OCTOBER TERM, 1998
Syllabus
MINNESOTA ET AL.
v. MILLE LACS BAND OF CHIPPEWA INDIANS
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 97-1337. Argued December 2, 1998-Decided March 24,1999
Pursuant to an 1837 Treaty, several Chippewa Bands ceded land in
present-day Minnesota and Wisconsin to the United States. The
United States, in turn, guaranteed to the Indians certain hunting,
fishing, and gathering rights on the ceded land "during the
pleasure of the President of the United States." In an 1850
Executive Order, President Taylor ordered the Chippewa's removal
from the ceded territory and revoked their usufructuary rights. The
United States ultimately abandoned its removal policy, but its
attempts to acquire Chippewa lands continued. An 1855 Treaty set
aside lands as reservations for the Mille Lacs Band, but made no
mention of, among other things, whether it abolished rights
guaranteed by previous treaties. Minnesota was admitted to the
Union in 1858. In 1990, the Mille Lacs Band and several members
sued Minnesota, its Department of Natural Resources, and state
officials (collectively State), seeking, among other things, a
declaratory judgment that they retained their usufructuary rights
and an injunction to prevent the State's interference with those
rights. The United States and several counties and landowners
intervened. In later stages of the case, several Wisconsin Bands of
Chippewa intervened and the District Court consolidated the Mille
Lacs Band litigation with the portion of another suit involving
usufructuary rights under the 1837 Treaty. The District Court
ultimately concluded that the Chippewa retained their usufructuary
rights under the 1837 Treaty and resolved several resource
allocation and regulation issues. The Eighth Circuit affirmed. As
relevant here, it rejected the State's argument that the 1850
Executive Order abrogated the usufructuary rights guaranteed by the
1837 Treaty, concluded that the 1855 Treaty did not extinguish
those privileges for the Mille Lacs Band, and rejected the State's
argument that, under the "equal footing doctrine," Minnesota's
entrance into the Union extinguished any Indian treaty rights.
Held: The Chippewa retain the usufructuary rights
guaranteed to them by the 1837 Treaty. Pp. 188-208.
(a) The 1850 Executive Order was ineffective to terminate
Chippewa usufructuary rights. The President's power to issue an
Executive Order must stem either from an Act of Congress or from
the Constitu-
173
tion itself.
Youngstown Sheet &
Tube Co. v.
Sawyer, 343 U.
S. 579, 585. The Court of Appeals concluded that the 1830
Removal Act did not authorize the removal order, and no party
challenges that conclusion here. Even if the 1830 Removal Act did
not
forbid the removal order, it did not authorize the
order. There is no support for the landowners' claim that the 1837
Treaty authorized the removal order. The Treaty made no mention of
removal, and the issue was not discussed during treaty
negotiations. The Treaty's silence is consistent with the United
States' objectives in negotiating the Treaty: the purchase of
Chippewa land. The State argues that, even if the order's removal
portion was invalid, the treaty privileges were nevertheless
revoked because the invalid removal order was severable from the
portion of the order revoking usufructuary rights. Assuming,
arguendo, that the severability standard for
statutes-whether the legislature would not have taken the valid
action independently of the invalid action,
e. g., Champlin
Refining Co. v.
Corporation Comm'n of Okla., 286 U. S. 210, 234-also
applies to Executive Orders, the historical evidence indicates that
President Taylor intended the 1850 order to stand or fall as a
whole. That order embodied a single, coherent policy, the primary
purpose of which was the Chippewa's removal. The revocation of
usufructuary rights was an integral part of this policy, for the
order tells the Indians to "go" and not to return to the ceded
lands to hunt or fish. There is also little historical evidence
that the treaty privileges themselves-rather than the Indians'
presence-caused problems necessitating revocation of the
privileges. pp. 188-195.
(b) The Mille Lacs Band did not relinquish its 1837 Treaty
rights in the 1855 Treaty by agreeing to "fully and entirely
relinquish and convey to the United States, any and all right,
title, and interest, of whatsoever nature the same may be, which
they may now have in, and to any other lands in the Territory of
Minnesota or elsewhere." That sentence does not mention the 1837
Treaty or hunting, fishing, and gathering rights. In fact, the
entire 1855 Treaty is devoid of any language expressly mentioning
usufructuary rights or providing money for abrogation of those
rights. These are telling omissions, since federal treaty drafters
had the sophistication and experience to use express language when
abrogating treaty rights. The historical record, purpose, and
context of the negotiations all support the conclusion that the
1855 Treaty was designed to transfer Chippewa land to the United
States, not terminate usufructuary rights.
Oregon Dept. of Fish
and Wildlife v.
Klamath Tribe, 473 U. S. 753,
distinguished. Pp. 195-202.
(c) The Chippewa's usufructuary rights were not extinguished
when Minnesota was admitted to the Union. Congress must clearly
express an intent to abrogate Indian treaty rights,
United
States v.
Dion, 476
174
Syllabus
u. S. 734, 738-740, and there is no clear evidence of such an
intent here. The State concedes that Minnesota's enabling Act is
silent about treaty rights and points to no legislative history
describing the Act's effect on such rights. The State's reliance on
Ward v.
Race Horse, 163 U. S. 504, is
misplaced. The Court's holding that a Treaty reserving to a Tribe
"'the right to hunt on the unoccupied lands of the United States,
so long as game may be found thereon, and so long as peace subsists
among the whites and Indians on the borders of the hunting
districts' " terminated when Wyoming became a State, id., at 507,
has been qualified by this Court's later decisions. The first part
of the
Race Horse holding-that the treaty rights conflicted
irreconcilably with state natural resources regulation such that
they could not survive Wyoming's admission to the Union on an
"equal footing" with the 13 original States-rested on a false
premise, for this Court has subsequently made clear that a tribe's
treaty rights to hunt, fish, and gather on state land can coexist
with state natural resources management, see,
e. g.,
Washington v.
Washington State Commercial Passenger Fishing
Vessel Assn., 443
U. S. 658. Thus, statehood by itself is insufficient to
extinguish such rights.
Race Horse's alternative
holding-that the treaty rights at issue were not intended to
survive Wyoming's statehood-also does not help the State here.
There is no suggestion in the 1837 Treaty that the Senate intended
the rights here to terminate when a State was established in the
area; there is no fixed termination point contemplated in that
Treaty; and treaty rights are not impliedly terminated at
statehood,
e. g., Wisconsin v.
Hitchcock, 201 U. S. 202, 213-214.
Pp. 202-208.
124 F.3d
904, affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which
STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C.
J., filed a dissenting opinion, in which SCALIA, KENNEDY, and
THOMAS, JJ., joined,
post, p. 208. THOMAS, J., filed a
dissenting opinion,
post, p. 220.
John L. Kirwin, Assistant Attorney General of Minnesota,
argued the cause for petitioners. With him on the brief were
Hubert H. Humphrey III, Attorney General, and
Peter L.
Tester and
Michelle E. Beeman, Assistant Attorneys
General.
Randy v:
Thompson argued the cause for
Thompson et al., respondents under this Court's Rule 12.6 in
support of petitioners. With him on the briefs were
Gary E.
Persian and
Stephen G.
Froehle. James Martin Johnson,
Michael Jesse, and
Jennifer Fahey filed briefs in
support of petition-
175
ers for Aitkin County et al., respondents under this Court's
Rule 12.6.
Marc D. Slonim argued the cause for respondents Mille
Lacs Band of Chippewa Indians et al. With him on the brief were
John B. Arum, Charles J.
Cooper, and
Alan K.
Palmer. Barbara McDowell argued the cause for the United
States. With her on the brief were
Solicitor General Waxman,
Assistant Attorney General Schiffer, Deputy Solicitor General
Kneedler, and
Elizabeth Ann Peterson. James M. Jannetta
and
Caro l Brown Biermeier filed a brief for respondents Bad
River Band of Lake Superior Chippewa Indians et al.
William R.
Perry, Anne D. Noto, Henry M. Buffalo, Jr., Dennis J.
Peterson, and
Milton Rosenberg filed a brief for
respondents Fond du Lac Band of Lake Superior Chippewa Indians et
al.
Howard J.
Bichler and
M. Joan Warren filed
a brief for respondents St. Croix Chippewa Indians of Wisconsin et
al. *
JUSTICE O'CONNOR delivered the opinion of the Court.
In 1837, the United States entered into a Treaty with several
Bands of Chippewa Indians. Under the terms of this Treaty, the
Indians ceded land in present-day Wisconsin and Minnesota to the
United States, and the United States guar-
*Briefs of
amici curiae urging reversal were filed for
the State of California et al. by
Daniel E. Lungren,
Attorney General of California,
Roderick E. Walston, Chief
Assistant Attorney General,
Richard M. Frank and
Jan
S.
Stevens, Assistant Attorneys General, and
Joel S.
Jacobs, Deputy Attorney General, and by the Attorneys
General for their respective States as follows:
Frank J.
Kelley of Michigan,
Joseph P. Mazurek of Montana,
Mark Barnett of South Dakota,
Jan Graham of Utah,
James E. Doyle of Wisconsin, and
William U. Hill of
Wyoming; and for the Pacific Legal Foundation by
Brent D.
Boger and
Robin L. Rivett.
Carter G.
Phillips, Virginia A. Seitz, and
John
Bell filed a brief for the National Congress of American
Indians et al. as
amici curiae urging affirmance.
Douglas Y.
Freeman filed a brief for the Citizens
Equal Rights Alliance as
amicus curiae.
176
anteed to the Indians certain hunting, fishing, and gathering
rights on the ceded land. We must decide whether the Chippewa
Indians retain these usufructuary rights today. The State of
Minnesota argues that the Indians lost these rights through an
Executive Order in 1850, an 1855 Treaty, and the admission of
Minnesota into the Union in 1858. After an examination of the
historical record, we conclude that the Chippewa retain the
usufructuary rights guaranteed to them under the 1837 Treaty.
I A
In 1837, several Chippewa Bands, including the respondent Bands
here, were summoned to Fort Snelling (near present-day St. Paul,
Minnesota) for the negotiation of a treaty with the United States.
The United States representative at the negotiations, Wisconsin
Territorial Governor Henry Dodge, told the assembled Indians that
the United States wanted to purchase certain Chippewa lands east of
the Mississippi River, lands located in present-day Wisconsin and
Minnesota. App. 46 (1837 Journal of Treaty Negotiations). The
Chippewa agreed to sell the land to the United States, but they
insisted on preserving their right to hunt, fish, and gather in the
ceded territory. See,
e. g., id., at 70, 75-76. In response
to this request, Governor Dodge stated that he would "make known to
your Great Father, your request to be permitted to make sugar, on
the lands; and you will be allowed, during his pleasure, to hunt
and fish on them."
Id., at 78. To these ends, the parties
signed a treaty on July 29, 1837. In the first two articles of the
1837 Treaty, the Chippewa ceded land to the United States in return
for 20 annual payments of money and goods. The United States also,
in the fifth article of the Treaty, guaranteed to the Chippewa the
right to hunt, fish, and gather on the ceded lands:
177
"The privilege of hunting, fishing, and gathering the wild rice,
upon the lands, the rivers and the lakes included in the territory
ceded, is guarantied [sic] to the Indians, during the
pleasure of the President of the United States." 1837 Treaty with
the Chippewa, 7 Stat. 537.
In 1842, many of the same Chippewa Bands entered into another
Treaty with the United States, again ceding additional lands to the
Federal Government in return for annuity payments of goods and
money, while reserving usufructuary rights on the ceded lands. 1842
Treaty with the Chippewa, 7 Stat. 591. This Treaty, however, also
contained a provision providing that the Indians would be "subject
to removal therefrom at the pleasure of the President of the United
States." Art. 6, id., at 592.
In the late 1840's, pressure mounted to remove the Chippewa to
their unceded lands in the Minnesota Territory. On September 4,
1849, Minnesota Territorial Governor Alexander Ramsey urged the
Territorial Legislature to ask the President to remove the Chippewa
from the ceded land. App. 878 (Report and Direct Testimony of Dr.
Bruce M. White) (hereinafter White Report). The Territorial
Legislature complied by passing, in October 1849, "Joint
Resolutions relative to the removal of the Chippewa Indians from
the ceded lands within the Territory of Minnesota." App. to Pet.
for Cert. 567 (hereinafter Joint Resolution). The Joint Resolution
urged:
"[T]o ensure the security and tranquility of the white
settlements in an extensive and valuable district of this
Territory, the Chippewa Indians should be removed from all lands
within the Territory to which the Indian Title has been
extinguished, and that the privileges given to them by Article
Fifth [of the 1837 Treaty] and Article Second [of the 1842 Treaty]
be revoked." Ibid.
178
The Territorial Legislature directed its resolution to Congress,
but it eventually made its way to President Zachary Taylor. App.
674 (Report and Direct Testimony of Professor Charles E. Cleland)
(hereinafter Cleland Report). It is unclear why the Territorial
Legislature directed this resolution to Congress and not to the
President. One possible explanation is that, although the 1842
Treaty gave the President authority to remove the Chippewa from
that land area, see 1842 Treaty with the Chippewa, Art. 6, 7 Stat.
592, the 1837 Treaty did not confer such authority on the
President. Therefore, any action to remove the Chippewa from the
1837 ceded lands would require congressional approval. See App. 674
(Cleland Report).
The historical record provides some clues into the impetus
behind this push to remove the Chippewa. In his statement to the
Territorial Legislature, Governor Ramsey asserted that the Chippewa
needed to be removed because the white settlers in the Sauk Rapids
and Swan River area were complaining about the privileges given to
the Chippewa Indians.
Id., at 878 (White Report). Similarly,
the Territorial Legislature urged removal of the Chippewa "to
ensure the security and tranquility of the white settlements" in
the area. App. to Pet. for Cert. 567 (Joint Resolution). The
historical evidence suggests, however, that the white settlers were
complaining about the Winnebago Indians, not the Chippewa, in the
Sauk Rapids area. See App. 671-672 (Cleland Report). There is also
evidence that Minnesotans wanted Indians moved from Wisconsin and
Michigan to Minnesota because a large Indian presence brought
economic benefits with it. Specifically, an Indian presence
provided opportunities to trade with Indians in exchange for their
annuity payments, and to build and operate Indian agencies,
schools, and farms in exchange for money. The presence of these
facilities in an area also opened opportunities for patronage jobs
to staff these facilities. See id., at 668-671; id., at 1095 (White
Report). See also id., at 149-150 (letter from Rice
179
to Ramsey, Dec. 1, 1849) ("Minnesota would reap the benefit
[from the Chippewa's removal]-whereas now their annuities pass via
Detroit and not one dollar do our inhabitants get"). The District
Court concluded in this case that "Minnesota politicians, including
Ramsey, advocated removal of the Wisconsin Chippewa to Minnesota
because they wanted to obtain more of the economic benefits
generated by having a large number of Indians residing in their
territory." 861
Whatever the impetus behind the removal effort, President Taylor
responded to this pressure by issuing an Executive Order on
February 6, 1850. The order provided:
"The privileges granted temporarily to the Chippewa Indians of
the Mississippi, by the Fifth Article of the Treaty made with them
on the 29th of July 1837, 'of hunting, fishing and gathering the
wild rice, upon the lands, the rivers and the lakes included in the
territory ceded' by that treaty to the United States; and the right
granted to the Chippewa Indians of the Mississippi and Lake
Superior, by the Second Article of the treaty with them of October
4th 1842, of hunting on the territory which they ceded by that
treaty, 'with the other usual privileges of occupancy until
required to remove by the President of the United States,' are
hereby revoked; and all of the said Indians remaining on the lands
ceded as aforesaid, are required to remove to their unceded lands."
App. to Pet. for Cert. 565.
The officials charged with implementing this order understood it
primarily as a removal order, and they proceeded to implement it
accordingly. See Record, Doc. No. 311, Plaintiffs' Exh. 88 (letter
from Brown to Ramsey, Feb. 6, 1850); App. 161 (letter from Ramsey
to Livermore, Mar. 4, 1850). See also 861 F. Supp., at 805 (citing
Plaintiffs' Exh. 201 (letter from Livermore to Ramsey, Apr. 2,
1850)) (describing circular prepared to notify Indians of Executive
Order); App.
180
1101-1102 (White Report) (describing circular and stating that
"the entire thrust" of the circular had to do with removal).
The Government hoped to entice the Chippewa to remove to
Minnesota by changing the location where the annuity payments-the
payments for the land cessions-would be made. The Chippewa were to
be told that their annuity payments would no longer be made at La
Pointe, Wisconsin (within the Chippewa's ceded lands), but, rather,
would be made at Sandy Lake, on unceded lands, in the Minnesota
Territory. The Government's first annuity payment under this plan,
however, ended in disaster. The Chippewa were told they had to be
at Sandy Lake by October 25 to receive their 1850 annuity payment.
See B. White, The Regional Context of the Removal Order of 1850, §
6, pp. 6-9 to 6-10 (Mar. 1994). By November 10, almost 4,000
Chippewa had assembled at Sandy Lake to receive the payment, but
the annuity goods were not completely distributed until December 2.
Id., at 6-10. In the meantime, around 150 Chippewa died in
an outbreak of measles and dysentery; another 230 Chippewas died on
the winter trip home to Wisconsin. App. 228-229 (letter from
Buffalo to Lea, Nov. 6, 1851).
The Sandy Lake annuity experience intensified opposition to the
removal order among the Chippewa as well as among non- Indian
residents of the area. See id., at 206-207 (letter from Warren to
Ramsey, Jan. 21, 1851); id., at 214 (letter from Lea to Stuart,
June 3, 1851) (describing opposition to the order). See also
Record, Doc. No. 311, Plaintiffs' Exh. 93 (Michigan and Wisconsin
citizens voice their objections to the order to the President). In
the face of this opposition, Commissioner of Indian Affairs Luke
Lea wrote to the Secretary of the Interior recommending that the
President's 1850 order be modified to allow the Chippewa "to remain
for the present in the country they now occupy." App. 215 (letter
from Lea to Stuart, June 3, 1851). According to Commissioner Lea,
removal of the Wisconsin Bands "is not re-
181
quired by the interests of the citizens or Government of the
United States and would in its consequences in all probability be
disastrous to the Indians."
Ibid. Three months later, the
Acting Commissioner of Indian Affairs wrote to the Secretary to
inform him that 1,000 Chippewa were assembled at La Pointe, but
that they could not be removed from the area without the use of
force. He sought the Secretary's approval "to suspend the removal
of these Indians until the determination of the President upon the
recommendation of the commissioner is made known to this office."
Id., at 223-224 (letter from Mix to Graham, Aug. 23, 1851).
Two days later, the Secretary of the Interior issued the requested
authorization, instructing the Commissioner "to suspend the removal
of the Chippeway
[sic] Indians until the final determination
of the President."
Id., at 225 (letter from Abraham to Lea,
Aug. 25, 1851). Commissioner Lea immediately telegraphed the local
officials with instructions to "[s]uspend action with reference to
the removal of Lake Superior Chippewas for further orders."
Ibid. (telegram from Lea to Watrous, Aug. 25, 1851). As the
State's own expert historian testified, "[f]ederal efforts to
remove the Lake Superior Chippewa to the Mississippi River
effectively ended in the summer of 1851."
Id., at 986
(Report of Alan S.Newell).
Although Governor Ramsey still hoped to entice the Chippewa to
remove by limiting annuity payments to only those Indians who
removed to unceded lands, see id., at 235-236 (letter from Ramsey
to Lea, Dec. 26, 1851), this plan, too, was quickly abandoned. In
1853, Franklin Pierce became President, and he appointed George
Manypenny as Commissioner of Indian Affairs. The new administration
reversed Governor Ramsey's policy, and in 1853, annuity payments
were once again made within the ceded territory. See,
e. g.,
Record, Doc. No. 311, Plaintiffs' Exh. 119, p. 2 (letter from
Gorman to Manypenny, Oct. 8, 1853); Plaintiffs' Exh. 122 (letter
from Herriman to Gorman, Nov. 10, 1853); see also Plain-
182
tiffs' Exh. 120 (letter from Wheeler to Parents, Oct. 20,1853).
As Indian Agent Henry Gilbert explained, the earlier "change from
La Pointe to [Sandy Lake] was only an incident of the order for
removal," thus suggesting that the resumption of the payments at La
Pointe was appropriate because the 1850 removal order had been
abandoned. App. 243 (letter from Gilbert to Manypenny, Dec. 14,
1853).
In 1849, white lumbermen built a dam on the Rum River (within
the Minnesota portion of the 1837 ceded Territory), and the Mille
Lacs Band of Chippewa protested that the dam interfered with its
wild rice harvest. This dispute erupted in 1855 when violence broke
out between the Chippewa and the lumbermen, necessitating a call
for federal troops. In February 1855, the Governor of the Minnesota
Territory, Willis Gorman, who also served as the ex officio
superintendent of Indian affairs for the Territory, wrote to
Commissioner Manypenny about this dispute. In his letter, he noted
that "[t]he lands occupied by the timbermen have been surveyed and
sold by the United States and the Indians have no other treaty
interests
except hunting and fishing." Id., at 295296
(letter of Feb. 16, 1855) (emphasis added). There is no indication
that Commissioner Manypenny disagreed with Governor Gorman's
characterization of Chippewa treaty rights. In June of the same
year, Governor Gorman wrote to Mille Lacs Chief Little Hill that
even if the dam was located within the Mille Lacs Reservation under
the 1855 Treaty, the dam "was put there long before you had any
rights there except to hunt and fish." Record, Doc. No. 163,
Plaintiffs' Exh. 19 (letter of June 4, 1855). Thus, as of 1855, the
federal official responsible for Indian affairs in the Minnesota
Territory acknowledged and recognized Chippewa rights to hunt and
fish in the 1837 ceded Territory.
On the other hand, there are statements by federal officials in
the late 19th century and the first half of the 20th century that
suggest that the Federal Government no longer recognized Chippewa
usufructuary rights under the 1837 Treaty.
183
See,
e. g., App. 536-539 (letter from Acting Commissioner
of Indian Affairs to Heatwole, Dec. 16, 1898); id., at 547-548
(letter from Commissioner of Indian Affairs Collier to Reynolds,
Apr. 30, 1934); App. to Pet. for Cert. 575-578 (letter from
President Roosevelt to Whitebird, Mar. 1, 1938). But see,
e.
g., App. 541 (letter from Meritt to Hammitt, Dec. 14, 1925) (Office
of Indian Affairs noting that "[a]pparently, ... there is merit in
the claims of the Indians" that they have hunting and fishing
rights under the 1837 Treaty); Additional Brief for United States
in
United States v.
Thomas, O. T. 1893, No. 668, pp.
2-3 (with respect to the 1842 Treaty, arguing that no Executive
Order requiring Chippewa removal had ever been made).
Although the United States abandoned its removal policy, it did
not abandon its attempts to acquire more Chippewa land. To this
end, in the spring of 1854, Congress began considering legislation
to authorize additional treaties for the purchase of Chippewa
lands. The House of Representatives debated a bill "to provide for
the extinguishment of the title of the Chippewa Indians to the
lands owned and claimed by them in the Territory of Minnesota and
State of Wisconsin." Congo Globe, 33d Cong., 1st Sess., 1032
(1854). This bill did not require the removal of the Indians, but
instead provided for the establishment of reservations within the
ceded territories on which the Indians could remain.
The treaty authorization bill stalled in the Senate during 1854,
but Commissioner of Indian Affairs George Manypenny began to
implement it nonetheless. On August 11, he instructed Indian Agent
Henry Gilbert to begin treaty negotiations to acquire more land
from the Chippewa. Specifically, he instructed Gilbert to acquire
"all the country" the Chippewa own or claim in the Minnesota
Territory and the State of Wisconsin, except for some land that
would be set aside for reservations. App. 264. Gilbert negotiated
such a Treaty with several Chippewa Bands, 1854 Treaty with the
Chippewa, 10 Stat. 1109, although for reasons now lost to
184
history, the Mille Lacs Band of Chippewa was not a party to this
Treaty. The signatory Chippewa Bands ceded additionalland to the
United States, and certain lands were set aside as reservations for
the Bands.
Id., Art. 2. In addition, the 1854 Treaty
established new hunting and fishing rights in the territory ceded
by the Treaty.
Id., Art. 11.
When the Senate finally passed the authorizing legislation in
December 1854, Minnesota's territorial delegate to Congress
recommended to Commissioner Manypenny that he negotiate a treaty
with the Mississippi, Pillager, and Lake Winnibigoshish Bands of
Chippewa Indians. App. 286-287 (letter from Rice to Manypenny, Dec.
17, 1854). Commissioner Manypenny summoned representatives of those
Bands to Washington, D. C., for the treaty negotiations, which were
held in February 1855. See id., at 288 (letter from Manypenny to
Gorman, Jan. 4, 1855). The purpose and result of these negotiations
was the sale of Chippewa lands to the United States. To this end,
the first article of the 1855 Treaty contains two sentences:
"The Mississippi, Pillager, and Lake Winnibigoshish bands of
Chippewa Indians hereby cede, sell, and convey to the United States
all their right, title, and interest in, and to, the lands now
owned and claimed by them, in the Territory of Minnesota, and
included within the following boundaries, viz: [describing
territorial boundaries]. And the said Indians do further fully and
entirely relinquish and convey to the United States, any and all
right, title, and interest, of whatsoever nature the same may be,
which they may now have in, and to any other lands in the Territory
of Minnesota or elsewhere." 10 Stat. 1165-1166.
Article 2 set aside lands in the area as reservations for the
signatory tribes.
Id., at 1166-1167. The Treaty, however,
makes no mention of hunting and fishing rights, whether to reserve
new usufructuary rights or to abolish rights guaran-
185
teed by previous treaties. The Treaty Journal also reveals no
discussion of hunting and fishing rights. App. 297-356 (Documents
Relating to the Negotiation of the Treaty of Feb. 22, 1855)
(hereinafter 1855 Treaty Journal)).
A little over three years after the 1855 Treaty was signed,
Minnesota was admitted to the Union. See Act of May 11, 1858, 11
Stat. 285. The admission Act is silent with respect to Indian
treaty rights.
B
In 1990, the Mille Lacs Band of Chippewa Indians and several of
its members filed suit in the Federal District Court for the
District of Minnesota against the State of Minnesota, the Minnesota
Department of Natural Resources, and various state officers
(collectively State), seeking, among other things, a declaratory
judgment that they retained their usufructuary rights under the
1837 Treaty and an injunction to prevent the State's interference
with those rights. The United States intervened as a plaintiff in
the suit; nine counties and six private landowners intervened as
defendants.1 The District Court bifurcated the case into two
phases. Phase I of the litigation would determine whether, and to
what extent, the Mille Lacs Band retained any usufructuary rights
under the 1837 Treaty, while Phase II would determine the validity
of particular state measures regulating any retained rights.
In the first decision on the Phase I issues, the District Court
rejected numerous defenses posed by the defendants and set the
matter for trial. 853 F. Supp. 1118 (Minn. 1994) (Murphy, C. J.).
After a bench trial on the Phase I issues, the District Court
concluded that the Mille Lacs Band retained its usufructuary rights
as guaranteed by the 1837 Treaty. 861 F. Supp. 784 (1994).
Specifically, as relevant
1 The intervening counties are Aitkin, Benton, Crow Wing,
Isanti, Kanabec, Mille Lacs, Morrison, Pine, and Sherburne. The
intervening landowners are John W. Thompson, Jenny Thompson, Joseph
N. Karpen, LeRoy Burling, Glenn E. Thompson, and Gary M.
Kiedrowski.
186
here, the court rejected the State's arguments that the 1837
Treaty rights were extinguished by the 1850 Executive Order or by
the 1855 Treaty with the Chippewa.
Id., at 822-835. With
respect to the 1850 Executive Order, the District Court held, in
relevant part, that the order was unlawful because the President
had no authority to order removal of the Chippewa without their
consent.
Id., at 823826. The District Court also concluded
that the United States ultimately abandoned and repealed the
removal policy embodied in the 1850 order.
Id., at 829-830.
With respect to the 1855 Treaty, the District Court reviewed the
historical record and found that the parties to that agreement did
not intend to abrogate the usufructuary privileges guaranteed by
the 1837 Treaty.
I d., at 830-835.
At this point in the case, the District Court permitted several
Wisconsin Bands of Chippewa to intervene as plaintiffs 2 and
allowed the defendants to interpose new defenses. As is relevant
here, the defendants asserted for the first time that the Bands'
usufructuary rights were extinguished by Minnesota's admission to
the Union in 1858. The District Court rejected this new defense.
No. 3-94-1226 (D. Minn., Mar. 29, 1996) (Davis, J.), App. to Pet.
for Cert. 182-189.
Simultaneously with this litigation, the Fond du Lac Band of
Chippewa Indians and several of its members filed a separate suit
against Minnesota state officials, seeking a declaration that they
retained their rights to hunt, fish, and gather pursuant to the
1837 and 1854 Treaties. Two Minnesota landowners intervened as
defendants,3 and the District
2 The Wisconsin Bands are also respondents in this Court: St.
Croix Chippewa Indians of Wisconsin, Lac du Flambeau Band of Lake
Superior Chippewas, Bad River Band of Lake Superior Chippewa
Indians, Lac Courte Oreilles Band of Lake Superior Chippewa Indians
of Wisconsin, Sokaogan Chippewa Community, and Red Cliff Band of
Lake Superior Chippewa.
3 The landowners who intervened in this suit are Robert J.
Edmonds and Michael Sheff. These landowners, along with the six
landowners who intervened in the Mille Lacs Band suit, have filed
briefs in this Court in
187
Court issued an order, like the order in the Mille Lacs Band
case, bifurcating the litigation into two phases. In March 1996,
the District Court held that the Fond du Lac Band retained its
hunting and fishing rights.
Fond du Lac Band of Chippewa
Indians v.
Carlson, Civ. No. 5-92-159 (D. Minn., Mar.
18, 1996) (Kyle, J.), App. to Pet. for Cert. 419.
In June 1996, the District Court consolidated that part of the
Fond du Lac litigation concerning the 1837 Treaty rights with the
Mille Lacs litigation for Phase II. In Phase II, the State and the
Bands agreed to a Conservation Code and Management Plan to regulate
hunting, fishing, and gathering in the Minnesota portion of the
territory ceded in the 1837 Treaty. Even after this agreement,
however, several resource allocation and regulation issues remained
unresolved; the District Court resolved these issues in a final
order issued in 1997. See 952 F. Supp. 1362 (Minn.) (Davis,
J.).
On appeal, the Court of Appeals for the Eighth Circuit affirmed.
124 F.3d
904 (1997). Three parts of the Eighth Circuit's decision are
relevant here. First, the Eighth Circuit rejected the State's
argument that President Taylor's 1850 Executive Order abrogated the
Indians' hunting, fishing, and gathering rights as guaranteed by
the 1837 Treaty. The Court of Appeals concluded that President
Taylor did not have the authority to issue the removal order and
that the invalid removal order was inseverable from the portion of
the order purporting to abrogate Chippewa usufructuary rights.
Id., at 914-918.
Second, the Court of Appeals concluded that the 1855 Treaty did
not extinguish the Mille Lacs Band's usufructuary privileges.
Id., at 919-921. The court noted that the revocation of
hunting and fishing rights was neither discussed during the Treaty
negotiations nor mentioned in the Treaty itself.
Id., at
920. The court also rejected the State's argument that this Court's
decision in
Oregon Dept. of Fish and
support of the State. The counties, too, have filed briefs in
support of the State.
188
Wildlife v.
Klamath Tribe, 473 U. S. 753 (1985),
required a different result. 124 F. 3d, at 921. Third, the court
rejected the State's argument that, under the "equal footing
doctrine," Minnesota's entrance into the Union extinguished any
Indian treaty rights.
Id., at 926-929. Specifically, the
Court of Appeals found no evidence of congressional intent in
enacting the Minnesota statehood Act to abrogate Chippewa
usufructuary rights, id., at 929, and it rejected the argument that
Ward v.
Race Horse, 163 U. S. 504 (1896),
controlled the resolution of this issue, 124 F. 3d, at 926-927.
In sum, the Court of Appeals held that the Chippewa retained
their usufructuary rights under the 1837 Treaty with respect to
land located in the State of Minnesota. This conclusion is
consistent with the Court of Appeals for the Seventh Circuit's
earlier decision holding that the Chippewa retained those same
rights with respect to the ceded land located in Wisconsin.
Lac
Courte Oreilles Band of Lake Superior Chippewa Indians v.
Voigt, 700 F.2d
341, appeal dism'd and cert. denied
sub nom. Besadny v.
Lac Courte Oreilles Band of Lake Superior Chippewa Indians,
464 U. S. 805 (1983) (Brennan, Marshall, and STEVENS, JJ., would
affirm). The Court of Appeals for the Eighth Circuit denied a
petition for rehearing and a suggestion for rehearing en bane. The
State of Minnesota, the landowners, and the counties all filed
petitions for writs of certiorari, and we granted the State's
petition. 524 U. S. 915 (1998).
II
We are first asked to decide whether President Taylor's
Executive Order of February 6, 1850, terminated Chippewa hunting,
fishing, and gathering rights under the 1837 Treaty. The Court of
Appeals began its analysis of this question with a statement of
black letter law: "'The President's power, if any, to issue the
order must stem either from an act of Con-
189
gress or from the Constitution itself.'" 124 F. 3d, at 915
(quoting
Youngstown Sheet &
Tube Co. v.
Sawyer, 343 U.
S. 579, 585 (1952)). The court considered whether the President
had authority to issue the removal order under the 1830 Removal Act
(hereinafter Removal Act), 4 Stat. 411. The Removal Act authorized
the President to convey land west of the Mississippi to Indian
tribes that chose to "exchange the lands where they now reside, and
remove there."
Id., at 412. According to the Court of
Appeals, the Removal Act only allowed the removal of Indians who
had consented to removal. 124 F. 3d, at 915-916. Because the
Chippewa had not consented to removal, according to the court, the
Removal Act could not provide authority for the President's 1850
removal order.
Id., at 916-917.
In this Court, no party challenges the Court of Appeals'
conclusion that the Removal Act did not authorize the President's
removal order. The landowners argue that the Removal Act was
irrelevant because it applied only to land ex
changes, and
that even if it required consent for such land exchanges, it did
not prohibit other means of removing Indians. See Brief for
Respondent Thompson et al. 22-23. We agree that the Removal Act did
not forbid the President's removal order, but as noted by the Court
of Appeals, it also did not authorize that order.
Because the Removal Act did not authorize the 1850 removal
order, we must look elsewhere for a constitutional or statutory
authorization for the order. In this Court, only the landowners
argue for an alternative source of authority; they argue that the
President's removal order was authorized by the 1837 Treaty itself.
See ibid. There is no support for this proposition, however. The
Treaty makes no mention of removal, and there was no discussion of
removal during the Treaty negotiations. Although the United States
could have negotiated a treaty in 1837 providing for removal of the
Chippewa-and it negotiated several such re-
190
moval treaties with Indian tribes in 18374-the 1837 Treaty with
the Chippewa did not contain any provisions authorizing a removal
order. The silence in the Treaty, in fact, is consistent with the
United States' objectives in negotiating it. Commissioner of Indian
Affairs Harris explained the United States' goals for the 1837
Treaty in a letter to Governor Dodge on May 13, 1837. App. 42. In
this letter, Harris explained that through this Treaty, the United
States wanted to purchase Chippewa land for the pinewoods located
on it; the letter contains no reference to removal of the Chippewa.
Ibid. Based on the record before us, the proposition that
the 1837 Treaty authorized the President's 1850 removal order is
unfounded. Because the parties have pointed to no colorable source
of authority for the President's removal order, we agree with the
Court of Appeals' conclusion that the 1850 removal order was
unauthorized.
The State argues that even if the
removal portion of the
order was invalid, the 1837 Treaty privileges were nevertheless
revoked because the invalid removal order was severable from the
portion of the order revoking Chippewa
4 See 1837 Treaty with the Saganaw Chippewa, Art. 6, 7 Stat. 530
("The said tribe agrees to remove from the State of Michigan, as
soon as a proper location can be obtained"); 1837 Treaty with the
Potawatomie, Art. 1, 7 Stat. 533 ("And the chiefs and head men
above named, for themselves and their bands, do hereby cede to the
United States all their interest in said lands, and agree to remove
to a country that may be provided for them by the President of the
United States, southwest of the Missouri river, within two years
from the ratification of this treaty"); 1837 Treaty with the Sacs
and Foxes, Art. 4, 7 Stat. 541 ("The Sacs and Foxes agree to remove
from the tract ceded, with the exception of Keokuck's village,
possession of which may be retained for two years, within eight
months from the ratification of this treaty"); 1837 Treaty with the
Winnebago, Art. 3, 7 Stat. 544-545 ("The said Indians agree to
remove within eight months from the ratification of this treaty, to
that portion of the neutral ground west of the Mississippi, which
was conveyed to them in the second article of the treaty of
September 21st, 1832, and the United States agree that the said
Indians may hunt upon the western part of said neutral ground until
they shall procure a permanent settlement").
191
usufructuary rights. Although this Court has often considered
the severability of
statutes, we have never addressed
whether
Executive Orders can be severed into valid and
invalid parts, and if so, what standard should govern the inquiry.
In this case, the Court of Appeals assumed that Executive Orders
are severable, and that the standards applicable in statutory cases
apply without modification in the context of Executive Orders. 124
F. 3d, at 917 (citing
In re Reyes, 910
F.2d 611, 613
(CA9 1990)). Because no party before this
Court challenges the applicability of these standards, for purposes
of this case we shall assume,
arguendo, that the
severability standard for statutes also applies to Executive
Orders.
The inquiry into whether a statute is severable is essentially
an inquiry into legislative intent.
Regan v.
Time,
Inc., 468 U. S.
641, 653 (1984) (plurality opinion). We stated the traditional
test for severability over 65 years ago: "Unless it is evident that
the legislature would not have enacted those provisions which are
within its power, independently of that which is not, the invalid
part may be dropped if what is left is fully operative as a law."
Champlin Refining Co. v.
Corporation Comm'n of Okla.,
286 U. S. 210,
234 (1932). See also
Alaska Airlines, Inc. v.
Brock,
480 U. S. 678,
684 (1987);
Regan v.
Time, Inc., supra, at 653.
Translated to the present context, we must determine whether the
President would not have revoked the 1837 Treaty privileges if he
could not issue the removal order.
We think it is clear that President Taylor intended the 1850
order to stand or fall as a whole. The 1850 order embodied a
single, coherent policy, the predominant purpose of which was
removal of the Chippewa from the lands that they had ceded to the
United States. The federal officials charged with implementing the
order certainly understood it as such. As soon as the Commissioner
of Indian Affairs received a copy of the order, he sent it to
Governor Ramsey and placed him in charge of its implementation. The
Com-
192
missioner's letter to Ramsey noted in passing that the order
revoked the Chippewa's usufructuary privileges, but it did not
discuss implementation of that part of the order. Rather, the
letter addressed the mechanics of implementing the
removal
order. Record, Doc. No. 311, Plaintiffs' Exh. 88 (letter from Brown
to Ramsey, Feb. 6, 1850). Governor Ramsey immediately wrote to his
subagent at La Pointe (on Lake Superior), noting that he had
enclosed a "copy of the order of the President
for the
removal of the Chippewas, from the lands they have ceded." App.
161 (letter from Ramsey to Livermore, Mar. 4, 1850) (emphasis
added). This letter made no mention of the revocation of Indian
hunting and fishing rights.
Id., at 161-163. The La Pointe
subagent, in turn, prepared a circular to notify the Wisconsin
Bands of the Executive Order, but this circular, too, focused on
removal of the Chippewa. See 861 F. Supp., at 805 (describing
circular).
When the 1850 order is understood as announcing a removal
policy, the portion of the order revoking Chippewa usufructuary
rights is seen to perform an integral function in this policy. The
order tells the Indians to "go," and also tells them not to return
to the ceded lands to hunt and fish. The State suggests that
President Taylor might also have revoked Chippewa usufructuary
rights as a kind of "incentive program" to
encourage the
Indians to remove had he known that he could not order their
removal directly. The State points to no evidence, however, that
the President or his aides ever considered the abrogation of
hunting and fishing rights as an "incentive program." Moreover, the
State does not explain how this incentive was to operate. As the
State characterizes Chippewa Treaty rights, the revocation of those
rights would not have prevented the Chippewa from hunting, fishing,
and gathering on the ceded territory; the revocation of treaty
rights would merely have subjected Chippewa hunters, fishers, and
gatherers to territorial, and, later, state regulation. Brief for
Petitioners 47, n. 21. The
193
State does not explain how, if the Chippewa were still permitted
to hunt, fish, and gather on the ceded territory, the revocation of
the treaty rights would have encouraged the Chippewa to remove to
their unceded lands.
There is also no evidence that the treaty privileges
themselves-as opposed to the presence of the Indians-caused any
problems necessitating the revocation of those privileges. In other
words, there is little historical evidence that the treaty
privileges would have been revoked for some other purpose. The only
evidence in this regard is Governor Ramsey's statement to the
Minnesota Territorial Legislature that settlers in the Sauk Rapids
and Swan River area were complaining about the Chippewa Treaty
privileges. But the historical record suggests that the settlers
were complaining about the Winnebago Indians, and not the Chippewa,
in that area. See App. 671-672 (Cleland Report). When Governor
Ramsey was put in charge of enforcing the 1850 Executive Order, he
made no efforts to remove the Chippewa from the Sauk Rapids area or
to restrict hunting and fishing privileges there. In fact, his
attempts to enforce the order consisted primarily of efforts to
move the Chippewa from the Wisconsin and Michigan areas to
Minnesota-closer to the Sauk Rapids and Swan River settlements.
App. 10991100 (White Report); id., at 677-678, 1025-1027 (Cleland
Report). More importantly, Governor Ramsey and the Minnesota
Territorial Legislature explicitly tied revocation of the treaty
privileges to removal. Common sense explains the logic of this
strategy: If the legislature was concerned with ensuring "the
security and tranquility of the white settlements," App. to Pet.
for Cert. 567 (Joint Resolution), this concern was not addressed by
merely revoking Indian treaty rights; the Indians had to be
removed.
We conclude that President Taylor's 1850 Executive Order was
ineffective to terminate Chippewa usufructuary rights under the
1837 Treaty. The State has pointed to no statutory or
constitutional authority for the President's removal
194
order, and the Executive Order, embodying as it did one coherent
policy, is inseverable.5 We do not mean to suggest that a
President, now or in the future, cannot revoke
5 THE CHIEF JUSTICE disagrees with this conclusion primarily
because he understands the removal order to be a mechanism for
enforcing the revocation of usufructuary rights.
Post, at
213-214 (dissenting opinion). The implicit premise of this argument
is that the President had the inherent power to order the removal
of the Chippewa from public lands; this premise is flawed. The
Chippewa were on the land long before the United States acquired
title to it. The 1837 Treaty does not speak to the right of the
United States to order them off the land upon acquisition of title,
and in fact, the usufructuary rights guaranteed by the Treaty
presumed that the Chippewa would continue to be on the land.
Although the revocation of the rights might have justified measures
to make sure that the Chippewa were not hunting, fishing, or
gathering, it does not follow that revocation of the usufructuary
rights permitted the United States to remove the Chippewa from the
land completely. THE CHIEF JUSTICE'S suggestion that the removal
order was merely a measure to enforce the revocation of the
usufructuary rights is thus unwarranted. It cannot be presumed that
the ends justified the means; it cannot be presumed that the rights
of the United States under the Treaty included the right to order
removal in defense of the revocation of usufructuary rights. The
Treaty, the statutory law, and the Constitution were silent on this
matter, and to presume the existence of such Presidential power
would run counter to the principles that treaties are to be
interpreted liberally in favor of the Indians,
Washington v.
Washington State Commercial Passenger Fishing Vessel Assn.,
443 U. S. 658,
675-676 (1979), and treaty ambiguities to be resolved in their
favor,
Winters v.
United States, 207 U. S. 564, 576577
(1908).
THE CHIEF JUSTICE also argues that the removal order ought to be
severable from the part of the order purporting to extinguish
Chippewa usufructuary rights because of the strong presumption
supporting the legality of executive action that has been
authorized expressly or by implication.
Post, at 215-216.
Presumably, THE CHIEF JUSTICE understands the 1837 Treaty to
authorize the executive action in question. In this context,
however, any general presumption about the legality of executive
action runs into the principle that treaty ambiguities are to be
resolved in favor of the Indians.
Winters v.
United
States, supra, at 576577; see also
County of Yakima v.
Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 269
(1992). We do not think the general presumption relied upon by THE
CHIEF JUSTICE carries the same weight when balanced against the
counterpresumption specific to Indian treaties.
195
Chippewa usufructuary rights in accordance with the terms of the
1837 Treaty. All we conclude today is that the President's 1850
Executive Order was insufficient to accomplish this revocation
because it was not severable from the invalid removal order.
III
The State argues that the Mille Lacs Band of Chippewa Indians
relinquished its usufructuary rights under the 1855 Treaty with the
Chippewa. Specifically, the State argues that the Band
unambiguously relinquished its usufructuary rights by agreeing to
the second sentence of Article 1 in that Treaty:
"And the said Indians do further fully and entirely relinquish
and convey to the United States, any and all right, title, and
interest, of whatsoever nature the same may be, which they may now
have in, and to any other lands in the Territory of Minnesota or
elsewhere." 10 Stat. 1166.
This sentence, however, does not mention the 1837 Treaty, and it
does not mention hunting, fishing, and gathering rights. The entire
1855 Treaty, in fact, is devoid of any language expressly
mentioning-much less abrogating-usufructuary rights. Similarly, the
Treaty contains no language providing money for the abrogation of
previously held rights. These omissions are telling because the
United States treaty drafters had the sophistication and experience
to use express language for the abrogation of treaty rights. In
fact, just a few months after Commissioner Manypenny completed the
1855 Treaty, he negotiated a Treaty with the Chippewa of Sault Ste.
Marie that expressly revoked fishing rights that had been reserved
in an earlier Treaty. See Treaty with the Chippewa of Sault Ste.
Marie, Art. 1, 11 Stat. 631 ("The said Chippewa Indians surrender
to the United States the right of fishing at the falls of St.
Mary's
196
... secured to them by the treaty of June 16, 1820").6 See,
e. g., Choctaw Nation v.
Oklahoma, 397 U. S. 620, 631 (1970)
(rejecting argument that language in Treaty had special meaning
when United States was competent to state that meaning more
clearly).
The State argues that despite any explicit reference to the 1837
Treaty rights, or to usufructuary rights more generally, the second
sentence of Article 1 nevertheless abrogates those rights. But to
determine whether this language abrogates Chippewa Treaty rights,
we look beyond the written words to the larger context that frames
the Treaty, including "the history of the treaty, the negotiations,
and the practical construction adopted by the parties."
Choctaw
Nation v.
United States, 318 U. S. 423, 432
(1943); see also
El Al Israel Airlines, Ltd. v.
Tsui Yuan
Tseng, 525 U. S.
155, 167 (1999). In this case, an examination of the historical
record provides insight into how the parties to the Treaty
understood the terms of the agreement. This insight is especially
helpful to the extent that it sheds light on how the Chippewa
signatories to the Treaty understood the agreement because we
interpret Indian treaties to give effect to the terms as the
Indians themselves would have understood them. See
Washington v.
Washington State Commercial Passenger
Fishing Vessel Assn., 443 U. S. 658, 675-676
(1979);
United States v.
Winans, 198 U. S. 371, 380-381
(1905).
The 1855 Treaty was designed primarily to transfer Chippewa land
to the United States, not to terminate Chippewa usufructuary
rights. It was negotiated under the authority of the Act of
December 19, 1854. This Act authorized treaty
6 See also,
e. g., 1846 Treaty with the Winnebago, Art.
IV, 9 Stat. 878 (Government agrees to pay Winnebago Indians $40,000
"for release of hunting privileges, on the lands adjacent to their
present home"); 1837 Treaty with the Sacs and Foxes, Art. 2, 7
Stat. 543 (specifically ceding "all the right to locate, for
hunting or other purposes, on the land ceded in the first article
of the treaty of July 15th 1830").
197
negotiations with the Chippewa "for the extinguishment of their
title to all the lands owned and claimed by them in the Territory
of Minnesota and State of Wisconsin." Ch. 7, 10 Stat. 598. The Act
is silent with respect to authorizing agreements to terminate
Indian usufructuary privileges, and this silence was likely not
accidental. During Senate debate on the Act, Senator Sebastian, the
chairman of the Committee on Indian Affairs, stated that the
treaties to be negotiated under the Act would "reserv[e] to them
[i.
e., the Chippewa] those rights which are secured by
former treaties." Congo Globe, 33d Cong., 1st Sess., 1404
(1854).
In the winter of 1854-1855, Commissioner Manypenny summoned
several Chippewa chiefs to Washington, D. C., to begin negotiations
over the sale of Chippewa land in Minnesota to the United States.
See App. 288 (letter from Manypenny to Gorman, Jan. 4, 1855). The
negotiations ran from February 12 through February 22. Commissioner
Manypenny opened the negotiations by telling the Chippewa chiefs
that his goal for the negotiations was to buy a portion of their
land, id., at 304 (1855 Treaty Journal), and he stayed firm to this
proposed course throughout the talks, focusing the discussions on
the purchase of Chippewa land. Indeed all of the participants in
the negotiations, including the Indians, understood that the
purpose of the negotiations was to transfer Indian land to the
United States. The Chief of the Pillager Band of Chippewa stated:
"It appears to me that I understand what you want, and your views
from the few words I have heard you speak. You want land."
Id., at 309 (1855 Treaty Journal) (statement of Flat Mouth).
Commissioner Manypenny confirmed that the chief correctly
understood the purpose of the negotiations:
"He appears to understand the object of the interview. His
people had more land than they wanted or could use, and stood in
need of money; and I have more money than I need, but want more
land." Ibid.
198
See also id., at 304 (statement of Hole-in-the-Day, the
principal negotiator for the Chippewa: "Your words strike us in
this way. They are very short. 'I want to buy your land.' These
words are very expressive-very curt").
Like the authorizing legislation, the Treaty Journal, recording
the course of the negotiations themselves, is silent with respect
to usufructuary rights. The journal records no discussion of the
1837 Treaty, of hunting, fishing, and gathering rights, or of the
abrogation of those rights.
Id., at 297-356. This silence
suggests that the Chippewa did not understand the proposed Treaty
to abrogate their usufructuary rights as guaranteed by other
treaties. It is difficult to believe that in 1855, the Chippewa
would have agreed to relinquish the usufructuary rights they had
fought to preserve in 1837 without at least a passing word about
the relinquishment.
After the Treaty was signed, President Pierce submitted it to
the Senate for ratification, along with an accompanying memorandum
from Commissioner Manypenny describing the Treaty he had just
negotiated. Like the Treaty and the Treaty Journal, this report is
silent about hunting, fishing, and gathering rights.
Id., at
290-294 (message of the President of the United States
communicating a treaty made with the Mississippi, the Pillager, and
the Lake Winnibigoshish Bands of Chippewa Indians).
Commissioner Manypenny's memorandum on the 1855 Treaty is
illuminating not only for what it did not say, but also for what it
did say: The report suggests a purpose for the second sentence of
Article 1. According to the Commissioner's report, the Treaty
provided for the purchase of between 11 and 14 million acres of
Chippewa land within the boundaries defined by the first article.
In addition to this defined tract of land, the Commissioner
continued, "those Indians (and especially the Pillager and Lake
Winnibigoshish bands) have some right of interest in a large extent
of other lands in common with other Indians in Minnesota, and
which
199
right or interest ... is also ceded to the United States."
Id., at 292. This part of the Commissioner's report suggests
that the second sentence of Article 1 was designed not to
extinguish usufructuary rights, but rather to extinguish remaining
Chippewa
land claims. The "other lands" do not appear to be
the lands ceded by the 1837 Treaty. The Pillager and Lake
Winnibigoshish Bands did not occupy lands in the 1837 ceded
territory, so it is unlikely that the Commissioner would have
described the usufructuary rights guaranteed by the 1837 Treaty as
belonging "especially" to those Bands. Moreover, the 1837 Treaty
privileges were held in common largely with Chippewa bands in
Wisconsin, not with "other Indians in Minnesota." In other words,
the second sentence of Article 1 did not extinguish usufructuary
privileges, but rather it extinguished Chippewa land claims that
Commissioner Manypenny could not describe precisely. See
e.
g., id., at 317-318 (1855 Treaty Journal) (Pillager negotiator
declines to "state precisely what our bands claim as a right"). See
also 861 F. Supp., at 816-817.
One final part of the historical record also suggests that the
1855 Treaty was a land purchase treaty and not a treaty that also
terminated usufructuary rights: the 1854 Treaty with the Chippewa.
Most of the Chippewa Bands that resided within the territory ceded
by the 1837 Treaty were signatories to the 1854 Treaty; only the
Mille Lacs Band was a party to the 1855 Treaty. If the United
States had intended to abrogate Chippewa usufructuary rights under
the 1837 Treaty, it almost certainly would have included a
provision to that effect in the 1854 Treaty, yet that Treaty
contains no such provision. To the contrary, it expressly secures
new usufructuary rights to the signatory Bands on the newly
ceded territory. The State proposes no explanationcompelling or
otherwise-for why the United States would have wanted to abrogate
the Mille Lacs Band's hunting and fishing rights, while leaving
intact the other Bands' rights to hunt and fish on the same
territory.
200
To summarize, the historical record provides no support for the
theory that the second sentence of Article 1 was designed to
abrogate the usufructuary privileges guaranteed under the 1837
Treaty, but it does support the theory that the Treaty, and Article
1 in particular, was designed to transfer Chippewa land to the
United States. At the very least, the historical record refutes the
State's assertion that the 1855 Treaty "unambiguously" abrogated
the 1837 hunting, fishing, and gathering privileges. Given this
plausible ambiguity, we cannot agree with the State that the 1855
Treaty abrogated Chippewa usufructuary rights. We have held that
Indian treaties are to be interpreted liberally in favor of the
Indians,
Washington v.
Washington State Commercial
Passenger Fishing Vessel Assn., 443 U. S., at 675-676;
Choctaw Nation v.
United States, 318 U. S., at 432,
and that any ambiguities are to be resolved in their favor,
Winters v.
United States, 207 U. S. 564, 576-577
(1908). See also
County of Yakima v.
Confederated Tribes
and Bands of Yakima Nation, 502 U. S. 251, 269
(1992).
To attack the conclusion that the 1855 Treaty does not abrogate
the usufructuary rights guaranteed under the 1837 Treaty, the State
relies primarily on our decision in
Oregon Dept. of Fish and
Wildlife v.
Klamath Tribe, 473 U. S. 753 (1985).
Klamath required this Court to interpret two agreements. In the
first agreement, an 1864 Treaty between the United States and
several Indian Tribes now collectively known as the Klamath Indian
Tribe, the Indians conveyed their remaining lands to the United
States, and a portion of this land was set aside as a reservation.
Id., at 755. The 1864 Treaty provided that the Tribe had
the" 'exclusive right of taking fish in the streams and lakes,
included in said reservation, and of gathering edible roots, seeds,
and berries within its limits,'" but it provided for no
offreservation usufructuary rights.
Ibid. (quoting Treaty of
Oct. 14, 1864). Due to a surveying error, the reservation excluded
land that, under the terms of the Treaty, should
201
have been included within the reservation. Thus, in 1901, the
United States and the Tribe entered into a second agreement, in
which the United States agreed to compensate the Tribe for those
lands, and the Tribe agreed to "'cede, surrender, grant, and convey
to the United States all their claim, right, title and interest in
and to'" the lands erroneously excluded from the reservation.
Id., at 760. The Tribe contended that the 1901 agreement had
not abrogated its usufructuary rights under the 1864 Treaty with
respect to those lands.
We rejected the Tribe's argument and held that it had in fact
relinquished its usufructuary rights to the lands at issue. We
recognized that the 1864 Treaty had secured certain usufructuary
rights to the Tribe, but we also recognized, based on an analysis
of the specific terms of the Treaty, that the 1864 Treaty
restricted those rights to the lands within the reservation.
Id., at 766-767. Because the rights were characterized as
"exclusive," this "foreclose[d] the possibility that they were
intended to have existence outside of the reservation."
Id.,
at 767. In other words, "because the right to hunt and fish
reserved in the 1864 Treaty was an exclusive right to be exercised
within the reservation, that right could not consistently survive
off the reservation" on the lands the Tribe had sold.
Id.,
at 769-770. This understanding of the Tribe's usufructuary rights
under the 1864 Treaty-that those rights were exclusive,
on-reservation rights-informed our conclusion that the Klamath
Tribe did not retain any usufructuary rights on the land that it
ceded in the 1901 agreement, land that was not part of the
reservation. In addition, we noted that there was nothing in the
historical record of the 1901 agreement that suggested that the
parties intended to change the background understanding of the
scope of the usufructuary rights.
Id., at 772-773.
Klamath does not control this case. First, the Chippewa's
usufructuary rights under the 1837 Treaty existed independently of
land ownership; they were neither tied to a
202
reservation nor exclusive. In contrast to
Klamath, there
is no background understanding of the rights to suggest that they
are extinguished when title to the land is extinguished. Without
this background understanding, there is no reason to believe that
the Chippewa would have understood a cession of a particular tract
of land to relinquish hunting and fishing privileges on another
tract of land. More importantly, however, the State's argument that
similar language in two Treaties involving different parties has
precisely the same meaning reveals a fundamental misunderstanding
of basic principles of treaty construction. Our holding in
Klamath was not based
solely on the bare language of
the 1901 agreement. Rather, to reach our conclusion about the
meaning of that language, we examined the historical record and
considered the context of the treaty negotiations to discern what
the parties intended by their choice of words. This review of the
history and the negotiations of the agreements is central to the
interpretation of treaties.
El Al Israel Airlines, Ltd. v.
Tsui Yuan Tseng, 525 U. S., at 167. As we described above,
an analysis of the history, purpose, and negotiations of
this
Treaty leads us to conclude that the Mille Lacs Band did not
relinquish their 1837 Treaty rights in the 1855 Treaty.
IV
Finally, the State argues that the Chippewa's usufructuary
rights under the 1837 Treaty were extinguished when Minnesota was
admitted to the Union in 1858. In making this argument, the State
faces an uphill battle. Congress may abrogate Indian treaty rights,
but it must clearly express its intent to do so.
United
States v.
Dion, 476 U. S. 734, 738-740
(1986); see also
Washington v.
Washington State
Commercial Passenger Fishing Vessel Assn., 443 U. S., at
690; Menominee Tribe v.
United States, 391 U. S. 404, 413
(1968). There must be "clear evidence that Congress actually
considered the conflict between its intended action on the one hand
and Indian treaty rights on the other, and chose
203
to resolve that conflict by abrogating the treaty."
United
States v.
Dion, supra, at 740. There is no such "clear
evidence" of congressional intent to abrogate the Chippewa Treaty
rights here. The relevant statute-Minnesota's enabling Act-provides
in relevant part:
"[T]he State of Minnesota shall be one, and is hereby declared
to be one, of the United States of America, and admitted into the
Union on an equal footing with the original States in all respects
whatever." Act of May 11, 1858, 11 Stat. 285.
This language, like the rest of the Act, makes no mention of
Indian treaty rights; it provides no clue that Congress considered
the reserved rights of the Chippewa and decided to abrogate those
rights when it passed the Act. The State concedes that the Act is
silent in this regard, Brief for Petitioners 36, and the State does
not point to any legislative history describing the effect of the
Act on Indian treaty rights.
With no direct support for its argument, the State relies
principally on this Court's decision in
Ward v.
Race
Horse, 163 U. S.
504 (1896). In
Race Horse, we held that a Treaty
reserving to a Tribe "'the right to hunt on the unoccupied lands of
the United States, so long as game may be found thereon, and so
long as peace subsists among the whites and Indians on the borders
of the hunting districts'" terminated when Wyoming became a State
in 1890.
Id., at 507 (quoting Art. 4 of the Treaty). This
case does not bear the weight the State places on it, however,
because it has been qualified by later decisions of this Court.
The first part of the holding in
Race Horse was based on
the "equal footing doctrine," the constitutional principle that all
States are admitted to the Union with the same attributes of
sovereignty (i.
e., on equal footing) as the original 13
States. See
Coyle v.
Smith, 221 U. S. 559 (1911). As
relevant here, it prevents the Federal Government from impair-
204
ing fundamental attributes of state sovereignty when it admits
new States into the Union.
Id., at 573. According to the
Race Horse Court, because the treaty rights conflicted
irreconcilably with state regulation of natural resources"an
essential attribute of its governmental existence," 163 U. S., at
516-the treaty rights were held an invalid impairment of Wyoming's
sovereignty. Thus, those rights could not survive Wyoming's
admission to the Union on "equal footing" with the original
States.
But
Race Horse rested on a false premise. As this Court's
subsequent cases have made clear, an Indian tribe's treaty rights
to hunt, fish, and gather on state land are not irreconcilable with
a State's sovereignty over the natural resources in the State. See,
e. g., Washington v.
Washington State Commercial
Passenger Fishing Vessel Assn., supra; see also
Antoine
v.
Washington, 420 U. S. 194 (1975).
Rather, Indian treaty rights can coexist with state management of
natural resources. Although States have important interests in
regulating wildlife and natural resources within their borders,
this authority is shared with the Federal Government when the
Federal Government exercises one of its enumerated constitutional
powers, such as treaty making. U. S. Const., Art. VI, cl. 2. See,
e. g., Missouri v.
Holland, 252 U. S. 416 (1920);
Kleppe v.
New Mexico, 426 U. S. 529 (1976);
United States v.
Winans, 198 U. S., at 382-384;
United States v.
Forty-three Gallons of Whiskey,
93 U. S. 188
(1876). See also
Menominee Tribe v.
United States,
supra, at 411, n. 12. Here, the 1837 Treaty gave the Chippewa
the right to hunt, fish, and gather in the ceded territory free of
territorial, and later state, regulation, a privilege that others
did not enjoy. Today, this freedom from state regulation curtails
the State's ability to regulate hunting, fishing, and gathering by
the Chippewa in the ceded lands. But this Court's cases have also
recognized that Indian treaty-based usufructuary rights do not
guarantee the Indians "absolute freedom" from state regulation.
Oregon Dept. of Fish and Wildlife v.
Klamath
205
Tribe, 473 U. S., at 765, n. 16. We have repeatedly
reaffirmed state authority to impose reasonable and necessary
nondiscriminatory regulations on Indian hunting, fishing, and
gathering rights in the interest of conservation. See
Puyallup
Tribe v.
Department of Game of Wash., 391 U. S. 392, 398
(1968);
Washington v.
Washington State Commercial
Passenger Fishing Vessel Assn., 443 U. S., at 682;
Antoine v.
Washington, supra, at 207-208. This
"conservation necessity" standard accommodates both the State's
interest in management of its natural resources and the Chippewa's
federally guaranteed treaty rights. Thus, because treaty rights are
reconcilable with state sovereignty over natural resources,
statehood by itself is insufficient to extinguish Indian treaty
rights to hunt, fish, and gather on land within state
boundaries.7
We do not understand JUSTICE THOMAS to disagree with this
fundamental conclusion.
Race Horse rested on the premise
that treaty rights are irreconcilable with state sovereignty. It is
this conclusion-the conclusion undergirding the
Race Horse
Court's equal footing holding-that we have consistently rejected
over the years. JUSTICE THOMAS' only disagreement is as to the
scope of state regulatory authority. His disagreement is premised
on a purported distinction between "rights" and "privileges." This
Court has never used a distinction between rights and
privileges
7THE CHIEF JUSTICE asserts that our criticism of
Race
Horse is inappropriate given our recent "reaffirm[ation]" of
that case in
Oregon Dept. of Fish and Wildlife v.
Klamath
Tribe, 473 U. S.
753 (1985).
Post, at 219. Although we cited
Race
Horse in
Klamath, we did not in so doing reaffirm the
equal footing doctrine as a bar to the continuation of Indian
treatybased usufructuary rights.
Klamath did not involve the
equal footing doctrine. Rather, we cited
Race Horse for the
second part of its holding, discussed in the text,
infra, at
206-208. See 473 U. S., at 773, n. 23. In any event, the
Race
Horse Court's reliance on the equal footing doctrine to
terminate Indian treaty rights rested on foundations that were
rejected by this Court within nine years of that decision. See
United States v.
Winans, 198 U. S. 371, 382-384
(1905).
206
to justify any differences in state regulatory authority.
Moreover, as JUSTICE THOMAS acknowledges,
post, at 223
(dissenting opinion), the starting point for any analysis of these
questions is the treaty language itself. The Treaty must be
interpreted in light of the parties' intentions, with any
ambiguities resolved in favor of the Indians.
Winters v.
United States, 207 U. S., at 576-577. There is no evidence
that the Chippewa understood any fine legal distinctions between
rights and privileges. Moreover, under JUSTICE THOMAS' view of the
1837 Treaty, the guarantee of hunting, fishing, and gathering
privileges was essentially an empty promise because it gave the
Chippewa nothing that they did not already have.
The equal footing doctrine was only part of the holding in
Race Horse, however. We also announced an alternative
holding: The treaty rights at issue were not intended to survive
Wyoming's statehood. We acknowledged that Congress, in the exercise
of its authority over territorial lands, has the power to secure
off-reservation usufructuary rights to Indian tribes through a
treaty, and that "it would be also within the power of Congress to
continue them in the State, on its admission into the Union." 163
U. S., at 515. We also acknowledged that if Congress intended the
rights to survive statehood, there was no need for Congress to
preserve those rights explicitly in the statehood Act. We
concluded, however, that the particular rights in the Treaty at
issue there"the right to hunt on the unoccupied lands of the United
States"-were not intended to survive statehood.
Id., at 514;
see id., at 514-515.
THE CHIEF JUSTICE reads
Race Horse to establish a rule
that "temporary and precarious" treaty rights, as opposed to treaty
rights "which were 'of such a nature as to imply their
perpetuity,'" are not intended to survive statehood.
Post,
at 219. But the "temporary and precarious" language in
Race
Horse is too broad to be useful in distinguishing rights that
survive statehood from those that do not. In
Race
207
Horse, the Court concluded that the right to hunt on
federal lands was temporary because Congress could terminate the
right at any time by selling the lands. 163 U. S., at 510. Under
this line of reasoning, any right created by operation of federal
law could be described as "temporary and precarious," because
Congress could eliminate the right whenever it wished. In other
words, the line suggested by
Race Horse is simply too broad
to be useful as a guide to whether treaty rights were intended to
survive statehood.
The focus of the
Race Horse inquiry is whether Congress
(more precisely, because this is a treaty, the Senate) intended the
rights secured by the 1837 Treaty to survive statehood.
Id.,
at 514-515. The 1837 Treaty itself defines the circumstances under
which the rights would terminate: when the exercise of those rights
was no longer the "pleasure of the President." There is no
suggestion in the Treaty that the President would have to conclude
that the privileges should end when a State was established in the
area. Moreover, unlike the rights at issue in
Race Horse,
there is no fixed termination point to the 1837 Treaty rights. The
Treaty in
Race Horse contemplated that the rights would
continue only so long as the hunting grounds remained unoccupied
and owned by the United States; the happening of these conditions
was "clearly contemplated" when the Treaty was ratified.
Id., at 509. By contrast, the 1837 Treaty does not tie the
duration of the rights to the occurrence of some clearly
contemplated event. Finally, we note that there is nothing inherent
in the nature of reserved treaty rights to suggest that they can be
extinguished by
implication at statehood. Treaty rights are
not impliedly terminated upon statehood.
Wisconsin v.
Hitchcock, 201
U. S. 202, 213-214 (1906);
Johnson v.
Gearlds,
234 U. S. 422,
439-440 (1914). The
Race Horse Court's decision to the
contrary-that Indian treaty rights were impliedly repealed by
Wyoming's statehood Act-was informed by that Court's conclusion
that the Indian treaty rights were inconsistent with state
sovereignty
208
over natural resources and thus that Congress (the Senate) could
not have intended the rights to survive statehood. But as we
described above, Indian treaty-based usufructuary rights are not
inconsistent with state sovereignty over natural resources. See
supra, at 204-205. Thus, contrary to the State's
contentions,
Race Horse does not compel the conclusion that
Minnesota's admission to the Union extinguished Chippewa
usufructuary rights guaranteed by the 1837 Treaty.
Accordingly, the judgment of the United States Court of Appeals
for the Eighth Circuit is affirmed.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA, JUSTICE
KENNEDY, and JUSTICE THOMAS join, dissenting.
The Court holds that the various Bands of Chippewa Indians
retain a usufructuary right granted to them in an 1837 Treaty. To
reach this result, the Court must successively conclude that: (1)
an 1850 Executive Order explicitly revoking the privilege as
authorized by the 1837 Treaty was unlawful; (2) an 1855 Treaty
under which certain Chippewa Bands ceded "all" interests to the
land does not include the treaty right to come onto the land and
hunt; and (3) the admission of Minnesota into the Union in 1858 did
not terminate the discretionary hunting privilege, despite
established precedent of this Court to the contrary. Because I
believe that each one of these three conclusions is demonstrably
wrong, I dissent.
I
I begin with the text of the Treaty negotiated in 1837. In that
Treaty, the Chippewa ceded land to the United States in exchange
for specified consideration. Article 1 of the Treaty describes the
land ceded by the Chippewa to the United States. Article 2 of the
1837 Treaty provides:
209
"In consideration of the cession aforesaid, the United States
agree to make to the Chippewa nation, annually, for the term of
twenty years, from the date of the ratification of this treaty, the
following payments.
"1. Nine thousand five hundred dollars, to be paid in money.
"2. Nineteen thousand dollars, to be delivered in goods.
"3. Three thousand dollars for establishing three blacksmiths
shops, supporting the blacksmiths, and furnishing them with iron
and steel.
"4. One thousand dollars for farmers, and for supplying them and
the Indians, with implements of labor, with grain or seed; and
whatever else may be necessary to enable them to carry on their
agricultural pursuits.
"5. Two thousand dollars in provisions. "6. Five hundred dollars
in tobacco.
"The provisions and tobacco to be delivered at the same time
with the goods, and the money to be paid; which time or times, as
well as the place or places where they are to be delivered, shall
be fixed upon under the direction of the President of the United
States.
"The blacksmiths shops to be placed at such points in the
Chippewa country as shall be designated by the Superintendent of
Indian Affairs, or under his direction.
"If at the expiration of one or more years the Indians should
prefer to receive goods, instead of the nine thousand dollars
agreed to be paid to them in money, they shall be at liberty to do
so. Or, should they conclude to appropriate a portion of that
annuity to the establishment and support of a school or schools
among them, this shall be granted them." 7 Stat. 536-537.
Thus, in exchange for the land cessions, the Chippewa agreed to
receive an annuity payment of money, goods, and the implements
necessary for creating blacksmith's shops and farms, for a limited
duration of 20 years.
210
Articles 3 and 4 of the Treaty deal with cash payments to
persons not parties to this suit, but Article 5 is involved here.
As the Court notes, there was some discussion during the treaty
negotiations that the Chippewa wished to preserve some right to
hunt in the ceded territory. See
ante, at 176. The United
States agreed to this request to some extent, and the agreement of
the parties was embodied in Article 5 of the Treaty, which provides
that:
"The privilege of hunting, fishing, and gathering the wild rice,
upon the lands, the rivers and the lakes included in the territory
ceded, is guarantied to the Indians, during the pleasure of the
President of the United States." 7 Stat. 537.
As the Court also notes, the Chippewa were aware that their
right to come onto the ceded land was not absolutethe Court quotes
the statement of Governor Dodge to the Chippewa that he would
"'make known to your Great Father, your request to be permitted to
make sugar, on the lands; and you will be allowed, during his
pleasure, to hunt and fish on them.'"
Ante, at 176; App. 46
(1837 Journal of Treaty Negotiations).
Thus, the Treaty by its own plain terms provided for a
quid
pro quo: Land was ceded in exchange for a 20-year annuity of
money and goods. Additionally, the United States granted the
Chippewa a quite limited "privilege" to hunt and fish, "guarantied
... during the pleasure of the President." Art. 5, 7 Stat. 537.
II
In 1850, President Taylor expressly terminated the 1837 Treaty
privilege by Executive Order. The Executive Order provides:
"The privileges granted temporarily to the Chippewa Indians of
the Mississippi by the Fifth Article of the Treaty made with them
on the 29th of July 1837, 'of hunting, fishing and gathering the
wild rice, upon the
211
lands, the rivers and the lakes included in the territory ceded'
by that treaty to the United States ... are hereby revoked; and all
of the said Indians remaining on the lands ceded as aforesaid, are
required to remove to their unceded lands." App. to Pet. for Cert.
565.
In deciding that this seemingly ironclad revocation was not
effective as a matter of law, the Court rests its analysis on four
findings. First, the Court notes that the President's power to
issue the order must stem either from an Act of Congress or the
Constitution itself. Second, the Court determines that the
Executive Order was a "removal order." Third, the Court finds no
authority for the President to order the Chippewa to remove from
the ceded lands. And fourth, the Court holds that the portion of
the Executive Order extinguishing the hunting and fishing rights is
not severable from the "removal order" and thus also was illegal. I
shall address each of these dubious findings in turn.
The Court's first proposition is the seemingly innocuous
statement that a President's Executive Order must be authorized by
law in order to have any legal effect. In so doing, the Court
quotes our decision in
Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.
S. 579, 585 (1952), which held that President Truman's seizure
of the steel mills by Executive Order during the Korean War was
unlawful. However, the Court neglects to note that treaties, every
bit as much as statutes, are sources of law and may also authorize
Executive actions. See
Dames &
Moore v.
Regan, 453 U.
S. 654, 680 (1981). In
Dames &
Moore, we
noted that where the President acts with the implied consent of
Congress in his Executive actions, "he exercises not only his own
powers but also those delegated by Congress," and that such an
action was entitled to high deference as to its legality.
Id., at 668. This case involves an even stronger case for
deference to Executive power than
Dames &
Moore,
in which Presidential power under an Executive agreement was
impliedly authorized by Congress, because the Executive Order in
this
212
case was issued pursuant to a Treaty ratified by the advice and
consent of the Senate, and thus became the supreme law of the land.
See U. S. Const., Art. VI;
United States v.
Belmont,
301 U. S. 324
(1937). The Court's contrary conclusion is simply wrong.
The Court's second assumption is that the Executive Order was a
"removal order" -that its primary purpose was the removal of the
Chippewa. This assumption rests upon scattered historical evidence
that, in the Court's view, "[t]he officials charged with
implementing this order understood it primarily as a removal order,
and they proceeded to implement it accordingly."
Ante, at
179. Regardless of what the President's remote frontier agents may
have thought, the plain meaning of the
text of President
Taylor's order can only support the opposite conclusion. The
structure of the Executive Order is not that of a removal order,
with the revocation of the hunting privileges added merely as an
afterthought. Instead, the first part of the order (not to mention
the bulk of its text) deals with the extinguishment of the Indians'
privilege to enter onto the lands ceded to the United States and
hunt. Only then (and then only in its final five words) does the
Executive Order require the Indians to "remove to their unceded
lands." App. to Pet. for Cert. 565 (Exec. Order, Feb. 6, 1850).
If the structure and apparent plain meaning of the Executive
Order reveal that the order was primarily a revocation of the
privilege to hunt during the President's pleasure, what then should
we make of the fact that the officials charged with "implementing"
the order viewed their task as primarily effecting removal? The
answer is simple. First, the bulk of the Executive Order that
terminates the hunting privilege was self-executing. Second, while
the President could terminate the legal right (i.
e., the
privilege to enter onto the ceded lands and hunt) without taking
enforcement action, a removal order
would require actual
implementation. The historical evidence cited by the Court is
best
213
understood thus as an implementation of President Taylor's
unequivocal (and legally effective) termination of the usufructuary
privileges. But while the removal portion may have required
implementation to be effective, this cannot turn the Executive
Order into a "removal order." And even if the President's agents
viewed the order as a removal order (a proposition for which the
historical evidence is far more ambiguous than the Court admits),
their interpretation is not binding on this Court; nor should it
be, since the agents had nothing to do with the bulk of the order
which terminated the treaty privileges.
The Court's third finding is that the removal portion of the
order is invalid because President Taylor had no authority to order
removal. Although the Court sensibly concludes that the Removal Act
of 1830 is inapplicable to this case, it then curiously rejects the
notion that the 1837 Treaty authorizes removal, largely on the
grounds that "[t]he Treaty makes no mention of removal."
Ante, at 189. The Court is correct that the Treaty does not
mention removal, but this is because the Treaty was
essentially a deed of conveyanceit transferred land to the United
States in exchange for goods and money. After the Treaty was
executed and ratified, the ceded lands belonged to the United
States, and the only real property interest in the land remaining
to the Indians was the privilege to come onto it and hunt during
the pleasure of the President. When the President terminated that
privilege (a legal act that the Court appears to concede he had a
right to make,
ante, at 193-194), he terminated the Indians'
right to come onto the ceded lands and hunt. The Indians had no
legal right to remain on the ceded lands for that purpose, and the
removal portion of the order should be viewed in this context.
Indeed, the Indians then had no legal rights at all with respect to
the ceded lands, in which all title was vested in the United
States. And this Court has long held that the President has the
implied power to administer the public lands. See,
e. g.,
United States v.
Mid-
214
west Oil
Co., 236 U. S. 459 (1915).
Dealing with persons whose legal right to come onto the lands and
hunt had been extinguished would appear to fall squarely under this
power. Whether the President chose to enforce his revocation
through an order to leave the land or the ambiguous lesser
"measures to make sure that the Chippewa were not hunting, fishing,
or gathering" proposed by the Court,
ante, at 194, n. 5, is
not ours to second-guess a century and a half later. Indeed,
although the Court appears to concede that the President had the
power to enforce the revocation order, it is difficult to imagine
what steps he could have taken to prevent hunting other than
ordering the Chippewa not to come onto the land for that purpose.
The ceded lands were not a national park, nor did the President
have an army of park rangers available to guard Minnesota's
wildlife from Chippewa poachers. Removal was the only viable option
in enforcing his power under the Treaty to terminate the hunting
privilege. Thus, in my view, the final part of the Executive Order
discussing removal was lawful.1
1 The Court's assumption that "any general presumption about the
legality of executive action runs into the principle that treaty
ambiguities are to be resolved in favor of the Indians,"
ante, at 194, n. 5, illogically confuses the difference
between executive authority and a principle of treaty construction.
The principle of
Winters v.
United States, 207 U. S. 564, 567-577
(1908), and
County of Yakima v.
Confederated Tribes and
Bands of Yakima Nation, 502 U. S. 251, 269
(1992), that ambiguities in treaties are to be resolved in favor of
the Indians, is only relevant to determining the intent of the
parties to a treaty (that is the United States and the
Indian tribe), and stems from the idea that in determining the
intent of the parties, Indian tribes should be given the benefit of
the doubt as against the United States in cases of ambiguous treaty
provisions because the United States was presumptively a more
sophisticated bargainer. See
Washington v.
Washington
State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 675-676
(1979). But the determination of whether the President has power to
enforce his revocation by removal is irrelevant to the intent of
the parties to the treaty (the United States and the Chippewa in
this case) and presents instead an issue of separation of powers
(between the President and the Congress).
215
The fourth element essential to to day's holding is the
conclusion that if the final part of the Executive Order requiring
removal were not authorized, the bulk of the order would fail as
not severable. Because this is the first time we have had occasion
to consider the severability of Executive Orders, the Court first
assumes that the standards for severability of statutes also apply
to the severability of Executive Orders. Next, the Court determines
to seek the "legislative intent" of President Taylor in issuing the
order.
Ante, at 191. And finally, the Court concludes that
President Taylor would not have issued the Executive Order in the
absence of a removal provision, because the 1850 order embodied a
coherent policy of Indian removal. As noted above, this approach to
the Executive Order stands it on its headthe order
first
extinguishes the hunting privilege and only then-in its last five
words-orders removal.
But even if I were to assume that the President were without
authority to order removal, I would conclude that the removal
provision is severable from that terminating the treaty privileges.
There is no dispute that the President had authority under the 1837
Treaty to terminate the treaty privileges. We have long held that
"[w]hen the President acts pursuant to an express or implied
authorization from Congress, ... the executive action 'would be
supported by the strongest of presumptions and the widest latitude
of judicial interpretation, and the burden of persuasion would rest
heavily upon any who might attack it.'"
Dames & Moore v.
Regan, 453 U. S., at 668 (quoting
Youngstown Sheet
&
Tube Co. v.
Sawyer, 343 U. S., at 637 (Jackson,
J., concurring)). Against this deferential standard, the Court
musters little more than conjecture and inference, reinforced by
its upside-down reading of the Executive Order's plain text. Not
only does the Court invert the plain meaning of the Executive
Order, it inverts the proper standard of review. Given the
deference we are to accord this valid action made pursuant to a
treaty, the order's termination of
216
the treaty privileges should be sustained unless the Chippewa
are able to clearly demonstrate that President Taylor would not
have terminated them without a removal order. But there is no such
evidence, and in the absence of evidence challenging the "strongest
of presumptions and the widest latitude of judicial interpretation"
that we are required to afford President Taylor's actions, we have
only the Court's misguided excursion into historiographical
clairvoyance. Accordingly, I would conclude, if necessary, that the
termination portion of the Executive Order is severable.
Rather than engage in the flawed analysis put forward by the
Court, I would instead hold that the Executive Order constituted a
valid revocation of the Chippewa's hunting and fishing privileges.
Pursuant to a Treaty, the President terminated the Indians' hunting
and fishing privileges in an Executive Order which stated, in
effect, that the privilege to come onto federal lands and hunt was
terminated, and that the Indians move themselves from those
lands.
No party has questioned the President's power to terminate the
hunting privilege; indeed, the only other evidence in the record of
a President's intent regarding the Executive Order is a 1938 letter
from President Franklin Roosevelt to one of the Chippewa, in which
he stated his understanding that the Indians had "temporarily"
enjoyed "the right to hunt and fish on the area ceded by them until
such right was revoked by the President" in the 1850 Executive
Order. App. to Pet. for Cert. 575 (letter from President Roosevelt
to Whitebird, Mar. 1, 1938). President Roosevelt went on to add
that since the right to hunt and fish was terminated in 1850, the
Chippewa "now have no greater right to hunt or fish on the ceded
area ... than do the other citizens of the State. Therefore, the
Indians who hunt or fish ... are amenable to the State game laws
and are subject to arrest and conviction [f]or violation thereof."
Id., at 576.
217
President Roosevelt's letter reflects the settled expectations
of the President, in whose office the discretion to terminate the
privilege granted in Article 5 of the 1837 Treaty was vested, that
the 1850 Executive Order was a valid termination of the treaty
privileges. And because the 1837 Treaty, in conjunction with the
Presidential power over public lands, gave the President the power
to order removal in conjunction with his termination of the hunting
rights, the Court's severability analysis is unnecessary. In sum,
there is simply no principled reason to invalidate the 150-year-old
Executive Order, particularly in view of the heightened deference
and wide latitude that we are required to give orders of this
sort.
III
Although I believe that the clear meaning of the Executive Order
is sufficient to resolve this case, and that it is unnecessary to
address the Court's treatment of the 1855 Treaty and the 1858
admission of Minnesota to the Union, I shall briefly express my
strong disagreement with the Court's analysis on these issues
also.
As the Court notes, in 1855, several of the Chippewa Bands
agreed, in exchange for further annuity payments of money and
goods, to "fully and entirely relinquish and convey to the United
States, any and all right, title, and interest, of whatsoever
nature the same may be, which they now have in, and to any other
lands in the Territory of Minnesota or elsewhere." 10 Stat. 1166.
The plain meaning of this provision is a relinquishment of the
Indians of "all" rights to the land. The Court, however, interprets
this provision in a manner contrary to its plain meaning by first
noting that the provision does not mention "usufructuary" rights.
It argues, citing examples, that since the United States "had the
sophistication and experience to use express language for the
abrogation of treaty rights,"
ante, at 195, but did not
mention the 1837 Treaty rights in drafting this
218
language,2 it perhaps did not intend to extinguish those rights,
thus creating an interpretation at odds with the Treaty's language.
Then, using our canons of construction that ambiguities in treaties
are often resolved in favor of the Indians, it concludes that the
Treaty did not apply to the hunting rights.
I think this conclusion strained, indeed. First, the language of
the Treaty is so broad as to encompass
"all" interests in
land possessed or claimed by the Indians. Second, while it is
important to the Court that the Treaty "is devoid of any language
expressly mentioning-much less abrogating-usufructuary rights,"
ibid., the definition of "usufructuary rights" explains further why
this is so. Usufructuary rights are "a real right of limited
duration on the property of another." See Black's Law Dictionary
1544 (6th ed. 1990). It seems to me that such a right would fall
clearly under the sweeping language of the Treaty under any
reasonable interpretation, and that this is not a case where "even
'learned lawyers' of the day would probably have offered differing
interpretations of the [treaty language]." Cf.
Washington v.
Washington State Commercial Passenger Fishing Vessel Assn.,
443 U. S. 658,
677 (1979). And third, although the Court notes that in other
treaties the United States sometimes expressly mentioned cessions
of usufructuary rights, there was no need to do so in this case,
because the settled expectation of the United States was that the
1850 Executive Order had terminated the hunting rights of the
Chippewa. Thus, rather than applying the plain and unequivocal
language of the 1855 Treaty, the Court holds that "all" does not in
fact mean "all."
2 One notices the irony that where the President chose to
explicitly eliminate the 1837 Treaty rights, the Court finds this
specificity subsumed in the "removal order," and invalidates it as
well.
219
IV
Finally, I note my disagreement with the Court's treatment of
the equal footing doctrine, and its apparent overruling
sub
silentio of a precedent of 103 years' vintage. In
Ward
v.
Race Horse, 163 U. S. 504 (1896), we
held that a Treaty granting the Indians "the right to hunt on the
unoccupied lands of the United States, so long as game may be found
thereon, and so long as peace subsists among the whites and the
Indians on the borders of the hunting districts," did not survive
the admission of Wyoming to the Union since the treaty right was
"temporary and precarious."
Id., at 515.
But the Court, in a feat of jurisprudential legerdemain,
effectively overrules
Race Horse sub silentio. First, the
Court notes that Congress may only abrogate Indian treaty rights if
it clearly expresses its intent to do so. Next, it asserts that
Indian hunting rights are not irreconcilable with state
sovereignty, and determines that "because treaty rights are
reconcilable with state sovereignty over natural resources,
statehood by itself is insufficient to extinguish Indian treaty
rights to hunt, fish, and gather on land within state boundaries."
Ante, at 205. And finally, the Court hints that
Race
Horse rested on an incorrect premise-that Indian rights were
inconsistent with state sovereignty.
Without saying so, this jurisprudential bait-and-switch
effectively overrules
Race Horse, a case which we reaffirmed
as recently as 1985 in
Oregon Dept. of Fish and Wildlife v.
Klamath Tribe, 473 U. S. 753 (1985).
Race Horse held merely that treaty rights which were only
"temporary and precarious," as opposed to those which were "of such
a nature as to imply their perpetuity," do not survive statehood.3
163 U. S.,
3 The Court maintains that this reading of
Race Horse is
overbroad and would render any right created by operation of
federal law "temporary and precarious."
Ante, at 206.
Nothing could be further from the truth. The outer limit of what
constitutes a "temporary and precarious" right is not before the
Court (nor, since
Race Horse is apparently overruled, will
it ever
220
THOMAS, J., dissenting
at 515. Here, the hunting privileges were clearly, like those
invalidated in
Race Horse, temporary and precarious: The
privilege was only guaranteed "during the pleasure of the
President"; the legally enforceable annuity payments themselves
were to terminate after 20 years; and the Indians were on actual
notice that the President might end the rights in the future, App.
78 (1837 Journal of Treaty Negotiations).
Perhaps the strongest indication of the temporary nature of the
treaty rights is presented unwittingly by the Court in its repeated
(and correct) characterizations of the rights as "usufructuary." As
noted
supra, at 218, usufructuary rights are
by
definition "of limited duration." Black's Law Dictionary,
supra, at 1544. Thus, even if the Executive Order is
invalid; and even if the 1855 Treaty did not cover the usufructuary
rights: Under
Race Horse, the temporary and precarious
treaty privileges were eliminated by the admission of Minnesota to
the Union on an equal footing in 1858. Today the Court appears to
invalidate (or at least substantially limit)
Race Horse,
without offering any principled reason to do so.
V
The Court today invalidates for no principled reason a
149-year-old Executive Order, ignores the plain meaning of a
144-year-old treaty provision, and overrules
sub silentio a
103-year-old precedent of this Court. I dissent.
JUSTICE THOMAS, dissenting.
I join THE CHIEF JUSTICE'S dissent, but also write separately
because contrary to the majority's assertion, in dicta,
be), but the hunting privileges granted in
Race Horse and
by the 1837 Treaty in this case reveal themselves to be "temporary
and precarious" by their plain text: The privilege in
Race
Horse ended upon occupation of the hunting districts or the
outbreak of hostilities, while the privilege in this case lasted
only during the pleasure of the President. Both rights were
temporary and precarious, as neither was guaranteed, either
expressly or impliedly, in perpetuity.
221
ante, at 204, our prior cases do not dictate the
conclusion that the 1837 Treaty curtails Minnesota's regulatory
authority.
As the Court has ruled today that the Chippewa retain the
privilege to hunt, fish, and gather on the land they ceded in the
1837 Treaty, the question of the scope of the State's regulatory
power over the Chippewas' exercise of those privileges assumes
great significance-any limitations that the Federal Treaty may
impose upon Minnesota's sovereign authority over its natural
resources exact serious federalism costs. The questions presented,
however, do not require the Court to decide whether the 1837 Treaty
limits the State's regulatory authority in any way. All that they
require is a judgment as to whether the usufructuary privileges at
issue survive three potentially extinguishing events: President
Taylor's 1850 Executive Order, the 1855 Treaty, and Minnesota's
admission to the Union in 1858.
The Court nevertheless offers the following observation:
"Here, the 1837 Treaty gave the Chippewa the right to hunt,
fish, and gather in the ceded territory free of territorial, and
later state, regulation, a privilege that others did not enjoy.
Today, this freedom from state regulation curtails the State's
ability to regulate hunting, fishing, and gathering by the Chippewa
in the ceded lands." Ante, at 204 (emphases added).
In light of the importance of this federalism question, the
Court should not pass on it, even in dicta, without the benefit of
the parties' briefing and argument. But as the Court has done so, I
think it important to explain my disagreement with the italicized
propositions.
The plain language of the 1837 Treaty says nothing about
territorial, let alone future state, regulation. The historical
evidence that the Court reviews,
ante, at 176-178, to the
extent that it is relevant, is likewise silent as to whether the
Chippewa expected to be subject to any form of regulation
222
THOMAS, J., dissenting
in the exercise of their reserved treaty privileges. The
historical evidence certainly indicates that the Chippewa desired
the privilege of access to the land they were ceding. But the 1837
Journal of Treaty Negotiations does not show that the Chippewa
demanded access to the land on any particular terms. See App.
70-78.
Indeed, the Court retreats from its assertion that the 1837
Treaty gave the Chippewa an unlimited right to hunt, fish, and
gather free from regulation when it states: "We have repeatedly
reaffirmed state authority to impose reasonable and necessary
nondiscriminatory regulations on Indian hunting, fishing, and
gathering rights in the interest of conservation."
Ante, at
205. If the 1837 Treaty gives the Chippewa a right to be free from
state regulation, why may Minnesota impose any regulations,
reasonable and necessary or otherwise? The Court's answer to that
question is that our prior decisions have established that Indians
never have "'absolute freedom,'"
ante, at 204, from state
regulation, no matter what a treaty might say; rather, Indians'
hunting, fishing, and gathering activities are limited by those
state regulations which are necessary for ensuring the conservation
of natural resources.
To be sure, Indians do not have absolute freedom from state
regulation of their off-reservation activities. Indeed, the general
rule is that the off-reservation activities of Indians are subject
to a State's nondiscriminatory laws, absent express federal law to
the contrary. See,
e. g., Oregon Dept. of Fish and Wildlife
v.
Klamath Tribe, 473 U. S. 753, 765, n. 16
(1985);
New Mexico v.
Mescalero Apache Tribe, 462 U.
S. 324, 335, n. 18 (1983). The majority, however, overlooks the
fact that the scope of a State's regulatory authority depends upon
the language of the treaty in question. At a
minimum, States
may issue and enforce those regulations of Indians' off-reservation
usufructuary activities that are necessary in the interest of
conservation. Our decisions suggest that state regulatory authority
is so limited when, with
223
the treaty in question, the Indians reserved a
right to
fish, hunt, or gather on ceded lands. But it is doubtful that the
so-called "conservation necessity" standard applies in cases, such
as this one, where Indians reserved no more than a
privilege
to hunt, fish, and gather.
The conservation necessity standard appears to have its origin
in
Tulee v.
Washington, 315 U. S. 681 (1942). In
the 1859 Treaty with the Yakima Indians, the Yakima reserved " 'the
right of taking fish at all usual and accustomed places, in common
with citizens of the Territory.'"
Id., at 683 (quoting 12
Stat. 953). The Court held that Washington State had the "power to
impose on Indians, equally with others, such restrictions of a
purely regulatory nature concerning the time and manner of fishing
outside the reservation
as are necessary for the conservation of
fish," but that the Treaty foreclosed "the state from charging
the Indians a fee of the kind in question." 315 U. S., at 684
(emphasis added). Its conclusion was driven by the language of the
Treaty as well as the report of the treaty negotiations and what it
revealed to be the Yakimas' understanding of the Treaty-to preserve
their right "to hunt and fish
in accordance with the immemorial
customs of their tribes." Ibid. (emphasis added).l Subsequent
decisions evaluating state regulation by the conservation necessity
standard similarly focused upon the language of the Treaty or
agreement at issue and the Indians' understanding of the Treaty as
revealed by the historical evidence. See
Washington v.
Washington State Commercial Passenger Fishing Assn.,
443 U. S. 658,
665-669, 674685 (1979) (recognizing that the Court had construed
the same Treaty language several times before, and emphasizing
1 A prior case interpreting the same 1859 Treaty held that the
language fixed in the land an easement for the Yakima so that they
could cross private property to fish in the Columbia River.
United States v.
Winans, 198 U. S. 371, 381-382
(1905). But the Court also wrote that the Treaty did not "restrain
the State unreasonably,
if at all, in the regulation of the
right."
Id., at 384 (emphasis added).
224
THOMAS, J., dissenting
the historical background against which the Treaty at issue was
signed);
Puyallup Tribe v.
Department of Game of
Wash., 391 U. S.
392, 395, 397 (1968) (involving treaty language almost
identical to that at issue in
United States v.
Winans, 198 U.
S. 371 (1905), and
Tulee, supra); see also
Antoine v.
Washington, 420 U. S. 194, 206 (1975)
(favorably comparing the somewhat different language of the
agreement at issue with the language of the Treaties at issue in
Winans and
Puyallup). Most important, all the cases
that the majority cites in support of the proposition that States
may enforce against Indians in their exercise of off-reservation
usufructuary activities only those regulations necessary for
purposes of conservation,
ante, at 204-205, involved the
same or substantially similar treaty language reserving a
right to hunt or fish. And all but
Antoine also
provided that the Indians could exercise their reserved rights at
the usual and accustomed places.
In
New York ex rel. Kennedy v.
Becker, 241 U. S. 556 (1916), the
Court considered significantly different language. The Big Tree
Treaty of 1797, as the agreement was known, provided that the
Seneca were to retain "the
privilege of fishing and hunting
on the said tract of land" conveyed by the agreement. 7 Stat. 602
(emphasis added); see also 241 U. S., at 562 (quoting the
reservation clause). The Court characterized the Senecas' claim as
one "sought to be maintained in derogation of the sovereignty of
the State."
Ibid. In rejecting such a claim, it stated:
"[I]t can hardly be supposed that the thought of the Indians was
concerned with the necessary exercise of inherent power under
modern conditions for the preservation of wild life. But the
existence of the sovereignty of the State was well understood, and
this conception involved all that was necessarily implied in that
sovereignty, whether fully appreciated or not. We do not think that
it is a proper construction of the reservation in the conveyance to
regard it as an attempt either to
225
reserve sovereign prerogative or so to divide the inherent power
of preservation as to make its competent exercise impossible.
Rather we are of the opinion that the clause is fully satisfied by
considering it a reservation of a privilege of fishing and hunting
upon the granted lands in common with the grantees, and others
to whom the privilege might be extended, but subject nevertheless
to that necessary power of appropriate regulation, as to all those
privileged, which inhered in the sovereignty of the State over the
lands where the privilege was exercised." Id., at 563-564
(emphasis added).
The only fair reading of
Kennedy is that the Treaty
reserved for the Seneca a privilege in common with all persons to
whom the State chose to extend fishing and hunting privileges. The
Court did not indicate that the Treaty limited New York's
regulatory authority with respect to the Seneca in any way. See
id., at 564 (the treaty privilege was subject to "that necessary
power of appropriate regulation,
as to all those privileged,
which inhered in the sovereignty of the State over the lands where
the privilege was exercised" (emphasis added)). Of course, then,
what was "appropriate" state regulation as applied to non-Indians
was "appropriate" regulation as applied to the Seneca. Cf.
Puyallup Tribe, supra, at 402, n. 14 ("The measure of the
legal propriety of [regulations that are to be measured by the
conservation necessity standard] is ... distinct from the federal
constitutional standard concerning the scope of the police power of
a State").2
2 As already noted,
supra, at 222, the Court has said
that "[a]bsent express federal law to the contrary, Indians going
beyond reservation boundaries have generally been held subject to
nondiscriminatory state law otherwise applicable to all citizens of
the State."
Mescalero Apache Tribe v.
Jones, 411 U. S. 145, 148-149
(1973) (State of New Mexico permitted to tax off-reservation
activities of Tribe as they would any non-Indians). In support of
that proposition in
Mescalero, the Court cited the
Puyallup Tribe and
Tulee decisions, but not
Kennedy. A possible explanation is
226
THOMAS, J., dissenting
The 1837 Treaty at issue here did not reserve "the right of
taking fish at all usual and accustomed places, in common with
citizens of the Territory" like those involved in
Tulee and
Puyallup Tribe. Rather, it provided:
"The privilege of hunting, fishing, and gathering the
wild rice, upon the lands, the rivers and the lakes included in the
territory ceded, is guarantied to the Indians, during the pleasure
of the President of the United States." 1837 Treaty with the
Chippewa, 7 Stat. 537 (emphasis added).
This language more closely resembles the language of the Big
Tree Treaty at issue in
Kennedy. Although Minnesota's
regulatory authority is not at issue here, in the appropriate case
we must explain whether reserved treaty
privileges limit
States' ability to regulate Indians' off-reservation usufructuary
activities in the same way as a treaty reserving
rights.3
This is especially true with respect to the privileges reserved by
the Chippewa in the 1837 Treaty, which, as THE CHIEF JUSTICE
explains,
ante, at 219-220 (dissenting opinion), were
clearly of a temporary and precarious nature.
that the Treaties at issue in
Puyallup Tribe and
Tulee provided express federal law to the contrary, while
the Treaty in
Kennedy did not.
3 Various representatives of the United States have previously
taken the position that treaty rights are "more substantial vested
rights than treaty reserved privileges." Holt, Can Indians Hunt in
National Parks?, 16 Envtl. L. 207, 236-238 (1986) (citing letters
from the Department of Agriculture, Department of the Interior, and
the Department of Justice to that effect).
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