Peter Erlinder has posted a great paper, “State of Minnesota v. Mille Lacs Band of Chippewa Indians, Ten Years On,” on SSRN. Here is the abstract:

In State of Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) the Supreme Court unanimously held that, by guaranteeing Anishinabe (Chippewa) rights to hunt, fish and gather, U.S. treaty negotiators severed the right to use the land from formal title to the land in an 1837 (and 1854) Treaty. The Mille Lacs majority and dissent differed only as to whether Treaty-guaranteed usufructuary property rights had been abrogated by subsequent events. The majority held the usufructuary rights had not been abrogated.

Off-Reservation Anishinabe Usufructuary Property Rights in Northern Minnesota

With respect to Minnesota Territory, not ceded in 1837 and 1854 Treaties, two major questions remain after the Mille Lacs decision: (a) did the Anishinabe have treaty-guaranteed usufructuary rights outside the 1837 and 1854 ceded territory; and (b) if so, are treaty-guaranteed usufructuary rights outside the 1837 and 1854 ceded territory, are also valid today? This article answers these questions by elaborating Minnesota treaty history to include usufructuary property rights guaranteed in Treaties of 1795, 1825, 1826, as well as, a relatively unrecognized clause of the 1854 Treaty, all of which guarantee some form of usufructuary property rights outside the 1837 and 1854 ceded territory. The article concludes that these treaties, largely ignored by the courts until now, are likely to be sources of as yet unrecognized Anishinabe usufructuary property rights in the 21st Century.

Modern Usufructuary Rights and Natural Resource Co-Management

Further, because usufructuary property rights include “the right to modest living,” environmental protection to maintain the long-term value of these property rights will have significant long term off-reservation land-use.