas:

(Inaudible)

Bronson C. Lafollette:

Yes, we are.

William O. Douglas:

You’re not an intervenor?

Bronson C. Lafollette:

No, we’re not.

William O. Douglas:

So I take that anything we hold here is not — it does not conclude the State of Wisconsin —

Bronson C. Lafollette:

That’s correct.

William O. Douglas:

This is why we’re asking, is that — you ought to do if we don’t agree?

Bronson C. Lafollette:

Yes, it is.

William O. Douglas:

Alright, thank you.

Earl Warren:

Mr. Louis Claiborne?

Louis F. Claiborne:

Mr. Chief Justice, may it please the Court.

The judgment below might be affirmed and the financial interest of the United States as a defendant in the Court of Claims might be fully vindicated simply by a holding that the Termination Act did not abrogate whatever, if any, treaty rights were originally guaranteed to these Indians in 1854.

Earl Warren:

Did you say “if any rights?”

Louis F. Claiborne:

I say that the Court in one sense need not reach the question whether any rights were conveyed if it concludes that the Termination Act did not affect whatever rights, if any were conveyed.

It is, however, our position in order to try to be helpful to the Court and in the peculiar situation of the conflict between the Court of Claims and the Wisconsin Supreme Court, and the dilemma that leaves the petitioners in, we have addressed ourselves to the other issues and I tend to speak to them now in — in chronological order that is first as to our view.

The advisory, as it may be, is to — what rights were originally conveyed were originally conveyed in 1854.

Many thought it appropriate distressed that the outset of this question in one sense is not necessary to reach.

In our view, the Treaty of Wolf River —

Potter Stewart:

I suppose if the Court decided the other way, it wouldn’t be necessary for us to reach either if we held that the Termination Act did destroy treaty rights if any and then — and the Court of Claims decide whether there were any and if so, what they were and finally, what was their value.

Louis F. Claiborne:

Well, Mr. Justice Stewart, the Court of Claims has decided that there were treaty rights and if this Court should decide now that whatever rights were granted have been destroyed, I suppose it would then have to reach the question whether that impose by the Colony of United States though for that last question, I should think there ought to be a remand since the Court of Claims did not address itself to that viewing the Termination Act as having taken nothing away from the Indians.

In our view, the Treaty of Wolf River, when it ceded these lands to the Indians to be held as Indian lands are held, in all the circumstances which have been fully recited by the petitioners may fairly be read to have intended to give to these Indians the same rights that they would have had in this land and once did have in this land if it had always been theirs.

That is as though this provision had read to be held as Indian lands are held, that is to say with the right to take the wildlife thereof.

In other words, we view the so-called hunting and fishing rights as an aspect of the right to own or possess these lands.

We view it as tied to the right to own or posses these lands.

We view it as ending when the ownership or possession of the land is no longer in the tribe.

On the other hand, we think that the right granted, however, pertinent to the land it may be, however, tied to the land it may be is very much more than a normal landowner’s right with respect to fishing and hunting on its own land.

In the first place, it is a right unlike the privilege susceptible of being wholly or partly destroyed which an ordinary landowner has with respect to hunting and fishing on his lands.

The State can forbid him from taking the wildlife of his own land and conservation laws do often do precisely that or they can limit it.

Also, we suppose that this right have been granted by the United States or it is guaranteed by the United States in a federal treaty cannot be taxed by the State.

Louis F. Claiborne:

In that respect also, there is something more than a normal landowner’s right with respect to game and fish on his land.

And finally, to the extent that the normal landowner would not be able to exclude others from these lands at least those lands which border on navigable rivers or the rivers themselves, these Indians have a special right because they have an exclusive right to exclude all others and cannot be made to share their resource with the other citizens of the State.

Byron R. White:

Are all of these rights that you suggest would come into an end with the conveyance of the land?

Louis F. Claiborne:

Yes.

Though I will ultimately reach the question whether such a conveyance has taken place here and concluded it has not that in — one can look at it in several ways but it seems to loss the technical way in which to view it perhaps is to be with the cooperation, that’s not the corporation as the fee owner of those lands which have not been puzzled out as homesteads and the tribe is the beneficial owner, in other words, cooperation is the substitute for the United States trustee in the tribe as always remains the beneficial owner which is what it always was.

Byron R. White:

Except that the stock is held privately.

Louis F. Claiborne:

Well, so long as the membership in the stock corporation is the —

Byron R. White:

But the stock is transferable I think.

Louis F. Claiborne:

Well, under some restrictions and those very restrictions indicate to some extent that this is a kind of trusteeship arrangement.

We do not view the right as continuing to appertain to those small parts of land which have been alienated by the corporation to individual aliens because this is a tribal right which as we view it appertains only to the tribal property and must be exercised on that land exclusively.

Byron R. White:

And if the Indians who own the stock are — when the restrictions on that stock are lifted and they sell it then what?

Louis F. Claiborne:

I don’t think it matters who the stockholders of the nominal corporation are so long as the tribe remains the beneficial owner.

But once the new stockholder exercises his option to take a plot of land for his stock then that plot of land is no longer in any sense subject to this right of the tribe.

William J. Brennan, Jr.:

How much of the land in fact has been exposed of it.

Louis F. Claiborne:

As I understand it and that’s only from what was said here today are less than 10% of the total former reservation lands have been puzzled out in what I take to be small homesteads to individual Indians.

Each member of the corporation has an option as I understand it to turn in a bond which he receives for a puzzle land and some have done so.

The Attorney General of Wisconsin mentioned a figure of 500 of that.

Abe Fortas:

You say that that right is — appertains to the land.

To the tribal land — the hunting and fishing rights so that’s what you said I think.

So —

Louis F. Claiborne:

Yes.

Abe Fortas:

— that if the corporation sells some of the land, an individual of the tribe — the individual member of the tribe can no longer share the hunting and fishing rights.

Louis F. Claiborne:

Well, that’s one way of looking at Mr. Justice Fortas.

It’s also true that the other members of the tribe can no longer freely go on what is now is brought a homestead and of course he retains whatever rights a normal land owner would have with respect to his plot of land and he remains able to hunt and fish on the communal property.

Abe Fortas:

Well, this is really quite a different idea than I had and certainly a different idea that I got from Mr. Hobbs’ argument because I thought you were talking here about hunting and fishing rights that belong to the tribe as such and it really existed independently have a land ownership — land ownership — transfer of ownership to somebody else might mean that somebody else had a right also to hunt and fish appertaining to the land with it somehow whether it might mean as practical matter, is in court personality not the corporation but the in court personality called the Menominee Tribe continue to have hunting and fishing rights for the benefit of all of its members, landowners or not landowners, stockholders or not stockholders.

Louis F. Claiborne:

I take it as —

Abe Fortas:

That sort of was my understanding and —

Louis F. Claiborne:

I’m not sure that the petitioner and we are at one on this question but what —

Abe Fortas:

Well, that makes three of us.

Louis F. Claiborne:

As we — as we view it here, the tribe and of course exercised by the members of the tribe owns or holds a right, a special federally guaranteed nontaxable exclusive right to hunt and fish the wildlife of these lands as it always did when it was a reservation and as usual with respect to all reservations, here that right survives in those lands which remain communal so long as the tribe remains an entity.

Abe Fortas:

What you’re — you are substituting the corporation for the tribe.

Louis F. Claiborne:

Well —

Abe Fortas:

You’re saying that — you’re really saying that the corporation owns the hunting and fishing rights or holds the hunting and fishing rights as appertaining to the land owned by the corporation and holds those rights for the benefit of what the members of the persons who owns stock in the corporation or for the benefit of the members of the tribe except to those members of the tribe who have acquired separate ownership in there — in some lands.

Louis F. Claiborne:

For the — Mr. Justice Fortas — for the corporation is no more than any other trustee whether it consist of Indians or non-Indians, whether it’s the United States or whether it’s the State of Wisconsin.

It is simply the shell which holds this land in trust as it were for the tribe and all the members thereof, those who have taken homestead and those who have not.

Abe Fortas:

Well, I beg your pardon then because I thought you said precisely the opposite.

I thought you said that those who had acquired a plot of land from the corporation by turning in their bonds or whatnot, no longer have a right to hunt and fish except as appertaining to that separate plot of land.

Louis F. Claiborne:

I’m sorry.

I misled Your Honor.

What I meant to say was the right to hunt and fish no longer appertain to this plot which had been alienated to the individual Indian but the individual Indian by exercising his option to take the plot does not cease to be a member o the tribe and as a member of the tribe, he is entitled to continue to hunt and fish as he always was on that portion of the former reservation which remains communally-owned.

Byron R. White:

But if the corporation tend to sold the entire lands that the tribe formally or did you say it’s held for the tribe and replaced it with money, the tribe would no longer or no one of the tribe would have any fishing rights on the land that was sold to a third party.

Louis F. Claiborne:

I would think that was the result Mr. Justice White.

And that perhaps points up the fact that we are not talking about a right which we now view would last for a time in memorial.

It is to be anticipated that gradually and at their own chosen pace, the Indians will cease to function as the tribe, will cease to be eligible for membership in the tribe, will alienate their lands and that this communal property would cease to be a hunting preserved for the Menominees but so long as they have chosen to own the property in common or be it now through a corporation rather than as beneficiaries of the United States.

And so long as they do, as they have indicated that they wish to remain a tribe and their right to remain a tribe doesn’t depend on the Secretary of the Interior of the United States.

The tribe existed before the United States took any notice of them and can survive long after the United States ceases to have supervision over them.

Their status as a tribe does not depend upon their status as wards of the Government, they’re entitled to be a tribe as all the authority is recognized, as long as to choose, that is not a question for the Government to decide further.

The effect of the Termination Act —

Potter Stewart:

Is that in your view a right to procure hereto American Indians or the other people have — in the United States have a similar right to form and organize a tribe and have that kind of an organization.

Louis F. Claiborne:

I have not conceived of it as appertaining to anyone other than American Indians.

I suppose other organizations do depend on the tolerance of state laws whereas it seems to me that the continuance of the Menominee Tribe does not depend upon the cooperation of Wisconsin because of their existence as a community of course long antedates that —

Potter Stewart:

These people — are these people citizens of the United States and the State of Wisconsin?

Louis F. Claiborne:

Yes.

I assume they’re citizens of the State of Wisconsin as they are citizens of the United States as all they’ve been so since 1924.

Now, to sum up the nature of the right, it seems to us therefore to be a property right not a sovereignty right, not a political right.

The consequence of that is that we do not view it as a right to be immune from all outside regulation but as because of the nature of the property right and because the property right is destructible by too much regulation, it of course as every right does carries with it certain immunities.

We test the degree of the immunity from regulation of these hunting and fishing rights by looking to that immunity which is a legal matter not as practical matter, as a legal matter, the tribe enjoyed during the hundred years when the United States Government rather than the State of Wisconsin had power to regulate the hunting and fishing on this reservation.

Because the tribe owns the right to hunt and fish exclusively, because it has a right to exclude all others, because it has the right to do so free without taxation, no regulation by the Federal or State Government could destroy this right of ownership by in effect making the Indians share their resource with others whether under the name of conservation or by allowing others to trespass on their lands.

Potter Stewart:

You’re saying that either the State or the Federal Government has power to take that away?

Louis F. Claiborne:

Without compensation.

Potter Stewart:

Exactly.

That’s what these people sued for in the Court of Claims, the compensation.

Louis F. Claiborne:

Well, the question of whether the United States intended to take away its right is the next point that I invest myself to.

For the moment, I’m simply trying to define what right it is that we’re talking about having survived as we will conclude that it did survive on the effect of that determination I think.

As I say, the Federal Government as guardian of the Indians had certain rights of regulation with respect to tribal property including hunting and fishing rights.

Those rights were on the one hand to conserve the resource for the benefit of the tribe and not to make them share it with others, to apportion it fairly among the members of the tribe and to conserve it for the benefit of the future members of the tribe.

And likewise, the Federal Government had the duty and the power to protect others against destruction by Indians of the resource that was not wholly theirs and so as to migratory fish or fowl, the United States could and we think that the State can, make sure that the Indians do not take more than their fair share of this migratory resource but as to that resource which is native to the reservation, it seems to us that the only regulation that is proper is a regulation for the benefit of the Indians.

They well be that the State of Wisconsin has no interest in regulating the game on — in Menominee County for the benefit of Indians in which event, it is of course free to let the Indians regulate it themselves.

(Inaudible)

Louis F. Claiborne:

I don’t think Mr. Justice Harlan that there is state power to condemn a federal right — a right —

The Federal Government (Inaudible)

Louis F. Claiborne:

Let me say that this does not present an unusual or difficult problem for the State of Wisconsin.

Every state which has a reservation within it is by well settled law bound from applying its fishing within that reservation and that includes all those states which otherwise have full jurisdiction within the reservation civil and criminal Public Law 280 which is passed of the very same session is that this law expressly forbids that states otherwise may apply the criminal and civil laws within the boundaries of the reservation to regulate hunting and fishing.

This is not an unusual difficult problem which Wisconsin alone is faced with.

The Civil Rights Act of 1968 in Title IV which pertains to Indians and which extends in effect Public Law 282, all Indians throughout the country again expressly reserves the power to regulate hunting and fishing when guaranteed by federal treaty.

Abe Fortas:

Well, Mr. Claiborne if I correctly understand your position and I’m sure I do, you’re saying that so far as hunting and fishing rights are concerned, the Termination Act had no effect whatsoever with respect to the Indian rights except to the extent that it authorized the mechanism which might be used to transfer some lands to individual ownership under the extent that lands transferred to individual ownership, they cease to have it pertinent to them hunting and fishing rights.

Louis F. Claiborne:

That is correct, Your Honor.

Abe Fortas:

(Voice Overlap) that on your position.

Louis F. Claiborne:

Except for rather important point that the Termination Act have the effect of substituting whatever power of regulation there ever was from the Federal Government to the State Government.

Abe Fortas:

Well, I know but you’re saying that that — if I understand you, you’re saying that the only power that the State acquired as a result of that was a power to regulate hunting and fishing or in the county, the former reservation for the benefit of the Indians.

Is there any precedent for that?

I mean to say, where do you get that?

Is that just a rule of liability that you deduce ex necessitate?

Louis F. Claiborne:

Well, Mr. Justice Fortas, as far as the state power to regulate within what was formerly a reservation which is now being terminated, there is only one litigated group of cases other than this one as far as the power of the Federal Government to regulate within the reservation are — the Federal Government has almost never attempted to exercise any power whatever we maybe straining when we–

Abe Fortas:

We may come back then.

I’m just talking about what you say as a state power.

I don’t know of it.

Maybe it exists.

The state power, I have thought that a state had power so far as the reservation is concerned and either have power or didn’t have power to regulate hunting and fishing.

In a reservation, the state does not have that power, can we agree on that?

Louis F. Claiborne:

We agree.

Abe Fortas:

Alright.

Now you say that what happened here is that reservation lands have been transferred to a corporation without any essential change in their character status so far as hunting and fishing rights are concerned except the power of alienation and its instruments and to accept that, somehow or rather by some process which I’m now trying to find out from you.

The state has acquired a power to regulate hunting and fishing in this reservoir reservation lands but only if it does so for the benefit of the Indians.

Louis F. Claiborne:

Well, let me put it this way Mr. Justice Fortas.

To the extent that there is a federal right which must be respected by the United States short of the paying compensation for the taking of it and of course must be respected by the states and to the extent that that right survives termination.

It cannot be impinged upon now by the State of Wisconsin.

The State of Wisconsin now has by virtue of the Termination Act and even without the Termination Act by virtue of the removal of the federal fence around these lands, the State has power to bring its law into the reservation and to do all regulation with respect to this hunting and fishing rights short of interfering with exercising of rights.

And we say that —

Abe Fortas:

Excuse me Mr. Claiborne.

But I follow your up to point, you can say that the state has power by virtue of A, B and C that happened to apply its hunting and fishing rights to the Menominee County, the reservoir reservation.

Now that — I follow you there and now you’re adding to that that the state can however exercise those rights.

First, you said only for the benefit of the Indians but now you’re saying only to the extent that it doesn’t interfere with the Indians which are not the same concepts.

But I don’t — I don’t understand either of it.

I don’t understand where you get them.

Is this something you’re asking us to invent right now for purposes of this case?

Louis F. Claiborne:

Mr. Justice Fortas, as I understand the nature of a right, it carries with it an immunity from interference and all I’m saying that is — that since the right to granted here is an exclusive ownership of this resource, nothing can be done which takes away from the Indians that exclusive ownership.

That does not however prevent an apportionment of the asset among the tribe or a preservation of the asset for the benefit of the tribe and its future members.

That maybe a very small thing to concede to Wisconsin and it may well be that Wisconsin will determine that it doesn’t care about helping the Indians.

It rather let them help themselves.

Abe Fortas:

We’re not at the moment interested in how the rights should be caught up and distributed, we’re interested in the problem of law and logic and it’s what I’m trying to find out and whenever anybody owns land, it is subject to certain powers of the state.

One of those powers is to regulate hunting and fishing, do you agree?

These were non-Indians.

Louis F. Claiborne:

Yes, Mr. Justice Fortas.

Abe Fortas:

Now, are you saying that the power of the state here is exactly the same as if this were not Indians — as if these were not Indian land or are you saying that there is something extra or additional that the Indians have here that is not the usual or ordinary incident of land ownership?

Louis F. Claiborne:

I am saying that precisely —

Abe Fortas:

And that that something extra or additional you say as a right to have the state refrain from applying hunting and fishing regulations unless those hunting and fishing regulations are either for the benefit for the Indians or don’t interfere with Indians’ enjoyment of hunting and fishing rights but rather to the concept that may amount close to zero.

Louis F. Claiborne:

I do say that the Indians have something special which a normal landowner does not have which is a right as opposed to a mere tolerance of privilege granted by the state or federal treaty right to take the wildlife of their reservation.

That is an unusual and extraordinary right.

It is a power that is well recognized with the Indian right.

Louis F. Claiborne:

It is a right which it seems to us goes with Indian tenure.

It does not go with the White man’s tenure of property and it is precisely that which we cannot conceive that the Congress intended to abrogate merely because it allowed Wisconsin’s laws in other respects to take hold on these lands.

Abe Fortas:

Everybody’s got that right though, Mr. Claiborne.

The question is and this is — I’ll put it to you and I’m going to leave you alone, I promise you.

The question is to what extent can the State of Wisconsin apply its regulation of hunting and fishing and if that power of the State of Wisconsin with respect to these lands, differs from the power of the State of Wisconsin with respect to non-Indian land, in what way does it differ and what’s the logic of your position?

Louis F. Claiborne:

My first answer Mr. Justice Fortas is that it does differ and the reason it does differ is because the Indian land tenure carries with it a right, an absolute right, a exclusive right, an unusual right, an extraordinary right to take the wildlife which is found on that land.

A right which no private landowner any of the states I know of, has except by tolerance or by grant from the State.

Here, whether the State likes it or no —

Potter Stewart:

The right to do so unregulated by any government, is that right?

Louis F. Claiborne:

Not wholly unregulated Mr. Justice Stewart because as I said, it can be regulated for their own benefit, and also and this maybe quite involved in the case of the Menominee reservation to the extent that this resource is not wholly native to the reservation.

There’s a salmon stream that begins there and — but does go on into the next county.

It seems to us perfectly clear that the Federal Government could have and perhaps should have and that the state now can —

Potter Stewart:

As successor to the — what the Federal Government used to have —

Louis F. Claiborne:

Not as the new guardian but simply as exercising —

Potter Stewart:

The sovereign power of government.

Louis F. Claiborne:

The sovereign power of government against what was never an immunity.

William O. Douglas:

I don’t think there’s nay case holds that —

Louis F. Claiborne:

There is a case Mr. Justice Douglas which says it does not hold that the Federal Government did have a right to regulate the portion of the stream that was within the reservation.

Now, I know that Mason against Sams is the opposite.

That’s a District Court opinion in 1905 and it somewhat baffles me why it’s been uh accepted as the law ever since but without appeal —

William O. Douglas:

Of course, the Federal Government never under took to regulate fishing rights and hunting rights on reservation.

Louis F. Claiborne:

Well, it did in that case.

That was the Quinault Reservation and it purported to say how many nets could be established at what locations and then provided further that since they have a few locations and only a few Indians who would benefit from it, the — those who hold the nets must pay a fee which was turned over to the tribe and then distributed evenly among members.

William O. Douglas:

It’s not here.

They never undertook —

Louis F. Claiborne:

The rationale of the decision maybe that Secretary of the Interior without congressional authorization had no right to do this.

Of course, as Your Honor well knows, the Government did and always has control timber and grazing operations on reservations for the benefit of the tribe to preserve the asset and to distribute it evenly.

There is no distinction in principle why the same cannot be true of fishing wildlife.

And In re Blackbird which we cited in our brief says that this can be done, but the state cannot do what the Federal Government can.

Byron R. White:

Mr. Claiborne, just for a moment, what is the law on the termination of Indian and the treaties with Indians with congressional power to terminate them.

Louis F. Claiborne:

There is no question but the Congress has constitutional power to abrogate any treaty with Indians.

William J. Brennan, Jr.:

So it could — that would extinguish this right.

Louis F. Claiborne:

Yes, but —

Byron R. White:

Without compensation.

Louis F. Claiborne:

No.

Byron R. White:

You say no?

Louis F. Claiborne:

The more — the more recent cases indicate quite clearly that there would be an obligation of paying compensation if what have been —

Byron R. White:

A legally enforceable law.

Louis F. Claiborne:

If there is a forum — if there is a jurisdictional act which permits it and I didn’t get that since 1946.

There has been such a forum.

Prior to that there was no and except for a special jurisdictional acts but —

Byron R. White:

The case — within the case of the United States is subject to liability —

Louis F. Claiborne:

The Shoshone case.

Okay, this very case of course, the Court of Claims took the view that if I’m talking about property rights and we have to assume that what we are speaking of here is an aspect of — well not all — not all treaty guarantees maybe compensable but property rights are —

Byron R. White:

Created by a treaty.

Louis F. Claiborne:

Created by treaty.

William J. Brennan, Jr.:

Which is what this is?

Louis F. Claiborne:

Which is what we say this is, what seem compensable.

I must add that in this case, there is an argument which I don’t think it’s necessary to make here now that the Indians consented to the abrogation of the treaty by agreeing to termination.

That question, however, has embarrassments because the Indians were pretty much told you won’t get your $9 million unless you agree with the termination.

And furthermore, they may have be said to have agreed to it on condition that their hunting and fishing rights would preserved as their attorney as the congressional committee’s to do but I cannot say that it would automatically follow.

That would be a question on remand as to whether liability will be viewed in this case if it were concluded to hunting and fishing rights were had been taken away.

Byron R. White:

Is Shoshone cited in your brief?

Louis F. Claiborne:

No, Mr. Justice.

It’s sighted in the petitioners brief.

William J. Brennan, Jr.:

Is that a case in this Court?

Louis F. Claiborne:

A case in this Court.

William J. Brennan, Jr.:

Well, let’s see.

Then that — does this all add up Mr. Claiborne that the Government’s position is that yes, it would be compensable if it had been taken but it wasn’t taken by the Termination Act?

Louis F. Claiborne:

In rough, that is if with the caveat I mentioned about the consent of the taking by agreeing to termination.

William J. Brennan, Jr.:

Yes.

Louis F. Claiborne:

And with the further caveat that the Court would of course have to find that we would urge the Court so find despite our self-interest, there was at the treaty property right involved and secondly that there now is a tribe who can continue to enjoy the right and therefore a proper plaintiff could bring this action in the Court of Claims.

Let me say a word about what is most central to this case which is the effect of the Termination Act.

I will simply summarize the reasons, most of which have already been spoken here, why in our view, it is perfectly clear that the Termination Act have no intent to abrogate whatever hunting and fishing rights had been granted by the Treaty of 1854.

In the first place, of course, it is against the normal presumption that the Congress would repudiate the solemn treaty it had made with the Indians and especially that it would do so, we’re in complete silence and without making any provision for adequate compensation for the taking of that right.

We surely know the presumption that Congress was not about such unfortunate business.

Now the — it is true that the treaty — that the Termination Act says that federal law shall no longer apply and that state laws shall apply.

I point out to the Court that that language is uniform in the ten Termination Acts.

This was the first Termination Act.

It was very badly written and there are more careful provisions when inserted.

The same language appears in the Klamath Termination Act where it has been held that first, the fishing rights which are expressly preserved were of course not taken but also the hunting rights which are nowhere mentioned is preserved will also survive termination.

Now, relevant to the particular legislative history of this Act is the statement of two witnesses from the Interior Department, one of them is the Assistant Secretary who were the drafters of this law and who assured the committee that the Termination Act even though it did not expressly preserved hunting and fishing rights would not touch it.

It is reasonable to assume that the Congressional Committees and the Congress as a whole listen to that advise and felt that they were not by this Act interfering with whatever hunting and fishing to Menominees had previously enjoyed.

This is further indicated by the fact that at the same con — at the same Congress, at the same session, the Congress when generally providing for the application of state laws within Indian country had said, “All criminal laws shall apply.

All civil laws shall apply if the state so chooses but they shall not have power to regulate hunting and fishing guaranteed by the treaty with the United State.”

The Congress will be doing that on one hand and here to be letting the Menominee hunting and fishing rights go by the board in silence seems they’re all are extraordinary things to assume.

I finally, as I think Mr. Justice White was pointing out a moment ago, the Termination Act itself says, that that the plan which is to be submitted by the Indians shall contain provision for the wildlife, safety and protection of the wildlife and fish.

Now, that would seem wholly unnecessary if the state fishing game laws were going to be fully applicable.

Why should the Indians be making provision to preserve this asset of theirs?

And finally, the exposure of the Government to monetary damages, if treaty rights were being taken or would suggest that the Congress did not mean to produce that result at the very time when it was concerned about relieving the Government of its financial obligation to the Indians resulting from the various services which had been provided in the past.

There is nothing inherently inconsistent about termination of federal supervision and continuance of treaty rights on the one hand and survival of the tribe on the other hand.

What was terminated were both powers and the duties of the United States Government vis-à-vis the Indians.

But the Indians’ existence as a tribe does not — it has depended on the United States as their guardian.

And these treaty rights of course can exist, can be respected by the state and can be enforced by the Federal Government if necessary without there being any federal guardianship over these Indians just as the off reservation treaty rights which were discussed in the case last session, exists quite independently of any federal supervision over those Indians or for that matter any federal jurisdiction over the accustomed hunting and fishing places.

The federal treaty right can survive without federal guardianship.

Byron R. White:

Mr. Claiborne, could you — do you agree with what was said a while ago by one of the other counsel that — that perhaps there are some question about whether the tribe voluntarily entered into this termination.

I take that the termination — was Termination Act coercive?

I mean was it going to take place no matter what or did they — if they have refused to present a plan that they have stated in the United States.

Louis F. Claiborne:

I must —

Byron R. White:

Thank you.

Louis F. Claiborne:

— answer this way Mr. Justice White.

There are strong indications in the legislative history in the very letter of the Secretary of the Interior to the Chairman of the Congressional Committee, explaining that the Bureau of Indian Affairs had refused to acquiesce or to favorably recommend the Bill which had been introduced by Congressman Laird to divide this fund of $9 million in to and in less the Menominee’s agreed to the termination of federal supervision and — but Congressman Laird accused to the committee of having a force termination on the Indians.

There is certainly a question as to whether they’re consent which they didn’t make what’s free of —

Byron R. White:

Except for that — except for that finding that the Act would not have required terms of — would not have forced termination on.

Louis F. Claiborne:

Well, I think the Congress view that it wished to have the consent of the Indians.

Whether there would have been a termination in the absence of the consent of the Indians, I don’t know.

The consent, however, maybe have been obtained by saying, “You’ll get your money if you agree to this.”

Byron R. White:

But you can’t tell them the terms of the Act itself whether or not the consent of the Indians is necessary for termination?

Louis F. Claiborne:

No, when I take it as a — as a constitutional matter, a termination would not have required to consent the Indian and that the Congress would have been free to proceed ahead.

Byron R. White:

Except they would have to pay.

Louis F. Claiborne:

True, if and not only if they were taking anything in way of the property right away which show we strongly urge was not the case.

Now, one word about the future as I’ve already said, we view these rights as continuing in the tribe which itself continues.

Indians have by various acts indicated their desire to remain a tribe.

They have by preserving most of their reservation lands as a whole indicated their wish to continue to live communally and to own their land communally whether that’s through a corporation or otherwise for all practical purposes as is the same way of life they live as before.

They have only recently, between the two arguments in this case, adopted new rules for membership.

They have opened the rule which it seems to us they have the right to do.

But they have followed the Secretary of Interior’s rules as to what constitutes a bona fide member which rules seem reasonable unlike Mr. Justice Douglas’ Indians, they can find their membership to those of the quarter blood and require that if his one parent was a resident to the reservation at the time of birth, and as I said before these conditions are not likely to last forever, so there should be no fear that this enclave will last in perpetuity and yet these are very necessary and very valuable rights would be allowed to be preserved to the Indians for all these inter period.

We urge that the judgment be affirmed.

Charles A. Hobbs:

Mr. Hobbs.

Your Honors, it would be a very hard result if these Indians are to lose their hunting and fishing rights.

They’ve used them since time in memorial.

The exercise of them has almost the religious significance to them.

It is part of their traditions to an extent far beyond that they’re part of our traditions.

The Indians have thought since 19 — 1854 that they had a treaty guarantee to hunt and fish because this was so much an important part of the negotiations of that treaty.

They would regard that promise as broken if the state now has the power to regulate it.

I can assure you that the only value of this right to these Indians is the immunity from state regulation.

The fact that the — they regard this reservation as still owned for the benefit of themselves even though technically it has gone into the Menominee Corporation.

Abe Fortas:

Well, you don’t agree.

Do you or do you not agree with the position of the United States that the State has the power to regulate hunting and fishing rights that provided and exercises that power for the benefit of the Indians?

I think that’s correct that’s stated in Mr. Claiborne’s position correctly.

Abe Fortas:

If that’s not your understanding, please let me know.

Charles A. Hobbs:

What’s my understanding of what he said and we do disagree with it.Our position is that prior to termination, the Federal Government did not have a right to regulate this right.

It had the power to do so but if it exercised that power that would constitute of taking away.

After all, what was valuable here was a right to engage in conduct free of outside interference.

When you get right down to it, you have the sovereign promising that we’re going to let you hunt and fish on your reservation without having to buy a license and without bag limits and seasons.

And now for Wisconsin or the Federal Government or any other outside authority to come in and say, now you are subject to bag limits, that’s are a breach of that original promise and no matter how you slice it, we must object to it.

We cannot go along with that concept.

William J. Brennan, Jr.:

Even though the only purpose of the bag limit was to conserve the wildlife for the benefit of the Indians.

Charles A. Hobbs:

That’s our business.

William J. Brennan, Jr.:

I know that’s your position.

Charles A. Hobbs:

Yes.

I’m affirming that and as far as conservation is concerned, please consider this.

This — thanks to state regulation, this reservation became over populated with deer last fall.

They had an extra season to permit hunters to come in and eliminate some of them because they were destroying the forests.

The same with beavers, the three-week beaver trapping season was extended to three months because of an overpopulation of beavers who were building dams and flooding the roads.

There was no conservation problem until Wisconsin came in and then it was the opposite of a conservation problem.

It was an over population problem.

Potter Stewart:

Do — who hunted the deer and trapped the beaver?

Charles A. Hobbs:

Outsiders.

Potter Stewart:

Outsiders.

Charles A. Hobbs:

As well as the Indians.

Potter Stewart:

Well couldn’t it — couldn’t they have been kept off the land by the owners of the land?

Charles A. Hobbs:

I think they could have.

Potter Stewart:

We were told by the Attorney General within Wisconsin — under that I gather the trespass laws of Wisconsin if I don’t want you to hunt in my land, I’d keep you off.

Or I can keep you off if you just want to use my land as an access route to navigable streams, as I understood the Attorney General?

William O. Douglas:

This was an agreement between the State and the owners of the land.

Charles A. Hobbs:

The Menominee Enterprises, the owner of the reservation and the State, agreed in this instance that outsiders could come in and do some of the hunting.

Potter Stewart:

So by agreement of the owner of the land?

Charles A. Hobbs:

Yes.

Consider for a moment with the purpose of who is the beneficiary of conservation?

Charles A. Hobbs:

It’s the people of the State.

Well, who are the people of the state?

They’re the rotten rail clubs, the field and stream clubs not the Indians.

There’s no expectation or desire of the part of Wisconsin to preserve these rights for the benefit of the Indians unless they join the rotten rail clubs.

Consider the regulations themselves.The Indians are allowed under Wisconsin conservation laws to take one deer per year.

In my original blue brief, it says one deer a day I believe which is incorrect.

It’s one deer per season and there’s one season per year.

They are never allowed to take quail or turkey or moose or elk, never.

Those are protected game in Wisconsin.

William O. Douglas:

Of course in the beginning — the problem with conservation is the beginning to have complicated matter for example that Indian reservation is surrounded — it’s not in isolation from the rest of United States, it is surrounded by other country and the Indians since they have one preservation, I know they think they got all the game.

Is it — little forms and everything the moose and that reservation is restocked by the wildlife from the outside of the reservation that comes in from the outside?

Charles A. Hobbs:

To some extent, there is migration, Your Honor, of game.

But the game on this reservation is largely with the non-migratory kind, beavers and muskrat and deer are largely — they don’t roam too far.

We are conceding with the Government that to the extent, there is a significant off reservation migration of the game resource that the people of Wisconsin would have an interest, a protectable interest in seeing that the Indians didn’t totally destroy that resource when it happened to one or through the reservation.

It’s not like the Salmon cases where —

How can you tell acquired a deer to where identification takes and the kind.

Charles A. Hobbs:

Well, of course the game officials looking at the big picture — know the migration roots of the deer herds.

That’s not a difficult problem when viewed on that.

It is a difficult problem.

Abe Fortas:

But are you saying that the regulation could be imposed and administered within the reservation property?

Charles A. Hobbs:

I only said —

Abe Fortas:

— provided that it was restricted to a regulation designed to protect the migratory game.

Charles A. Hobbs:

That question should be reached if the problem ever arises when the Indians are being unwise enough to totally extinguish a game resource.

If that question should arise, I think that’s the best time to look and see to what — how the state would implement it.

Abe Fortas:

Well, we may have to consider it now because it’s involved in the choice of theories here — choice of — and the principle would maybe determined in this case as to what is — what is the power of the state here, if any.

Charles A. Hobbs:

The power of the state is non — no regulation at all on the reservation except if there was proof that the Indians were extinguishing a game resource which was customarily migrating off reservation.

I think the state would have a right to go to court and have — and seek some sort of ruling that it could regulate the Indians from — prevent than join the Indians from destroying their game resource.

Abe Fortas:

Then your positions come prior to Mr. Claiborne.

It’s just the opposite of Mr. Claiborne’s.

The state has power to regulate hunting on the reservation to the extent that it is necessary to protect the non-Indians.

Charles A. Hobbs:

No Your Honor.

I would characterize it not as a right to regulate but rather a right to seek an injunction to prevent destruction of a state property right.

There has been I think —

Hugo L. Black:

Why wouldn’t that be a regulation?

Charles A. Hobbs:

It would be a — a regulation would be an exercise of sovereignty.

I do not concede that the State of Wisconsin has any sovereignty rights over these Indian hunting and fishing rights because their very essence is a freedom from outside sovereignty rights to regulate rather the State of Wisconsin and the people of Wisconsin have a property right in their game resource outside of the reservation and that property right has with anyone else can be vindicated by injunction.

It’s a different way of arriving at a remedy.

But what I was intending to say is if that the State has an idea that they are about to destroy the game and not one of us but the State can stop it.

Charles A. Hobbs:

By injunction.

Let us make any difference, what name you used to do something.

Why is that not a regulation by the State?

Charles A. Hobbs:

Well, the regulation of course is much more detailed.

It involves of weighing of interest and —

But the effect is the same.

Charles A. Hobbs:

It is the same as a regulation.

It says, “Thou shall not do to us, so at all,” and then it becomes like an injunction which is a yes or no type of thing.

I have a number of small points that I would like to quickly cover.

I think there have been misunderstandings.

To my knowledge, the Menominee Termination Act was not amended in 1966.

I think that Mr. LaFollette may have in mind an appropriation by Congress of money for the benefit of this reservation which was suffering terribly but I do not believe this was considered an amendment of the Termination Act.

There’s a possibility that I’m wrong.

I don’t think it was an amendment.

To my knowledge, the last amendment was in 1960 which was four months before the final deadline for termination.

And if anyone is interested in the attitude of Congress toward this termination, I commend them to the hearings in this final act, the final amendment to the Menominee Termination Act.

The record is clear beyond any question that termination was going to come and a matter of months whether the Indians were ready or not.

The Secretary of Interior was authorized to go ahead and finish up the termination if the Indian didn’t provide their own Menominee Enterprises.

The Acts is going to fall without any further regard to the desires of the Indians.

As it happened, the Indians did meet the final deadline.But if they hadn’t, the termination would have occurred anyway.

In the Klamath Treaty, there it was mentioned that there they had a specific reservation of their hunting and fishing rights.

I think Mr. Claiborne made a point that I will repeat it.

Charles A. Hobbs:

The Klamath case involved only a specific preservation of fishing rights.

The hunting rights, which is what all the litigation was about was never mentioned on the treaty or in the Termination Act and thus making those cases quite comfortable to ours.

The — there — it was said that there are 400 homesteads that had been conveyed by the corporation.

While these homesteads are residential lots and the total is probably less than 400 acres and 1% of the reservation would be 2300 acres so it looks like we’re dealing with less than a fourth of 1% of the reservation here that is now in the Indian’s ownership as residential lots.

The Mason v. Sams case which the government counsel couldn’t understand why it had been adhered to all these years was decided in 1925 and not 1905.

The Bureau of Indian Affairs has honored it.

Their — for example in the case of the Quinault Tribe, the Quinault Tribe sells fishing licenses.

Well, the United States Government permits the tribe or at least doesn’t say anything about it to keep this money on a non-trust account.

In other words, there’s further evidence that hunting and fishing rights are a particularly close matter for the tribe to govern themselves and not part of the trust property.

As for the just compensability, I would call your attention to the fact that the Congress paid the Yakima Indians, and (Inaudible) and others, $27 million for the loss of some fishing stations as a result of dam built on Columbia.

Again, they paid the Shoshone $75,000.00 for the loss of their hunting and fishing rights.

All of these are covered in our brief under the subject of compensability of the rights.

Mr. Chief Justice and the Court.