Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999)

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certiorari to the united states court of appeals for the eighth circuit

No. 97-1337. Argued December 2, 1998—Decided March 24, 1999

Pursuant to an 1837 Treaty, several Chippewa Bands ceded land in present-day Minnesota and Wisconsin to the United States. The United States, in turn, guaranteed to the Indians certain hunting, fishing, and gathering rights on the ceded land "during the pleasure of the President of the United States." In an 1850 Executive Order, President Taylor ordered the Chippewa's removal from the ceded territory and revoked their usufructuary rights. The United States ultimately abandoned its removal policy, but its attempts to acquire Chippewa lands continued. An 1855 Treaty set aside lands as reservations for the Mille Lacs Band, but made no mention of, among other things, whether it abolished rights guaranteed by previous treaties. Minnesota was admitted to the Union in 1858. In 1990, the Mille Lacs Band and several members sued Minnesota, its Department of Natural Resources, and state officials (collectively State), seeking, among other things, a declaratory judgment that they retained their usufructuary rights and an injunction to prevent the State's interference with those rights. The United States and several counties and landowners intervened. In later stages of the case, several Wisconsin Bands of Chippewa intervened and the District Court consolidated the Mille Lacs Band litigation with the portion of another suit involving usufructuary rights under the 1837 Treaty. The District Court ultimately concluded that the Chippewa retained their usufructuary rights under the 1837 Treaty and resolved several resource allocation and regulation issues. The Eighth Circuit affirmed. As relevant here, it rejected the State's argument that the 1850 Executive Order abrogated the usufructuary rights guaranteed by the 1837 Treaty, concluded that the 1855 Treaty did not extinguish those privileges for the Mille Lacs Band, and rejected the State's argument that, under the "equal footing doctrine," Minnesota's entrance into the Union extinguished any Indian treaty rights.

Held: The Chippewa retain the usufructuary rights guaranteed to them by the 1837 Treaty. Pp. 188-208.

(a) The 1850 Executive Order was ineffective to terminate Chippewa usufructuary rights. The President's power to issue an Executive Order must stem either from an Act of Congress or from the Constitu-

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