This Day in History May 27, 2020: Menominee Tribe wins landmark case to preserve hunting and fishing rights in spite of official “termination”

In one of the more blatant examples of broken treaties, the United States tried to unilaterally end the existence of Tribal Nations and their treaty rights during what is known as the Termination Era. Forced assimilation policies spanned the 1940s to the 1960s.

The Menominee Indian Tribe of Wisconsin was one of the first tribes officially terminated by an Act of Congress, and one that pushed back. On this day in history, May 27, 1968, the Menominee Nation won a landmark U.S. Supreme Court case reestablishing its hunting and fishing rights, the first step in reestablishing its status as a sovereign nation.

Land of the Menominee Indian Nation. (Image by awmcphee posted on Wikipedia.)

By the 1940s, the Menominee Nation already had lost most of its land through treaty taking. Here is a brief history, provided by the tribe’s website:

The Menominee Indian Tribe’s rich culture, history, and residency in the area now known as the State of Wisconsin, and parts of the States of Michigan and Illinois, dates back 10,000 years. At the start of the Treaty Era in the early 1800’s, the Menominee occupied a land base estimated at 10 million acres; however, through a series of seven treaties entered into with the United States Government during the 1800’s, the Tribe witnessed its land base erode to little more than 235,000 acres ….

The Termination era began in the 1940s when the U.S. government passed laws undermining Tribal sovereignty in certain states, Wikipedia said.

Between 1953 and 1964, the government terminated recognition of more than 100 tribes and bands as sovereign dependent nations. These actions affected more than 12,000 Native Americans or 3% of the total Native American population. Approximately 2,500,000 acres (10,000 km2) of trust land was removed from protected status during these years. Much was sold by individuals to non-Natives.

The final blow seemed to come in 1954, when Congress passed the Menominee Termination Act. With the tribe’s sovereign status gone, the state required Menominee people to get hunting and fishing licenses like any other state resident.

Three Menominee were arrested for hunting and fishing without a license on land that used to be part of their reservation. They fought back in court. The case went all the way to the U.S. Supreme Court. It was decided on May 27, 1968. According to Wikipedia:

It was a landmark decision in Native American case law. … the Supreme Court held that the tribe retained its hunting and fishing rights under the treaties involved and the rights were not lost after federal recognition was ended by the Menominee Indian Termination Act without a clear and unequivocal statement by Congress removing those rights.

The Termination Era was terminated during the tail end of President Lyndon Johnson’s presidency and the Richard Nixon presidency. Nixon thought the policy was wrong “because it meant the United States would not honor its commitment to recognize tribal authority and property rights, even after Native Americans had surrendered vast amounts of land to the Federal government,” according to the Nixon Foundation,

This gave the Menominee Nation an opening to regain its tribal sovereignty and it seized it. According to the Menominee tribal website, “the Tribe won back its federal recognition in 1973 through a long and difficult grassroots movement that culminated with the passage of the Menominee Restoration Act, Public Law 93-197, on December 22, 1973.”

Not all Tribal Nations were as lucky. More than half of the more than 100 Tribes terminated were able to get federal recognition back.

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