Cite as: 526 U. S. 172 (1999)
Thomas, J., dissenting
ante, at 204, our prior cases do not dictate the conclusion that the 1837 Treaty curtails Minnesota's regulatory authority.
As the Court has ruled today that the Chippewa retain the privilege to hunt, fish, and gather on the land they ceded in the 1837 Treaty, the question of the scope of the State's regulatory power over the Chippewas' exercise of those privileges assumes great significance—any limitations that the Federal Treaty may impose upon Minnesota's sovereign authority over its natural resources exact serious federalism costs. The questions presented, however, do not require the Court to decide whether the 1837 Treaty limits the State's regulatory authority in any way. All that they require is a judgment as to whether the usufructuary privileges at issue survive three potentially extinguishing events: President Taylor's 1850 Executive Order, the 1855 Treaty, and Minnesota's admission to the Union in 1858.
The Court nevertheless offers the following observation:
"Here, the 1837 Treaty gave the Chippewa the right to hunt, fish, and gather in the ceded territory free of territorial, and later state, regulation, a privilege that others did not enjoy. Today, this freedom from state regulation curtails the State's ability to regulate hunting, fishing, and gathering by the Chippewa in the ceded lands." Ante, at 204 (emphases added).
In light of the importance of this federalism question, the Court should not pass on it, even in dicta, without the benefit of the parties' briefing and argument. But as the Court has done so, I think it important to explain my disagreement with the italicized propositions.
The plain language of the 1837 Treaty says nothing about territorial, let alone future state, regulation. The historical evidence that the Court reviews, ante, at 176-178, to the extent that it is relevant, is likewise silent as to whether the Chippewa expected to be subject to any form of regulation
221
Page: Index Previous 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 NextLast modified: October 4, 2007