MENOMINEE TRIBE v. UNITED STATES

Print this transcript Transcript: 

Argument of Charles A. Hobbs

Mr. Charles A. Hobbs: The Menominee Indians live in Eastern Wisconsin near Green Bay.

Chief Justice Earl Warren: May I ask if the state requires them to do all of those things?

Mr. Charles A. Hobbs: I am --

Chief Justice Earl Warren: That they require them to pay license fee?

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

Chief Justice Earl Warren: But they claim that right here at least, is that correct?

Mr. Charles A. Hobbs: The state does claim the right to impose all of its rules, including license fees --

Chief Justice Earl Warren: Yes.

Mr. Charles A. Hobbs: -- on the Indians.

Chief Justice Earl Warren: Very well.

Mr. Charles A. Hobbs: These Indians have always hunted and fished for subsistence and many of them still do today.

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

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

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

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

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

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

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

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

It's unsportsmanlike.

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

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

These are sportsmanlike rules that happened to be involved here.

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

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

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

Certain species can never be shot.

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

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

There are bag limits in seasons.

For example, in the area covered by this reservation, the bag limit for deer is one deer per season and the season last for ten days from November 23rd to December 1.

The brief inadvertently said one deer per day.

If the just -- any of the justices noted that, it's an error for which I apologize.

The correct rule is one deer per season; that is one deer per year.

There are also the sporting rules about how game may be shot: you can't shoot a swimming deer or swimming bear; you can't hunt with the aid of an airplane; you can't shine deer, which has what brought us to this case.

Back to our prosecution, in the Menominee -- Shawano, Menominee County court, the Indians admitted that they had done what was charged but they claimed the -- that the 1854 Treaty gave them an immunity from the prosecution.

Judge Fisher agreed with them and he wrote a long opinion which is reprinted in the appendix, acquitting them.

The state appealed under state law to the Wisconsin Supreme Court and that court by a two-to-one decision reversed.

They held that the Indians had the hunting right under the 1854 Treaty alright but that that right had been extinguished by the Menominee Termination Act.

The Indians sought certiorari from this Court which was denied.

That appeared to settle the matter and so the tribe then filed suit in the Court of Claims, seeking damages for the loss of these valuable rights.

The Court of Claims dismissed the claim on the ground that the Tribe still own the right.

Now the Tribe was very pleased at this rationale because they would much rather have the right to hunt and fish than they would any compensation likely to be awarded.

So although technically we lost the law, we did so for a reason of which we very much approved and hope that this Court will affirm.

On the basis of the conflict between the Court of Claims and the Wisconsin Supreme Court, this Court granted certiorari.

Justice Byron R. White: And now, the government agrees with your position at least as to the Termination Act did not extinguish, is that right?

Mr. Charles A. Hobbs: Yes, Your Honor.

Justice Byron R. White: That hasn't always been the Government's position.

Mr. Charles A. Hobbs: That is correct.

The first time we sought certiorari from this Court, the Government's position, although qualified, but basically was that we no longer had the right.

Justice Byron R. White: So now is no one in this case before us arguing the side about the termination?

Mr. Charles A. Hobbs: Arguing --

Justice Byron R. White: Extinguishment through the Termination?

Mr. Charles A. Hobbs: Yes, that's correct, Your Honor.

Of course the State of Wisconsin is the real opponent here.

There's no question about that --

Justice Byron R. White: And its not -- and the State of Wisconsin isn't here?

Mr. Charles A. Hobbs: They are not here except as amicus.

They have filed a brief and a supplemental memorandum presenting their position and therefore, their position is before the Court.

Justice Hugo L. Black: Well, the Attorney General has now sent a letter.

Mr. Charles A. Hobbs: That's what I call a supplemental memorandum, Your Honor.

Justice Hugo L. Black: Well, that's a supplemental memorandum.

Well, if there's no difference between you and the Federal Government, should this case be tried without hearing from the state oral argument?

Mr. Charles A. Hobbs: Your Honor, I feel that the state has -- actually, as a practical matter, presented its position in its amicus brief which it wrote as a brief on the merits and in its supplemental memorandum which adds to explain the brief.

The state was on notice that this case was coming up here.

The state knew that its interest could very well be affected by the decision of this Court.

Justice Potter Stewart: But when did the state know, the Government's changed its position?

When did that first appear, after the Court of Claims position, isn't it?

Mr. Charles A. Hobbs: The Court of -- the Government had moved to dismiss our case in the Court of Claims.

The Government took the position that we were not entitled to compensation in the Court of Claims.

Justice Potter Stewart: In other words, it's your right --

Mr. Charles A. Hobbs: In other words --

Justice Potter Stewart: -- had been extinguished?

Mr. Charles A. Hobbs: Yes.

Justice Potter Stewart: The state wasn't a party in the Court of Claims proceeding.

Mr. Charles A. Hobbs: No, of course, it was not but you're asking when the Government first took that position.

There's not very much.

We -- the Indians can do about that.

We can only make sure the state knows what's going on which it did and leave it to them to take what action seems in their best interest.

I --

Justice Hugo L. Black: But I understood you to say a moment ago that you're real adversary here is the State of Wisconsin?

Mr. Charles A. Hobbs: That's correct Your Honor.

Justice Hugo L. Black: And not the United States?

Mr. Charles A. Hobbs: That's correct.

United States basic --

Justice Hugo L. Black: We are here in a case arguing without the state which is vitally injured being present to argue it overly.

Mr. Charles A. Hobbs: Wouldn't you regard that the state has decided that its interests are adequately protected by its briefs?

Justice Hugo L. Black: Well, I don't see what I decide that there's a protest here founded by the state in connection with these matters.

Mr. Charles A. Hobbs: If the state --

Justice Hugo L. Black: And they are the party in interest here.

Mr. Charles A. Hobbs: If the state had filed a motion for -- leave to intervene or for time to argue which seems or rather simple and obvious course perhaps, that would have been seriously considered by this Court.

At least does not --

Justice Hugo L. Black: But should we hear the case?

And the two parties here before us say, “We agree that nobody (Inaudible) on this but the State of Wisconsin.

They're the adversary parties (Inaudible).

Mr. Charles A. Hobbs: Well, certainly issued here the case.

It's up here regularly on certiorari from the Court of Claims between --

Justice Hugo L. Black: With circumstances came so that now there's nobody but the state as an adversary and there's no adversary argument here, is it?

Mr. Charles A. Hobbs: There is to the extent that the state has made its position known in the materials that it's filed here.

Justice Hugo L. Black: But there's no adversary between you and the Federal Government?

Mr. Charles A. Hobbs: No, there's none.

Justice William J. Brennan: Well, is the ruled on something at all?

Mr. Charles A. Hobbs: Well, in minor detail, there is of course, the extent of the right for example.

Well, is the difference between you and the Solicitor General only a minor difference?

Mr. Charles A. Hobbs: Yes.

Justice Byron R. White: Well, it's different in that so to speak, the Federal Government would permit to stay the Wisconsin to put the very regulation on these hunting rights that were involved in this case and would say that the State of Wisconsin was unable to keep people from hunting with a light at night on this reservation land.

Mr. Charles A. Hobbs: Well --

Justice Byron R. White: Or carrying a gun in a car.

Mr. Charles A. Hobbs: The Government does say that these particular regulations involved in this case, that is shining dear and carrying a loaded gun in a car, they say these regulations are upholdable on the basis of safety in conservation that is necessary for conservation.

Of course, we disagree with that.

But --

Justice Byron R. White: Oh, that's rather a big difference between you, isn't it?

Mr. Charles A. Hobbs: Yes, I admit it's a big difference and critical for this very case.

But the scope of this case of course is broader.

But yes indeed, that brings to you an adversary question to be decided.

Justice Byron R. White: But it hasn't got anything to do with the judgment that we're reviewing because that the -- because in any event, apparently nobody here objects to this judgment of the Court of Claims.

Mr. Charles A. Hobbs: The State of Wisconsin does and it is an amicus --

Justice Byron R. White: If we we're reviewing judgments instead of opinions, why -- there is really no adverse interest here, are they?

Mr. Charles A. Hobbs: Strictly, no.

Justice Byron R. White: You both want us to do what, with --

Mr. Charles A. Hobbs: Affirm the Court --

Justice Byron R. White: -- the judgment of the Court of Claim?

Mr. Charles A. Hobbs: Yes, we both --

Justice Byron R. White: Affirm it, the --

Mr. Charles A. Hobbs: -- want you to affirm the Court of Claims.

You'll notice that too that we have an alternative ultimate position, which is clearly adversary, and that is that if we are wrong and do not have the right to hunt and fish today, then we are entitled to compensation for it.

And therefore the Court of Claims is our alternative and lest preferred position nevertheless we've made it in the brief and it's there, we mean it.

If we're wrong and don't have the right to hunt and fish then we want compensation and we want --

Justice Byron R. White: Did the Government disagree with that?

Mr. Charles A. Hobbs: Yes.

They would --

Justice Byron R. White: That if you're wrong, if the Court of the Claims was wrong, we have to reverse.

Does the Government deny your right to compensation?

Mr. Charles A. Hobbs: Well, in their brief they made several statements which led me to think that possibly they do see something to our argument for compensation.

But in the Court of Claims, there was a direct argument that we we're not entitled any compensation even if we had the right.

Justice Byron R. White: Oh, the Government's argument is not the Termination Act expose these lands to any different kind of regulation than they were subject to before.

It's just they were just subject to regulation at the hands of different governmental entity.

They would -- they're argument is that -- is in terms to defining what the Treaty Rights were?

Mr. Charles A. Hobbs: Yes.

Justice Byron R. White: So that the Termination Act had nothing to do with it and therefore, no compensation.

I mean, you never lost -- you've never lost anything.

Mr. Charles A. Hobbs: Well, that's the present position, Your Honor.

Yes, that's accurate.

They say that to the extent that the Federal Government could regulate these rights prior to termination, the State now has that right.

Justice Byron R. White: But you say that -- let's assume that you can't hunt and fish with complete freedom that you are subject to the kind of limited regulation the Government seems to think you're subject to, would you then say that you're entitled to some compensation?

Mr. Charles A. Hobbs: Without binding the client who should be consulted on something like that, it's my own impression that the Government is correct in that and if there was no change in the scope of regulability of -- by the sovereign that which the Federal Government had did transfer to the state without giving rise to a right of compensation on our part.

I -- my impression is that the Government is correct in that theory.

Justice John M. Harlan: And your point is, is it not that we should decide this case without reaching, under any argument, (Inaudible).

Mr. Charles A. Hobbs: Well, if you were to affirm per curiam without opinion, we will be faced with an extensive additional litigation and this case has been litigated since 1962 and the tribe --

Justice John M. Harlan: (Inaudible)

Mr. Charles A. Hobbs: Under the strictest possible view of judicial review, that's correct.

You could affirm the Court of Claims --

Justice John M. Harlan: And the question the jury rested in is requiring the Indians (Inaudible) with another litigation where Wisconsin would be inflicted?

Mr. Charles A. Hobbs: Well, yes, it would have -- it would require further litigation.

Justice John M. Harlan: What?

Mr. Charles A. Hobbs: If the decision of the court did not settle what is really at issue here, which is, do we still have the rights.

An affirmance however bare of the Court of Claims would require that the trial be further litigated.

They couldn't let it sit there.

Justice Byron R. White: Well, why didn't you ask for reversal up here or why don't you urge reversal now no matter what your previous position has been?

Mr. Charles A. Hobbs: Well, the Tribe is overwhelmingly interested in having the hunting and fishing rights.

They're not --

Justice Byron R. White: Yes, but Wisconsin says you don't have them and the Court of Claims isn't going to change the Wisconsin --

Mr. Charles A. Hobbs: The conflict that has arisen between the Court of Claims and the Wisconsin Supreme Court can only be decided here.

There is no alternative.

If you can't decide it at this time, the case is before you, they will come up again.

Hopefully, under such circumstances that certiorari will again be granted but the State of Wisconsin can certainly be expected to adhere to its present position, which is that we do not have the right.

Justice Abe Fortas: Well, as I understand your position, let's see if I do, it is this, that if we affirm the Court of Appeals, I mean the Court of Claims, we will necessarily be deciding that the Tribes still has hunting and fishing rights and that it is not entitled to compensation from the United States, is that right?

Mr. Charles A. Hobbs: We would take the opinion as meaning that, whether it said so or not.

Yes, Your Honor.

Justice Abe Fortas: Well, what -- I mean to say, if we just affirm the Court of Claims and confine our affirmance, whatever techniques we use but confine our affirmance to the reasoning stated by the Court of Claims in that effect would be that the Tribe is not entitled to just compensation but that the Tribe does have hunting and fishing rights, is that correct?

Mr. Charles A. Hobbs: Yes, and we would be --And then what would remain would be the definition of what if any supervisory or regulatory power the state has under the Termination Act, is that correct?

Mr. Charles A. Hobbs: Yes, it might further be opened possibly.

I don't think the state would exercise it but technically, the state could take the position that it was not bound by such a decision of the Supreme Court since they weren't a party and they would have a right to continue litigate until it was a party.

I suppose that's a possibility but I'm quite certain that the State of Wisconsin wouldn't attempt to do such a futile thing.

Chief Justice Earl Warren: If the State of Wisconsin attempt to intervene in the Court of Claims or did it in its brief amicus in this Court seek to become a party to the action or does it in this letter that we received today, seek to become a party to the case.

Mr. Charles A. Hobbs: No, not technically, Mr. Chief Justice in so many words but as the practical effect of what it has done is to attempt to become a party for the purpose of filing its brief, it has acted as a party.

It didn't ask to become one, no.

I shall proceed if that is the desire of the justices with the further argument on the merits.

We have, of course, homed in on the peculiar posture of the case and that is that both the Government and we seek affirmance of the Court of Claims.

I would like to give you a little background on the Menominees.

I don't know if you've ever heard of them.

They've been one of the friendly Tribes of America and therefore the United States never paid much attention to them except on one of their lands and negotiated sessions with them.

There are about 3200 members --

Chief Justice Earl Warren: How many?

Mr. Charles A. Hobbs: 3200.

That was as of 1954.

There had been some births and deaths since but that's substantially correct.

They live in the lake and forest country of Wisconsin.

Their reservation is substantially a forest and it occurs in the -- the whole area used to be forest but the area outside the reservation has all been cut over so that in a sense, the reservation is like an island of forest in a surrounding farmland.

I don't mean to imply a Kansas Perry but the farmlands may have tree stands here and there but the reservation is solid and it's prominent as you approach it from a distance.

They used to hunt of course.

They rely almost exclusively on hunting and fishing for their livelihood.

Nowadays, like the rest of us, they buy their food enclosed at the store.

But all -- practically all the male Menominees still hunt and fish as often as they can get away to do so.

They -- and they eat what they catch.

It's a very important activity to them and as -- at least one anthropologist has noted hunting and fishing to Indians seems to have some symbolic significance to them.

Some -- it connects them to their Indian heritage and has almost a quasi-religious meaning to the Indians.

Justice Byron R. White: Is that -- if a -- their hunting or fishing activity a commercial, you said they eat what they caught but do they have a surplus that they sell or what else is there?

Mr. Charles A. Hobbs: No, there is no commercial activity.

They may trade among one another or perhaps a person may eat part of a deer and sell the rest to a friend or give it away with their --

Justice Byron R. White: Among themselves?

Mr. Charles A. Hobbs: Pardon?

Justice Byron R. White: Among themselves?

Mr. Charles A. Hobbs: Yes.

Justice Byron R. White: It's not a publicly commercial venture, any of it?

Mr. Charles A. Hobbs: There's no commercial in the course of any significance or else I would have heard of it.

I'm not saying that there's never any selling but I don't know and I've never heard of it and I think I would have.

Justice William J. Brennan: Well, Mr. Hobbs --

Chief Justice Earl Warren: And the Tribe doesn't seek that either here?

Mr. Charles A. Hobbs: That's correct.

The Tribe does not seek commercial rights.

Justice Byron R. White: Mr. Hobbs, what about the additional points of this supplemental memo that's distributed to us only this morning by the State of Wisconsin?

That even if the Court of Claims is right and you were wrong and the Government is right, that these rights survived the Termination Act that nevertheless that presently a -- no members of the Menominee Tribe who could exercise those rights because the roads, a fire road travel roads were closed by the Secretary of Interior at sometime, don't say when.

What about that point?

Is that any -- would we have to decide that even if we affirm?

Mr. Charles A. Hobbs: Oh, no!

No, that's a -- that's one of the implementing details in event of an affirmance.

Justice Byron R. White: That's a rather important detail.

Mr. Charles A. Hobbs: Well, I think I can answer it to your satisfaction.

That rule was created for the purpose of distributing the property of the Menominees under the Menominee Termination Act.

That was the only purpose of that roll was to define the membership of the Tribe for the purpose of distribution of the ownership of this forest.

The roll was closed meaning, no newborns would get on it.

Its -- it didn't mean that that was the end of the roll.

The roll is still in existence today.

And as Congress specified, only the people named on that roll are entitled to this forest, the ownership of the Menominee forest, if and when it's ever distributed or converted into some sort of property for them.

Justice Byron R. White: Who determines who gets on the roll?

Mr. Charles A. Hobbs: Well, the Menom -- basically the Menominee Tribe subject to the restraint of the Secretary of Interior.

Justice Byron R. White: Well, is the corporation which holds titles to this land, just a holding entity, is that all this or is that -- is its governing board also the governing board for the Tribe?

Mr. Charles A. Hobbs: A good question.

It so happens right now there is no active formal organization of the Tribe; therefore, it uses the corporation as its governing structure.

But the corporation is basically a business venture and is in fact is run by a number of outsiders on the Board of Directors.

The -- if there -- whenever a need arose, the Menominees --

Justice Byron R. White: “Outsiders” what do you mean “Outsider”?

Mr. Charles A. Hobbs: Non-Indians.

The Board of Directors comprises seven directors, as I recall, 4 of whom are Indians and 3 are non-Indians.

That's to get expertise into the operation of this corporation.

Justice Byron R. White: Well, what's their business venture?

Mr. Charles A. Hobbs: Oh, to lumber, to log the woods and cut lumber.

The Menominee mill, that's -- I didn't think to say it, that's all they have.

Justice Byron R. White: Well, who do you claim are entitled to hunting rights, just the members of the Menominee Tribe or is it the corporation which or is it a personal thing or does it attach to the land and therefore available to whoever owns the land?

Mr. Charles A. Hobbs: No, it's not a personal thing; this belongs to the Tribe.

The Menominee Tribe was never extinguished.

Justice Byron R. White: Yes, but if the property belongs to the corporation?

Mr. Charles A. Hobbs: The forest belongs to the corporation.

The only property transfer, it was property held in trust by the Unites States Your Honor.

The hunting and fishing rights we say are not such a property.

Those were property rights of the unions not held in trust by the United States and did not get transferred to the corporation.

We say, our conceptualization of this is this: the Menominee Tribe is a group of Indians, which has in effect a membership corporation under the Wis -- laws of Wisconsin.

However, that corporation does not operate actively because there's no business for it to transact.

The Menominees do meet informally outside the structure of the corporation but rarely.

The corporation, because the mill is the business of the Menominees, the corporation performs all that business.

As -- the casual observer might think there's one entity here but in reality there are two: there's the visible corporation and there's the inactive and at present invisible tribal organization.

Now, the Tribal organization consists of the people on that closed roll plus their descendants and they would be the ones to determine who are their -- who are the proper members of the Menominee Tribe.

That's standard rules for Indians.

Basically, the Indian Tribe itself determines who shall be a member of its tribe.

Justice Abe Fortas: Well, that's pretty hard to reconcile the statutes, isn't it, Mr. Hobbs?

Let me run through a few things on the statute if you don't mind.

On the first place, I'm looking at the U.S. Code which is used here, Section 896 says that the Secretary shall accept the tribal plan as you have it --

Mr. Charles A. Hobbs: Yes.

Justice Abe Fortas: In effect, they shall accept the tribal plan as the basis for the conveyance of the tribal property, for the conveyance of the property as provided by the tribal plan in determining this.

If he'd find that it would treat with reasonable equity, all members on the final roll of the Tribe are prepared as of June 17, 1954.

And so number 1, we have all of the tribal property conveyed to this corporation, right?

Mr. Charles A. Hobbs: Well, I think not.

I think just tribal trust property.

Justice Abe Fortas: Well, that didn't what the language says.

Is there some qualification elsewhere?

Justice Byron R. White: Well, it certainly just relates --

Mr. Charles A. Hobbs: Well --

Justice Abe Fortas: Now the second --

Mr. Charles A. Hobbs: Look at Section 897, Mr. Justice Fortas.

Justice Abe Fortas: They all -- now that says that the Secretary is authorized to transfer to the tribal property the title of all property held in trust by the United States --

Mr. Charles A. Hobbs: (Inaudible)

Justice Abe Fortas: -- and that it seems to me to be a particularization of 896.

And if you tell me that this is wrong, why -- I wouldn't get your opinion on it.

They say is that construction wrong?

Mr. Charles A. Hobbs: I would --

Justice Abe Fortas: Now, my construction of this just casually by looking at it here is number 1, the Secretary transfers to the corporation all of the trust property.

Number 2, that the plan submitted according to the statute, statute contemplated if the plans submitted would contemplate that all travel property, trust property or not would be placed in the corporation.

Mr. Charles A. Hobbs: My view would be that non-trust property would remain in the hands of the Tribe as it always was.

It never was in the hands of the United States to convey.

Justice Abe Fortas: No, alright, I don't think we got a meeting of the minds on the problem here.

Now take a look at Section 899, because I don't recall being commented on your brief.

Section 899 provides that: “Thereafter, that is say, a transfer of the property of the Tribe.

The individual members of the tribe shall not be entitled to services performed by the United States for Indians.”

And you look further down: “All statutes of the United States which shall affect Indians because of their status as Indians, shall no longer be applicable to the members of the Tribe”.

In other words, it seems to me that contrary to argued and I may be wrong about this, contrary to what you argued a few moments ago, that statute did contemplate that upon the setting up of this corporation transferred to it of the tribal property, there would be a termination of the status of the Menominees as Indians in those respects that are peculiar to our law with respect to Indians.

Now, what do you say to that?

Mr. Charles A. Hobbs: We absolutely disagree with it.

The purpose of this statute appearing in Section 891 states what we think is the correct view of what happened here.

The purpose of this Act is to provide for the orderly termination not of the property and members of the tribe but a federal supervision over the property and members of the tribe.

That's what's been terminated.

The federal benefits, the federal agent on the reservation that tells them what to do, the federal trusteeship of the property where the money is in the bank and the timber cannot be cut without the Government's --

Justice Abe Fortas: Yes, but the real question is -- are for purposes of the problem that you are interested in here is whether the tribe in effect survives as any other voluntary organization might survive or whether the tribe survives with the special and peculiar attributes that Indian tribes have under our laws and treaties and by virtue or beyond the basic and underlying relationship.

That's the question it seems to me under this statute.

Mr. Charles A. Hobbs: Obviously, all federal statutes are -- which had been applicable to these Menominees because they were Menominees are no longer applicable obviously.

Justice Abe Fortas: Yes.

Mr. Charles A. Hobbs: But this statute did not wipe out their Treaty Rights.

Justice Abe Fortas: May I ask you one further thing here.

Take a look if you will at -- about the -- towards the end of Section 896 as following the language.

The responsibility of the United States to furnish all such supervision and services to the Tribe and the members thereof because of their status as Indians shall cease on April 30, 1961.

The plan shall contain provision for protection of the forest on a sustained yield basis and for the protection of the water, soil, fish and wildlife.

Now, that would indicate the plan contained provisions with respect to the activities of the corporation, does it not?

Mr. Charles A. Hobbs: Some of them, yes.

Justice Abe Fortas: It would seem to me that that provision would -- contemplated that the corporation would be in effect a custodian of whatever rights the Indians might have in the forest and the wildlife.

Mr. Charles A. Hobbs: Suppose -- our position of course is that the corporation acquired only the trust to property.

But suppose the corporation acquired all their rights, including the hunting rights, the Indian property is communally owned and for the corporation to own these rights for the exercise of its members would not be anomalous, would it?

I'm not quite sure, I understand your -- the purpose here of your question about the plan.

Justice Abe Fortas: Well, what bothers me, we're handicapped here because if -- to my mind or expect that I might change my mind on further study.

I don't think these questions are fully briefed in terms of statute and that's because -- perhaps because of a peculiar way in which it comes up here.

But as I read the statute, it's arguable at least that there was an intent to transfer all of the tribal property, including the forest, whatever -- rights in the wildlife, etcetera to this corporation.

That upon such transfer and pursuant to plan, which I have not seen, the Indians, the Menominee Indians seeks to have any benefits from their status as Indians under the laws of the United States.

And that in effect, what happened here is a -- whether one likes it or not, whether one considers it decent or indecent and why in effect what happened here was a transfer of tribal ownership and responsibilities from the tribal hands into a corporation which in turn was owned by the Indians.

And the Indians, meaning only those Indians whose names appeared on the roll as of June 17, 1954.

Mr. Charles A. Hobbs: If the corporation -- whatever the corporation own, I would agree, is owned through stock ownership by the individual people on that roll and no others, not their descendants.

Justice Abe Fortas: On the roll as of that date?

Mr. Charles A. Hobbs: Without addition.

Justice Abe Fortas: So that any rights in the corporate property that other -- that their children might have would be rights devolved and upon their children as a result of a stock of an inheritance?

Mr. Charles A. Hobbs: Yes.

Justice Abe Fortas: Not because they're Indians?

Not because --

Mr. Charles A. Hobbs: That's right.

Justice Abe Fortas: -- Menominee Indians but because their parents own a stock.

This plan provides for -- is the plan inhibits the Indians from an individual Indian from transferring outside of the tribe his ownership interest in the cooperation?

Justice Byron R. White: Well, the statute says that interest shall be alienable in accordance to such regulations may be adopted by the tribe.

Did they ever adopt any?

Mr. Charles A. Hobbs: May I consult with counsel?

The stock was made inalienable for 20 years and thereafter the corporation has a right of first refusal to buy the stock if it should ever be put up for sale and the State of Wisconsin has a second right of refusal in said event.

Justice Byron R. White: And it's a membership corporation?

Mr. Charles A. Hobbs: No, this corporation is a stock corporation --

Justice Byron R. White: Not before (Voice Overlap) --

Mr. Charles A. Hobbs: -- for a profit but there is also secondly, a membership corporation which is not active.

It exists but is not active.

Justice Byron R. White: I see.

Justice Abe Fortas: Oh, what happens with respect to hunting and fishing rights?

90 -- year 1975 its no longer very far away.

I suppose up to 1975 the tribe doesn't exercise its right of first refusal, the State of Wisconsin does not but some stock is transferred to private people.

And who has these rights of hunting and fishing for which you are trying to vindicate in this suit?

Mr. Charles A. Hobbs: If I have to decide that I suppose I would say that the right is personal to the Menominees.

You see --

Justice Abe Fortas: I don't know whether you have to decide it or not but I sure have to think it through.

Mr. Charles A. Hobbs: If the -- as we argue the tribe of Indians was not abolished and if they own the right, then obviously, it's owned only by the members of the Tribe.

It cannot be alienated to non-Indians.

Justice Abe Fortas: Mr. Hobbs, I call your attention on words that I read a few minutes ago and it doesn't seem to me that the tribe owns the forest, it doesn't seem to me that Tribe own -- has a wildlife rights.

That there was -- have gone to the corporation, am I wrong there, you disagree there?

Mr. Charles A. Hobbs: The forest did go to the corporation.

The corporation would not have title to wildlife but the rights to take that wildlife stayed with the Tribe.

That's our position.

Justice Abe Fortas: Well, do you show me something in the statute that says that?

Mr. Charles A. Hobbs: Well, I did refer you to 897 which said that “trust property”, I mean, it indicates to us that only trust property was transferred to the corporation.

The United States only transferred that property which it held for the Tribe to the corporation.

That property which it did not hold for the Tribe which the Tribe own in its own right without being subject to trusteeship, the Tribe still owns.

It's our position.

Justice Abe Fortas: Well, I don't want to take any more of your time.

Justice Byron R. White: Well, do you think the United States agrees with you on that?

What's the source of their supposed power to put some sort of minimal regulations on hunting and fishing rights which they concede these Indians obtained under this treaty?

Mr. Charles A. Hobbs: We take the position that before termination, the United --

Justice Byron R. White: And what about the United States' position, do you think they -- don't you think that they seem to -- since United States had some power over these Indian hunting rights?

Mr. Charles A. Hobbs: They say they had some power to prevent their abuse under their roll as trustee.

Justice Byron R. White: That's what I mean.

So they claim that the hunting rights were held by them as trustee too?

Mr. Charles A. Hobbs: Possibly or there may possibly be an alternative position which was that although there -- although hunting and fishing rights were not specific trust property.

Nevertheless, the United States, as its roll as general guardian of the Indians, would have the power something different than a trust title.

We have the power to govern the Menominee's exercise of that right.

But if I'm wrong there then we simply disagree with the Government that they had that trustee's power.

Another source claimed by the Government, they say that the sovereign, the Federal Government before termination and the State Government after termination would have the same right to regulate these hunting and fishing rights as the Indian's rights which are off--reservation.

Its -- there's a fairly well litigated area involving Indian off-reservations hunting and fishing rights, and this Court held that those off-reservations, hunting and fishing rights, can be regulated by the state “where necessary” to achieve conservation.

And, under the -- the Ninth Circuit had construed that to mean that in effect the Indians are subject to regulation to prevent them from totally destroying a particular game resource which has to be shared with the non-Indians off the reservation.

The Government says that qualified right -- a regulation was in the Federal Government before termination and is now in the State Government after termination.

We take the position that to the extent that the fishing game on the Menominee's Reservation migrated off the reservation.

If the migratory zone included in area off the reservation, we would concede that the State of Wisconsin now has the -- the Federal Government before termination and State of Wisconsin now has the power, without any right of compensation in us to do what is necessary to prevent the Menominees from destroying that resource because that resource must be shared with non-Indians.

On the other hand, as to a game or fish resource which stays entirely on the reservation which I think might apply to squirrels or groundhogs, animals that don't migrate, we take the position that the Federal Government had no power of regulation prior to termination and that the state has none now.

Justice Hugo L. Black: Mr. Hobbs, did you ask us to reverse this case when you asked for petition for certiorari?

Mr. Charles A. Hobbs: No, does not.

Justice Hugo L. Black: I find nothing in the petition which indicates.

Mr. Charles A. Hobbs: Your Honor we merely ask this Court to review the final judgment.

Justice Hugo L. Black: Have you ever asked that the judgment be reversed or do you now?

Mr. Charles A. Hobbs: We do.

Well, we do now as an alternate position.

Justice Hugo L. Black: Well, as an alternate, do you ask that the judgment be reversed?

Mr. Charles A. Hobbs: Only if we lose on our primary point which is that the judgment should be affirmed.

Justice Hugo L. Black: You asked us to affirm, don't you?

Chief Justice Earl Warren: Well, let's prefer that I -- I assume that is because of the changed position of the Government and the fact that with relation to this Wisconsin takes one position, the Federal Government in its below took another position and it takes a third position here in your -- between the devil in the deep blue sea, isn't that about what this?

Mr. Charles A. Hobbs: I sure am.

Justice Hugo L. Black: Well, has the Government ever asked anything to be done in this case except it be affirmed?

Mr. Charles A. Hobbs: Not to my knowledge.

Justice Hugo L. Black: What?

Mr. Charles A. Hobbs: Not to my knowledge, Your Honor.

Justice Hugo L. Black: And it's -- asking now that it be affirmed?

Mr. Charles A. Hobbs: Basically, yes.

Justice Hugo L. Black: And you did not ask us to reverse it?

Did you in your petition for certiorari or now?

Mr. Charles A. Hobbs: No, we do not.

We asked for the --

Justice Hugo L. Black: Both of you want it affirmed?

Mr. Charles A. Hobbs: Well, we asked for review.

Justice Hugo L. Black: You want a review?

Mr. Charles A. Hobbs: Yes, and it --

Justice Hugo L. Black: The thing that were said or something it was done or something else but you never asked that this judgment to be reversed?

Justice Byron R. White: What did your petition for certiorari say?

Mr. Charles A. Hobbs: We asked for review of the dilemma that we've been put into.

We have got -- the State of Wisconsin is saying we don't have the rights.

They'll put us in jail if we exercise them.

We have the Court of Claims saying we do have the rights and therefore we can't be paid for what Wisconsin says is the loss.

This is an intolerable dilemma.

We don't know what to do unless this Court reviews those two decisions and tells us which one is right.

It --

Justice Hugo L. Black: Nevertheless, the fact remains, does it not?

That whatever you might want to have litigated a year after, you are not asking that this judgment be reversed?

What jurisdiction do we have?

Simply to bring it up by the book, why just ask it to be affirmed?

Mr. Charles A. Hobbs: Well, Your Honor, we do ask that it be reversed as one of the alternative request we make.

We ask for review to resolve a dilemma.

The answer is yes or no as to which -- what's the answer to this question, do we have the rights, yes or no?

If you say yes, you affirm the Court of Claims.

If you say no, we reverse.

We ask you to do one or the other, either one solves our dilemma and therefore, we are asking that you reverse not primarily but secondarily or alternatively.

Justice Hugo L. Black: What you've done is to sue for compensation?

Mr. Charles A. Hobbs: Yes.

Justice Hugo L. Black: And you didn't get it?

Mr. Charles A. Hobbs: On the grounds that we loss the --

Justice Hugo L. Black: Well, you didn't get it, did you?

Mr. Charles A. Hobbs: Yes, Your Honor.

Justice Hugo L. Black: And now, you are asking if the judgment be affirmed?

Mr. Charles A. Hobbs: Yes.

Justice Hugo L. Black: Although you didn't get what you asked for it?

Mr. Charles A. Hobbs: Our primary position is that we want review and resolution of the dilemma.

We prefer affirmance, we --

Justice Hugo L. Black: Well, that time you have different procedures in order to get resolution of a dilemma.

You may have different kinds of lawsuits but I have not known of any here before that allowed this Court to bring a case up to it, your affirmance when both sides wanted it affirmed.

Mr. Charles A. Hobbs: Normally, Your Honor, one -- it's almost never that you have a party before you who really doesn't much care whether you affirm or reverse because either decision is going to be in his favor.

I'm assuming, of course, that --

Justice Hugo L. Black: Well, usually when a person brings a case up here, he's complaining about a judgment being rendered against him which he wants to set aside or reversed.

Mr. Charles A. Hobbs: Well, we could fall back on our alternative position and ask that the Court of Claims be reversed.

Justice Hugo L. Black: Well, are you doing that?

You did not in your petition for certiorari --

Mr. Charles A. Hobbs: Yes, we did alternatively --

Justice Hugo L. Black: But you do that now?

Mr. Charles A. Hobbs: Well, I do now state that one of our positions, an active litigated position is that we want reversal of the Court of Claims.

Justice Hugo L. Black: Now why?

That's what I'd like to hear --

Mr. Charles A. Hobbs: Because they gave us no money for the loss of a valuable right.

Justice Hugo L. Black: Do you claim that you have valuable rights which the Government has taken away from you?

Mr. Charles A. Hobbs: That is the exact position we had in the Court of Claims and they rejected that.

Justice Hugo L. Black: Well then why have you been arguing here before that be affirmed?

Mr. Charles A. Hobbs: Because we would rather have the rights as the Court of Claims held than money for those rights.

Isn't it understandable that there are -- the tribe may have a preference like that.

Justice William J. Brennan: Would there be anything of this -- in it, Mr. Hobbs initially when you fought this out in the Wisconsin Court, you had hoped to vindicate the position that your rights survived the Termination Act?

Mr. Charles A. Hobbs: Yes.

Justice Byron R. White: And you loss out and you ask this Court to say or to review that position of the Wisconsin Supreme Court to say it was wrong and we refused to review the decision of the Wisconsin Supreme Court.

So then, if that was the end of the line and your claim to the rights -- then you're only remedy thereafter was for compensation --

Mr. Charles A. Hobbs: Clearly.

Justice Byron R. White: Is that correct?

So you went into the Court of Claims and asked for compensation on the premise that the Supreme Court of Wisconsin, right or wrong that judgment was final since we have refused to review it?

Mr. Charles A. Hobbs: Yes.

Justice Byron R. White: Is that right?

Mr. Charles A. Hobbs: Yes.

Justice Byron R. White: And then to your other amazement, the Court of Claims says that the Supreme Court of Wisconsin was wrong and that they agree with the Government that your rights had survived, is that it?

Mr. Charles A. Hobbs: Yes.

Justice Byron R. White: So now, here you are caught between the two?

Mr. Charles A. Hobbs: Yes.

Justice Byron R. White: Is that it?

Well, you could turn your claims around, you could say, re -- you could say, you -- rather than asking us to affirm or reverse, you can ask us to reverse or affirm.

Mr. Charles A. Hobbs: Will the court accept an oral amendment?

We are asking --

Justice Byron R. White: But one thing Mr. Hobbs, I must say, I noticed the State of Wisconsin in this supplemental memorandum raise still another point.

That's an equal footing point that the -- after their admission to the union in 1846, was it, that this Treaty of 1854 was beyond the power of the Federal Government to make.

That all the sovereignty had -- by force of the form of the admission statute under equal footing doctrine.

All rights of sovereignty had gone over to the State of Wisconsin and the Federal Government had no right to make that treaty on fishing.

Mr. Charles A. Hobbs: Well, two answer to that.

Number 1 –

Justice Byron R. White: Well, there may be answers but Wisconsin has -- is not here to argue this, is it?

Mr. Charles A. Hobbs: Well, it made its point.

I'm in a position --

Justice Byron R. White: Made a point?

Mr. Charles A. Hobbs: I'm in the position to explain my answer to that point and --

Justice Hugo L. Black: But then are they in a position to answer you?

Mr. Charles A. Hobbs: In our view --

Justice Hugo L. Black: You are claiming your position to -- right to be here to argue the case against the State of Wisconsin although you're denying to the State of Wisconsin their right to be here.

Mr. Charles A. Hobbs: We do not deny the right of the State of Wisconsin to be here.

We would have -- not objected to any motion to intervene.

Justice Hugo L. Black: Suppose there's such thing sometime as indispensable parties.

Mr. Charles A. Hobbs: Well, if you will accept -- with the position, I believe you tentatively have Mr. Justice Black, our primary position which is that the Court of Claims should be affirmed is -- presents the case to the court in a posture which is awkward to say the least and perhaps the court should reject and not make a decision.

But that still is our alternative argument.

Justice Hugo L. Black: I don't see how you can possibly ask for the case to be affirmed.

If you are claiming that the State of Wisconsin's statute is invalid because what you are raising is your right so -- or recover or rights that have property rights as if been destroyed, why is it not inevitable that you have to ask for a reversal?

Mr. Charles A. Hobbs: We do ask --

Justice Hugo L. Black: Have they denied you the right to recover?

Mr. Charles A. Hobbs: We do ask for a reversal.

Justice Hugo L. Black: Did you ask them for anything except the right to recover?

Mr. Charles A. Hobbs: Asked whom Your Honor?

Justice Hugo L. Black: The Court of Claims.

Mr. Charles A. Hobbs: No, we asked them for nothing except money.

Justice Hugo L. Black: And you still claim you're entitled to recover if that law is invalid in Wisconsin?

Justice Byron R. White: Though it was valid (Voice Overlap) --

Mr. Charles A. Hobbs: It's valid?

That's right, Your Honor.

We asked the Court to reverse the Court of Claims.

We also asked it to be affirmed.

Your Honor, I --

Justice Potter Stewart: I suppose, Mr. Hobbs, what would resolve all this is that we vacated our denial -- the petition for certiorari and set this thing down for reargument and have both cases argued.

And that's the real way that resolves anything.

Mr. Charles A. Hobbs: The court has done that before, has reached way back to open up a cert denied and grant that cert and bring it in to a case for proper adjudication.

But Mr. Justice Black, one final answer.

If I were to take position you do, I would reject and disregard our request for an affirmance and treat the case strictly as a request for a reversal.

We make both requests, I would --

Justice Abe Fortas: So you don't really want to say that, do you?

I can understand that the point of view of some other counsel, not yourself that the claim to just compensation might be more attractive but your client, the tribe, wants you to insist upon the -- an affirmance of the Court of Claims so that their hunting and fishing rights can be vindicated.

Mr. Charles A. Hobbs: Of course, Your Honor.

Justice Abe Fortas: And they're entitled to -- if there's anyway that you can work it out, I'm sure you wanted to try to work it out so that this Court considers that request and not that you withdraw it here.

Mr. Charles A. Hobbs: I didn't say I withdraw it.

I said that if I took the position of Mr. Justice Black, I would reject that position.

I don't' withdraw it.

Justice Hugo L. Black: What did you say the position of the --

Mr. Charles A. Hobbs: Well, I didn't mean to characterize you as taking a final position but I gather that you felt that we were not proper in asking for an affirmance of the judgment below.

Justice Hugo L. Black: Well, that's at least a little novel to say the least for a person who claims this cases up, get it reversed, fed up and say, “I want you to either reverse it or affirm it” to either one you see fit.

Mr. Charles A. Hobbs: It is noble.

Chief Justice Earl Warren: But rather a noble position, aren't you that --

Mr. Charles A. Hobbs: Yes, one --

Chief Justice Earl Warren: -- the Wisconsin Court takes your property and says that the United States Government should pay for it.

And the United States Government, through its Court of Claims says, “We don't take your property.

You are entitled to the rights of the treaty and you come here in a dilemma.”

I wonder if Mr. Justice Brennan's suggestion would be aggrieved to you if we should vacate this opinion and in order that to be reargued along with the Wisconsin case where your people were convicted and have that reargued together with this case.

Mr. Charles A. Hobbs: Your Honor, we consider taking that very step and moving that that be done before this case was argued and decided we would not.

Justice John M. Harlan: What year was (Inaudible)?

Justice Hugo L. Black: 60 some --

Mr. Charles A. Hobbs: '63, I believe, Mr. Justice Harlan.

Justice John M. Harlan: I beg your pardon?

Mr. Charles A. Hobbs: I believe, 1963.

Yes, --

Justice Byron R. White: Well --

Mr. Charles A. Hobbs: -- we would accept that.

Chief Justice Earl Warren: You would -- that would serve your purpose now, would it?

Mr. Charles A. Hobbs: Yes.

Chief Justice Earl Warren: Right.

Mr. Charles A. Hobbs: I will reserve such time as I have for rebuttal, Your Honors.

Chief Justice Earl Warren: You may Mister.

Mr. Claiborne.

Argument of Louis F. Claiborne

Mr. Louis F. Claiborne: Mr. Chief Justice, may it please the Court.

Let me say -- first a word about the unusual posture of the case that has become obvious here.

We do have some responsibility for that because back at the '63 term, the court invited our views with respect to this Wisconsin State Court litigation before the court acted on granting -- denying that petition for certiorari.

We then urged the court to deny the petition or at least we gave views which would have led to that result if the court had accepted them.

They are not in all respects consistent with the views we urge on the court today.

At all times, we have taken the position that there is some state jurisdiction to control hunting and fishing on what was the Menominee reservation and which is now the Menominee County.

But the extent to which there may be an immunity from state regulation is a point on which we have disagreed with ourselves quite widely and I think in all fairness, the Court should be aware of that and whatever bearing that may have on the propriety of the suggestion made by Justice Brennan that that although a denying certiorari be vacated.

Justice Potter Stewart: That Wisconsin case involved criminal convictions, did it not?

Mr. Louis F. Claiborne: It involved criminal convictions.

Justice Potter Stewart: And that's all, is that right?

Mr. Louis F. Claiborne: That is all.

Justice Potter Stewart: Well, I suppose that's their long sense moot, aren't they?

Mr. Louis F. Claiborne: I'm confident the sentence has been affirmed --

Justice Potter Stewart: (Inaudible) fines had been paid?

That deer have been consumed?

Mr. Louis F. Claiborne: I suppose that is true.

Here, when the present petition was filed in this Court, we did not oppose its grant although we recognized that we would be aiding affirmance and that perhaps the petitioners primarily wish deferments because we recognize that they were in an impossible position having the Wisconsin Court, which has jurisdiction over the hunting part of it, telling them they could not hunt and fish except strictly in accordance with local regulations.

And the Court of Claims, going somewhat out of its way to disagree with the Wisconsin Court and to say, “We award no judgment of -- against the United States because -- though they had rights, in fact rights larger than we would concede to be wholly immune in that hunting and fishing from state regulation.”

Those rights subsist wholly unimpaired today in the Wisconsin Supreme Court is entirely wrong in saying to the contrary, therefore, no judgment against the United States.

Three members of the Court of Claims, it should be noted three judges, recognizing this impasse that was being created suggested certification of the questions of this Court that did not prevail, the majority for judges, voted against certification.

Justice William J. Brennan: Mr. Claiborne, I noticed in that advice you gave us on 1963, you went rather far, didn't you?

The effect of the 1954 Act we submit was to terminate the resolution status of Menominee land and to subject hunting rights on those lands in the same state conservation regulations, which would apply to Indian hunting rights of any outside a reservation, now is it right?

Mr. Louis F. Claiborne: I can only say, Mr. Justice Brennan that we went much too far and that we have recognized that.

First, as far as notice of our change of position is concerned, that question came up as to whether Wisconsin it had a proper opportunity to appear here.

In August of 1967, we filed a response to the petition for certiorari in this case.

At that time, we equivocated somewhat.

Nevertheless, we gave, I think adequate notice that we had changed our position and that we were not at all sure that they wouldn't be still today some subsisting immunity from state regulation.

From that time until this, Wisconsin might have asked to participate in this case in a more active way than simply by filing its brief in a letter submitted this morning and as -- I'm confident, we would not have opposed any such application recognizing that they ought to be an opponent or the other side here.

On the other hand, it is true that our brief on the merits, which clearly stated our position was not filed until December -- months ago.

Justice Byron R. White: What position did you take in the Court of Claims?

Mr. Louis F. Claiborne: In the Court of Claims, as I'm advised, we took a position, (a) that Menominees never had any hunting and fishing rights granted by treaty and; (b) that they were no longer a tribe and therefore if these -- if any rights there were, they were tribal rights which desist to exist upon what was claimed to be a dissolution of the tribe.

Justice Byron R. White: And what did you send -- did you take the position on the treaty rather on the Termination Act?

Mr. Louis F. Claiborne: I -- only I think to the extent that the Termination Act dissolved the tribe --

Justice Byron R. White: Dissolved the tribe --

Mr. Louis F. Claiborne: -- and therefore ended the rights but through the other rule as it were, by eliminating the beneficiary rather than by eliminating the right --

Justice Byron R. White: Well then, you must have concluded that since the Termination Act -- if the Termination Act dissolve the tribe and therefore ended the rights, you must have got on set but nevertheless, that there is no right to compensation.

Mr. Louis F. Claiborne: Well, I must go repeat, Mr. Justice White.

Our first position was there were no rights therefore the Termination Act had no effect.

We then went on to say even if there were rights, they were extinguished when the tribe was extinguished.

Justice Byron R. White: By the termination?

Mr. Louis F. Claiborne: By the Termination Act and then went on to say, as you suggests, that of course does not make the United States liable in damages for any --

Justice Byron R. White: What if a -- what if it were held that the -- indeed the Indians did have hunting and fishing rights under the Treaty and the Termination Act did terminate those rights the Government's position is no compensation?

Mr. Louis F. Claiborne: I think it would depend on the nature of the rights recognized by the Treaty and the nature of the extinguishment –

Justice Byron R. White: Well, what if there -- the nature that -- do you -- so you now take the -- you now say they had fishing -- hunting and fishing rights under the treaty.

What if they were of that nature and -- but it's held that the Termination Act did extinguish them like the Wisconsin Court held?

Mr. Louis F. Claiborne: We have felt -- never been compelled to come to a conclusion on that question since one thing about which we are clear is that the Termination Act did not abrogate whatever rights were granted by treaty.

I think we would have to concede that there was a serious question about liability.

I think they were all defenses that would be open to United States even in that circumstance.

I avoided arguing that aspect of the case simply because it doesn't arise in our view, it being quite clear it was, that the Termination Act could not sub silencio have meant to abrogate treaty rights guaranteed by the United States, if such there were --

Justice Byron R. White: Well, the reason I asked was that if there's another sound ground for affirmance here, besides agreeing with the Court of Claims' holding that the Termination Act did not extinguish this right, why you had never reached that question, whether the treaty did or didn't extinguish them?

But you don't -- I thought you --

Mr. Louis F. Claiborne: Well, our main position is that you don't' have to reach the question of -- in order to affirm this judgment, we don't say the court shouldn't.

We say the court needn't reach the question of the treaty rights because in no event, the Termination Act take anything away.

Justice Byron R. White: I understand that but if you -- but if we were to conclude that the Termination Act did extinguish the free rights, but if there nevertheless was a basis for saying no compensation, you would still affirm?

Mr. Louis F. Claiborne: Well, I would have difficulties saying that United States was absolutely free of obligation to make compensation if one of the rights granted were, as we think was granted an immunity from taxation of the right to hunt and fish.

Take it that opposition would recognize the right of the Menominees to hunt and fish without obtaining this hunting licenses or fishing licenses and if that has gone because of the Termination Act, there might be some obligation to make reparations.

Justice Byron R. White: Would you have anything to say about Mr. Justice Fortas' questions to the counsel on the other side about -- that who really enjoys these rights now that you say they have, are they individual, tribal or isn't it -- or are they in the corporation?

Mr. Louis F. Claiborne: I think these are tribal rights to be enjoyed only by the enrolled members of the tribe.

I don't think it makes any difference whether the right is technically held by a corporation or by the tribe as a corporation.

They are most --

Justice Byron R. White: What happens here?

Mr. Louis F. Claiborne: -- Indian tribes, it was all federal corporations.

Justice Byron R. White: What happens in 1975?

Mr. Louis F. Claiborne: As to that, I'm not at all clear Mr. Justice Fortas and I would --

Justice Byron R. White: Don't you really have to think that through though here to arrive --here we are asked to declare in effect that hunting and fishing rights still exists in something called the “tribe”, I suppose, and some individuals and that 1975 its -- something is going to happen that may be just like Cinderella at the stroke of midnight --

Mr. Louis F. Claiborne: But I would have thought --

Justice Byron R. White: But you -- don't you really have to think it through now?

What bothers me about this is we have here an action brought by the tribe, the corporation and the certain individuals, that's right, isn't it and they're -- aren't they?

Mr. Louis F. Claiborne: All of the plaintiffs, yes.

Justice Abe Fortas: Sir?

Mr. Louis F. Claiborne: All of plaintiffs, alternatively I take it --

Justice Abe Fortas: And we have from the Government a brief that's very short for which we're all unusually very grateful at this time but in this particular situation I think what we're being asked to do is to consider for the first time some really fundamental problems relating to the startling events that occurred with respect to the Indians and these Termination Acts.

Consider that really for the first time without adversary positions being expressed here on the basis of -- well if I may say so is, a presentation in the written material that doesn't give us some benefit of all the learning then I'm sure that you and Mr. Hobbs have on these subjects and primarily the analysis of this statute.

And you're now telling us that in your view, the hunting and fishing rights belong to the tribes and still belong to the tribes, is that right?

Mr. Louis F. Claiborne: I'm saying only, Mr. Justice Fortas, that they belong to the Indians whether or -- and to the enrolled members of the Menominee Tribe --

Justice Abe Fortas: How can you say it that way --

Mr. Louis F. Claiborne: -- that whether they -- that is as members of the shareholders in this corporation or as members who are enrolled on this final roll, I can't see the big difference.

Justice Abe Fortas: Now the statute expressly says that the tribal roll is made as of this date in 1954 and thereafter it ceases.

It can't add to that.

They became citizens.

Their citizenship is protected by a provision in this statute and there is no longer anything on the federal law they call the tribal roll and they don't have rights as Indians.

Mr. Louis F. Claiborne: The statute establishes this final tribal roll just about --

Justice Abe Fortas: The final tribal roll but these same Indians aren't going to survive forever and ever.

Mr. Louis F. Claiborne: Well, let me say the Court of Claims said these rights are pertaining to the enrolled members of the tribe that is those whose names appear on this roll close to 1954.

District Courts in the Klamath Termination cases held expressly that the right is limited to those whose name appears on the same type of the final tribal roll and not to otherwise new members of the tribe.

Justice Byron R. White: Yes, but the statute also says that this interest shall be descend -- be distributable in accordance with the law of the State of Wisconsin so that they will -- thereafter they go by inheritance.

It looks like on the face of the statute.

Mr. Louis F. Claiborne: Well, I would -- this is of course, a new problem.

There is of much law to the effect that tribal rights cannot be alienated or can they descend to individuals; they remain in the tribe.

What happens when the tribe itself ceases to grow?

Justice Byron R. White: That's right or when the tribe, as a legal entity has been terminated under federal law.

Mr. Louis F. Claiborne: Well, I would have thought of all the problems presented by this case; those problems clearly ones for the future need not be reached here if the judgment were for affirmance.

Let me say in defense of -- by small briefs in this case that we have -- it is true, not contributed all that we might have.

On the other hand, we've gone to somewhat further than we need in supporting the judgment of affirmance of no liability against United States.

We do point out in our brief that this case be disposed off simply by affirmance on the ground that nobody really -- any longer claims the judgment against the United States whatever the reasons may be.

Justice Hugo L. Black: May I ask you this question, Mr. Clairborne, in that connection, does the Government think it would be better either to adopt the suggestion of Justice Brennan that this matter go over to a time when under that technique, we can consider all the questions and get Wisconsin are in the alternative either -- simply now continue the case, invite the State of Wisconsin to come in and argue on the basis that he is now arguing at least with one for -- to reverse it and let the State of Wisconsin back him up.

Do you not think it would be better for us to do -- take some source whereby the State of Wisconsin can be here in this case?

Mr. Louis F. Claiborne: It does disturb me, Mr. Justice Black, State of Wisconsin is not actively participating.

I assume they would have been granted leave had they ask for it.

I don't know that they've had sufficient knowledge of that fact and it might be better for the case and for the court if that argument were continued and Wisconsin was expressly invited in to represent the opposing view.

As to the --

Justice Hugo L. Black: You, it couldn't be done in one of those two ways or may be another way.

Mr. Louis F. Claiborne: No, I do not.

I do see the problem with Mr. Justice Brennan's solution which Mr. Justice Stewart pointed out that it's a little hard to reopen the case at the ‘63 term, which in all other respects is moot.

Justice Hugo L. Black: But it wouldn't be hard to set the case down for reargument and let -- invite Wisconsin to come and of course it would come.

Mr. Louis F. Claiborne: Certainly not and the Government will be highly agreeable to that suggestion.

Justice Hugo L. Black: I myself would be much better satisfied to decide the basic issues, which you and Mr. Justice Fortas were discussing as -- if we'd had an argument by both sides.

Mr. Louis F. Claiborne: Yes.

Justice John M. Harlan: (Inaudible)

Mr. Louis F. Claiborne: Inviting the States of Texas in --

Justice John M. Harlan: (Inaudible)

Mr. Louis F. Claiborne: Exactly, that is correct.

I don't know whether they will -- to pursue the matter now or -- but it -- let me just briefly state our position on the merits.

The -- as I said, the Government's main contention is that the Termination Act had no effect whatever on whatever preexisting treaty rights had been conferred.

In the first place, at the time the Termination Act was passed, Congress was advised by officials of the Interior Department that treaty rights unlike statutory rights would survive the Termination Act.

Now, it's true that alternative proposals were put before the Congress.

Nevertheless, it is likely that Congress or the congressional committees that considered this did take the advice of the Interior officials who were after all the only experts before them on this question of Indian law.

Justice John M. Harlan: (Inaudible)

Mr. Louis F. Claiborne: Yes, since they're off reservation --

Justice John M. Harlan: (Inaudible)

Mr. Louis F. Claiborne: (Inaudible) or I'm mispronouncing it and Nisqually Indian cases as I'm advised there would be in readiness for argument at the March session.

Justice John M. Harlan: What?

Mr. Louis F. Claiborne: At the March session, I believe.

Justice John M. Harlan: They will?

Mr. Louis F. Claiborne: I'm not -- I shouldn't -- the clerk can advice you better than I on that scope.

Those cases presented somewhat a different but related, closely related issue in our view might bear on the decision here.

Chief Justice Earl Warren: To just what extent does the Government feel that Wisconsin has a right to regulate the fishing, fishing rights and hunting rights of the individual members of the tribe?

Mr. Louis F. Claiborne: Well, we think at least two, in two respects, the rights of Wis -- the state's prerogative to regulate hunting and fishing on this reservation is clear.

One is, as it's now conceded, as I understand it by the petitioner, insofar as this wildlife on the reservation is not confined to the reservation but is migratory or is otherwise affects the game beyond the borders of the reservation, clearly in the interest of the inhabitants of the entire state, Wisconsin may see to it that the Indians, because unrestricted in other respects, do not prejudice the rights of hunters, commercial or otherwise in the remaining portion of the state.

We also think that since the United States had a right to promulgate and enforce regulations to preserve the asset for the Indians, that in the service of that same end, Wisconsin may now make applicable some regulations of a purely conservation nature which would tend to preserve this asset for the benefit of Indians.

Now, we do not think the Indians can me made to share this resource, which is, we view it was given them by the Treaty of 1854.

Without this, it cannot be made to allow other hunters to come on their lands even navigable rivers or other places which a normal landowner would have to admit strangers.

And as we've -- as I've said earlier, we do not think that Wisconsin can tax a privilege granted by treaty and there, it seems to us, the Tully case which, in some respects, may be reargued in a couple of months are -- is clear authority.

If the state cannot tax the privilege, which is non-exclusive off the reservation, surely it cannot tax the privilege to hunt, to fish on the reservation --

Justice Abe Fortas: Mr. Claiborne, do you know whether the State of Wisconsin disagrees with you on both of those and points and if so, to what extent?

Mr. Louis F. Claiborne: With respect to taxation and sharing?

Justice Abe Fortas: Yes.

Does the State of Wisconsin take the position that the Indians have to allow other people to come on the former reservation, what was the reservation --

Mr. Louis F. Claiborne: I'm not clear --

Justice Abe Fortas: -- that allow them to fish and hunt?

Mr. Louis F. Claiborne: I'm not clear what they do.

I think Wisconsin's position however, is that there are no special rules with respect to what is now Menominee County and that the unions have no claim to be exempt from either the absolute prohibition on how to -- now there's an area for instance where it seem to us that if the Indians were given a right to hunt and at the time it included something mentioned now, “prohibited quail” that while you may be able to regulate and hedge in that right, you cannot take it away entirely by prohibiting at all times, at all places hunting of quail.

Justice Abe Fortas: But do you take the position that this area, the forest land are owned by the tribe or by the corporation or by the enrolled Indians anyone of those three for present purposes, you take the position that they have an ownership right?

Mr. Louis F. Claiborne: Yes.

Justice Abe Fortas: Well, then if -- that then the right to exclude others would -- there is not -- something that's derived from the state that says Indian, is it?

Mr. Louis F. Claiborne: Well, to the extent, Mr. Justice Fortas, that I really don't know the facts of the Menominee reservation.

But if they are, as I think they are, navigable streams or lakes within that very large area, which now a normal private landowner would control, the normal rule would be that as to those public areas that is navigable streams and lakes, the landowner would be required to admit strangers not so when the case of the Indians.

And that rule and that difference is recognized in some of the most recent cases, the Kake Village, Case 70, Metlakatla Indian case in Alaska decided in Volumes 369 of U.S. reports.

Justice John M. Harlan: (Inaudible)

Mr. Louis F. Claiborne: It would remain the problem --

Justice John M. Harlan: If we affirm the Court of Claims, it would still leave it open on the theory by the Chief Justice, it would still leave it open.

Mr. Louis F. Claiborne: Except to the extent that the process they had in the opinion gave notice, if only by way of an advisory opinion to Wisconsin that its own Supreme Court's decision had been eroded to some extent assuming the court were to file them.

Justice John M. Harlan: (Inaudible)

Mr. Louis F. Claiborne: Unfortunately --

Justice John M. Harlan: -- Wisconsin still or what's the situation now?

Does this law of Wisconsin still attempting to enforce this regulation, that regulation (Inaudible)?

Mr. Louis F. Claiborne: I'm not clear, Mr. Justice Harlan whether there had been some give and take on both sides or not.

I am clear that no private permanent accommodation has been made between the condemning parties and in that sense, the dispute is not moot but it may be that during this period of litigation, the Indians have restrained themselves and so have the Wisconsin State authorities.

I have -- I'm -- I should say that the only alternative way of resolving this underlying conflict seems to be by suit in the United States District Court in Wisconsin.

But it would -- seem a hard thing to do to ask the Federal District Court to confront the Wisconsin Supreme Court only with the view of bringing the case eventually back here as a way we are arguing that case, in which the Sanapaw case in which certiorari was denied.

There is a one more word about the Termination Act and our view that it does not affect whatever rights were granted.

Of course, it's not to be likely supposed that Congress would repudiate Treaty rights once solemn be given.

And nor is it to be supposed that Congress would open the United States to a suit for damages especially at the very time when it was trying to sever the financial responsibility of the United States toward these Indians and to have abrogated treaty rights at least raises the question of liability for the Government.

And finally, there's nothing anomalous about the result that state law in all other respects applies to this reservation.

The reservation is no longer a reservation but simply Menominee County and that nevertheless certain immunities from state regulation shall persist to prevail.

That is the expressed provision of the Klamath Treaty, of the Klamath Termination Act with respect to fishing rights.

The District Court has held it to be true with respect to hunting rights in the case of the Klamath Indians even though no mention is made with respect to hunting rights in the Termination Act.

Justice Hugo L. Black: What was it -- you say about that now that now -- the tribe -- I didn't quite get it.

Mr. Louis F. Claiborne: That --

Justice Hugo L. Black: The other treaty or the Klamath?

Mr. Louis F. Claiborne: I'm sorry, I've misled you, Mr. Justice Black.

It's the Termination Act with the Klamath passed a month later than this one with Menominees, which says in so many words that this Termination Act shall not affect the right, the tribal rights to fishing.

That has been held to -- has been construed in (Inaudible) to have the effect of saying, “It shall not affect the tribal rights to hunt or fish.”

But more than the point perhaps is Public Law 280 passed in 1954 which generally conceded to the states, both civil and criminal jurisdiction over certain named so-called “Indian Country” now including most reservations throughout the country.

And yet they -- the Congressional Policy was not to allow the states to impinge on fishing and hunting rights granted by treaty.

Justice Abe Fortas: Mr. Clairborne, as you see this, does the State of Wisconsin have any regulatory or other rights with respect to hunting and fishing by the Menominee is that -- than the Federal Government had?

Does the state have more rights, more powers than the Federal Government have?

Mr. Louis F. Claiborne: We think not, Mr. Justice Fortas.

We do recognize that Wisconsin, for whatever reason and some of them are obvious, has chosen to exercise that power whereas the federal authorities did not and -- though they might have.

Justice Abe Fortas: So that from your point of view which you would do would be to find out what the federal rights were and then assume that those or some of them were transferred to the state but the fact is they limit of what is transferred to the state and from -- in that way you'd get some indication of what the state regulatory powers are.

Mr. Louis F. Claiborne: I must say Mr. Justice Fortas that our failure to include citations on that point is not the lack of research precisely because the federal authority almost never exercised what we view as this latent power there is -- one can't go at it by finding judicial decisions approving certain federal regulations and then saying to that extent, the power is now in the hands of the state.

There is just very little law on what federal power to control hunting and fishing in reservations was.

Justice Abe Fortas: I think I know that, Mr. Claiborne, but what I'm suggesting to you is that -- and as you have recognized here that your analysis would require you to as -- in ascertaining what the powers of the Wisconsin Act to start with the powers of the Federal Government otherwise, the Federal Government is given the states something that the Federal Government did not have.

And if that is effective, then there has been a taking, is that right?

Mr. Louis F. Claiborne: That is accustomed.

Chief Justice Earl Warren: Well, these acts was such a Termination Acts are a matter of recent (Inaudible), aren't they, and they were brought into being to fill a vacuum were they not because the reservations throughout the country were -- neither the Federal Government nor the State Government had jurisdiction and the states were invited to assume jurisdiction, criminal jurisdiction and civil jurisdiction so that there wouldn't be a vacuum in the states and was not intended, was it for -- to take away any rights that the Indians had except what rights might be involved in giving that the courts of those states' jurisdiction over the general, criminal and civil affairs of the Indians.

Mr. Louis F. Claiborne: I think that's entirely true, Mr. Chief Justice.

I must add that the “termination policies” so-called has been -- was found to be a new advanced one.

There were five to six of these Termination Acts and in most instances or in some at least than in this one it left the Indians very much disadvantaged without any of the federal help that they've been getting in the past and not a corresponding help from the state which, perhaps, had been helpful.

The more -- the policy today is to follow the procedure of allowing state law, civil and criminal state jurisdiction to attach but without all the Government savoring the federal link at least until such time as -- if ever the Indians are able economically to sustain themselves without such help.

Justice Hugo L. Black: I think I've read all those debates on those Termination Acts and it seems to me that at the time there two line of thoughts: one was what you have just said.

Another one was a line which has long been (Inaudible) among certain people that the Indians should no longer be lead under the Federal Government to govern it -- govern them differently to what they govern in any other way.

I think probably, we're going to have a very big job in deciding, your court, they merely decide.

Mr. Louis F. Claiborne: Well, there is that strain, as you noticed, Mr. Justice Black, but in the --

Justice Abe Fortas: In other words, as Mr. Justice Black was suggesting, there was a -- as I remember it, a very strong philosophy here to the effect that the Indian separate property and the tribal property in effect ought to be disestablished and that there ought to be a mechanism for the gradual liquidation of tribal property as an enclave in the general economic system.

Mr. Louis F. Claiborne: Well, Mr. Justice Fortas, as to the distribution of the tribal property, I think that had always been possible under the Allotment Acts.

Of course that didn't apply to things like fishing rights which -- just in here, in the tribe and were not divisible, didn't go with an allotment.

It remained in the members as an indivisible right and so I assume.

Well in the present posture of the case, I can only urge that the court do affirm the judgment below.

Chief Justice Earl Warren: Mr. Hobbs.

Rebuttal of Charles A. Hobbs

Mr. Charles A. Hobbs: Mr. Chief Justice, first in answer to your own question and that of Mr. Justice Harlan, I'm advised by counsel from Wisconsin that the State of Wisconsin does enforce it's hunting and fishing rules against the Indians without exception and thus collect the ordinary license fees from them.

There is no waiver or accommodation.

Chief Justice Earl Warren: And is continuing to do it throughout this proceeding?

Mr. Charles A. Hobbs: With one exception, Your Honor: I must advise you that since the Court of Claims made this decision, the state seems to have weakened in the actual sending out of game wardens under this reservation but obviously, it's holding its hand, depending on the decision of this Court.

Another point I wanted to make, Mr. Claiborne, in his excellent presentation mentioned federal power over these Indian hunting and fishing rights lack of precedence.

I would just call your attention to one, Mason v. Sams where the Secretary of Interior attempted -- he thought for the benefit of the Indians to regulate the fishing rights of the Klamath Indians.

And all of the cases never went beyond the Federal District Court.

Those regulations were struck down as void.

And that finally and most important, I want to call the attention of Mr. Justice Fortas to the fact than in Oregon, the Klamath Indians have an expressed right to continue to fish after the Termination Act.

In other words, Congress had no idea that the Klamath Tribe would be wiped out, have no more rights or anything like that.

They said that the Klamath would continue to have fishing rights.

We argue and the local courts out there have held that impliedly that also extends to hunting rights.

We argue that we are in exactly the same posture as that, as the Klamaths.

Justice Abe Fortas: Well, You are either in exactly the same posture, exactly the reverse posture, is that right and rather that either way on conventional legal reasoning.

Mr. Charles A. Hobbs: Well, I met exactly the same posture as the unmentioned hunting rights requirements.

Justice Hugo L. Black: Do you know whether this question has come up here and argued?

Mr. Charles A. Hobbs: Oh, yes, indeed Your Honor.

In our brief, we cited three decisions, two by the Federal District Court in Oregon and one by a State Local Trial Court in Oregon.

Each of which has held that the Klamath Termination Act, although silent on hunting rights just like our treaty or our Termination Act is silent on hunting rights, nevertheless, that Termination Act did not affect the right of the Klamaths to continue to hunt which they had going back to an old treaty, which itself did not expressly mention hunting rights that their hunting right was implied just as ours is.

Justice Hugo L. Black: Are there some provisions of that Act which do assert that all rights like hunting and fishing are not destroyed, that are not solid as it is here?

Mr. Charles A. Hobbs: I'm sorry Your Honor.

Justice Hugo L. Black: Are these -- is there some part of this Termination Act as it relates to different parts of the country which provides for the preservation of the hunting and fishing rights which have been given to them by treaty?

Mr. Charles A. Hobbs: If I understand Your Honor's question, the answer is yes, that the Klamath Termination Act expressly states that the right of the Klamaths to fish shall not be -- that they shall continue to have their right to fish after termination.

Justice Hugo L. Black: That's expressly provided?

Mr. Charles A. Hobbs: Yes.

Justice Hugo L. Black: And in the other case, it is not expressly provided.

Mr. Charles A. Hobbs: The three cases in Oregon arose dealing with the hunting right which is not mentioned in the Klamath Treaty and is not mentioned in the Klamath Termination Act.

Nevertheless, the court held the right was good and it survived termination.

Justice Hugo L. Black: But the Wisconsin Act did not to provide what was provided in the Klamath Act?

Mr. Charles A. Hobbs: Correct.

That's no doubt because we did not have a treaty expressly granting the -- any rights.

Ours were implied.

Justice Byron R. White: Mr. Hobbs, I take it that in your view, these hunting and fishing rights are separate rights from the ownership of the real estate and that they will -- they can be there held separately and may be passed around separately and that no matter who might end up owning these lands, these hunting and fishing rights will still in here in the tribe and its members?

Mr. Charles A. Hobbs: We so argue but with some hesitation because it's such a prickly problem.

You'll notice in the Winans and (Inaudible) cases, the Indians were held to have a fishing right which survived the patent from the United States to a non-Indian.

The non-Indian had to permit the Indians to come on his land and build smoke houses and fish.

We would have to argue the same.

Justice Byron R. White: And do you -- I suppose that the Indians have hunting and fishing rights that on these land no matter who owns that it isn't just a right to hunt personally in the members of the tribe.

They themselves could issue hunting licenses and charge for the purpose just like, I suppose, private owners anywhere.

Mr. Charles A. Hobbs: That too is very troublesome for me.

I think we would take the position that yes, they could license it to non-Indians but neither would we be surprised nor regard it as illogical that it be held to be strictly purely an Indian right, not transferable.

Justice Byron R. White: At least you would say that the state might be able to regulate hunting by non-Indians?

Mr. Charles A. Hobbs: Oh, clearly, no question; that is true today, Your Honor.

Justice Byron R. White: And on this -- if the corporation which the -- the corporation in the -- which owns the land and the Indians own the hunting and fishing rights agree for -- that people may come on the land to hunt and fish, the state may regulate them?

Mr. Charles A. Hobbs: Yes, Your Honor, just as that all the Indian Reservations that are -- have not been terminated today.

That is the case.

Justice Byron R. White: So you would say the state could tell the Indians, “You may have the hunting and fishing rights but you may not let any non-Indians fish except in fishing season?”

Mr. Charles A. Hobbs: Well, if they fish, they must obey all state regulations, including season, yes.

Justice Byron R. White: And that nobody can hunt quail, --

Mr. Charles A. Hobbs: They could --

Justice Byron R. White: -- with your permission or not?

Mr. Charles A. Hobbs: They could say that.

Justice Byron R. White: Except Indians.

Mr. Charles A. Hobbs: Yes, that's the present law.

Justice Byron R. White: Thank you.

Mr. Charles A. Hobbs: Mr. Chief Justice.

Print this transcript Transcript: 

Argument of Charles A. Hobbs

Chief Justice Earl Warren: Number 187, Menominee Tribe of Indians, petitioner versus United States.

Mr. Hobbs.

Mr. Charles A. Hobbs: Mr. Chief Justice and may it please the Court.

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

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

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

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

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

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

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

The Menominee Reservation is 95% forest land.

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

They have hunted and fished.

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

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

Justice Potter Stewart: Were you saying that it's an eastern hunter State around Hayward or --

Mr. Charles A. Hobbs: Around Green Bay.

Justice Potter Stewart: Green Bay.

Mr. Charles A. Hobbs: Inland from Green Bay.

Justice Potter Stewart: Further south.

Mr. Charles A. Hobbs: Yes.

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

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

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

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

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

This mill processed the products of the forest.

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

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

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

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

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

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

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

Unlike most tribes, this tribe paid for that guardianship.

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

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

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

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

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

Yes they did.

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

So the United States and the tribe refused to move.

So the United States suggested another location for them.

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

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

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

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

Later, the State -- that was in 1852.

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

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

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

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

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

Justice Potter Stewart: Where is that in our record?

Mr. Charles A. Hobbs: The treaty language, Your Honor?

Chief Justice Earl Warren: It's on page 31 isn't it of the Appendix?

Mr. Charles A. Hobbs: Yes, that's correct.

Thank you Your Honor?

Chief Justice Earl Warren: Thank you.

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

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

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

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

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

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

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

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

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

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

And they also have this large cash trust fund.

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

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

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

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

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

Justice Abe Fortas: But why do you say that?

Mr. Charles A. Hobbs: For several reasons.

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

It was a treaty protected conduct, number one.

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

Justice Abe Fortas: Is this -- this is an important step in your argument, is it not?

Mr. Charles A. Hobbs: Yes, it is.

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

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

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

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

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

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

Justice Abe Fortas: Forgive me -- forgive me but to get back to the ownership of the hunting and fishing rights.

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

Mr. Charles A. Hobbs: No Your Honor.

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

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

Mr. Charles A. Hobbs: Correct.

Justice Abe Fortas: But it merely terminated the federal supervision of the tribe.

Mr. Charles A. Hobbs: Yes and caused a severe or perhaps total lost of their sovereign powers.

Justice Abe Fortas: Of the tribe's sovereign powers.

Mr. Charles A. Hobbs: Yes.

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

Mr. Charles A. Hobbs: Yes Your Honor but that is not the only purpose of their continued existence.

They have a number of local problems.

Justice Byron R. White: Didn't they actually formalize their existence -- their continued existence under the state law?

Mr. Charles A. Hobbs: They did.

Justice Byron R. White: As a tribe?

Mr. Charles A. Hobbs: Well --

Justice Byron R. White: Is it around incorporated to something --

Mr. Charles A. Hobbs: They formed a membership corporation under the laws of Wisconsin.

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

It's still an Indian underneath.

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

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

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

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

Mr. Charles A. Hobbs: That's right.

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

The tribe owns the rights.

Justice Byron R. White: Right.

Mr. Charles A. Hobbs: But they have taken on the form of a membership corporation for the purpose -- they do have some business transactions they need to make.

Justice Byron R. White: At least there are evidence -- the evidence is that the tribe's intention to remain and exist.

Mr. Charles A. Hobbs: Exactly, Your Honor.

Its proof --

Justice William O. Douglas: I asked you earlier for the reference in the record for the provision for hunting and fishing rights.

I gather there it is not expressed.

Mr. Charles A. Hobbs: That's correct Your Honor.

It's --

Justice William O. Douglas: It's only implied.

Mr. Charles A. Hobbs: Implied from the language to be held as Indian lands are held.

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

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

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

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

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

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

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

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

Mr. Charles A. Hobbs: Yes.

Justice Abe Fortas: How could that come about?

Mr. Charles A. Hobbs: We have covered that in the brief.

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

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

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

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

Justice Abe Fortas: I might have to have ten.

Mr. Charles A. Hobbs: Yes.

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

Of course--

Justice Byron R. White: But in any event, I gather the fishing rights zone, by the tribe are exercisable by the members, but only by the members of the tribe --

Mr. Charles A. Hobbs: Yes.

Justice Byron R. White: -- also with qualified members.

Mr. Charles A. Hobbs: Well, that is basically correct.

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

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

Excuse me Mr. Justice Black.

Justice Hugo L. Black: What the Indians have been doing here?

Mr. Charles A. Hobbs: Licensing others.

Justice Hugo L. Black: Yes.

Mr. Charles A. Hobbs: No Your Honor, they do not license others.

Justice Byron R. White: But the tribe doesn't own the property it ignores so it couldn't license as landowners.

Mr. Charles A. Hobbs: That's correct.

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

Justice Byron R. White: Fishing right.

Mr. Charles A. Hobbs: The hunting and fishing right -- rights meaning exemption from state hunting and fishing regulations.

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

That is our position, yes.

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

We argue for the same attribute of our rights.

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

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

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

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

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

In short, they continued to be a tribe.

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

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

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

Justice Abe Fortas: Tell me again, I've forgotten.

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

Mr. Charles A. Hobbs: If you consider Menominee Enterprises Inc. to be a private owner, then yes.

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

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

Justice Potter Stewart: And then Wisconsin formed a new county --

Mr. Charles A. Hobbs: Yes.

Justice Potter Stewart: And does this county consist of anything else except the former reservation?

Mr. Charles A. Hobbs: No, solely the former reservation.

Justice Potter Stewart: So the whole 90% -- more than 90% of the whole county is owned by this corporation?

Mr. Charles A. Hobbs: Yes.

Yes, Your Honor.

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

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

So he held they still existed.

The State appealed and the Wisconsin Supreme Court held.

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

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

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

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

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

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

So --

Justice Potter Stewart: The Court of Claims isn't -- there's no question of the full face of credit in that case --

Mr. Charles A. Hobbs: Full face in credit, giving credit to the Wisconsin judgment?

Justice Potter Stewart: Yes.

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

Justice Potter Stewart: Alright.

Mr. Charles A. Hobbs: Well, the conflict of course was the occasion for this Court accepting the case for review.

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

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

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

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

I have four simple points to make on oral argument.

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

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

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

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

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

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

It's fully briefed.

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

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

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

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

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

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

Justice Abe Fortas: Do we have before us the plan that the Indians submitted pursuant to the Termination Act?

Mr. Charles A. Hobbs: You do by reference to the Federal Register where the full plan was published.

Justice Abe Fortas: It's not printed in any of these documents before us?

Mr. Charles A. Hobbs: The State of Wisconsin has reprinted a good part of it in the appendix, their appendix in full.

Well, the Federal Register material is extremely voluminous.

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

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

Justice Byron R. White: Well, don't you have to consider whether or not this treaty, although it may have granted the fishing and hunting rights while the Indians own the land, nevertheless, the rights were not tied in the land?

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

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

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

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

Mr. Charles A. Hobbs: Yes.

Yes.

Justice Byron R. White: Now, do you have any cases like that?

Mr. Charles A. Hobbs: Well, Winans and Suffolk are directly in point, Your Honor.

Justice Byron R. White: Why?

Mr. Charles A. Hobbs: Why?

Because in those cases, the tribe's alien -- the Yakama Tribe alienated the land and --

Justice Byron R. White: Well, yes, but what the -- where did they get the right?

Mr. Charles A. Hobbs: From the treaty.

Justice Byron R. White: And what does the treaty say in those cases?

Mr. Charles A. Hobbs: They shall have the right to hunt and fish in common with the White settlers.

Justice Byron R. White: Well, that's -- that's somewhat different language there in this treaty which have -- which ties it to the land.

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

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

Mr. Charles A. Hobbs: That is a possible construction of that language.

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

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

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

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

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

And Public Law 280 expressly preserves hunting and fishing rights.

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

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

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

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

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

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

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

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

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

The --

Justice William O. Douglas: Do you have any question, the problem here is respecting future membership of the tribe, the enrolment by the Secretary of the Interior, the book has been closed I -- as I understand.

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

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

Justice William O. Douglas: What is the definition of Indians for this purpose of this treaty?

Mr. Charles A. Hobbs: That's one of the toughest questions in all Indian law, Your Honor.

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

I have reserved 15 minutes for rebuttal.

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

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

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

Justice William O. Douglas: Do they -- the only tribe I have any real acquaintance with is the tribe out west, the Yakama tribe?

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

Anybody was 164.

Is there any rule of thumb that your tribe --

Mr. Charles A. Hobbs: Yes, Your Honor.

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

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

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

Justice William O. Douglas: So that means in that in time, this will -- they'll disappear then because there's no reservation and nobody is being born in that place.

Mr. Charles A. Hobbs: Well, people are being born.

Justice William O. Douglas: I know they're being born but not on the reservation.

Mr. Charles A. Hobbs: That's a very good point.

I'm not sure the tribes thought of that.

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

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

Justice William O. Douglas: Could they take me in?

Mr. Charles A. Hobbs: They could, but the Court would not -- surely would not recognize that because you do not maintain tribal relations with the tribe.

Justice William O. Douglas: If I go out there and hunt a fish, maybe I would.

Mr. Charles A. Hobbs: The --

Justice Hugo L. Black: How many members of the tribe?

Mr. Charles A. Hobbs: A little over 3200, Your Honor.

That was how many were on the final rule.

There have been some deaths and births since then.

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

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

Only trust property was conveyed away from them.

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

Chief Justice Earl Warren: You may Mr --.

Argument of Bronson C. Lafollette

Mr. Bronson C. Lafollette: May it please the Court.

Chief Justice Earl Warren: Mr.--

Mr. Bronson C. Lafollette: I'm Bronson LaFollette, Attorney General of Wisconsin appearing here on behalf of the State of Wisconsin as amicus curiae at the invitation of this Court.

Chief Justice Earl Warren: You may proceed, Mr. Attorney General.

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Byron R. White: You mean cut -- it would cut them off in the sense that it would subject them to state regulations?

Mr. Bronson C. Lafollette: Yes, that's correct.

Justice Byron R. White: Yes, but it wouldn't their -- the power to -- to fish on the land?

Mr. Bronson C. Lafollette: Not as ordinary other citizens if they conform to the regulations of the state.

Justice Byron R. White: But they could exclude others from fishing there?

Mr. Bronson C. Lafollette: No, they could not.

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

Justice Byron R. White: You mean as long -- as long as they own the land, they couldn't exclude others?

Mr. Bronson C. Lafollette: That's correct.

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

It's --

Justice Byron R. White: Do you understand that?

I mean, how it would do that?

Mr. Bronson C. Lafollette: Yes, I do.

I -- I will --

Justice Byron R. White: Alright.

Mr. Bronson C. Lafollette: I -- I hope to have the Court understand it as well.

In addition --

Justice Hugo L. Black: Well, he testified for the passing of the Bill or against it?

Mr. Bronson C. Lafollette: He was testifying and I was just about to get to this point.

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

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

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

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

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

This is exactly what the Congress did.

In the claimant -- yes?

Justice Abe Fortas: I beg your pardon.

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

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

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

Justice Abe Fortas: Well, I notice -- I notice the quote there.

They're brief anyway.

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

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

Would that satisfy the State of Wisconsin?

Mr. Bronson C. Lafollette: Yes, it would.

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

Mr. Bronson C. Lafollette: That's all we're asking.

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

Justice Potter Stewart: What -- what -- then would hunting and fishing rights exist in that state of affairs that -- that -- that -- that everybody does now?

Mr. Bronson C. Lafollette: If -- --

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

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

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

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

Mr. Bronson C. Lafollette: Yes.

Justice Abe Fortas: But suppose it were a navigable river on the reservation.

I don't know, on the former reservation.

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

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

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

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

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

Justice Byron R. White: Yes, but certainly, you couldn't argue that they intended to deprive the Menominees of -- of ownership of the land because they had conveyed the trust property.

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

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

Mr. Bronson C. Lafollette: That's correct.

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

Justice William J. Brennan: But not as the matter of Wisconsin.

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

Mr. Bronson C. Lafollette: No, you can't.

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

Justice William J. Brennan: Well, that's certainly not true in many states.

Mr. Bronson C. Lafollette: Well, it is in ours.

In any event, our position is that --

Chief Justice Earl Warren: We recess now.

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

Mr. Bronson C. Lafollette: May it please the Court.

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

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

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

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

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

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

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

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

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

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

Justice John M. Harlan: What was the nature of the subsequent Amendment?

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

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

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

The case had an entirely different termination act.

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

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

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

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

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

Justice Byron R. White: I suppose that -- you might argue they would be entitled to -- they would have been entitled to compensation for that termination.

Mr. Bronson C. Lafollette: Well, they were.

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

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

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

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

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

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

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

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

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

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

Chief Justice Earl Warren: Well, what did the Government get for -- from the Indians for this?

Didn't they make them law from other lands because they have --?

Mr. Bronson C. Lafollette: Yes, they do.

Chief Justice Earl Warren: And this was a quid pro quo, wasn't it?

Mr. Bronson C. Lafollette: Yes, it was.

Chief Justice Earl Warren: Well, why is there any difference between that and the original land?

Mr. Bronson C. Lafollette: Well, in the other cases --

Chief Justice Earl Warren: Was it specified that the -- it should be different.

Mr. Bronson C. Lafollette: In the other cases, the Court has always held in interpreting the treaties and the provisions applicable.

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

And it was not a granting away of any rights.

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

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

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

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

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

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

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

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

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

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

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

There was no individual ownership.

And these are the essential characteristics of an Indian tribe.

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

The reservation is now a county.

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

It is governed --

Chief Justice Earl Warren: May I ask -- may I ask, Mr. Attorney General, what was the compensation to the Indians under your theory that -- that these rights were abolished --

Mr. Bronson C. Lafollette: The --

Chief Justice Earl Warren: --by the Termination Act?

What did the Indians get for it?

Mr. Bronson C. Lafollette: Well, they -- they didn't get anything yet.

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

That is our position.

They haven't yet received any compensation for this.

Chief Justice Earl Warren: But they didn't.

They never have.

Mr. Bronson C. Lafollette: They never have.

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

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

In any event --

Justice William O. Douglas: You think -- do you think United States is responsible --

Mr. Bronson C. Lafollette: Absolutely.

Justice William O. Douglas: -- for the damages

Mr. Bronson C. Lafollette: Yes, we do.

Justice William O. Douglas: That we should reverse --

Mr. Bronson C. Lafollette: Yes, we do.

That is our position.

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

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

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

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

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

Justice William O. Douglas: I don't think any has become a citizen until much later don't you think?

Mr. Bronson C. Lafollette: The Indians became citizens --

Justice William O. Douglas: Oh, this is 1954.

Mr. Bronson C. Lafollette: Yes.

Justice William O. Douglas: Yes, that's right.

Mr. Bronson C. Lafollette: Now, I'm not so sure I've responded to your question.

Justice William J. Brennan: Well, no.

What -- what I -- what I'm getting at is this.

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

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

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

That's what I don't quite follow.

Mr. Bronson C. Lafollette: Well, the -- going back a little bit of the history of the first passage of it -- not the passage but the agreement on the part of the Indians to terminate was a conditional agreement.

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

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

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

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

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

Mr. Bronson C. Lafollette: That's right.

Justice Byron R. White: And so, the state conservation laws apply.

That's one -- one thing that happened with the fishing rights.

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

I suppose that's another thing that's another thing they have --

Mr. Bronson C. Lafollette: That's right.

Justice Byron R. White: -- with those fishing rights at the very minimum.

Mr. Bronson C. Lafollette: And that was done by the Federal Government.

Justice Byron R. White: Even if the Indians had maintained ownership of the property themselves.

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

Mr. Bronson C. Lafollette: That's correct.

Justice Byron R. White: That still leaves with Mr. Justice Brennan's question though of -- that if the fishing rights were attached to the land, would the Indians decide to convey the land?

But I suppose if that happened afterwards, then that's --

Mr. Bronson C. Lafollette: It did happen afterwards, yes.

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

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

Now --

Justice Byron R. White: Non-Indians, I suspect?

Mr. Bronson C. Lafollette: Yes, they're -- they are Indians.

Justice Byron R. White: They are Indians -- all Indians or non-Indians?

Mr. Bronson C. Lafollette: They are Indians but there's no restriction as to ownership of that land, or if there is, it is -- it is about to expire.

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

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

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

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

Justice Byron R. White: But the termin -- the Termination Act really didn't take effect until the plan was presented and approved and --

Mr. Bronson C. Lafollette: That's right.

(Voice Overlap) 1961, and that was --

Justice Byron R. White: And though the plan in effect at the same time as the Termination Act did?

Mr. Bronson C. Lafollette: The --

Justice Byron R. White: I mean, it didn't -- the Termination Act had no consequence on the Menominees until this plan was approved and the conveyance was made.

Mr. Bronson C. Lafollette: That's right.

Justice Byron R. White: Except that it called for them to present a plan.

Mr. Bronson C. Lafollette: Yeah.

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

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

Mr. Bronson C. Lafollette: I was quite --

Justice Potter Stewart: --but rather by a tribe -- by a tribe, at the tribe.

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

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

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

Justice Potter Stewart: Well in the tribe --

Mr. Bronson C. Lafollette: In the tribe.

Justice Potter Stewart: To be enjoyed by the members of the tribe.

Mr. Bronson C. Lafollette: Members of the tribe.

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

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

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

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

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

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

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

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

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

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

Mr. Bronson C. Lafollette: If the plan had --

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

Mr. Bronson C. Lafollette: Well, we -- contend that -- that what we have to look to is what actually happened.

Justice Byron R. White: Yes.

Mr. Bronson C. Lafollette: And I don't know if I would be in a position to express an opinion on what our position would be if that had actually been incorporated into the plan.

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

There certainly is no basis for that holding.

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

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

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

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

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

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

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

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

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

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

Justice John M. Harlan: I have a question; (Inaudible)

Mr. Bronson C. Lafollette: That is correct.

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

Justice John M. Harlan: (Inaudible)

Mr. Bronson C. Lafollette: I'm sure that we would have to carefully determine how, in -- in light of the Court's opinion how we would enforce our game laws.

Well, we have no idea what the Court may --

Justice William O. Douglas: (Inaudible)

Mr. Bronson C. Lafollette: Yes, we are.

Justice William O. Douglas: You're not an intervenor?

Mr. Bronson C. Lafollette: No, we're not.

Justice William O. Douglas: So I take that anything we hold here is not -- it does not conclude the State of Wisconsin --

Mr. Bronson C. Lafollette: That's correct.

Justice William O. Douglas: This is why we're asking, is that -- you ought to do if we don't agree?

Mr. Bronson C. Lafollette: Yes, it is.

Justice William O. Douglas: Alright, thank you.

Chief Justice Earl Warren: Mr. Louis Claiborne?

Argument of Louis F. Claiborne

Mr. Louis F. Claiborne: Mr. Chief Justice, may it please the Court.

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

Chief Justice Earl Warren: Did you say "if any rights?"

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

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

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

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

In our view, the Treaty of Wolf River --

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Byron R. White: Are all of these rights that you suggest would come into an end with the conveyance of the land?

Mr. Louis F. Claiborne: Yes.

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

Justice Byron R. White: Except that the stock is held privately.

Mr. Louis F. Claiborne: Well, so long as the membership in the stock corporation is the --

Justice Byron R. White: But the stock is transferable I think.

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

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

Justice Byron R. White: And if the Indians who own the stock are -- when the restrictions on that stock are lifted and they sell it then what?

Mr. Louis F. Claiborne: I don't think it matters who the stockholders of the nominal corporation are so long as the tribe remains the beneficial owner.

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

Justice William J. Brennan: How much of the land in fact has been exposed of it.

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

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

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

Justice Abe Fortas: You say that that right is -- appertains to the land.

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

So --

Mr. Louis F. Claiborne: Yes.

Justice Abe Fortas: -- that if the corporation sells some of the land, an individual of the tribe -- the individual member of the tribe can no longer share the hunting and fishing rights.

Mr. Louis F. Claiborne: Well, that's one way of looking at Mr. Justice Fortas.

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

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

Mr. Louis F. Claiborne: I take it as --

Justice Abe Fortas: That sort of was my understanding and --

Mr. Louis F. Claiborne: I'm not sure that the petitioner and we are at one on this question but what --

Justice Abe Fortas: Well, that makes three of us.

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

Justice Abe Fortas: What you're -- you are substituting the corporation for the tribe.

Mr. Louis F. Claiborne: Well --

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

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

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

Justice Abe Fortas: Well, I beg your pardon then because I thought you said precisely the opposite.

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

Mr. Louis F. Claiborne: I'm sorry.

I misled Your Honor.

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

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

Mr. Louis F. Claiborne: I would think that was the result Mr. Justice White.

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

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

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

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

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

The effect of the Termination Act --

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

Mr. Louis F. Claiborne: I have not conceived of it as appertaining to anyone other than American Indians.

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

Justice Potter Stewart: These people -- are these people citizens of the United States and the State of Wisconsin?

Mr. Louis F. Claiborne: Yes.

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

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

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

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

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

Justice Potter Stewart: You're saying that either the State or the Federal Government has power to take that away?

Mr. Louis F. Claiborne: Without compensation.

Justice Potter Stewart: Exactly.

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

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

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

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

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

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

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

Justice John M. Harlan: (Inaudible)

Mr. Louis F. Claiborne: I don't think Mr. Justice Harlan that there is state power to condemn a federal right -- a right --

Justice John M. Harlan: The Federal Government (Inaudible)

Mr. Louis F. Claiborne: Let me say that this does not present an unusual or difficult problem for the State of Wisconsin.

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

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

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

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

Mr. Louis F. Claiborne: That is correct, Your Honor.

Justice Abe Fortas: (Voice Overlap) that on your position.

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

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

Is there any precedent for that?

I mean to say, where do you get that?

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

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

Justice Abe Fortas: We may come back then.

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

I don't know of it.

Maybe it exists.

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

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

Mr. Louis F. Claiborne: We agree.

Justice Abe Fortas: Alright.

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

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

Mr. Louis F. Claiborne: Well, let me put it this way Mr. Justice Fortas.

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

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

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

And we say that --

Justice Abe Fortas: Excuse me Mr. Claiborne.

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

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

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

But I don't -- I don't understand either of it.

I don't understand where you get them.

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

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

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

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

It rather let them help themselves.

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

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

These were non-Indians.

Mr. Louis F. Claiborne: Yes, Mr. Justice Fortas.

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

Mr. Louis F. Claiborne: I am saying that precisely --

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

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

That is an unusual and extraordinary right.

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

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

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

Justice Abe Fortas: Everybody's got that right though, Mr. Claiborne.

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

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

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

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

Here, whether the State likes it or no --

Justice Potter Stewart: The right to do so unregulated by any government, is that right?

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

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

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

Justice Potter Stewart: As successor to the -- what the Federal Government used to have --

Mr. Louis F. Claiborne: Not as the new guardian but simply as exercising --

Justice Potter Stewart: The sovereign power of government.

Mr. Louis F. Claiborne: The sovereign power of government against what was never an immunity.

Justice William O. Douglas: I don't think there's nay case holds that --

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

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

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

Justice William O. Douglas: Of course, the Federal Government never under took to regulate fishing rights and hunting rights on reservation.

Mr. Louis F. Claiborne: Well, it did in that case.

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

Justice William O. Douglas: It's not here.

They never undertook --

Mr. Louis F. Claiborne: The rationale of the decision maybe that Secretary of the Interior without congressional authorization had no right to do this.

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

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

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

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

Mr. Louis F. Claiborne: There is no question but the Congress has constitutional power to abrogate any treaty with Indians.

Justice William J. Brennan: So it could -- that would extinguish this right.

Mr. Louis F. Claiborne: Yes, but --

Justice Byron R. White: Without compensation.

Mr. Louis F. Claiborne: No.

Justice Byron R. White: You say no?

Mr. Louis F. Claiborne: The more -- the more recent cases indicate quite clearly that there would be an obligation of paying compensation if what have been --

Justice Byron R. White: A legally enforceable law.

Mr. Louis F. Claiborne: If there is a forum -- if there is a jurisdictional act which permits it and I didn't get that since 1946.

There has been such a forum.

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

Justice Byron R. White: The case -- within the case of the United States is subject to liability --

Mr. Louis F. Claiborne: The Shoshone case.

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

Justice Byron R. White: Created by a treaty.

Mr. Louis F. Claiborne: Created by treaty.

Justice William J. Brennan: Which is what this is?

Mr. Louis F. Claiborne: Which is what we say this is, what seem compensable.

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

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

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

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

Justice Byron R. White: Is Shoshone cited in your brief?

Mr. Louis F. Claiborne: No, Mr. Justice.

It's sighted in the petitioners brief.

Justice William J. Brennan: Is that a case in this Court?

Mr. Louis F. Claiborne: A case in this Court.

Justice William J. Brennan: Well, let's see.

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

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

Justice William J. Brennan: Yes.

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

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

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

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

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

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

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

This was the first Termination Act.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The federal treaty right can survive without federal guardianship.

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

I take that the termination -- was Termination Act coercive?

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

Mr. Louis F. Claiborne: I must --

Justice Byron R. White: Thank you.

Mr. Louis F. Claiborne: -- answer this way Mr. Justice White.

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

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

Justice Byron R. White: Except for that -- except for that finding that the Act would not have required terms of -- would not have forced termination on.

Mr. Louis F. Claiborne: Well, I think the Congress view that it wished to have the consent of the Indians.

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

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

Justice Byron R. White: But you can't tell them the terms of the Act itself whether or not the consent of the Indians is necessary for termination?

Mr. Louis F. Claiborne: No, when I take it as a -- as a constitutional matter, a termination would not have required to consent the Indian and that the Congress would have been free to proceed ahead.

Justice Byron R. White: Except they would have to pay.

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

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

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

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

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

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

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

We urge that the judgment be affirmed.

Rebuttal of Charles A. Hobbs

Mr. Charles A. Hobbs: Mr. Hobbs.

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

They've used them since time in memorial.

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

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

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

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

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

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

Justice Abe Fortas: Well, you don't agree.

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

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

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

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

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

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

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

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

We cannot go along with that concept.

Justice William J. Brennan: Even though the only purpose of the bag limit was to conserve the wildlife for the benefit of the Indians.

Mr. Charles A. Hobbs: That's our business.

Justice William J. Brennan: I know that's your position.

Mr. Charles A. Hobbs: Yes.

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

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

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

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

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

It was an over population problem.

Justice Potter Stewart: Do -- who hunted the deer and trapped the beaver?

Mr. Charles A. Hobbs: Outsiders.

Justice Potter Stewart: Outsiders.

Mr. Charles A. Hobbs: As well as the Indians.

Justice Potter Stewart: Well couldn't it -- couldn't they have been kept off the land by the owners of the land?

Mr. Charles A. Hobbs: I think they could have.

Justice Potter Stewart: We were told by the Attorney General within Wisconsin -- under that I gather the trespass laws of Wisconsin if I don't want you to hunt in my land, I'd keep you off.

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

Justice William O. Douglas: This was an agreement between the State and the owners of the land.

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

Justice Potter Stewart: So by agreement of the owner of the land?

Mr. Charles A. Hobbs: Yes.

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

It's the people of the State.

Well, who are the people of the state?

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

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

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

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

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

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

Those are protected game in Wisconsin.

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

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

Mr. Charles A. Hobbs: To some extent, there is migration, Your Honor, of game.

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

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

It's not like the Salmon cases where --

Justice John M. Harlan: How can you tell acquired a deer to where identification takes and the kind.

Mr. Charles A. Hobbs: Well, of course the game officials looking at the big picture -- know the migration roots of the deer herds.

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

It is a difficult problem.

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

Mr. Charles A. Hobbs: I only said --

Justice Abe Fortas: -- provided that it was restricted to a regulation designed to protect the migratory game.

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

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

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

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

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

Justice Abe Fortas: Then your positions come prior to Mr. Claiborne.

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

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

Mr. Charles A. Hobbs: No Your Honor.

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

There has been I think --

Justice Hugo L. Black: Why wouldn't that be a regulation?

Mr. Charles A. Hobbs: It would be a -- a regulation would be an exercise of sovereignty.

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

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

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

Mr. Charles A. Hobbs: By injunction.

Justice John M. Harlan: Let us make any difference, what name you used to do something.

Why is that not a regulation by the State?

Mr. Charles A. Hobbs: Well, the regulation of course is much more detailed.

It involves of weighing of interest and --

Justice John M. Harlan: But the effect is the same.

Mr. Charles A. Hobbs: It is the same as a regulation.

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

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

I think there have been misunderstandings.

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

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

There's a possibility that I'm wrong.

I don't think it was an amendment.

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

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

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

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

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

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

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

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

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

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

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

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

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

The Bureau of Indian Affairs has honored it.

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

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

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

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

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

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

Mr. Chief Justice and the Court.