I am only kidding when I tell my Property students that using the word “usufruct” on their finals will yield extra credit, but I am in fact intrigued by the venerable notion of usufructuary rights. The holders of usufructuary rights may use and enjoy real property that is vested in another as long as they do not use up that property or do harm to it.
The potential assertion of usufructuary rights has surfaced recently in conjunction with Governor Walker’s efforts to prompt iron ore mining along the northern rim of Wisconsin and to create sales opportunities for manufacturers of mining equipment. Native Americans and particularly several bands of Chippewa (formally recognized branches of the Ojibwe people) have opposed the development of the mines because mining waste contains sulfides that pollute wetlands, streams, and groundwater. And, as it turns out, the Chippewa have usufructuary rights related to the lands where the projected mines will be located!
The Chippewa acquired their usufructuary rights when they ceded tribal lands via a treaty in 1842.The Chippewa were not given the usufructuary rights through the treaty but rather reserved them on the lands they ceded. In the 1983 decision in Lac Court Oreilles Band of Chippewa Indians v. Lester P. Voigt, the United States Court of Appeals for the Seventh Circuit confirmed that the Chippewa retained and could assert their right to hunt, fish and harvest wild rice on the lands in question. The Supreme Court of the United States declined cert for what is commonly known in the literature as the “Voigt case.”
Will the Walker administration respect the Chippewa’s rights or force them to court to defend them? The state might simply trivialize the Chippewa’s usufructuary rights, a gesture consistent with the state and federal governments’ long history of failing to take the rights of Native Americans all that seriously. Alternatively, the state might claim the iron ore mining should fit within an exception to the Chippewa’s usufructuary rights as an activity enhancing public health and safety. But, then, could the federal courts possibly see these profit-yielding business ventures as contributions to public health and safety?
The Chippewa’s usufructuary rights may not in the end determine whether iron ore mining will go forward. The Army Corps of Engineers might decide ultimately not to sign off on the proposed mines, and Wisconsin’s public trust doctrine, which controls what may be done on the state’s navigable waters, is also likely to be invoked by environmentalist groups. Yet if the Chippewa do succeed in stopping the mining development by invoking their usufructuary rights to fish, hunt, and harvesting on the lands in question, they will perhaps gain some bitter satisfaction. These lands, after all, are the very lands that were taken from them over 150 years ago for an unconscionable pittance.