Treaties Matter, The Mille Lacs Treaty Case
1837 treaty map
Majority opinion author Sandra Day O'Connor
Bud Grant
1837 Treaty
For years, the State of Minnesota and the Department of Natural Resources (DNR), denied the Ojibwe’s rights to hunt, fish and gather on ceded lands, by making and enforcing laws that restricted Ojibwe access and usage of land and waterways. The treaty rights stem from an 1835 accord that while ceding thousands of acres to the federal government, the Ojibwe retained the rights to use the land in “as long as the grass grows”. Despite this agreement, the DNR regularly cited tribal fishermen for fishing out of season and confiscating their catches. This harassment extended to wild rice harvesting, the Indians often had their wild rice taken from them as well. Decades of tension between the state and the tribes came to a head and in 1990. Unable to take harassment for engaging in traditional practices that, one, they have done since before Minnesota had become a state and two, that the Ojibwe were well within their legal rights to do, they sued the state of Minnesota.
In 1993, Minnesota made a settlement attempt with the Mille Lacs Band of Ojibwe. The settlement did several key things; first, it recognized the rights of the Mille Lacs Ojibway to hunt, fish and gather on ceded lands. The right to hunt and fish was subject to limitations set by the tribal conservation code, commercial harvesting was to be prohibited, spearfishing was to be limited to subsistence only and harvesting on private lands was prohibited. It established a tribal fishing zone to about 4.5% of Lake Mille Lacs. The state agreed to pay the band $10 million over five years that could only be used for environmental and natural resource management and law enforcement. This meant that despite the ceded territory being larger the state was trying to settle for a small percentage of it. Also, as with all historic annuity payments, the government was willing to pay, providing that they still managed the way it was spent.
Mille Lacs Band of Chippewa Indians v. Minnesota was a successful bid of the Ojibwe band of Mille Lacs to enforce the treaty of 1837. This treaty guaranteed the Ojibwe the rights to hunt, fish and gather on lands ceded to the United States government. This area included but was not limited to lands surrounding Lake Mille Lacs. Although game is not as plentiful as in years past, the land still held significant value to the Ojibwe tribe of the nearby reservation.
The complaint was filed on August 13, 1990 and held that the State of Minnesota had adopted and enforced natural resource laws and regulations that violate the privilege of hunting, fishing, and gathering guaranteed to them by the 1837 treaty. The case ended up going all the way to the supreme court and in a 5-4 decision, the high court affirmed the Ojibwe’s usufructuary rights to ceded land. The state had argued that the 1835 treaty rights the Ojibwe based their case on were nullified in 1850 by President Zachary Taylor in an executive order. Some also argue that Minnesota becoming a state in 1854, would have nullified any treaties with the previous territory.
The majority opinion as written by Judge Sandra Day O’Connor stated that the State of Minnesota's argument failed because the president's power to issue an order must come from either from Congress or the Constitution itself; and Taylor's 1850 order was not sanctioned by federal law and never enforced by the federal government. The opinion is affirming that states’ rights and tribal sovereignty can exist in the same space. Tribal sovereignty does exist, but only at the pleasure of the congress and congress since the 1960’s has encouraged tribal self-governance. The tribes have complete authority to govern on reservation fishing procedures, but they must comply with the terms of the treaty and government regulations when hunting or fishing off reservation.
The state for its part cannot use its regulatory power to specifically target Native Americans. All regulatory actions taken by the state must be reasonable and necessary to improve the public health or safety. The goals of the court are to accommodate Native American treaty rights while keeping in mind the interest of nonnatives. The court also found that the state was within its rights to limit the 1837 Treaty of St. Peter usufractuary (rights of usage) hunting and fishing rights though regulations that are reasonably necessary for conservation.
After the decision, anglers and business owners still blame spearfishing for establishments closing. Some also question the tribes need to spearfish in order to feed their family or to preserve their cultural heritage. They point to the financial success of the band's casino, and how infrequently they see children and young people net. The fishermen also argue they have a heritage to protect as well. One unidentified woman saying, "The bottom line is there is a bigger picture underlying all of this. It's not a fishing issue. It's an equal rights issue," she said. "You can't have two sets of rules for United States citizens living side-by-side. Nobody is going to argue that some very terrible wrongs happened in the past." There has been no higher profile Minnesotan opposing treaty rights for the Ojibwe than former Minnesota Vikings Head Coach Bud Grant.
Grant says he got involved after seeing what happened in Wisconsin after Indians gained similar fishing rights there. He says the lake where he owns a cabin was "fished out" three years ago by Indians fishing through the ice with as many as 30 lines apiece. "We've got a form of apartheid right here in America," Grant said. "We have different laws based on race. Indians can do something we can't do. That's apartheid. Ultimately, what we're hoping for is a whole new Indian policy."
Other complains say that spearfishing would hurt the walleye population. However, by most estimates the fish population is doing better than it was in the 1980’s. The main problem is that if someone thinks one group has more rights than another there will be tension. Citizens like Grant, are under the impression that to honor agreements, is to give “special rights” to tribes, or secret deal. The Natives perspective on the issue of treaties is that it is simply a contractional issue. The government made a deal for the purchase of land necessary to build the state of Minnesota. These treaties are contracts that must be honored.
But regardless of the disagreements and the harsh words, the citizens and tribal members in Minnesota can agree one thing. They are all happy that the ugly scenes that played out between the people of Wisconsin and the Ojibwe, did not play out here and that is at least a starting point.
Works Cited
Bjornson, H., Knopff, G., & Fedje-Johnst6n, J. (1993). Settlement agreement between the Mille Lacs Band of Chippewa Indians and the State of Minnesota: Regarding treaty hunting, fishing and gathering rights (United States, Minnesota State Senate, Senate Counsel & Research). St. Paul, MN: Senate Counsel & Research.
Espinoza, A. (2010, May 14). A decade later, Mille Lacs netting decision still angers anglers. Retrieved December 15, 2018, from https://www.mprnews.org/story/2010/05/14/mille-lacs
Erlinder, P. (2011). Treaty-guaranteed usufructuary rights: Minnesota v. Mille Lacs Band of Chippewa Indians ten years on. Environmental Law Reporter, (10), 10921.
Newhouse, M. R. (2000). Recognizing and preserving Native American treaty usufructs in the Supreme Court: the Mille Lacs case. Public Land & Resources Law Review, 169.
Souder, W. (1998, May 9). In Minnesota, a Bitter Feud Over Tribal Rights, Fishing Rites. The Washington Post. Retrieved December 15, 2018, from http://www.highbeam.com/doc/1P2-656457.html?refid=easy_hf
Stawicki, E. (1999, March 24). MPR: Supreme Court Upholds Mille Lacs Treaty Rights. Retrieved December 15, 2018, from http://news.minnesota.publicradio.org/features/199903/24_stawickie_treaty/
Steffes, M. (2014). Implications for the Mille Lacs Lake Fishery with Continued Enforcement of the 1837 Treaty of St. Peters. Hamline Journal of Public Law & Policy, 35, 367.