Public Lab Research note

Tribal usufructuary rights through treaties with the US Government

by JuliaGuerrein | October 22, 2022 22:48 22 Oct 22:48 | #35724 | #35724

Photo: 1854 Treaty Boundary sign on Highway 210 near Tamarack in Northern Minnesota by Lorie Shaull

This post is about Native American law, which often uses the word "Indian." Here, I choose to use "Native Americans" and "Tribes" to describe the people who were on the land that makes up the current U.S. before colonists. Where appropriate, I use tribe names to be more specific. For more resources on which words to use, see here, here, and here.

As colonists made their way across the newly formed United States, they encountered Native American Tribes who had lived on the land for generations. When colonists met the Native Americans, they wished to have the land the Native Americans inhabited. Colonists forced the Native Americans from the land and asked the U.S. Government to take the land through legal means when force did not work. To do this, the U.S. government formed treaties with Tribes. In Minnesota, these Treaties granted the U.S. government title to land in exchange for giving the Tribes reservations, medical care, schooling, training, and monetary payment. While this exchange was an important part of the Treaties, the key part was that the Tribes retained usufructuary rights. These rights include hunting, fishing, and gathering rights on the land the Tribes ceded to the U.S. Government.

Despite promising the Tribes reservations, medical care, schooling, training, and money, the U.S. Government frequently broke these promises. Additionally, the U.S. used their unfair power advantage over the Tribes to resettle them and deprive them of their rights.

The original people from the Great Lakes area of the U.S. and Canada are known as the Anishinaabe. Colonists imposed the names "Chippewa" and "Ojibwe" on the Anishinaabe people, whose plural is Anishinaabeg. These are the people who retained usufructuary rights to land, which they passed down to their descendants, many of which still inhabit the same land.

Overview of Treaty Rights

Four major treaties, agreed upon between 1837 and 1855, ceded the title of the Native American's land to the U.S. government while the Tribes retained usufructuary rights.

The 1837 Treaty between the Chippewa and the U.S. government included in Article 5 "[t]he privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the President of the United States." Additionally, the 1837 Treaty required the U.S. to provide payments and other goods to the Chippewa. Importantly, the 1837 Treaty explicitly named wild rice, which is integral to the Anishinaabeg origin story.

The 1842 Treaty between the Chippewa and the United States Government ceded more land to the U.S. from the Tribes. Like the 1837 Treaty, the Tribes retained usufructuary rights in the ceded territory and retained all rights in unceded land. Additionally, the Treaty required the U.S. government to pay the Tribes in exchange for the title to the ceded land.

The 1854 Treaty between the Chippewa and the U.S. government ceded more land to the U.S. government, and the Tribes retained usufructuary rights on the ceded land.

The 1855 Treaty between the Chippewa and the U.S. government ceded more land to the U.S. government in exchange for compensation, including goods, money, land to develop roads and reservations, and farmland.

Importantly, when the Tribes agreed to cede land to the U.S., this only transferred the title of the land to the U.S. Government. Therefore, the Tribes retained all other rights to the land, which they retain to this day.

Here is an interactive map to better understand the geographical scope of the Treaties.

U.S. Supreme Court Upholds Usufructuary Rights

In 1999, the Supreme Court of the United States decided the case Minnesota v. Mille Lacs Band of Chippewa Indians. The question the U.S. Supreme Court answered was whether the Mille Lacs Band of Chippewa Indians retained usufructuary rights or whether the rights were lost because of an Executive Order in 1850, the 1855 Treaty, or the admission of Minnesota to the United States in 1858.

The Executive Order in 1850, issued by President Zachary Taylor, ordered the removal of the Chippewa from the ceded territory and revoked their usufructuary rights. Although the Treaties state the Tribes retain their usufructuary rights until the President requires removal from the land, the Treaties subsequent to the 1850 Executive Order continued to leave usufructuary rights to the Tribes. Because of this, the U.S. Supreme Court decided that the 1850 Executive Order did not alter the Tribe's usufructuary rights.

When Minnesota was admitted to the Union, the Chippewa's usufructuary rights were not extinguished because Congress must clearly express an intent to abrogate Native American Treaty rights. Through the formal process of state admission, Congress did not state an intent to abrogate Treaty rights. Therefore, this did not extinguish the usufructuary rights guaranteed in the Treaties.

In Mille Lacs, the U.S. Supreme Court also applied the canons of treaty interpretation. Essentially, the canons are a set of guidelines that helped the U.S. Supreme Court interpret the treaties. When a treaty with Native Americans contains ambiguity, the treaty is "interpreted liberally in favor of the" Native Americans. Additionally, Congress must clearly abrogate the Native Americans usufructuary rights, and Congress is the only body who can do so. Finally, land cessions occurring after the Treaties are not inconsistent with continued hunting, fishing, and gathering on the lands. When applied to the actions that possibly eliminated the usufructuary rights, the canons of treaty interpretation tip the scale in favor of the Tribes. Also, at the time of the Treaty making, the U.S. Government had unfair bargaining power over the Tribes, so interpreting the Treaties in favor of the Tribes helps account for this unfairness.

Based on the canons of treaty interpretation and the Court's interpretation of the Executive Order in 1850, the Court decided the Mille Lacs Band of Chippewa Indians retained their usufructuary rights. That is, the 1850 Executive Order, the 1855 Treaty, and the admission of Minnesota to the US in 1858 did not interfere with the Tribe's usufructuary rights.

Extractive industries still target Native land despite the articulation of usufructuary rights in the Treaties and the recent confirmation by the U.S. Supreme Court that the Tribes still hold these rights. The pollution created by extractive projects, like the Huber Frontier Project and the Talon Mine, threaten these long-held usufructuary rights and the health of the Tribes in the region.


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