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FEDERAL PREEMPTION OF STATE ACTION OVER USUFRUCTUARY

RIGHTS OF INDIANS

ABSTRACT

This article discusses the relationship between Indians, the federal government, and state

governments and the unique nature of that relationship in the context of usufructuary rights that

are guaranteed in treaties between Indians and the federal government. That relationship in one

illustration of the sui generis nature of Indian affairs and traditional doctrines of preemption and

treaty interpretation cannot be applied in the usual manner by courts to Indians. To do so would

be an injustice not just to the future of Indians and Indian affairs, but to the future of the

relationship between Indians, the federal government, and the state governments.

TABLE OF CONTENTS

I. INTRODUCTION …………………………………………………………………. 1 II. PREEMPTION

1. DOCTRINE ……………………………………………………………….. 4 2. FEDERAL PREEMPTION OF STATE LAW ……………………………. 5

III. INHERENT RIGHTS, “ACTUAL STATE OF THINGS”, AND THE MINNESOTA

CASE 1. THE TREATY PROCESS AND U.S. SUPREME COURT CHIEF JUSTICE

JOHN MARSHALL ………………………………………………………. 7 2. TRIBAL SOVEREIGNTY ………………………………………………... 11 3. MINNESOTA V. MILLE LACS BAND OF CHIPPEWA INDIANS …… 13

IV. ISSUES RAISED BY MINNESOTA 1. TRIBAL COROLLARY RIGHTS ……………………………………….. 16

2. VALIDITY OF USUFRUCTUARY RIGHTS OUTSIDE THE 1837 TREATY CEDED TERRITORY ……………………………………………………. 18

3. CONSERVATION OF NATURAL RESOURCES, STATE LAWS, AND

INDIANS …………………………………………………………………. 20 V. CO-MANAGEMENT OF USUFRUCTUARY RIGHTS

1. GREAT LAKES INDIAN FISH AND WILDLIFE COMMISSION (GLIFWC) ………………………………………………………………… 22

2. CONCLUSION …………………………………………………………… 26

I. INTRODUCTION

The relationship between Indian tribes, the federal government, and state governments is

unique. Usufructuary rights is one of the ways to illustrate the unique nature of this relationship

and how these rights further define and shape the relationship not only between Indians and the

federal government, but with the state governments as well. In addition, “treaties also

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established a dependent relationship of the tribes to the federal government. The tribes place

themselves under the United States protection, and the federal government undertook to

guarantee that protection.”1 The status of Indians within this relationship is also unique and has

been referred to as sui generis. The whole area of federal Indian law is sui generis. This sui

generis nature describes the way the federal and the state governments are to approach issues

involving Indians and Indian affairs. “The resort to some new and different rule, better adapted

to the actual state of things, was unavoidable.”2 The usual rules, doctrines, and procedures

cannot and do not apply as they would in dealing with other entities or nations.

Tribal governments are often overlooked by the rest of society since they tend to operate

on reservation lands within their traditional territories. They usually come to the attention of

society when then there is a conflict between laws of the tribe and laws of the state and these

conflicts end up in court. One of these conflicts involves hunting, fishing and gathering rights or

the usufructuary rights of Indian tribes. “Usufructuary rights are rights of enjoyment to another’s

property allowing the holder to generate income off of the property without obtaining

ownership.”3

One of the most intense legal battles waged between Indians and non-Indians has dealt with whether states can regulate off-reservation treaty fishing. Protection of wildlife and

the regulation if it’s taking are within the police power of the states. But the states’ power in this area are limited by…the operation of the Supremacy Clause when there is

an applicable federal statute or treaty. Thus, state regulation of Indian hunting and fishing must give way to Indian rights secured by federal treaty or statute.4

With regard to Indians and usufructuary rights, these are rights they have retained in exchange

for ceding land to the federal government through the treaty process. ”Treaty agreements

1 Felix S. Cohen, Handbook of Federal Indian Law 273 (Rennard Strickland et al. eds., 1982). 2 Johnson v. M’Intosh, 21 U.S. 543, 591 (1823). 3 Matthew Steffes, Implications for the Mille Lacs Fishery with Continued Enforcement of the

1837 Treaty of St. Peters, 35 Hamline J. Pub. L. & Pol’y 367, 369 (2014). 4 Cohen, supra note 1, at 459.

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entered into by the federal government and Native American tribes are contracts between two

sovereign nations…Treaties between Native American tribes and the federal government usually

consist of a forfeiture of rights by native tribes to large quantities of land, with retention of

fishing and hunting rights and confinement to reservations, in exchange for goods and money.”5

This is the treaty process that Indian tribes and the federal government engaged in.

The conflicts occur when the state governments seek to exercise their powers over the

Indians and Indian affairs who are situated within their state borders and when the exercise of

those powers involve the hunting, fishing, and gathering rights of the Indians. The federal

government has had to intervene in these conflicts on behalf of the Indians and they have had to

preempt state power over the Indians. The federal government has preempted state power by

virtue of the Supremacy Clause in the past, but has also relied upon an Indian treaty to preempt

state power. A recurring theme within all this is tribal sovereignty, which is still exercised by

Indians in the management of their affairs and their members.

Using an Indian treaty to preempt state power not only invalidates state law but it also

raised additional issues in the area of Indians, the federal and state governments, and

usufructuary rights. One of these issues is the creation and implementation of co-management

models between the states and Indians in the area of conservation of natural resources. One

model is the Great Lakes Indian and Fish Wildlife Commission (GLIFWC) which has shown it

to be a success. There could be a variety of reasons for the success the GLIFWC has enjoyed.

One reason is the sui generis nature of Indians and the area of federal Indian law. That sui

generis includes the continued exercise of tribal sovereignty, the importance of history in Indians

5 Steffes, supra note 3, at 371-372.

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and Indian affairs, and recognizing that the usual doctrines and rules may not apply in an

effective manner to Indians.

II. PREEMPTION

1. DOCTRINE OF PREEMPTION

In the case of a conflict between the laws of two governments, the courts have applied the

doctrine of preemption, where one law preempts the other on the basis of the Supremacy

Clause.6 This has been the usual case between the federal and state governments. “Application

of the Supremacy Clause to the myriad subjects where federal and state laws arguably come into

conflict is a diverse field of law in which the Supreme Court has a major role. The Court often

says that the intent of Congress controls, but the practical meaning of this formula is that

Congress’ legislative purposes should be sustained against state law interference.”7 One of the

myriad subjects is the area of Indian affairs.

“Indian affairs occupy a unique place in Supremacy Clause law and theory.”8 There have

been instances where the federal government will preempt state authority over tribal reservations

and members if it conflicts with federal law, or if it unlawfully infringes upon the right of Indians

to make their own laws and be ruled by them. The courts have tended to use federal law to

preempt state laws in this regard, but they have also used an Indian treaty to preempt state law.

That was the case where the United States Supreme Court used the 1837 Treaty to preempt state

action over the Chippewa Indians.9 “Although states have important interests in regulating

wildlife and natural resources within their borders, this authority is shared with the Federal

6 U.S. Const. art. VI, cl. 2. 7 Cohen, supra note 1, at 271. 8 Id. at 272. 9 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999).

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Government when the Federal Government exercises one of its enumerated constitutional

powers, such as treaty making.”10

2. FEDERAL PREEMPTION OF STATE LAW

This Constitution, and the Laws of the United States which shall be made in Pursuance

thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be

bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.11

This clause from the United States Constitution is commonly referred to as the

“Supremacy Clause” and it refers to the supremacy of not only the Constitut ion and federal laws,

but all treaties made under the authority of the United States as well. This means that treaties,

including treaties made between the United States and Indian tribes are part of the supreme law

of the land and a state may be bound by those treaties, in addition to being bound by federal

laws. “Treaty provisions [between United States and Indian nations] are supreme over the

constitution and laws of a state.”12 “Treaties made during the confederal period between the

United States and Indian nations are entitled to the same respect as treaties made with foreign

nations and both equally became the supreme law of the land under the Constitution. ”13 Treaties

are on a par and share the same footing as federal law and the Constitution, so as part of the

supreme law of the land, states can be preempted by them if there is a conflict. By virtue of the

supremacy clause, and in certain circumstances, a state’s authority may be overridden, or

preempted, by a federal law or by a treaty if there is a conflict between that state law and the

federal law or treaty. Under the doctrine of preemption, a federal law will override or preempt a

state law on the same subject.

10 Id. at 204. 11 U.S. Const. art. VI, cl. 2. 12 Skokomish Indian Tribe v. France, 269 F.2d. 555, 562 (9th Cir. 1959). 13 Oneida Indian Nation of New York v. State of N.Y., 860 F. 2d 1145, 1155 (2nd Cir. 1988).

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State law can be preempted in three ways: express preemption; field preemption; and

conflict preemption. Express preemption is when the words or language of the federal law states

an intent to override state law on that particular subject. Field preemption occurs when a federal

law occupies an entire field of a subject area. Conflict preemption occurs when a state law

actually conflicts with a federal law.

With regards to Indian treaties, state laws may be preempted by field or conflict

preemption. They may be preempted by field preemption because the federal government

occupies the field of Indian treaties, Indian law and Indian people. The federal government has

jurisdiction over Indians and Indian affairs. State laws may also be preempted by conflict

preemption when states seek to impose their own laws and regulations on Indian people within

the Indian’s territory, or where those state law and regulations would infringe upon the exercise

of Indian treaty rights, whether on or off the reservation.

Since Indians fall under the exclusive jurisdiction of the federal government, it has

usually been federal laws that have preempted state laws and regulations when there is a conflict.

The United States Supreme Court set forth a balancing test to determine whether state authority

would conflict with federal law calling for a federal preemption. The court stated:

This inquiry is not dependent on mechanical or absolute conceptions of state or tribal sovereignty, but has called for a particularized inquiry into the nature of the state, federal,

and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law.14

The court also relied upon other principles and the historical origins of tribal sovereignty in

coming to its conclusion. The Indian Commerce Clause is the basis for the power of Congress to

regulate tribal affairs.15 “This congressional authority and the ‘semi-independent position’ of

Indian tribes have given rise to two independent but related barriers to the assertion of state

14 White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145 (1980). 15 U.S. Const. art. I, § 8, cl. 3.

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regulatory authority over tribal reservations and members. First, the exercise of such authority

may be pre-empted by federal law. Second, it may unlawfully infringe ‘on the right of

reservation Indians to make their own laws and be ruled by them.”16 On tribal sovereignty, the

court stated:

The unique historical origins of tribal sovereignty make it generally unhelpful to apply to

federal enactments regulating Indian tribes those standards of pre-emption that have emerged in other areas of the law. Tribal reservations are not states, and the differences in the form and nature of their sovereignty make it treacherous to import to one notions of

pre-emption that are properly applied to the other. The tradition of Indian sovereignty over the reservation and tribal members must inform the determination whether the

exercise of state authority has been pre-empted by operation of federal law.17 Because of the sui generis nature of tribal sovereignty as the source of treaty hunting, fishing and

gathering rights, the preemption doctrine cannot be applied in the usual manner as it is applied

when there is a conflict between the federal government and one of the states. Tribal sovereignty

also provides an important backdrop against which to measure vague or ambiguous federal

enactments.18 The usual manner of applying the preemption doctrine is not applicable to Indians

due to the sui generis nature of the treaty rights and the relationship between the Indians and the

federal government. The uniqueness of the preemption analysis in Indian affairs takes on its

own sui generis nature. Applying a preemption analysis requires not only examining the nature

of the conflict, but also the issue of tribal sovereignty.

III. INHERENT RIGHTS, “ACTUAL STATE OF THINGS, AND THE MINNESOTA CASE

1. THE TREATY PROCESS AND U.S. SUPREME COURT JUSTICE JOHN MARSHALL

“The British took the land from the Indians and gave them very little in return. This left

the new country with a set of unique problems. In an effort to make ‘peace’ with the Indians, the

16 See Bracker, 448 U.S. at 143. 17 Id. at 143. 18 Id. at 143.

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United States decided to forge a unique relationship with them.”19 “Unique” is the term or

characteristic that keeps surfacing when the discussion turns to issues involving Indians, the

federal government, treaties and treaty rights, and sovereignty. This uniqueness stems from the

manner in which the federal government asserted its title over the territory and the people of the

United States. Chief Justice Marshall may have thought the means of federal title assertion was

not equitable to the Indians. That assertion was based on what has been termed the “discovery

doctrine”; ‘discovery gave an exclusive right to extinguish the Indian title of occupancy, either

by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the

circumstances of the people would allow them to exercise.”20 These rights must be exclusive or

absolute, so it cannot be questioned in the event of a conflict with other rights to title and

sovereignty. Discovery is the way the federal government justified the way it preempted the

Indians’ power over their territory and their affairs. In formulating the status of Indians as a

nation, or nations, Marshall does not go so far as say they are foreign nations; instead he states

“They may, more correctly, perhaps, be denominated domestic dependent nations.”21 While

Marshall may have thought the discovery doctrine was an inequitable one, he may have also

realized he was bound by the legal system in which he had to operate. This is the “actual state of

things”22 that he refers to in his judgments.

With regards to the sui generis and fiduciary nature of the federal-tribe relationship, he

points out that “the relation of the Indians to the United States is marked by peculiar and cardinal

19 Richard L. Barnes, A Woman of the West, but not the Tribes: Justice Sandra Day O’Connor and the State-Tribe Relationship, 58 Loy. L. Rev. 39, 41 (2012). 20 Johnson v. M’Intosh, 21 U.S. 543, 587 (1823). 21 Id. at 17. 22 Id. at 591, See also Worcester v. Georgia, 31 U.S. 515, 543 (1832).

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distinctions which exist nowhere else.23 He further states that the Indians’ “relation to the United

States resembles that of a ward to his guardian.”24 A ward-guardian relationship usually has a

fiduciary nature to it. Using “peculiar” and ‘cardinal” to describe something or someone has the

effect of setting that something or someone apart from others, which is what a sui generis nature

does.

Tribes have had to go to court to have their rights recognized and upheld in order to

continue to exercise their rights as they always have. In the courts, as elsewhere, cultural

differences between the Indian tribes and the United States courts have made it difficult and

frustrating to make decisions that equitably balance the interests of the parties involved. Over

time, the courts have developed a sui generis approach to treaties:

Although the language of particular treaties may vary, there are common principles that courts use when they interpret treaty provisions. These general rules are called canons;

they derive from contract law and recognize that there are instances in which parties to a contract are not equal, as might be the case where the language of the contract is not

spoken by one the parties, or where the drafters of the contract have the ability to slant the language to their advantage. The canons of treaty construction are that: i) ambiguous expressions must be resolved in favor of the Indian parties concerned, ii) Indian treaties

must be interpreted as the Indian themselves would have understood them, and iii) Indian treaties must be liberally construed in favor of the Indians.25

These canons of treaty interpretation were originally formulated by Marshall.

In the Treaty of Hopewell between the Cherokee and the United States, one of its articles

included the terms “allotted” and “hunting ground” which the Cherokee may or may not have

understood, since they could not write, and their verbal English may not have been very good

either. If this was the case, “it may very well be supposed that they might not understand the

23 Cherokee Nation v. Georgia, 30 U.S. 1, 16 (1831). 24 Id. at 17. 25 Treaty Rights Recognition and Affirmation, Great Lakes Indian Fish and Wildlife Commission

(GLIFWC), http:// www.glifwc.org/Recogntion_Affirmation/affirming.html (last visited Jan. 1, 2016).

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term employed…If the term would admit of no other signification, which is not conceded, its

being misunderstood is so apparent, results so necessarily from the whole transaction; that it

must, we think, be taken in the sense in which is was most obviously used.”26 The term

“allotted” could have been an unknown and ambiguous term to the Cherokee at that time, so it

needed to be construed the way the Cherokee would have sought to understand it, with any

ambiguities resolved in the Cherokee’s favor. Interpreting “allotted” in this manner would have

been a liberal construction of that term in favor of the Cherokee. Marshall also mentioned that

the true meaning of the articles in the treaties between Indians and the federal government

needed to be ascertained in interpreting the treaties. He did this by looking at the history of that

period of time, at the context in which the treaties were negotiated, and if the interpretation was

consistent with the spirit of the treaties, that spirit which recognizes the rights of the Indians and

the United States as nations.

This was part of the historical context of the treaty process. Marshall laid down the

foundation of tribal sovereignty to explain the relationship between Indian tribes and the federal

government and tribal sovereignty as the basis for the tribal power to make binding treaties.27 In

the cases referred to as the Marshall Trilogy28,” Marshall set out an apologetic justification for

the federal dominance over tribes that were neither citizens, nor, technically speaking, within the

limits of the nation.”29 In this manner, he made a political, as well as a legal judgment, and

possibly, a moral judgment. Whatever his reasons and motivations, by the end of the Marshall

Trilogy, the Chief Justice:

26 Worcester v. Georgia, 31 U.S. 515, 553 (1832). 27 Barnes, supra note 19, at 46-47. 28 Johnson v. M’Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832). 29 Barnes, supra note 19, at 49.

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had established Indian territory as sovereign, Indians as having a right of exclusive use and occupation and Indian governance of their territory as forbidding interference by the

States. Indian land was firmly in the ownership, at least so far as title, of the United States while the tribes retained the right to occupy it, use it, and govern it exclusive of

state power.30 Marshall laid the foundation for federal Indian law which includes the principles of tribal

sovereignty, the sui generis nature of the federal-tribe relationship, the fiduciary nature of the

that relationship, and principles of treaty interpretation.

2. TRIBAL SOVEREIGNTY

The most significant factor setting federal Indian law apart from preemption law in other fields is the role of the tribes as distinct political sovereigns within the federal system. Federal treaties and statutes have been consistently construed to reserve the right of self-

government to the tribes…If state laws were applied to Indians in Indian country, retained self-government would be greatly restricted and have little importance…For this

reason broad preemption of state laws in Indian country has been consistently recognized as a necessary implication from the federal policy protecting tribal sovereignty.31

Tribes have always exercised the inherent right of tribal sovereignty and self-government.

Indians are a dependent sovereign within the larger sovereign of the federal government; they are

not separate nations, which is the usual way two sovereigns would deal with each other. .

“Indians have reserved use rights, and their sovereignty stems from the right to live on and

govern those reservations.”32 Since the Indian’s territory is located within the larger territory,

there is also the possibility of interference from outside forces, such as one of the state

governments. “Thus, it must be that the federal government has an obligation to protect them.

Protection would seem to include the exclusion of others who would threaten them or even just

seek to extend their influence over them. Neither is to be tolerated if reserved rights are to have

30 Id. at 47. 31 Cohen, supra note 1, at 273. 32 Barnes, supra note 19, at 54.

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any meaning.”33 This is the unique or sui generis nature of the relationship between the federal

government and the various Indian tribes. Tribal sovereignty also comes from the federal

policy of promoting tribal self-sufficiency and economic development. “Tribal sovereignty in its

pristine, prediscovery form encompassed the full panoply of powers held by all self-governing,

sovereign, political communities. Conquest and the subsequent incorporation of tribes into the

territorial boundaries of the United States, however, subjected the tribal sovereign to the plenary

power of the conqueror.”34 Congress has plenary power to unilaterally abrogate treaty rights.35

Abrogation of rights is the situation in which “Indian hunting and fishing rights can be totally

eliminated so that the Indians have rights that are no different from other citizens. These rights

can also be modified or altered so they are substantially less valuable than when they were

reserved in treaties or in the creation of reservations.”36 In addition, in determining whether

Congress intended to abrogate Indian treaty rights, “What is essential is clear evidence that

Congress actually considered the conflict between its intended action on the one hand and Indian

treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.”37 The

intent by Congress to abrogate treaty rights must be clear. But Congress has also encouraged

tribal self-government and self-sufficiency. Tribes retain their sovereignty, which includes

tribal control over their members and their territory, unless surrendered through treaty or

inconsistent with Congress. One way federal recognition of tribal sovereignty may occur is from

treaty language granting hunting, fishing, and gathering rights, to name a few.

33 Id. at 54. 34 Laurie Reynolds, Indian Hunting and Fishing Rights: The Role of Tribal Sovereignty and Preemption, 62 N.C. L. Rev. 743, 756 (1984). 35 Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903). 36 Cohen, supra note 1, at 467. 37 United States v. Dion, 476 U.S. 734, 739-740 (1986).

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3. MINNESOTA V. MILLE LACS BAND OF CHIPPEWA INDIANS

“[C]ourts have struggled to ensure ample protection of Indian treaty rights while

recognizing legitimate state conservation interests.”38

In 1837, the United States entered into a treaty with several bands of Chippewa Indians,

one of which is the Mille Lacs Band. Under the terms of this treaty, the Indian ceded land to the

United States, and the United States guaranteed to the Indians certain hunting, fishing, and

gathering rights on the ceded land.

In 1990, the Mille Lacs Band and individual members sued Minnesota, its Department of

Natural Resources, and state officials, for a declaratory judgment that they retained their

usufructuary rights and an injunction to prevent the State’s interference with those rights. The

United States and several counties intervened. The issue in the case was whether the

usufructuary rights of the Mille Lacs Band were extinguished by: the President Taylor’s

Executive Order of February 6, 1850; or by the 1855 Treaty; or by the admittance of Minnesota

into the Union in 1848. The Supreme Court held that the Chippewa retain the usufructuary

rights guaranteed to them under the 1837 Treaty. Justice O’Connor, in delivering the decision of

the court, stated:

Here, the 1837 Treaty gave the Chippewa the right to hunt, fish, and gather in the ceded territory free from territorial and later, state regulation, a privilege that others did not

enjoy. Today, this freedom from state regulation curtails the State’s ability to regulate hunting, fishing, and gathering by the Chippewa in the ceded lands. But this Court’s cases have also recognized that Indian treaty-based usufructuary rights do not guarantee

the Indians ‘absolute freedom’ from state regulation. We have repeatedly reaffirmed state authority to impose reasonable and necessary nondiscriminatory regulations on

Indian hunting, fishing and gathering rights in the interest of conservation.39

38 Reynolds, supra note 34, at 750. 39 Minnesota v. Mille Lacs, 526 U.S. 172, 204-205 (1999).

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The dissent by Chief Justice Rehnquist stated that usufructuary rights are by definition

“of limited duration.”40 Chief Justice Rehnquist concluded that “Pursuant to a Treaty, the

President terminated the Indians’ hunting and fishing privileges in an Executive Order.”41 The

dissent by Justice Thomas stated “it is doubtful that the so-called ‘conservation necessity’

standard applies in cases, where Indians reserved no more than a privilege to hunt, fish and

gather.”42 Justice Thomas also stated that “in the appropriate case we must explain whether

reserved treaty privileges limit States’ ability to regulate Indians’ off-reservation usufructuary

activities in the same way as a treaty reserving rights.”43 Both justices appeared to base their

dissents on framing the hunting, fishing, gathering of the Mille Lacs Band as privileges, rather

than as rights. In their view, privileges did not carry as much weight as rights so they were not

entitled to the same protection afforded to rights. However, Justice O’Connor pointed out

“There is no evidence that the Chippewa understood any fine legal distinctions between rights

and privileges.”44 Any ambiguities are to be resolved in the favor of the Indians.

Rather than applying or even discussing the Bracker test, the court looked to the treaties,

the historical record and the larger context within which the treaties were negotiated and signed

in making its deliberation. In this way, the court used the treaty in its preemption analysis,

although it did not state as much. The court did not even mention preemption. Justice O’Connor

“examined the historical record and considered the context of the treaty negotiations to discern

what the parties intended by their choice of words. This review of the history and the

40 Id. at 220 (Rehnquist, C.J., dissenting). 41 Id. at 216 (Rehnquist, C.J., dissenting). 42 Id. at 223 (Thomas, J. dissenting). 43 Id. at 226 (Thomas, J. dissenting). 44 Id. at 206.

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negotiations of the agreements is central to the interpretation of treaties.”45 In her conclusion,

Justice O’Connor stated “Indian treaty rights can coexist with state management of natural

resources. Although States have important interests in regulating wildlife and natural resources

within their borders, this authority is shared with the Federal Government when the Federal

Government exercises one of its enumerated constitutional powers, such as treaty making.”46

That is where the preemption can occur. The state has authority to regulate natural resources

within their borders, but this authority can become superseded by the federal government treat-

making power. This treat-making power derives from the Supremacy Clause. The preemption

in this situation would be a field preemption, since the federal government occupies the field of

treaty-making, to the exclusion of the states. It could also be a conflict preemption, since the

state’s authority would conflict with treaty rights guaranteed under the treaty made by the federal

government. The treaty rights guaranteed under or through that treaty-making power also

curtail the state’s authority to regulate those treaty rights, subject only to conservation measures.

Minnesota argued that an 1850 Executive Order issued by President Zachary Taylor

revoked the Chippewa usufructuary rights under the 1837 Treaty and ordered the removal of the

Chippewa to un-ceded territory; that the 1855 Treaty abrogated all Chippewa claims; and that the

1858 Minnesota entry into the Union abrogated the Chippewa claims.47 The court held that the

Executive Order did not abrogate the usufructuary rights of the Chippewa; that there was no

mention of usufructuary rights in the 1855 Treaty; and Minnesota’s entry into the Union did not

have any impact on rights in treaties between the United States and the Chippewa.48 The court

reached these conclusions based on its examination of treaty language and historical context.

45 Id. at 202. 46 Id. at 204. 47 Id. at 168-169. 48 Id. at 169-178.

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This approach requires the recognition of the sui generis or unique nature of Indians and Indian

issues. The application of traditional doctrines of preemption and interpretation is not effective

to areas of Indian law and issues. That is what Chief Justice John Marshall realized and how

Justice O’Connor approached the Mille Lacs case. If a traditional approach is taken, the result is

one that is not based on equity or fairness because it does not take into account the unique nature

of Indians.

IV. ISSUES RAISED BY MINNESOTA

1. TRIBAL COROLLARY RIGHTS

“The utmost good faith shall always be observed towards the Indians; their lands and

property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars

authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs done to them, and for preserving peace and friendship with them.”49

The 1837 Treaty preempted state power over the Chippewa Indians. One issue that has

come out of the Mille Lacs decision is how far do those treaty rights extend within what is now

Minnesota. The decision in Mille Lacs covers on-reservation usufructuary rights within ceded

territory, but an argument has been made that the protection of those rights extends to off-

reservation as well. “Indian tribes like the Ojibwe frequently hold special off-reservation

usufructuary rights that limit a state’s management options. It is crucial to note that these rights

are in no way jurisdictional, but remain a property right, tied to the resource in the usufructuary

right.”50 “Until the mid-19th century, the Ojibwe people were the primary users of the resources

and took advantage of resource abundance by moving throughout their home-land harvesting

49 1787 Northwest Ordinance. An Ordinance for the Government of the Territory of the United States Northwest of the River Ohio ch. 8, art. 3, 1 Stat. 50, 52 (1787). 50 Jason D. Sanders, Wolves, Lone and Pack: Ojibwe Treaty Rights and the Wisconsin Wolf

Hunt, 2013 Wis. L. Rev. 1263, 1286 (2013).

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resources as the resources became seasonally available.”51 Indians tend to follow the resource,

whatever that resource may be and wherever it may go, so artificial man-made borders and

boundaries have little or no meaning to them. In a similar way, usufructuary rights have little

meaning if there is no inclusion of related tribal rights that maintain or manage that resource.

These tribal corollary rights have gained some recognition and respect in the courts. “Implicitly

and explicitly, courts have recognized that Indian tribes have rights correlated to treaty resource

rights—some courts have determined those corollary rights to be managerial, while others have

determined that the only right corollary to a resource is the perpetuation of the resource.”52 A

resource right means nothing if that resource becomes non-existent or unusable due to damage or

pollution. Another corollary right is consultation or co-management. “While courts sometimes

hesitate to explicitly declare off-reservation tribal corollary management rights, courts recognize

the necessity of some tribal input into the management of that resource, ensuring—at bare

minimum—the right to the perpetuation of that resource.”53 These rights can be defined

narrowly or broadly, on a case-by-case basis, depending on the resources involved.

Framing usufructuary rights as property interests, they can also be protected as any other

intangible property interest, such as sub-surface mineral rights.54 Natural resources have tended

to be considered as a form of property interests. Since usufructuary rights include a right to a

modest living, it follows that they need to be afforded protection as property rights on a par with

rights such as sub-surface mineral rights, so that Chippewa band members can exercise the right

51 Tom Busiahn and Jonathan Gilbert, The Role of Ojibwe Tribes in the Co-Management of Natural Resource in the Upper Great Lakes Region: A Success Story, Great Lakes Indian Fish &

Wildlife Commission (GLIFWC), http:// www.glifwc.org/minwaajimo/Papers/Co-management%20Paper%20Busiahn%20%20FINALpdf (last visited Jan. 11, 2016). 52Sanders, supra note 50, at 1286-1287. 53 Id. at 1289-1290. 54 Id.at 149.

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to a modest living. That protection would also include the continuing opportunity to make a

modest living through maintaining and perpetuating the existence and sustainability of the

usufructuary property rights.

2. VALIDITY OF USUFRUCTUARY RIGHTS OUTSIDE THE 1837 TREATY CEDED

TERRITORY

An argument has also been made that the treaty-guaranteed usufructuary rights of the

Chippewa extend to cover areas of Minnesota outside the 1837 ceded territory and that those

usufructuary rights are just as valid as the rights within the 1837 ceded territory. “Treat-

guaranteed usufructuary property interests in the whole of Northern Minnesota, that are still valid

today, would have a significant impact on the environmental and economic future of Northern

Minnesota and its native people.”55 The impact would affect both the Chippewa and the non-

native people of Minnesota. This shared impact could potentially cause tension and strained

relations between the Chippewa and non-native people but it could also provide an incentive to

find ways to work together in the area of resource management that would serve the interests of

both parties in the long run.

The source of the usufructuary rights that could potentially cover territory in northern

Minnesota that is outside the 1837 ceded territory are treaties that were signed before the 1837

Treaty. These treaties did not cede land to the United States but were “peace and friendship”

treaties and are another potential source of usufructuary property rights to the Chippewa.

Though they did not cede land, they include usufructuary rights that were guaranteed under those

treaties and they cover land that is outside the 1837 Treaty-ceded territory.

55 Peter Erlinder, Minnesota v. Mille Lacs Band of Chippewa: 19th Century U.S. Treaty-Guaranteed Usufructuary Property Rights, The Foundation for 21st Century Indigenous

Sovereignty, 33 Law & Ineq. 143, 148 (2015).

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It was a peace treaty and “A peace treaty with the tribes and a promise of loyalty to the

United States served the interests of the new nation, and treaty negotiator General Anthony

Wayne’s respect for Indian property was matched with a guarantee of continued rights of a

usufructuary nature.”56 During this period of time in the treaty-making process, the United

States was in the midst of being formed, so peace and friendship with the tribes was the goal of

treaties, rather than the acquisition of land. In the 1825 Treaty, “Although the United States did

not seek lands cessions for itself from the Anishinabe, the 1825 Treaty did serve the interests of

the United States on a frontier that was difficult to defend, considering it was ratified only a

decade after the War of 1812—a war in which many Indian tribes in the Northwest Territory had

openly sided with the British.”57 They needed the peace of tribes in those territories while the

United States established its political independence as a nation.

The 1826 Treaty was a secondary treaty that was entered into in order to explain the

terms of the 1825 Treaty to the tribal members who were not present at the 1825 Treaty. “The

1826 Treaty provides, on its face, the evidence that both U.S. treaty negotiators and the

Anishinabe understood that the ability of Anishinabe to live off the land was essential to their

survival.”58 Although the 1825 and 1826 Treaties did not concern the cession of land to the

United States from the Chippewa, they “had memorialized the usufructuary rights…and

guaranteed their continued existence in a treaty, ratified by the government of the Untied

States.”59 Usufructuary rights as necessary to Indians for a modest living. The United States

was more interested in acquiring land, but the Chippewa were more interested in their hunting,

56 Id. at 157. 57 Id.at 159. 58 Id. at 161. 59 Id. at 163.

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fishing, and gathering rights and retaining the rights to continue those activities for their survival,

or a modest living.

The 1837 Treaty was the first land cession treaty in Minnesota. By this point in history,

the relationship between the United States and the tribes, as well as United States policy towards

the tribes, had changed and shifted from “peace and friendship” to acquiring land to

accommodate settlement. “The Treaty did not abrogate, and specifically retained the

usufructuary property rights of the Chippewa that ran with the land area described in the Treaty.

The Treaty did not terminate…the usufructuary rights guaranteed in the rest of Minnesota in the

Treaties of 1825 and 1826 that remained outside the 1837 cession area.”60 Justice O’Connor

stated that “After an examination of the historical record, we conclude that the Chippewa retain

the usufructuary rights guaranteed to them under the 1837 Treaty.”61 The Chippewa retained

their usufructuary rights in exchange for ceding land. “To secure Anishinabe ‘consent’, United

States treaty negotiators took the approach of severing formal title to land from the continued use

of the land for traditional means of survival, thus guaranteeing usufructuary rights to the use of

the land, separate from transfer of title to the land to the United States.”62 Those usufructuary

rights have carried on up to the present and did not pass with title to the United States and could

possibly include the territory outside the 1837 Treaty area as well.

3. CONSERVATION OF NATURAL RESOURCES, STATE LAWS, AND INDIANS

State regulation of tribal usufructuary rights is allowed only for conservation reasons.

“The Minnesota DNR is responsible for implementing conservation and regulatory rules

regarding the care, condition, and sustainability of Minnesota’s public land, water and

60 Id. at 167. 61 Minnesota v. Mille Lacs, 526 U.S. 172, 176 (1999). 62 Erlinder, supra note 55, at 167-168.

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animals.”63 Which brings up another issue of under what types of circumstances would it be

acceptable for state regulations to apply to tribal usufructuary rights. Conservation reasons are

the way to validate the application of state laws, but how would those reasons be determined, and

how would they justify the use of state laws? States can rely upon their police powers but must

meet certain criteria first.

States are able to effectuate regulations over tribes through the use of the state’s police power. A state’s use of its police power must not discriminate against Native Americans,

and must be “reasonably necessary” in improving a public health or safety risk. For a state regulation to be considered “reasonably necessary” a state must satisfy a three part

test by showing that: (1) “there is a public health or safety need to regulate a particular resource in a particular area;” (2) the regulation sought is “necessary to the prevention or amelioration of the public health or safety hazard;” and (3) regulation of “the tribes is

necessary to effectuate the particular public health or safety interest.”64

The regulations must also be the least restrictive option available to the state. Balancing the

interests of the tribe and the state in the area of natural resource management is the goal of the

three part test. “As a result of the 1999 Minnesota v. Mille Lacs Band of Chippewa Indians case,

the Chippewa are granted some autonomy to create and manage their own conservation efforts

while working with the DNR.”65 It would also require some cooperation between the tribe and

the state in gathering information and evaluating that information to determine if taking

conservation measure would meet the test. Because of the Mille Lacs decision, both Minnesota

and the Chippewa are in a position to deal with issues of conservation.

Another issue that has come out of the Mille Lacs decision is co-management of natural

resources by the states and tribes. “Cooperative management is the best-known model for

enacting the Tribe’s rights while advancing Wisconsin’s legitimate interest in wolf depredation.

The alternatives include protracted and bitter public disputes and/or lengthy, expensive litigation

63 Steffes, supra note 3, at 382. 64 Id. at 375. 65 Id. at 382.

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that will sow uncertainty over wolf policy.”66 This is the situation that occurs when two

sovereigns are both seeking to advance their interests in the same territory involving the same or

similar resources.

Indian tribes ceded land and territory to European settlers in exchange for reserving

sovereign territory and reserving explicit and implicit rights protected by the federal government. This is an important distinction: tribes did not gain rights by treaty, but

rather guaranteed the perpetuation of rights they always held as sovereign people. These sovereign reserved rights have been a source of conflict and cooperation.67

Neither the states nor the tribes can afford the time, expense, and effort that prolonged litigation

can entail. These cases can be in the court system for years before they get set for trial and the

outcome is usually not certain for either side. Negotiation and collaboration would serve the

interest of both parties because it could result in a decision reached by them, rather than a

judgment imposed on them. In addition, there are Indian tribes that are not in a financial position

to cover the costs of litigation. Negative fallout and adverse publicity from heated public

disputes hurts both sides as well, internally and externally.

V. CO-MANAGEMENT OF USUFRUCTUARY RIGHTS

1. GREAT LAKES INDIAN FISH AND WILDLIFE COMMISSION (GLIFWC)

An example of success in the area of co-management is the Great Lakes Indian Fish and

Wildlife Commission (GLIFWC). The GLIFWC was established:

in 1984 through the merger of two already existing entities—the Voigt Intertribal Task Force and the Great Lakes Indian Fisheries Commission. GLIFWC is governed by a

Board of Commissioners that sets policy; a Voigt Intertribal Task Force that focuses on issues in the 1837 and inland portion of the 1842 ceded territory; and a Great Lakes

Indian Fisheries Committee, whose focus is Lake Superior. GLIFWC’s existence is based upon the sovereignty of each of its member tribes and it is an agency of delegated

66 Sanders, supra note 50, at 1268. 67 Id. at 1269.

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authority from those tribes. It is structured to facilitate intertribal consensus on issues of common concern regarding off-reservation treaty rights.68

The values and practices of sharing and consensus are common among Indian people. That is

the customary manner of dealing with issues and concerns that may impact the community.

The GLIFWC was formed by 11 Ojibwe tribes who had the usufructuary rights to hunt,

fish, and gather natural resources from the ceded territories.69 “The GLIFWC is a co-

management and licensing body created by Anishinabe bands in the 1854 Treaty territory to

implement the resource sharing concept required by the treaty guarantees.”70 Usufructuary rights

are the rights to use and occupy the land and resources, but they also include the right to modest

living and “where these property rights have been guaranteed by treaty with the federal

government, shared management and shared income as co-equals with state governments is

mandated, either through joint state/native management or state leasing of treaty-guaranteed

usufructuary rights.”71 Working together to manage, maintain, and perpetuate natural resources

is no longer optional if there are to be any viable resources left for anyone.

Working together can also provide opportunities to learn from each other that will serve

the interest of all parties concerned so cultural differences do not have to stand in the way as they

have in the past.

In the early 1900’s a conservation ethic developed among non-Indian users that was embodied by the ‘North American Wildlife Model’. The model’s basic principles were that fish and wildlife belong to all North American citizens, and fish and wildlife should

be managed in such a way that their populations will be sustained forever. In practice, the States encouraged use of less efficient gear, with restricted seasons and bag limits, to

68 Treaty Rights Implementation—The Nature and Scope of the Rights, Great Lakes Indian Fish

and Wildlife Commission (GLIFWC), http://www.glifwc.org/Recogntion_Affirmation/affirming.html (last visited Jan. 1, 2016). 69 Busiahn, supra note 51. 70 Erlinder, supra note 55, at 206. 71 Id.at 151.

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accommodate an ever-increasing number of users. Harvest regulations were enacted to implement this inefficiency.72

The principles behind that Wildlife Model did not work out in practice very well. However,

“[u]ntil the mid-19th century, Ojibwe people were the primary users of the resources and took

advantage of resource abundance by moving throughout their home land harvesting resources as

the resources became seasonally available.”73 The principles behind the non-Indian and the

Chippewa views regarding natural resources and their use and management differ in their

worldviews, beliefs and values. “Tribes have managed ceded territory resources and harvest for

hundreds of years.”74 Because worldviews are different, there is ample opportunity for

misunderstandings and resistance. “State fish and wildlife managers had great difficulties

accepting the exercise of treaty rights because it challenged their fundamental worldview. The

exercise of treaty-protected harvesting rights off-reservation by tribal members under their own

culturally appropriate rules challenged the principle that fish and wildlife was to be managed by

states for all citizens.”75 Recognition and affirmation of treaty rights of the Indians allowed the

Indians to have a voice in the management of natural resources. Having a voice allows for

contributions that can work with the States to further the sustainability of the natural resources

within their territories. This is co-management or shared management.

The 1837 Treaty preempted state power over the Chippewa, which allows an

organization like the GLIFWC to exercise its power on and off the reservations. “In treaties

signed in 1836, 1837, 1842, and 1854, the tribes reserved hunting, fishing, and gathering rights

in the areas (land and water) ceded to the United States. It must be emphasized that these ceded

72 Busiahn, supra note 51. 73 Id. 74 GLIFWC, supra note 68. 75 Busiahn, supra note 51.

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territory rights were not given or granted by the United States, but were reserved by the tribes for

themselves.”76 The land that was ceded includes land in northern Michigan, Wisconsin, and

Minnesota. These rights are an important part of the culture and way of life of Indian people.

Taking a child or a youth to teach them how to hunt, fish and gather not only teaches them the

mechanics of those activities but it is also a good time for teaching the cultural values behind

those activities and why they have been important and continue to be important to the Chippewa.

“In proper perspective, this reservation of sovereign rights is part of the Ojibwe’s ongoing

struggle to preserve a culture—a way of life and as set of deeply held values—that is best

understood in terms of the tribes’ relationship to Aki (earth) and the circle of the seasons.”77

They do not just provide for sustenance needs, but also contribute to the religious, medicinal,

ceremonial, and teaching needs of the Chippewa.

Treaty rights that are recognized and affirmed are one thing, but determining and

implementing the scope of those rights may be another one. Responsibilities are included in the

exercise of those rights and they may also have to be coordinated with the rights of other tribes

and non-Indians.

In addressing how tribes can preempt state regulation of their ceded territory rights, courts have said that the tribes must be able to effectively regulate themselves and protect

legitimate state conservation, health, and safety interests. This necessarily involves another aspect of co-management—communication and coordination with non-tribal

governments that exercise management authority within the ceded territory. The requirement that tribes have in place effective self-regulation has a variety of implications in a shared rights context. Tribes must, individually as well as collectively, 1) undertake

effective management programs and adopt and enforce regulations consistent wit the standards above (ie. reasonable and necessary for conservation, public health and public

safety), 2) remain within the tribal allocation of resources, and 3) engage in intertribal co-management to accomplish effective self-regulation.78

76 GLIFWC, supra note 25. 77 Id. 78 GLIFWC, supra note 68.

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For co-management to be successful, there needs to cooperation, communication, and

collaboration, which requires the parties to share information, responsibilities, and authority.

This can result in a sharing of the natural resources and a shared income from those resources.

One practical way that the GLIFWC exercises their treaty rights is through the issuance

of permits and tags for off-reservation treaty hunting, trapping, and gathering. A tribal picture

identification is required for a permit and tag and they can be obtained at the tribal registration

station or the tribal conservation office. The territories include the 1837 and 1842 ceded

territories of Michigan, Wisconsin, and Minnesota. The GLIFWC has an Enforcement Division

which is “primarily responsible for monitoring all off-reservation treaty harvest seasons in the

ceded territories and enforcing the tribal codes that regulate each season.”79 The Enforcement

Division has their own officers and wardens whose duties include both patrolling and monitoring

within the ceded territories of Michigan, Wisconsin, and Minnesota. “GLIFWC wardens

routinely patrol and monitor treaty harvest activities in the ceded territories of Michigan,

Wisconsin, and Minnesota, checking for infractions of tribal codes governing treaty harvest

seasons. Violations are cited into tribal courts.”80 The goal includes protection of the natural

resources through monitoring and enforcement.

2. CONCLUSION

Federal preemption of state control over Indians and Indian affairs through Indian treaties

is another way to illustrate the sui generis nature of Indian law in the legal system as well as the

sui generis nature of the relationship of Indians and the federal government. This sui generis

nature has its roots in the inherent tribal sovereignty of Indians as well as the historical context in

79 Enforcement Division, Great Lakes Indian Fish and Wildlife Commission (GLIFWC), http:// www.glifwc.org/Enforcement/enforcement.html (last visited Jan. 11, 2016). 80 Id.

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which the treaties were negotiated and signed. In the area of preemption, where the sui generis

nature has been recognized, it becomes apparent that the states are not Indian tribes and the

doctrine of preemption cannot be applied in the traditional manner. To do so would produce a

result that would be inequitable and unfair to the Indians, in that it would disregard their tribal

sovereignty. The word “unique’ comes up frequently in cases and articles that involve Indians

and Indian affairs. That is because of their sui generis nature. When faced with an issue that

concerns Indians and Indian affairs, the courts, governments and Indians, recognizing that sui

generis nature, will be able to arrive at equitable and fair outcomes to disputes.