Transcript

IN THE SUPREME COURT OF THE UNITED STATES

MINNESOTA, ET AL., Petitioners v. MILLE LACS BAND OF CHIPPEWA INDIANS, ET AL.

No. 97-1337

December 2, 1998

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:02 a.m.

APPEARANCES:

JOHN L. KIRWIN, ESQ., Assistant Attorney General of Minnesota, St. Paul, Minnesota; on behalf of the Petitioners.

RANDY V. THOMPSON, ESQ., Minneapolis, Minnesota; on behalf of the Respondents John W. Thompson, et al.

MARC D. SLONIM, ESQ., Seattle, Washington; on behalf of the Respondents Mille Lacs Band of Chippewa Indians, et al.

BARBARA B. MCDOWELL, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent United States.

PROCEEDINGS

10:02 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 97-1337, Minnesota v. the Mille Lacs Band of Chippewa Indians.

Mr. Kirwin.

ORAL ARGUMENT OF JOHN L. KIRWIN ON BEHALF OF THE PETITIONERS

MR. KIRWIN: Mr. Chief Justice, and may it please the Court:

This case is about two principles that this Court has emphasized repeatedly in recent years, upholding the traditional scope of sovereignty of the States, and upholding the plain language of treaties with the Indians.

At issue here is an Indian privilege to hunt and fish in an area of Minnesota that the Chippewa Indians ceded to the Federal Government in an 1837 treaty. Under the treaty, this privilege of hunting, fishing, and gathering, was guaranteed to the Indians only during the pleasure of the President. That phrase is at the heart of this dispute.

The State asserts that there are three independent events which terminated the temporary privilege under the 1837 treaty, an executive order in 1850, which expressly revoked the treaty privilege, Minnesota's admission to the Union in 1858 on an equal footing with the original States, and an 1855 treaty which revoked any and all rights the Indians had at that time in Minnesota but which relates to only one of the bands in this case.

QUESTION: Mr. Kirwin, may I ask you to clarify what was the nature of the right? It's a little confusing in the briefs. Is it a superior right to what any other person would have to hunt and fish, or just the same right?

MR. KIRWIN: Your Honor, the lower courts held, based on this Court's decision in the cases from the Northwestern United States, that it's a superior right that it guarantees the bands the right to take an allocation of the fish and game that are available to hunt without complying with the regulations of the State that apply to other persons.

QUESTION: In 1837, was there any difference, because as I understand it there weren't any regulations.

MR. KIRWIN: In 1837, Your Honor, there weren't any regulations, and there weren't any until Minnesota became a State in 1858 and enacted hunting and fishing laws.

QUESTION: So that legally, if the revocation had occurred in 1838, all of the members of the Indian bands could have continued to do, so far as the law was concerned, exactly what they thought they had a right to do under the treaty, is that correct?

MR. KIRWIN: That would be true, Your Honor, as long as neither the Federal Government nor the territories that covered that area passed any hunting and fishing laws.

QUESTION: Right, but in fact there were none, as you said.

MR. KIRWIN: That's right.

QUESTION: So if there had been a revocation -- excuse me -- they could have gone on doing it.

MR. KIRWIN: That's correct, Your Honor, and we think that the principal effect of the privilege and the revocation of the privilege was something that was recognized by President Andrew Jackson in his 1829 State of the Union address, and he said that if the Indians were asked to voluntarily remove from the area but refused to do so, then they would have to understand that they would be subject to the laws of the State, and so as the lower courts interpreted this privilege, the effect of it is to make the Indians not subject to many of the laws of the States of Minnesota and Wisconsin.

QUESTION: But I thought it was conceded that the State can place some limits on the harvest that the Indians can take. Isn't that -- that puzzled me. By what authority can the State impose some limitations?

MR. KIRWIN: Your Honor, what this Court has said in the cases coming from the Northwest United States, Puyallup II, Antoine, Passenger Fishing Vessel, is that the State can regulate in the interest of conservation, the lower courts have extended that to health and safety, but that the State's regulatory authority is limited. There are significant encroachments on the State's regulatory authority.

QUESTION: Well, what could the State do, in your view, under the cases from the Pacific Northwest in terms of regulation or limiting the season for taking fish and game, or the quantity?

MR. KIRWIN: Your Honor, it appears under the lower courts rulings in this case, based on this Court's earlier decisions, that the State would be very limited in regulating to limit hunting and fishing seasons, for example.

If the bands were to insist on --

QUESTION: Well, it's very unclear to me what you think, under existing precedent, if we were to affirm, what do you think the State could do in terms of regulation?

MR. KIRWIN: If the bands insisted on taking more than half of the resource, the State probably could prevent that with the Federal court's assistance.

QUESTION: Why? Why so? I mean, if the treaty gives them hunting and fishing rights, I assume they can hunt and fish to their heart's content.

MR. KIRWIN: Your Honor, in the cases from the Northwestern United States, this Court seemed to recognize that the Indians had a right to a share of the hunting and fishing resource, but that non-Indians also had a right to a share, and so this Court said that 45 or 50 percent might be the maximum Indian share. The lower courts in this case seemed, although it's not entirely clear from their opinions, they seem to have adopted --

QUESTION: In the Pacific Northwest cases some of them ended up with the district court kind of serving almost as a master, didn't they, in allocating various percentages?

MR. KIRWIN: That's correct, Your Honor, and ruling on particular kinds of regulation, and the State's concern here is that under the lower court's decision, that we have the same situation already.

QUESTION: What has been worked out in Wisconsin, where there's been a previous decision upholding the right of the tribes to hunt and fish, and yet the State has somehow worked out some kind of a -- an agreement with the tribe. What sort of agreement has been worked out?

MR. KIRWIN: Your Honor, the ground rules, as I understand them in Wisconsin, are that the bands are entitled to take half of the available resource, and so the -- and the State of Wisconsin then has been required to allow the bands to do that.

QUESTION: At any time, without regard to the time of the taking?

MR. KIRWIN: Without regard to hunting seasons or times of day and so on. The State can make limited regulations for purposes of conserving or assuring the preservation of the species. The States can make limited regulations for purposes of public safety, but there is certainly a significant encroachment on the State's ability to regulate under this Court's decisions and as they've been applied by the lower court here.

QUESTION: This applies only, of course, on public lands on which hunting and fishing are permitted. It doesn't extend to private --

MR. KIRWIN: That's correct, Your Honor, yes, and the State asserts that this hunting and fishing privilege was terminated by three events, but the most basic of these, we think, was the President's executive order in 1850 expressly terminating the privilege.

QUESTION: The parties stay away from any property analogies. They don't say that this is an easement, or a profit, and I assume that's because it's not helpful. This is a -- and this is a discrete area of the law. This is --

MR. KIRWIN: Your Honor, there was some discussion in the lower courts, particularly by the landowners, as to what the particular nature of the right might be.

As far as the State is concerned, it probably is unique. What's unique about it is that it's something that comes from the Indian title to the land, and so it's part of the Indian title which includes an element of sovereignty or quasi-sovereignty, but what this Court made clear in the Winans case is that when Indians cede land to the Federal Government, but there's a reserved hunting and fishing right, that what's reserved is a part of, a remnant of that original interest that the Indians had in the land.

QUESTION: I don't --

QUESTION: But it's a sovereign interest and not a property interest that we're talking about, or not a sovereign interest, depending on how you come out.

MR. KIRWIN: Well, it's -- Your Honor, I think the important point is, it's part of the Indians' original Indian title. It may be the sovereignty part of that rather than some other part of it, but nonetheless it certainly is --

QUESTION: Well, is there any authority from this Court that the right to hunt and fish is an interest in real property?

MR. KIRWIN: Your Honor --

QUESTION: Have we treated it as such?

MR. KIRWIN: I think --

QUESTION: That's such an odd concept, because if a non-Indian person wanted to hunt or fish, one wouldn't talk about that in terms of a property interest, would they?

MR. KIRWIN: Right, and I think, Your Honor, that it's different when you're dealing with Indian cessions of property, as the Court recognized in Winans, as the Court recognized in the Klamath case, where the Court said that where the Indians ceded all right, title, and interest to the land, the Court said, undoubtedly any special rights they had to hunt and fish went along with that, because what it is is a sovereign selling not only the land, but their special rights in the land, and to regulate the land, and to use it as they see fit. They're conveying all of that.

And what the Court said in Winans is that where you have a conveyance of the land, that a reservation of the right -- and the Court was very emphatic about this. The Court said that the hunting and fishing right isn't a grant to the Indians, but the Indians are granting the land to the Government, or conveying the land to the Government and preserving something. They're preserving a remnant of what they have, and the total --

QUESTION: Let me ask you a couple of things that I'm curious about. The petition -- the respondents here got an award from the Indian Claims Commission --

MR. KIRWIN: That's right, Your Honor.

QUESTION: -- in 1970. Did that have any effect on the right to fish and hunt and gather wild rice? Did the claim encompass any of that when they were compensated?

MR. KIRWIN: Your Honor, in their final amended petition or complaint before the Indian Claims Commission the Indians had not mentioned hunting and fishing.

QUESTION: It was not mentioned.

MR. KIRWIN: Right. They did mention it at earlier stages and, in fact, before the court of claims, which was the beginning of that process for them, they specifically asserted that the privilege under the treaty was temporary, and that the Federal Government had ended it.

Now, they were not making that claim at the end of the ICC proceeding, but I think an important thing about the ICC proceeding is that the band's experts proposed a value for the land based on its highest and most valuable uses, and the ICC awarded the band an award of an additional $9 million, about ten times as much as the original payment, to compensate them for the entirety of the land according to its highest, most valuable uses.

And this Court recognized in the Klamath case that where an Indian band or tribe receives full compensation without any deduction for hunting and fishing rights, then presumptively that compensation includes the hunting and fishing rights, too, that if there had been reserved hunting and fishing rights, there should have been a deduction for them, because the Indians were paid as -- in Klamath as though they were conveying all their Indian title to the land, which included hunting and fishing rights.

QUESTION: Was this the Fond du Lac Band that had the case in the Indian Claims Commission, or the Mille Lacs Band, or --

MR. KIRWIN: Your Honor, by the end of the proceeding it was all of the bands in this case.

QUESTION: All of the bands.

QUESTION: One other question. It was odd that there were subsequent treaties, one in 1854 and one in 1855, and they were different. The United States revoked treaty rights for the Mille Lacs Band in 1855 treaty, but it didn't do so with the other bands in the 1854 treaty. Is there any explanation for that?

MR. KIRWIN: We don't know the explanation of that for sure. I think the most likely explanation is that they were negotiated by different people.

The 1854 treaty was negotiated by an Indian agent out in Wisconsin. The 1855 treaty was negotiated by Commissioner Manypenny himself, and he had the Indians -- the Indian chiefs brought to Washington to negotiate with him, and when you look at the 1854 treaty, as you point out there was actually a grant of some hunting and -- a reservation of some hunting and fishing rights in quite a remote area of Minnesota.

The whole approach of the treaty next year was different, in 1855. Not only did it not reserve hunting and fishing rights in the area ceded in that treaty, but there was a catch-all provision under which the Indians ceded any and all right, title, and interest of whatsoever nature they may be, a sort of --

QUESTION: Well, I thought it was right, title, and interest in land.

MR. KIRWIN: Your Honor, it was the right, title --

QUESTION: And your argument was, land carries with it the hunting and fishing rights. They didn't -- as I recall, the terms of the 1855 treaty were not that they ceded every right, title, and interest of any sort whatsoever. That isn't the way it read, is it?

MR. KIRWIN: It has the language in and to the land.

QUESTION: Right.

MR. KIRWIN: Yes. Yes, and as this Court recognized in the Klamath case that the ordinary construction of meaning, or of language like that is to convey special hunting and fishing rights.

QUESTION: Well, but the trouble is, the -- I mean, we've got to judge ordinary construction in terms of this treaty, and one of the problems that we have, it seems to me, in seeing it your way, is just as was pointed out earlier, at the time in question anyone could have engaged in this sort of hunting and fishing. I could have -- you know, my ancestors could have wandered onto the land and done it. They never had any interest in the land.

So it seems to me you've got at least a burden to show that there was an understanding that hunting and fishing rights were thought to be rights in the land, as opposed to rights which any member of the public, without any history of property ownership, could have exercised, and I think that's where I have difficulty in seeing how you make your argument.

MR. KIRWIN: Your Honor, I agree that there's a burden, but I think the burden goes the other way. As this Court recognized in Klamath, when you're dealing with Indian relinquishment of rights and selling of land, the context is different, and the understanding is that when Indians sell all their right, title, and interest in and to land, that unlike a private landowner, the Indians are selling any special hunting and fishing rights they had.

And in the Klamath case and in the Yankton case, this Court talked about the almost insurmountable presumption that arises from such plain language. We agree that there's a burden, but we think the burden is on the other side to show that the treaty meant something other than what it seemed to say on its face.

QUESTION: Well, isn't it also the case that any, what you might call nonspecial hunting and fishing rights, Souter-type hunting and fishing rights --

(Laughter.)

QUESTION: -- there's no question that the Indians retained that. They can -- I mean, there's no dispute that they can hunt and fish to the same extent that Justice Souter can, were Justice Souter --

MR. KIRWIN: Could have.

QUESTION: -- a citizen of your State.

MR. KIRWIN: Could have.

QUESTION: Could have, right.

(Laughter.)

MR. KIRWIN: There isn't any question about that today, although there may well have been a question about that in 1837, because the Indians weren't citizens. In essence, they were --

QUESTION: No, but I thought you indicated -- and I don't want to put words in your mouth, but I thought you indicated in an earlier answer to me that anyone, quote-unquote, could have gone on the land and engaged in this hunting and fishing. I didn't understand that citizenship was a condition of it.

MR. KIRWIN: Your Honor, it wasn't, but it was because neither a territory nor State nor the Federal Government had placed that limitation --

QUESTION: Right.

MR. KIRWIN: -- on the Indians.

QUESTION: There simply was no regulation --

MR. KIRWIN: Right.

QUESTION: -- of any, legal regulation of any sort.

QUESTION: I thought we established that with your very first response, that until 1858 there was no regulation. Anybody could hunt and fish, and there was no proscription applied specially to the Indians. Are you retreating from that?

MR. KIRWIN: No, Your Honor. That was the situation at that time, but one way of looking at this is that what was guaranteed to the Indians was that they would be able to continue to do that, and that the Federal Government or, more importantly, a territory or a State wouldn't take that right away from them.

QUESTION: Well, Mr. Kirwin, are you sure that the Territory of Minnesota never had any hunting regulations?

MR. KIRWIN: Your Honor, the record doesn't show that the Territory of Minnesota did, or Wisconsin.

QUESTION: Or did or -- does it show that it did not?

MR. KIRWIN: I believe that Wisconsin Territory in 1837, which included this area and Minnesota Territory later, did not include hunting and fishing regulations. It was only when Minnesota became a State in 1858.

Mr. Chief Justice, if I may, I'd like to reserve --

QUESTION: Can I ask you a question before -- I'd like to know what your response is to the Solicitor General's argument on what I think is the main point. You say that as President Taylor revoked the hunting and fishing and gathering rights and also told them to remove, and I take it you concede that the part that says remove is unlawful.

MR. KIRWIN: Your Honor, we have not argued this in our brief, but we don't concede --

QUESTION: Well, anyway, you're not contesting it, and in that case the question is severability, and I just want to know -- I mean, as a matter of common sense it's pretty hard to think that President Taylor, had he known that they weren't going to remove, would have wanted to have them sit there and starve.

I mean, there's no evidence of that, is there, that anybody would want them to stay on their land and starve, nor is there any evidence that they would have used this to try to evict them, since the way to try to evict them was to get them to go take their annuity 1,000 miles away, and that didn't work, so how would the other have worked?

And then the SG's brief is just filled with instances where the Government went and gave them rifles and fishing gear and I guess maybe gathering equipment and all kinds of stuff all the time, so when I read that, I thought, well, gee, there's 100 years of everybody thinking that they could fish and hunt and gather, and what's the evidence that this would have been -- that Zachary Taylor would have wanted the one to stay even though the other fell?

MR. KIRWIN: Your Honor, I'd like to make a quick, two-part response to that. One is that President Taylor's purpose in doing that would very likely have been what President Jackson said in 1829 when he was talking about removal, and he said that the Indians must understand that if they don't remove, they'll be subject to the laws of the States, and Wisconsin had just become a State in 1848, Minnesota had just become a Territory and was soon to become a State, and so the President could very well have wanted to clear the decks to allow those States to engage in their normal State regulation.

And the second point is that, yes, the Federal Government did allow the Indians to hunt on the land after this time. The Federal Government provided them equipment and so on to do this, but that doesn't indicate whether they were intended to be hunting pursuant to State law or not pursuant to State law and, in fact, the Federal Government provided them with the same assistance in hunting and fishing in the 1855 treaty area, where they had no reserved hunting and fishing right, and so the fact that the Federal Government supported them in that simply is no indication one way or the other on that point.

QUESTION: It may be an indication that the Federal Government understood that the 1855 treaty did not convey any hunting and fishing rights.

MR. KIRWIN: Well, Your Honor --

QUESTION: I mean, we -- in terms of the evidence, the evidence is equivocal. It doesn't -- I don't see that it supports you clearly.

MR. KIRWIN: Your Honor, all I'm saying is, the Federal Government providing them those materials doesn't give any indication one way or the other on that point.

QUESTION: Thank you, Mr. Kirwin.

Mr. Thompson, we'll hear from you.

ORAL ARGUMENT OF RANDY V. THOMPSON ON BEHALF OF THE RESPONDENTS JOHN W. THOMPSON, ET AL.

MR. THOMPSON: Mr. Chief Justice, and may it please the Court:

I'd like to address two issues, first, the President's decision under the 1850 order and why it is not reviewable and, secondly, why the Indian Claims Commission operates as a jurisdictional bar in this case.

But briefly, before I begin, Justice Kennedy and Justice O'Connor asked questions about whether or not these were property interests, these hunting and fishing privileges.

This Court made that clear, I believe, in Klamath, and it had made it clear in Kennedy v. Becker, which Klamath refers to, that a privilege to hunt and fish is subject to State regulation, and it is in the nature of a profit of prendre.

We, of course, have --

QUESTION: Of what?

QUESTION: Of profit of prendre?

MR. THOMPSON: I'm sorry. A profit of prendre.

QUESTION: But the question is whether it would have been understood by the parties to this treaty at the time as an interest in land.

I mean, we're construing treaty language, and one of the difficulties, I think, that you have in maintaining your position is, as we said earlier, that the interest was an interest which could be exercised ad lib, as it were, by anybody, given the state of regulation at that time.

MR. THOMPSON: I believe that the evidence demonstrates that when the treaties were signed, because they were land cession treaties, the language used was the typical language of real estate conveyance.

If you look at the language of this treaty, during the pleasure of the President, and the explanation in the treaty journal that they will be allowed and permitted during the President's pleasure to hunt and fish upon the lands, that's precisely the language of a real estate license. I under --

QUESTION: Well, may I just ask you -- I don't want to cut you off, but that raises another point that I want you to address.

MR. THOMPSON: Sure.

QUESTION: There was a considerable amount of material in the briefs on the other side to the effect that it is highly unlikely, almost to the point of impossible, that the Indian parties to the treaty understood the phrase, at the President's pleasure, in the way that we would understand it as property lawyers today.

And specifically there was a fair amount of information to the effect that the Indian parties to the treaties specifically assumed that they would enjoy these hunting and fishing rights as of right for a considerable period of time, certainly beyond the point of the claimed revocation, so in your answer, would you address that, too?

MR. THOMPSON: Certainly, and let me address that first. I think that the language of the treaty journal demonstrates that during the pleasure of the President was, in fact, explained to the Indians.

It was referenced twice in the treaty journal, and it was explained that they would be allowed and permitted during his pleasure to hunt and fish upon the land, and it would probably be many years before the Great Father would want all of these lands for his white Children.

Now, that's not a guarantee that it would be many years, but it was an indication that neither party was certain as to how quickly settlement pressures were going to occur.

QUESTION: But of course, the -- I suppose the intransigence of the tribes at the time the removal order came down, which ultimately the United States caved in to, is probably some indication of what they thought the period of time was that they were agreeing to.

MR. THOMPSON: Well, I'm not certain that that's the case, because we simply don't know what the bands were thinking in 1837, other than what we have in the treaty.

QUESTION: Well, we usually interpret treaties by their language, don't we, I mean, just reading the language?

MR. THOMPSON: That's right. That's right, Mr. Chief Justice, and the plain language we believe controls here, and that the -- there is no ambiguity, and there was no finding of ambiguity in the language, during the pleasure of the President.

QUESTION: Well, there's at least this ambiguity, does during the pleasure of the President mean he only gets one shot at canceling it, or does it mean whenever the President wants you to hunt and fish you may, and whenever he doesn't, you may not?

MR. THOMPSON: Well --

QUESTION: In other words, was the -- assuming that it was severable, was the presidential termination of the hunting and fishing rights irrevocable, or could later Presidents reinstitute the hunting and fishing rights?

MR. THOMPSON: Well, we submit that while Taylor probably could have suspended, given the power he had over this privilege, he did not do so. He revoked it. Once he revoked it, we do not believe that the executive branch had any authority to reinstate that privilege. Certainly Congress could have, but the executive branch did not. There's nothing in the treaty to suggest it.

I would refer the Court, for example, to the language of the Federal Convention in which the term maladministration was proposed as a term for, under the impeachment article, and James Madison responded that such a term would be tenure during the pleasure of the Senate. I don't think James Madison was referring to the fact that they could put the President in and out of office.

QUESTION: But we do have also some notion that we read these treaties in the light of knowing that the party on the other side couldn't even speak the same language, so the interpretation is more favorable than if these were two sophisticated parties, meaning with equal language facility, sophistication, isn't that so?

MR. THOMPSON: Well, it is true, and I think this Court addressed it specifically in Klamath, in which the Court indicated that legal ambiguities are resolved in favor of the Indians, and I believe they cited DeCoteau for that proposition.

But the Court cannot ignore plain language, viewed in the historical context and given the fair appraisal, that runs counter to the band's claims.

QUESTION: Is there any indication that the tribes had -- since it's been stated that there was no regulation, so nothing would have changed, revocation or not, from 1850 until 1858, when this -- the introduction of regulation. Is there anything that indicates that the Indians were told, now you have no more hunting and fishing privileges?

MR. THOMPSON: Besides the President's order? Is that what -- I'm confused, Justice --

QUESTION: Yes. Was there anything that brought that order home to the Indians? Was there any communication that said, the President did something that's going to change circumstances for you?

MR. THOMPSON: Well, I believe that the presidential order was, in fact, communicated to the Indians, and --

QUESTION: You believe it based on what?

MR. THOMPSON: Well, the evidence in the record demonstrates that they received it. After all, they even sent a delegation to Washington in 1852 to lobby President Fillmore to revoke the order, and were unsuccessful, so we know that this was communicated to them, that the President had issued his 1850 executive order.

Was I responsive to your question?

QUESTION: Yes, but there was still no change in actual circumstances, in what they could do.

MR. THOMPSON: Well, remember, Justice Ginsburg, we're on the edge of the American frontier, and very difficult for, even if the United States had wanted to enforce certain actions, to actually enforce hunting and fishing regulations, and it was really left up to the States when they were formed as to --

QUESTION: But there were no -- we were told, as far as this record shows, the first regulation comes in in 1858.

MR. THOMPSON: That's correct.

If I might address the Indian Claims Commission Act briefly --

QUESTION: Is that part of the -- did we grant cert on that question?

MR. THOMPSON: Well, the -- we raise the Indian Claims Commission Act as a jurisdictional bar on the basis that jurisdiction be raised at any time with this Court. If the Court does not want me to address it, I'd be certainly -- I'll address something else, but --

QUESTION: Well, you did present that argument to the lower courts, and there was some disposition of it, was there not?

MR. THOMPSON: Yes. The lower courts decided that it did not operate as a bar.

QUESTION: And you didn't -- and there's no question before us.

MR. THOMPSON: It was not within the State's petition. It's within the landowner's petition that's pending.

QUESTION: If it's jurisdictional, I'd like to hear it anyway.

MR. THOMPSON: The --

QUESTION: It won't add anything --

MR. THOMPSON: I'm sorry. The --

QUESTION: If there's a jurisdictional point to argue, let's hear from him.

MR. THOMPSON: Okay. The -- we believe that the Indian Claims Commission Act operates as a jurisdictional bar because it really has two provisions that are operable here. You have section 12 that says, any claim against the United States that was pending and could have been brought as of August 1946 had to be brought within 5 years or it was barred.

Under section 22, if a claim was brought and paid, it is also barred, as this Court decided in the United States v. Dann. It really doesn't matter for the analysis, in our view, whether the claim was brought and paid or not. Under either analysis, it is barred.

Now, the bands will argue that this is not a claim against the United States, so the ICC doesn't operate as a bar. But the Solicitor General in the Oglala case petitioned, when they opposed grant of petition of cert to this Court, argued that the bar against the State of -- the United States also operated as a bar in that case against the claim against South Dakota, which involves the Black Hills claim.

We believe that it was part of the Indian Claims Commission Act, claim made by this bands in docket 18(c). It was part of the original pleadings. The pleadings were amended to ask for the highest and best use, instead of asking for specific items, but that merely reflects what the ICC was doing, giving a single award based on the highest and best use.

Without an offset, as this Court has indicated in Klamath, that operates as a bar, so the petition of the landowners in this case is under the Indian Claims Commission Act.

This is a case that certainly could have been brought against the United States of America --

QUESTION: I don't understand why that isn't a defense, rather than a jurisdictional point. In other words, if you're talking about subject matter jurisdiction it's a question we're obliged to raise on our own, but what you seem to be presenting is a defense to a claim --

MR. THOMPSON: Well --

QUESTION: -- not a question of the Court's authority.

MR. THOMPSON: I would address this as follows. Certainly it can be analyzed under res judicata or collateral estoppel or election of remedies defense, but the Eighth Circuit in Oglala I, which is a case against the United States and the State of South Dakota, also recognized that it operated as a jurisdictional -- it deprived the district court of jurisdiction to even hear the action, because the Indian Claims Commission was designed to hear all claims pending against the United States in 1946, and this action is at heart --

QUESTION: This is the same circuit that ruled against you on it?

MR. THOMPSON: Correct, Your Honor.

QUESTION: Thank you, Mr. Thompson.

MR. THOMPSON: Thank you.

QUESTION: Mr. Slonim, we'll hear from you.

ORAL ARGUMENT OF MARC D. SLONIM ON BEHALF OF THE RESPONDENTS MILLE LACS BAND OF CHIPPEWA INDIANS, ET AL.

MR. SLONIM: Mr. Chief Justice, and may it please the Court:

I'd like to take just a moment to explain what this case is about from the Chippewa's perspective, and then turn to the 1850 order and the equal footing issues.

This case involves core Indian interests. For centuries, the Chippewa have hunted, fished, and gathered wild foods. These activities still put food on their tables. They help pay for life's necessities, and they are in a very real sense central to the culture and identity of the Chippewa.

QUESTION: Well, I suppose if State regulation were applicable, they would be entitled to hunt and fish, as anyone else would, with a hunting and fishing license.

MR. SLONIM: That is correct, Your Honor, but they could not use fish and game in the way they use it in their culture. Let me give you two examples. One of the most important fishing activities for the Chippewa is spring spear fishing. It's something their ancestors have done for generations. They still do today. It is illegal under State law in both Wisconsin and Minnesota to spear fish in the spring.

In each of these reservation communities, there are families that are providers.

QUESTION: Excuse me, did you say spring spear fishing?

MR. SLONIM: Yes, Your Honor.

QUESTION: And that means in the spring season?

MR. SLONIM: In the springtime. As the ice moves out on these northern lakes, they go out in canoes and they use spears and lights to take fish.

QUESTION: Is there some religious significance to this? I mean, I --

MR. SLONIM: Yes. Yes, there is, Your Honor.

QUESTION: There is.

MR. SLONIM: It's a part of their traditions, and they spoke to it in testimony in this case.

QUESTION: Well, I mean, certainly it can be a part of your tradition and not have any religious connotation. I mean, if all you're saying is that they spear-fished for years and now they won't be able to spear-fish, I mean, that's just stating the obvious.

MR. SLONIM: It's --

QUESTION: What the case is about, but --

MR. SLONIM: It's more than that, Your Honor, and there was testimony in the trial about the importance of these activities to their culture and to their religion.

QUESTION: Mr. Slonim, have they been, say, spear-fishing in the spring over a long, long period of time without being subject to State regulation? I mean, if that was the case, why was this action brought?

MR. SLONIM: They have to sneak out -- before these rights were reaffirmed by the courts, they would have to sneak out and try to do it without getting caught. That was the only way they could do it.

QUESTION: So it was never established one way or the other as to whether they had these rights as between, say, the State of Minnesota and the tribes. The tribes said they did, and the State of Minnesota said they didn't.

MR. SLONIM: Not until this case was decided.

The other example I was going to give Your Honor was, in each of these communities there are people that are providers. They go out and they get fish and game and they supply it to elders and others who are incapable of getting it themselves.

State bag limits and State seasons prevent them from pursuing those activities, from providing fish and game at funerals which occur out of season, or for -- as part of ceremonies in connection with births or other life cycle events that happen to take place in the wrong season. They cannot preserve these traditions if they are subject to State law, and that's why we're here.

Turning to the 1850 order, I wanted to provide our answer to Justice Ginsburg's question about what the Indians were told and what they understood at the time the 1850 order was issued.

What the record shows is that they were told that the order was an order to remove. They were not told that the order was an order to stop hunting and fishing, or would have any effect on hunting and fishing. They were told they had to move.

In 1855 --

QUESTION: Is there any evidence that a copy of the order was given to the respondents?

MR. SLONIM: There was evidence that a circular was prepared which had a copy of the order, and that was sent to the bands in Wisconsin, which were -- who are the targets of the removal effort.

It was not sent, for example, to the Mille Lacs Band, which was never a target of the removal effort, but that's what -- there was evidence to that effect.

In 1855, the Territorial Governor of Minnesota, who was the Superintendent of Indian Affairs, he was the highest Federal official responsible for implementing Federal Indian law in the Territory of Minnesota, wrote a letter and said that the Indians had no interest on these lands except hunting and fishing. He specifically recognized, 5 years after this order was issued, that they had hunting and fishing rights under the 1837 treaty.

There was an incident up at Mille Lacs Lake. He sent an investigator there, and the investigator reported that the lumbermen and all of the Chippewa believed that they still had hunting and fishing rights under the 1837 treaty.

This correspondence went --

QUESTION: Why would that be? I mean, that couldn't make it so if it were not so, and your theory is that it was so because the presidential order was null and void --

MR. SLONIM: We have --

QUESTION: -- in its entirety.

MR. SLONIM: -- two theories, Your Honor, first that it was null and void, it was invalid when it was issued, and second that it had been rejected as the policy of the United States, as the pleasure of the President, shortly after it was issued.

QUESTION: Well --

QUESTION: In what way? How was it rejected shortly after --

MR. SLONIM: The order, the purpose of the order was to remove the Indians, and the order specifically says that they're ordered to remove. In addition to revoking their rights, they're hereby ordered to remove.

QUESTION: Well, it was a two-part thing. It was the revocation of the rights and the removal order, and there certainly is clear evidence that the Government abandoned the efforts to remove the tribes, but what is the evidence that the Government tried to revoke in some fashion the other part of the order, other than the matter that you mentioned?

MR. SLONIM: Well, the question then turns on whether you can sever the order.

QUESTION: Well, I guess we don't know that. If it were a statute, would we sever them occasionally?

MR. SLONIM: Well, you do.

QUESTION: Yes.

MR. SLONIM: I mean, that's the issue, is should you. That's the issue.

QUESTION: And would we not approach this in the same way we would a statutory issue, to determine if it's severable, and if so, if something remains?

MR. SLONIM: Yes.

QUESTION: Yes.

MR. SLONIM: Yes, Your Honor, but with the caveat that you would apply --

QUESTION: Yes.

MR. SLONIM: -- the rules you apply in Indian cases.

QUESTION: So as to the hunting and fishing, what evidence do we look to to see if that was somehow revoked?

MR. SLONIM: Well, we look to whether the order would have been issued revoking the hunting and fishing rights in the absence of the removal directive, and all of the evidence was that it would not have been, that the only purpose of this order was to remove the Indians.

QUESTION: Well, you say all the evidence. I mean, can you name some, or --

MR. SLONIM: Sure. The territorial legislature requested a removal order because they said the Indians were causing problems, and it doesn't make sense to say, all right, in response to that, we'll leave the Indians where they are, but tell them they can't hunt and fish any more. That doesn't --

QUESTION: Well, but the fact that they -- they could hunt and fish the same way anybody else in the Territory of Minnesota could hunt without these rights.

MR. SLONIM: Sure, sure, and so unless you're removing them, the revocation of hunting and fishing doesn't serve any purpose. The only purpose it serves is as part of a removal effort, and that effort is abandoned.

QUESTION: Well, you're saying --

QUESTION: Well, but -- it's assuming the whole point in issue.

MR. SLONIM: Well, let me --

QUESTION: You're saying it doesn't even have any purpose as assisting removal. Since they could hunt and fish the way anybody else could, and in those days anybody else could fish and hunt ad libitum, I fail to see how revoking their hunting -- how revoking their special hunting and fishing rights would assist in their removal, so long as they could hunt and fish the way Justice Souter could, and he could fish and hunt to his heart's content.

How did the removal of the hunting and fishing, the special Indian hunting and fishing rights, assist the removal. I don't see that.

MR. SLONIM: I think the Federal officials who were involved in preparing this order would have thought it illogical to order the Indians to remove at the same time they retained a treaty right to hunt and fish on the lands they were being removed from, that, if that wouldn't have made sense to say, you still have a treaty right to hunt and fish here, but you have to leave.

QUESTION: You're saying it's a logical necessity, but I --

MR. SLONIM: Right.

QUESTION: You know, your briefs seem to say that it was -- that the purpose of it was to coerce them to remove, but it wouldn't have coerced them to remove at all, because they could continue to exercise the normal white person's right to hunt and fish, and that would have been enough.

MR. SLONIM: Can I address your point about during the pleasure, Your Honor? I'd like to talk about that, because the State's interpretation of the 1837 treaty and the President's authority under that treaty we think is really quite remarkable.

Under the State's interpretation, the President could revoke these rights at any time. He could revoke them, according to the State, as part of an unauthorized removal attempt, which led to hundreds of Chippewa deaths. He could revoke them at a time, as the district court found, when the land wasn't needed for settlement and there was no other interest of the United States served by the revocation.

But what he couldn't do, according to the State, is, upon learning of the consequences of the removal order, he couldn't allow the Indians to remain and to hunt and fish during his pleasure. In other words, he couldn't do the one thing the treaty says he could do, and that doesn't make any sense.

QUESTION: This is your notion that during his pleasure means one President says you can, the next one says you can't, the next one says you can? It's off and on.

MR. SLONIM: It's up to the President.

QUESTION: Okay. Article III, section 1, you're talking about something close to my heart here, because Article III, section 1 says, the judges both of the Supreme and inferior courts shall hold their offices during good behavior. Does that mean that I can decide to, you know, just really be a really bad fellow for 2 years, and step down from the bench, and then when I decide to reform again I can come back on the bench?

MR. SLONIM: No, because --

QUESTION: During good behavior means, once you behave badly you are out and you don't come back, as I understand it.

MR. SLONIM: Well, I mean, there's a process in the Constitution for how that happens, and it says you have to be removed, and there's also a process for how Your Honors are appointed.

In this case we have a treaty that says there's a privilege, and all it says about the President is, it's guaranteed during the pleasure of the President, and it seems to me perfectly consistent with the language of the treaty to say the President can decide if he made a mistake, if he issued this order, and it turned out, as the record shows, to be a disaster, that it turned out, as the record shows, that there wasn't any need for it, to say, this was a mistake, they can stay, and during my pleasure they can hunt and fish.

QUESTION: Well, Mr. Slonim, are you resting your argument here simply on the language of the treaty, which I think you indicated a second ago, or are you resting your argument on the understanding of the Indian parties to the treaty?

MR. SLONIM: The language of the treaty, the rule that if there are ambiguities they should be resolved in favor of the Indians, and the understanding of the Indians, as shown in the record of this case.

QUESTION: All right. Does your argument go so far as to get to the point that I raised earlier that, in fact, the understanding of at the pleasure at least meant it would not be the President's pleasure to end it for a long time?

MR. SLONIM: Yes, Your Honor, and it would not be the President's pleasure to end it unless he was displeased with the Indians.

QUESTION: Well, is it your position that in fact the President -- and I didn't think it was, but I want to be clear.

Is it your position that the President could not validly have revoked the hunting and fishing rights even if he had done it, as it were, with some just excuse and unconnected with any invalid removal order at the time he in fact issued the removal order in 1850?

In other words, did he have to give them more time, whether he wanted to or not, because they understood that 1850 would be too soon?

MR. SLONIM: I think they understood that it was too soon in light of the circumstances that were present then.

If settlement had proceeded at a different pace, the answer might be different, but there were no demand for these lands at that time.

QUESTION: Well then, why didn't they say in the treaty, you know, when the lands are needed for settlement, or when the Indians misbehave, or anything like that? It would be easy to say that. They said, at the pleasure of the President.

MR. SLONIM: Because they didn't draft --

QUESTION: It's hard to conceive of language that puts something more in the utter discretionary control of one person than at the pleasure of the President.

MR. SLONIM: The answer is that they didn't draft -- the Chippewa didn't draft the treaty.

QUESTION: Well, they signed it.

MR. SLONIM: They made X's, yes, Your Honor.

QUESTION: But there were missionaries and others there representing their interests, and I assume they have -- I mean, the notion that they don't have a concept in Chippewa, I don't know, culture, for at the pleasure of someone I frankly don't believe.

MR. SLONIM: Well, Your Honor, there were a lot of people there with their own interests. The missionaries wrote, right after the treaty was signed, that they have no understanding of the duration of a man's pleasure.

What they were told --

QUESTION: I don't have an understanding of the duration of a man's pleasure either. I mean, that's the whole point. It doesn't have any duration. It's whatever he wants.

But they didn't have a notion of, at somebody's pleasure?

MR. SLONIM: Well --

QUESTION: I can't believe that.

MR. SLONIM: Well, what they were -- the other thing they were told throughout this treaty council was that they would be treated justly by the President and that, of course, was a reflection of the provisions in the Northwest ordinance, the trust responsibility as articulated by this Court, and what we think that means in this context is there are some reasons the President could not act, and that was the case in 1850.

QUESTION: Thank you, Mr. Slonim.

Ms. McDowell, we'll hear from you.

ORAL ARGUMENT OF BARBARA B. MCDOWELL ON BEHALF OF THE RESPONDENT UNITED STATES

MS. MCDOWELL: Mr. Chief Justice, and may it please the Court:

The Chippewa retained the privilege under the 1837 treaty to fish, hunt, and gather within the portion of the Minnesota territory ceded by that treaty. Although the 1850 order stated that the Chippewa were required to remove from the ceded territory and could no longer exercise their usufructuary privilege there, that order never took effect.

QUESTION: What do you mean, the order never took effect? I mean, if it says the privileges shall last as long as the -- at the pleasure of the President, and the President says, it's no longer my pleasure, I revoke it, that would seem to be self-executing. I mean, what more need be done?

MS. MCDOWELL: If that was all that was in the order, and if that was all that happened, we might agree with you, but that's not the case.

It was part of an order that was designed for the sole purpose, as the district court found, to remove the Chippewa.

QUESTION: Well, the district court finding is a matter of law. I mean, so that -- we interpret that as a matter of law. We're not bound by a district court finding.

MS. MCDOWELL: Certainly not, Your Honor, but there was no effort to enforce the usufructuary revocation separately from --

QUESTION: Why should there have to be an effort? I mean, if one -- if a treaty says, until such and such an event, then the event occurs, why should something more have to occur?

MS. MCDOWELL: Because the President under a treaty such as this one, that allows him to exercise his pleasure with respect to the existence of these rights, certainly has the ability to think about, as he is carrying the policy into effect, whether in fact these rights ought to be revoked, and it was clear as time went on over the 2, 3, or 4-year period after the order was issued, that the President, the executive and Congress did not want the Chippewa to be removed.

QUESTION: Well, President Taylor died in 1850, the same year he revoked the order, so he didn't continue to think about it for 4 years.

(Laughter.)

MS. MCDOWELL: No, certainly not, but his successors did.

QUESTION: How about President Roosevelt's letter in March of 1938 recognizing that the thing had been revoked? How do you deal with that?

MS. MCDOWELL: Well, as we explained in our brief, Your Honor, that statement doesn't reflect any consideration of the context in which the order was issued, and what occurred afterward.

It particularly does not take into account the 1854 and 1855 treaties, which created a new state of affairs in the Minnesota ceded territory that was entirely different from that contemplated by the 1850 order.

Whereas the 1850 order had required the Chippewa to remove, the 1854 and 1855 treaties created what were said to be permanent homes for them within that new territory, and it was clear because --

QUESTION: It seems to me you take a very cavalier approach to President Roosevelt's order. He said -- or letter. He said, we've thought about this, we've looked at it, these rights are revoked, and you said, oh, well, he doesn't know -- he didn't know what happened in 1854. That's what your argument sounds like to me.

I'm amazed the Government would take such a cavalier attitude about a letter from the President of the United States. That's an amazing position.

MS. MCDOWELL: Well, certainly, Your Honor, President Roosevelt's statement is entitled to a certain amount of deference, but he was not entirely informed about the situation. If he had been, we don't know what position he would have taken.

QUESTION: What was the part he wasn't informed about? My understanding is this, that the Taylor, President Taylor's order says, no hunting, no fishing, go, all right. That's what it says.

MS. MCDOWELL: Uh-huh.

QUESTION: Now, I take it the last word, go, everyone in this case agrees, or do they or don't they? Are we supposed to consider that go as being illegal of no effect, because the President of the United States did not have the authority to say, go?

Are we supposed to take it as a given, because all that people seem to be arguing is severability, not whether that basic idea is valid or not, so I'm supposed to take it that go was not valid, everybody concedes that, or what?

MS. MCDOWELL: We are not conceding that, Your Honor, but we don't --

QUESTION: No, obviously you're not con -- you think the go was invalid, is that right?

MS. MCDOWELL: No, Your Honor. Our position is that the go never became effective because it was never carried out. That's consistent with --

QUESTION: Or that it was somehow revoked by implication. That was the gist of what I got out of the briefs, that the go part of the order by implication was abandoned or revoked.

MS. MCDOWELL: It was abandoned or revoked --

QUESTION: Yes, but I'm trying --

MS. MCDOWELL: -- before it took effect.

QUESTION: That's your argument, not that it was illegal in the first place for the President to --

MS. MCDOWELL: That's our position.

QUESTION: All right. In other words, the go is not legally valid. It doesn't -- I don't know how else to say this.

MS. MCDOWELL: It is of no effect because it was not carried out. If you look at --

QUESTION: And therefore what was attached to it also became -- is it your position that at the pleasure of the President is this on-again, off-again thing, depending on, you know --

MS. MCDOWELL: No, Your Honor --

QUESTION: You can have a new President comes in, you cannot fish now.

MS. MCDOWELL: If the removal happened --

QUESTION: It's going to make it difficult for the people of, you know, Wisconsin to know what's going on here, but is that the Government's position, the President can turn it on and off?

MS. MCDOWELL: No, Your Honor. If the --

QUESTION: Off is off.

MS. MCDOWELL: -- removal had been fully carried out and the rights had been revoked and the Chippewa were told that they could not go back there to hunt and fish, we would say that would be final.

QUESTION: Okay.

MS. MCDOWELL: It would take an act of Congress reinstate the rights then.

QUESTION: So then it must be the Government's position that if you have what you might call an irrevocable provision, no more hunting and fishing once he says it can't be changed, and you attach that irrevocable provision to a revocable one, namely, go, the President can change his mind about go and say, oh, I changed my mind, don't go.

When you attach an irrevocable one to a revocable one, the irrevocable one becomes revocable.

MS. MCDOWELL: Yes, in the context of what was going on here, which was an order which was solely designed for the purpose of removing the Chippewa, not for revoking their usufructuary rights while they remained in place.

QUESTION: I don't see how that follows. It seems to me irrevocable is irrevocable. If you've done it, you've done it. You can't pull it back.

I don't see how merely attaching it to a revocable one -- I can understand how attaching it to an invalid one might render it invalid, because it's nonseverable, but the Government's taking the very strange position that the order to go is not invalid and therefore it doesn't invalidate the revocable portion.

MS. MCDOWELL: It would be an even --

QUESTION: Or the irrevocable, but rather renders the irrevocable portion revocable. I can't understand --

MS. MCDOWELL: It would be an even stranger position, Your Honor, if we were to say that the President had no ability to change his mind, that once he decided that removal --

QUESTION: Ms. McDowell --

MS. MCDOWELL: -- the purpose of the order was not to be carried out --

QUESTION: But he doesn't have --

MS. MCDOWELL: -- but he couldn't say that the Chippewa can't --

QUESTION: But I thought you've conceded that he can't change his mind. I thought you've conceded that once the President says, no more hunting and fishing, he can't come back a month later and say, you know, that was a really bad idea, okay, you can hunt and fish again. I thought you conceded that.

MS. MCDOWELL: No, we didn't concede that. My --

QUESTION: So it can be changed. It is off-again, on-again, whatever the President wants to do.

MS. MCDOWELL: No. If removal, which was the whole purpose of this order, had, in fact, been carried out --

QUESTION: Leave removal aside.

MS. MCDOWELL: -- then at that point these rights could --

QUESTION: Leave removal aside. It's just an order, Indians can't hunt and fish. Is it your position that the President can change his mind and say, oh, that was a mistake, I shouldn't have said that, you can hunt and fish? Can the President do that?

MS. MCDOWELL: If that was all there was to this order, perhaps so, perhaps not, but that was not all that there was to this order.

QUESTION: No, no. I mean, yes or no.

(Laughter.)

QUESTION: Do you have a -- yes or no.

MS. MCDOWELL: If it's part of an order that was never enforced, the Chippewa were not even told about, the President --

QUESTION: Well, are you then saying that the reason this seems to be an on-again, off-again kind of regime boils down to the fact that, at least in the circumstances of this treaty, in order for the President in effect to exercise his pleasure to end the rights, he had to do it in an effective way, such that simply signing a piece of paper saying, stop, is not enough?

Are you saying that he had to communicate it and enforce it, and that that enforcement would in effect be the communication to the people involved, that he did not do that and he did not do that for the simple reason that he could not enforce the other order, either?

Is that what it boils down to, that he never really exercised his pleasure because he never carried it through to the point of making it clear?

MS. MCDOWELL: Yes, Your Honor.

QUESTION: And you are not making the argument that -- the legal argument that I thought the district court bought, and the Eighth Circuit, too -- maybe I'm wrong about that -- that the President could not, not that he did not.

Here you're telling us he did not. The President could not order the removal because of an 1830 statute that says the Indians have to consent to a removal. That was an argument that I thought was accepted by the lower courts, but you are not making that argument.

MS. MCDOWELL: We're not making that argument now. We did join in that argument below.

QUESTION: But it is the position of the United States, of the Department of Justice, as I understand it, that the executive order of a President is not effective ex opera operando, as we say, by its own force, but rather somehow must be enforced before an executive order is effective. Is that the position of the Justice Department?

MS. MCDOWELL: It would depend on the particular character of the executive order.

QUESTION: I see. Some executive orders are immediately effective when they are promulgated, but others are only effective when they are sought to be enforced. Is that --

MS. MCDOWELL: Certainly in the context --

QUESTION: -- do we know how to distinguish the one from the other?

MS. MCDOWELL: -- it's certainly in the context of this order, that had one purpose which was --

QUESTION: I have never heard this theory before.

QUESTION: No, I'm --

QUESTION: Ms. McDowell, isn't your -- I thought your point was that this order's effect, whether it has effect or doesn't, is a question of the treaty, not general executive order law. Is that your position? And therefore, at least under a treaty like this, in which the -- whatever effect the order has is a creature of the treaty, not of general law. The President had to be effective in what he did.

Is that -- I'm putting words into your mouth, but I want you to tell me if they are not your words.

MS. MCDOWELL: Yes, it is the particular context of this treaty --

QUESTION: Well now, wait a minute, because the treaty says in Article 5, the 1837 treaty, the privilege of hunting, fishing, and gathering the wild rice upon the lands ceded is guaranteed to the Indians during the pleasure of the President of the United States. Now that's all it says.

Now, can the President revoke that, enter an executive order saying, it is no longer my pleasure that you shall hunt and fish and gather wild rice under the terms of the treaty?

MS. MCDOWELL: Yes.

QUESTION: Is there anything confusing about that?

MS. MCDOWELL: No.

QUESTION: The President could do that.

MS. MCDOWELL: That's correct.

QUESTION: But you say, because it was done together with a removal order, the removal part of which was not enforced, that he could not do it, is that it?

MS. MCDOWELL: We're not saying that he could not do it. We're saying that he did not do it in the context of this case, that the revocation of rights did not become effective because the removal did not become effective, and because the entire policy was superseded and contradicted --

QUESTION: Is it not possible that a President would think that the revocation should go forward so that territorial or State government could regulate hunting and fishing for all?

MS. MCDOWELL: There's absolutely no evidence of that in the record, Your Honor.

QUESTION: But that is certainly possible, that a President would think, yes, States or Territories, as the case may be, should regulate hunting and fishing for all.

MS. MCDOWELL: That's possible, although that would be a curious conclusion, because in the 1854 treaty new usufructuary rights were recognized for the Indians who were living in the 1854 ceded territory, the territory that was newly ceded by that treaty.

It would seem curious that the President and the administration wanted to give Indians those rights in that part of Minnesota but not to allow them to continue to exercise those rights in the remainder of Minnesota that had originally been part of the 1837 ceded territory.

QUESTION: There's one respect that your brief seems to portray something that the argument brought out isn't. That is, you said, well, the President wanted to do indirectly what he couldn't do directly. I thought that was one argument that -- and it would be perverse to say, they can stay here, but they're going to starve to death.

We've heard now, everybody seems to agree that they wouldn't be prohibited from engaging in any of these activities, they just have to do them like everyone else, so why did you in the brief twice, I noticed, you said, that would be taking away their sustenance, but that's wrong, isn't it?

MS. MCDOWELL: We don't think that it's at all clear that the Indians would have had, as one of the Justices referred to, a white man's privilege to hunt and fish if the treaty right were indeed effectively revoked. The Indians were not citizens of the States, Territories of the United States at the time. There was no general --

QUESTION: You didn't say anything about it not being clear. You said the Chippewa could not have survived. You gave it that portrayal.

MS. MCDOWELL: Yes.

QUESTION: That the effect of this meant that they would starve to death.

MS. MCDOWELL: Yes.

QUESTION: They could stay, and so one could say, gee, that would be an irrational thing for a President to do, to say you could stay but starve to death. It wouldn't be so irrational for him to say, you can stay subject to the rules that govern everyone else.

MS. MCDOWELL: But he didn't say that, and there's no indication that the Chippewa would have been recognized as having the rights of citizens. Certainly --

QUESTION: Do you have any indication that noncitizens anywhere were not allowed to hunt and fish?

MS. MCDOWELL: Well, there is indication that a --

QUESTION: In some States, noncitizens were allowed to vote.

MS. MCDOWELL: In 1858, when Minnesota began -- became a State, it enacted hunting and fishing regulations that among other things tried to prevent Indians from leaving the reservations to hunt and fish without a passport.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. McDowell.

The case is submitted.

(Whereupon, at 11:04 a.m., the case in the above-entitled matter was submitted.)