Menominee Tribe of Indians v. United States

PETITIONER: Menominee Tribe of Indians
RESPONDENT: United States
LOCATION: Spokane County Superior Court

DECIDED BY: Warren Court (1967-1969)

CITATION: 391 US 404 (1968)
ARGUED: Jan 22, 1968
REARGUED: Apr 25, 1968
DECIDED: May 27, 1968

Facts of the case


Media for Menominee Tribe of Indians v. United States

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

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

Charles A. Hobbs:

The Menominee Indians live in Eastern Wisconsin near Green Bay.

Earl Warren:

May I ask if the state requires them to do all of those things?

Charles A. Hobbs:

I am --

Earl Warren:

That they require them to pay license fee?

Charles A. Hobbs:

I am not informed, Mr. Chief Justice, exactly to what extent if any the state waives its regulations, my understanding is its general enforcement.

Earl Warren:

But they claim that right here at least, is that correct?

Charles A. Hobbs:

The state does claim the right to impose all of its rules, including license fees --

Earl Warren:


Charles A. Hobbs:

-- on the Indians.

Earl Warren:

Very well.

Charles A. Hobbs:

These Indians have always hunted and fished for subsistence and many of them still do today.

In 1854, they made a treaty with the United States, giving up the last of their lands to the United States for the purpose of settling them up with the White settlers.

In return, they received their reservation which, as we shall see, gave them the right to hunt and fish on that reservation according to their customs without interference from state or federal authorities.

Until 1961 no one questioned this right to hunt and fish and the Indians peacefully continued to exercise it.

But then Congress in the Menominee Termination Act made the Menominee reservation subject to state laws in general without saying anything about exempting the right to hunt and fish.

The State figured that that meant that the right had been extinguished and the game warden came on the reservation and begun making arrests.

This case started in 1962 when three Menominee Indians were arrested by the state authorities for shining deer, that is hunting with the aid of an artificial light and for transporting a loaded and uncased gun in an automobile.

In case you wonder, “Shining Dear” means, you go out on the woods with the flashlight or an automobile headlight and when a deer comes along and sees the light, he looks at it and freezes.

His eyes glow in the dark and it makes it perfect target; it makes it very easy to shoot the dear and that's why it's against the rule.

It's unsportsmanlike.

That's also the reason for the rule against carrying an unloaded and uncased gun or a loaded and uncased gun in an automobile.

It is primarily against the law to shoot game from an automobile and this rule carrying a loaded and uncased game in an automobile is an aid of the basic rule against shooting game from an automobile.

These are sportsmanlike rules that happened to be involved here.

A law, of course, the case does involve all of the rules of Wisconsin that apply to hunting and fishing of which there are three main purposes: conservation is one; sportsmanship is another; and possibly, though I don't think so, safety might be a third purpose for some of these rules.

While I'm on this point, let me point out some of the other rules that the State of Wisconsin has and would apply against these Indians subject to possible local waiver which I'm not aware of it if there is any.

Hunting licenses are required and they cost from $2 to $10 depending on the type of hunting license that they are.

Certain species can never be shot.

For example, quail, for example, elk and moose.

If the Indians are subject to these rules, they can never shoot moose or quail.

There are bag limits in seasons.