The Menominee[Note 10] sued in the U.S. Court of Claims to recover compensation for their loss of the hunting and fishing rights. The Court of Claims first clarified that the Menominee Termination Act did not abolish the tribe or its membership, but merely ended Federal supervision of the tribe. Since the Menominee was still a tribe, although not one under federal trusteeship, the tribe had a right to assert a claim arising out the Wolf River Treaty in accordance with the Indian Claims Commission Act and the Tucker Act.[42] The Court of Claims looked at whether the tribe had hunting and fishing rights, and drew the same conclusion as the Wisconsin Supreme Court—that the terms of the treaty had to be resolved in the favor of the tribe, citing The Menominee Tribe of Indians v. United States, 95 Ct.Cl. 232 (Ct.Cl., 1941). In that decision, the Court of Claims had observed that the reason the tribe had agreed to the current reservation was that it was well suited for hunting, with plenty of game.[43] The hunting rights by treaty were therefore confirmed.[44] The Court of Claims had to determine if the Menominee Termination Act had taken away that right. If it had, the tribe would have had a valid claim for compensation; but if not, then there would be no compensation. The Court of Claims denied the claim, stating that the hunting and fishing rights had not been abrogated. In arriving at this decision, it commented that the legislative history included two witnesses who stated that the law would not affect hunting and fishing rights acquired by treaty, but would abrogate any such rights acquired by statute.[45] Additionally, the Court of Claims observed that Congress also amended Public Law 280 so that Indian hunting and fishing rights were protected in Wisconsin.[46] The U.S. Supreme Court agreed to hear the appeal and granted certiorari (a writ to the lower court to send the case to them for review) to resolve the conflict between the Wisconsin Supreme Court and the federal Court of Claims.[47]
Posted on: Fri, 30 Aug 2013 00:22:17 +0000
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