Minnesota v. Mille Lacs : gateway to tribal/state resource management

Abstract

Minnesota v. Mille Lacs Band of Chippewa Indians is the United States Supreme Court's most recent decision to focus on the continued existence of tribal off-reservation hunting, fishing, and gathering rights (usufructuary rights) as guaranteed by 19th century treaties entered into between the Lake Superior Chippewa and the federal government. This paper addresses three issues. First, a fundamental flaw with the Petitioner's position is a misconceptualization of the legal theory that governs Indian treaty interpretation and Indian sovereignty. The Petitioner proceeds on the mistaken premise that the Respondent's usufructuary interests are granted privileges rather than reserved rights. Second, in finding that the Respondents still possessed usufructuary rights in the territory ceded in the Treaty of 1837 we can conclude, based on the Court's interpretation and application of federal Indian jurisprudence, that the Respondent, as well as the other signatories to the Treaty of 1855, still possesses usufructuary rights in the 1855 ceded territory despite the lack of explicit treaty language reserving that right. Third, the Court's response to the Petitioner's Equal Footing argument supports the conclusion that the tribes have a shared interest with the state in wildlife and natural resource regulation. No longer are tribes in the passive position of merely being not subject to state hunting and fishing regulations. Rather they are in an equal, "shared" position with the state in actively developing wildlife and fisheries policy in the ceded territories where tribes still retain usufructuary rights.