Charles A. Hobbs: The Menominee Indians live in Eastern Wisconsin near Green Bay.
Earl Warren: May I ask if the state requires them to do all of those things?
Charles A. Hobbs: I am --
Earl Warren: That they require them to pay license fee?
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.
Earl Warren: But they claim that right here at least, is that correct?
Charles A. Hobbs: The state does claim the right to impose all of its rules, including license fees --
Earl Warren: Yes.
Charles A. Hobbs: -- on the Indians.
Earl Warren: Very well.
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.
Byron R. White: And now, the government agrees with your position at least as to the Termination Act did not extinguish, is that right?
Charles A. Hobbs: Yes, Your Honor.
Byron R. White: That hasn't always been the Government's position.
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.
Byron R. White: So now is no one in this case before us arguing the side about the termination?
Charles A. Hobbs: Arguing --
Byron R. White: Extinguishment through the Termination?
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 --
Byron R. White: And its not -- and the State of Wisconsin isn't here?
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.
Hugo L. Black: Well, the Attorney General has now sent a letter.
Charles A. Hobbs: That's what I call a supplemental memorandum, Your Honor.
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?
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.
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?
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.
Potter Stewart: In other words, it's your right --
Charles A. Hobbs: In other words --
Potter Stewart: -- had been extinguished?
Charles A. Hobbs: Yes.
Potter Stewart: The state wasn't a party in the Court of Claims proceeding.
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 --
Hugo L. Black: But I understood you to say a moment ago that you're real adversary here is the State of Wisconsin?
Charles A. Hobbs: That's correct Your Honor.
Hugo L. Black: And not the United States?
Charles A. Hobbs: That's correct. United States basic --
Hugo L. Black: We are here in a case arguing without the state which is vitally injured being present to argue it overly.
Charles A. Hobbs: Wouldn't you regard that the state has decided that its interests are adequately protected by its briefs?
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.
Charles A. Hobbs: If the state --
Hugo L. Black: And they are the party in interest here.
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 --
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).
Charles A. Hobbs: Well, certainly issued here the case. It's up here regularly on certiorari from the Court of Claims between --
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?
Charles A. Hobbs: There is to the extent that the state has made its position known in the materials that it's filed here.
Hugo L. Black: But there's no adversary between you and the Federal Government?
Charles A. Hobbs: No, there's none.
William J. Brennan, Jr.: Well, is the ruled on something at all?
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?
Charles A. Hobbs: Yes.
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.
Charles A. Hobbs: Well --
Byron R. White: Or carrying a gun in a car.
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 --
Byron R. White: Oh, that's rather a big difference between you, isn't it?
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.
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.
Charles A. Hobbs: The State of Wisconsin does and it is an amicus --
Byron R. White: If we we're reviewing judgments instead of opinions, why -- there is really no adverse interest here, are they?
Charles A. Hobbs: Strictly, no.
Byron R. White: You both want us to do what, with --
Charles A. Hobbs: Affirm the Court --
Byron R. White: -- the judgment of the Court of Claim?
Charles A. Hobbs: Yes, we both --
Byron R. White: Affirm it, the --
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 --
Byron R. White: Did the Government disagree with that?
Charles A. Hobbs: Yes. They would --
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?
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.
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?
Charles A. Hobbs: Yes.
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.
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.
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?
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.
Speaker: And your point is, is it not that we should decide this case without reaching, under any argument, (Inaudible).
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 --
Speaker: (Inaudible)
Charles A. Hobbs: Under the strictest possible view of judicial review, that's correct. You could affirm the Court of Claims --
Speaker: And the question the jury rested in is requiring the Indians (Inaudible) with another litigation where Wisconsin would be inflicted?
Charles A. Hobbs: Well, yes, it would have -- it would require further litigation.
Speaker: What?
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.
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?
Charles A. Hobbs: Well, the Tribe is overwhelmingly interested in having the hunting and fishing rights. They're not --
Byron R. White: Yes, but Wisconsin says you don't have them and the Court of Claims isn't going to change the Wisconsin --
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.
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?
Charles A. Hobbs: We would take the opinion as meaning that, whether it said so or not. Yes, Your Honor.
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?
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?
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.
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.
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 --
Earl Warren: How many?
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.
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?
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 --
Byron R. White: Among themselves?
Charles A. Hobbs: Pardon?
Byron R. White: Among themselves?
Charles A. Hobbs: Yes.
Byron R. White: It's not a publicly commercial venture, any of it?
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.
William J. Brennan, Jr.: Well, Mr. Hobbs --
Earl Warren: And the Tribe doesn't seek that either here?
Charles A. Hobbs: That's correct. The Tribe does not seek commercial rights.
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?
Charles A. Hobbs: Oh, no! No, that's a -- that's one of the implementing details in event of an affirmance.
Byron R. White: That's a rather important detail.
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.
Byron R. White: Who determines who gets on the roll?
Charles A. Hobbs: Well, the Menom -- basically the Menominee Tribe subject to the restraint of the Secretary of Interior.
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?
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 --
Byron R. White: “Outsiders” what do you mean “Outsider”?
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.
Byron R. White: Well, what's their business venture?
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.
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?
Charles A. Hobbs: No, it's not a personal thing; this belongs to the Tribe. The Menominee Tribe was never extinguished.
Byron R. White: Yes, but if the property belongs to the corporation?
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.
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 --
Charles A. Hobbs: Yes.
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?
Charles A. Hobbs: Well, I think not. I think just tribal trust property.
Abe Fortas: Well, that didn't what the language says. Is there some qualification elsewhere?
Byron R. White: Well, it certainly just relates --
Charles A. Hobbs: Well --
Abe Fortas: Now the second --
Charles A. Hobbs: Look at Section 897, Mr. Justice Fortas.
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 --
Charles A. Hobbs: (Inaudible)
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?
Charles A. Hobbs: I would --
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.
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.
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?
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 --
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.
Charles A. Hobbs: Obviously, all federal statutes are -- which had been applicable to these Menominees because they were Menominees are no longer applicable obviously.
Abe Fortas: Yes.
Charles A. Hobbs: But this statute did not wipe out their Treaty Rights.
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?
Charles A. Hobbs: Some of them, yes.
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.
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.
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.
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.
Abe Fortas: On the roll as of that date?
Charles A. Hobbs: Without addition.
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?
Charles A. Hobbs: Yes.
Abe Fortas: Not because they're Indians? Not because --
Charles A. Hobbs: That's right.
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?
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?
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.
Byron R. White: And it's a membership corporation?
Charles A. Hobbs: No, this corporation is a stock corporation --
Byron R. White: Not before (Voice Overlap) --
Charles A. Hobbs: -- for a profit but there is also secondly, a membership corporation which is not active. It exists but is not active.
Byron R. White: I see.
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?
Charles A. Hobbs: If I have to decide that I suppose I would say that the right is personal to the Menominees. You see --
Abe Fortas: I don't know whether you have to decide it or not but I sure have to think it through.
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.
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?
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.
Abe Fortas: Well, do you show me something in the statute that says that?
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.
Abe Fortas: Well, I don't want to take any more of your time.
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?
Charles A. Hobbs: We take the position that before termination, the United --
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?
Charles A. Hobbs: They say they had some power to prevent their abuse under their roll as trustee.
Byron R. White: That's what I mean. So they claim that the hunting rights were held by them as trustee too?
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.
Hugo L. Black: Mr. Hobbs, did you ask us to reverse this case when you asked for petition for certiorari?
Charles A. Hobbs: No, does not.
Hugo L. Black: I find nothing in the petition which indicates.
Charles A. Hobbs: Your Honor we merely ask this Court to review the final judgment.
Hugo L. Black: Have you ever asked that the judgment be reversed or do you now?
Charles A. Hobbs: We do. Well, we do now as an alternate position.
Hugo L. Black: Well, as an alternate, do you ask that the judgment be reversed?
Charles A. Hobbs: Only if we lose on our primary point which is that the judgment should be affirmed.
Hugo L. Black: You asked us to affirm, don't you?
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?
Charles A. Hobbs: I sure am.
Hugo L. Black: Well, has the Government ever asked anything to be done in this case except it be affirmed?
Charles A. Hobbs: Not to my knowledge.
Hugo L. Black: What?
Charles A. Hobbs: Not to my knowledge, Your Honor.
Hugo L. Black: And it's -- asking now that it be affirmed?
Charles A. Hobbs: Basically, yes.
Hugo L. Black: And you did not ask us to reverse it? Did you in your petition for certiorari or now?
Charles A. Hobbs: No, we do not. We asked for the --
Hugo L. Black: Both of you want it affirmed?
Charles A. Hobbs: Well, we asked for review.
Hugo L. Black: You want a review?
Charles A. Hobbs: Yes, and it --
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?
Byron R. White: What did your petition for certiorari say?
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 --
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?
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.
Hugo L. Black: What you've done is to sue for compensation?
Charles A. Hobbs: Yes.
Hugo L. Black: And you didn't get it?
Charles A. Hobbs: On the grounds that we loss the --
Hugo L. Black: Well, you didn't get it, did you?
Charles A. Hobbs: Yes, Your Honor.
Hugo L. Black: And now, you are asking if the judgment be affirmed?
Charles A. Hobbs: Yes.
Hugo L. Black: Although you didn't get what you asked for it?
Charles A. Hobbs: Our primary position is that we want review and resolution of the dilemma. We prefer affirmance, we --
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.
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 --
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.
Charles A. Hobbs: Well, we could fall back on our alternative position and ask that the Court of Claims be reversed.
Hugo L. Black: Well, are you doing that? You did not in your petition for certiorari --
Charles A. Hobbs: Yes, we did alternatively --
Hugo L. Black: But you do that now?
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.
Hugo L. Black: Now why? That's what I'd like to hear --
Charles A. Hobbs: Because they gave us no money for the loss of a valuable right.
Hugo L. Black: Do you claim that you have valuable rights which the Government has taken away from you?
Charles A. Hobbs: That is the exact position we had in the Court of Claims and they rejected that.
Hugo L. Black: Well then why have you been arguing here before that be affirmed?
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.
William J. Brennan, Jr.: 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?
Charles A. Hobbs: Yes.
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 --
Charles A. Hobbs: Clearly.
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?
Charles A. Hobbs: Yes.
Byron R. White: Is that right?
Charles A. Hobbs: Yes.
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?
Charles A. Hobbs: Yes.
Byron R. White: So now, here you are caught between the two?
Charles A. Hobbs: Yes.
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.
Charles A. Hobbs: Will the court accept an oral amendment? We are asking --
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.
Charles A. Hobbs: Well, two answer to that. Number 1 –
Byron R. White: Well, there may be answers but Wisconsin has -- is not here to argue this, is it?
Charles A. Hobbs: Well, it made its point. I'm in a position --
Byron R. White: Made a point?
Charles A. Hobbs: I'm in the position to explain my answer to that point and --
Hugo L. Black: But then are they in a position to answer you?
Charles A. Hobbs: In our view --
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.
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.
Hugo L. Black: Suppose there's such thing sometime as indispensable parties.
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.
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?
Charles A. Hobbs: We do ask --
Hugo L. Black: Have they denied you the right to recover?
Charles A. Hobbs: We do ask for a reversal.
Hugo L. Black: Did you ask them for anything except the right to recover?
Charles A. Hobbs: Asked whom Your Honor?
Hugo L. Black: The Court of Claims.
Charles A. Hobbs: No, we asked them for nothing except money.
Hugo L. Black: And you still claim you're entitled to recover if that law is invalid in Wisconsin?
Byron R. White: Though it was valid (Voice Overlap) --
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 --
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.
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 --
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.
Charles A. Hobbs: Of course, Your Honor.
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.
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.
Hugo L. Black: What did you say the position of the --
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.
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.
Charles A. Hobbs: It is noble.
Earl Warren: But rather a noble position, aren't you that --
Charles A. Hobbs: Yes, one --
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.
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.
Speaker: What year was (Inaudible)?
Hugo L. Black: 60 some --
Charles A. Hobbs: '63, I believe, Mr. Justice Harlan.
Speaker: I beg your pardon?
Charles A. Hobbs: I believe, 1963. Yes, --
Byron R. White: Well --
Charles A. Hobbs: -- we would accept that.
Earl Warren: You would -- that would serve your purpose now, would it?
Charles A. Hobbs: Yes.
Earl Warren: Right.
Charles A. Hobbs: I will reserve such time as I have for rebuttal, Your Honors.
Earl Warren: You may Mister. Mr. Claiborne.
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.
Potter Stewart: That Wisconsin case involved criminal convictions, did it not?
Louis F. Claiborne: It involved criminal convictions.
Potter Stewart: And that's all, is that right?
Louis F. Claiborne: That is all.
Potter Stewart: Well, I suppose that's their long sense moot, aren't they?
Louis F. Claiborne: I'm confident the sentence has been affirmed --
Potter Stewart: (Inaudible) fines had been paid? That deer have been consumed?
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.
William J. Brennan, Jr.: 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?
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.
Byron R. White: What position did you take in the Court of Claims?
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.
Byron R. White: And what did you send -- did you take the position on the treaty rather on the Termination Act?
Louis F. Claiborne: I -- only I think to the extent that the Termination Act dissolved the tribe --
Byron R. White: Dissolved the tribe --
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 --
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.
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.
Byron R. White: By the termination?
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 --
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?
Louis F. Claiborne: I think it would depend on the nature of the rights recognized by the Treaty and the nature of the extinguishment –
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?
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 --
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 --
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.
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?
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.
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?
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 --
Byron R. White: What happens here?
Louis F. Claiborne: -- Indian tribes, it was all federal corporations.
Byron R. White: What happens in 1975?
Louis F. Claiborne: As to that, I'm not at all clear Mr. Justice Fortas and I would --
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 --
Louis F. Claiborne: But I would have thought --
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?
Louis F. Claiborne: All of the plaintiffs, yes.
Abe Fortas: Sir?
Louis F. Claiborne: All of plaintiffs, alternatively I take it --
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?
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 --
Abe Fortas: How can you say it that way --
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.
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.
Louis F. Claiborne: The statute establishes this final tribal roll just about --
Abe Fortas: The final tribal roll but these same Indians aren't going to survive forever and ever.
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.
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.
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?
Byron R. White: That's right or when the tribe, as a legal entity has been terminated under federal law.
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.
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?
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 --
Hugo L. Black: You, it couldn't be done in one of those two ways or may be another way.
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.
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.
Louis F. Claiborne: Certainly not and the Government will be highly agreeable to that suggestion.
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.
Louis F. Claiborne: Yes.
Speaker: (Inaudible)
Louis F. Claiborne: Inviting the States of Texas in --
Speaker: (Inaudible)
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.
Speaker: (Inaudible)
Louis F. Claiborne: Yes, since they're off reservation --
Speaker: (Inaudible)
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.
Speaker: What?
Louis F. Claiborne: At the March session, I believe.
Speaker: They will?
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.
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?
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 --
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?
Louis F. Claiborne: With respect to taxation and sharing?
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 --
Louis F. Claiborne: I'm not clear --
Abe Fortas: -- that allow them to fish and hunt?
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.
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?
Louis F. Claiborne: Yes.
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?
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.
Speaker: (Inaudible)
Louis F. Claiborne: It would remain the problem --
Speaker: 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.
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.
Speaker: (Inaudible)
Louis F. Claiborne: Unfortunately --
Speaker: -- Wisconsin still or what's the situation now? Does this law of Wisconsin still attempting to enforce this regulation, that regulation (Inaudible)?
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.
Hugo L. Black: What was it -- you say about that now that now -- the tribe -- I didn't quite get it.
Louis F. Claiborne: That --
Hugo L. Black: The other treaty or the Klamath?
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.
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?
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.
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.
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.
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?
Louis F. Claiborne: That is accustomed.
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.
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.
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.
Louis F. Claiborne: Well, there is that strain, as you noticed, Mr. Justice Black, but in the --
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.
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.
Earl Warren: Mr. Hobbs.
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.
Earl Warren: And is continuing to do it throughout this proceeding?
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.
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.
Charles A. Hobbs: Well, I met exactly the same posture as the unmentioned hunting rights requirements.
Hugo L. Black: Do you know whether this question has come up here and argued?
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.
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?
Charles A. Hobbs: I'm sorry Your Honor.
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?
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.
Hugo L. Black: That's expressly provided?
Charles A. Hobbs: Yes.
Hugo L. Black: And in the other case, it is not expressly provided.
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.
Hugo L. Black: But the Wisconsin Act did not to provide what was provided in the Klamath Act?
Charles A. Hobbs: Correct. That's no doubt because we did not have a treaty expressly granting the -- any rights. Ours were implied.
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?
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.
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.
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.
Byron R. White: At least you would say that the state might be able to regulate hunting by non-Indians?
Charles A. Hobbs: Oh, clearly, no question; that is true today, Your Honor.
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?
Charles A. Hobbs: Yes, Your Honor, just as that all the Indian Reservations that are -- have not been terminated today. That is the case.
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?”
Charles A. Hobbs: Well, if they fish, they must obey all state regulations, including season, yes.
Byron R. White: And that nobody can hunt quail, --
Charles A. Hobbs: They could --
Byron R. White: -- with your permission or not?
Charles A. Hobbs: They could say that.
Byron R. White: Except Indians.
Charles A. Hobbs: Yes, that's the present law.
Byron R. White: Thank you.
Charles A. Hobbs: Mr. Chief Justice.