The 'understanding' issue after 157 years: Judge ruled on scant and subjective evidence!
One of the key issues at trial was that of "understanding" - what the Indians understood about treaty rights in the ceded territory. Throughout her 133-page decision, Judge Murphy frequently stated, usually without hesitation or qualification, that "the Ojibwe" or "the Chippewa" understood this, or did not understand that. Expert witness "opinions" aside, there is no body of clear evidence from the year 1837 to demonstrate one way or the other what the Mille Lacs Band of Ojibwe specifically understood.
Instead of Mille Lacs-specific oratory and writings, the judge heard high-priced opinion of expert witnesses from Michigan and Chicago about what the generic "Ojibwe" might have understood. The judge also listened to a linguist's sometimes contentious testimony which implied that the Indians could have understood little more than nothing.
(Even if that were the case at the time of the treaty signings, strong protests would have been mounted in later years, when perceptions of past wrongs would have been brought to light very strongly, and when there could be no questions about "understanding." In fact, nothing like that ever occurred. Even the Band's own history book, Against the Tide of American History: The Story of the Mille Lacs Anishinabe (1985) makes no claims about off-reservation fishing, hunting, or gathering rights in the ceded territory. And it's not a topic in the book's oral history interviews with tribal elders.)
The 1837 treaty signing at Fort Snelling, where Mille Lacs Band members had travelled for dealings with government agents since 1820, took place in the presence of thousands of Ojibwe, halfbreeds, traders, missionaries, interpreters, and others, some of whom were both cosmopolitan and multi-lingual. Who knows what words and understandings were exchanged? Who can confidently rule on what the Mille Lacs Band leaders understood in 1837 based on the scant and subjective evidence from that period presented by the Band's witnesses?
What Mille Lacs Band chiefs said about rights
Unfortunately, despite their being on the record about rights concerns many times in the decades following 1855, the old Mille Lacs chiefs and their articulate and devoted advocates were generally passed over by the key witnesses. Surely, what these Band leaders said and didn't say should reveal what they understood about off-reservation rights, especially in this later period when they were regularly voicing "rights" concerns with plenty of prominent help.
The Ojibwe, who lacked a written language, placed considerable importance on the spoken word. Author Mark Diedrich put it this way in his book entitled Ojibwe Oratory: Great Moments in the Recorded Speech of the Chippewa, 1695-1889: "Oratorical ability was a gift well-respected among the Ojibways, as it was the principle means of formulating public opinion and consensus of action."
Diedrich observed that such oratory expressed "how the Ojibways felt, reacted, and responded at particular points in time, demonstrating as no history book can, their character, beliefs, and attitudes on the great issues of their lives."
The same might be said about the body of speeches, letters, and petitions by Mille Lacs Band chiefs and by those they selected to help articulate their views. Obviously, if the Band felt it retained fishing, hunting, and gathering privileges in the ceded territory, it would have said so - forcefully and repeatedly - in the years following 1855 and especially later in the 19th century, when competition for resources increased with white settlement, and when the state of Minnesota began enforcing its conservation laws.
The Mille Lacs Band and its allies went on record many times in articulating rights concerns, dealing with matters ranging from the harvesting of pine timber on the reservation to the impacts of logging dams; from annuity payment issues to questions of reservation boundaries.
The chiefs went to Taylors Falls to check on land patents; they'd go to Princeton to use the telegraph; they made trips to St. Paul and to Washington for purposes of conveying their rights understandings; they sent numerous letters and petitions to government at all levels voicing their grievances. The Mille Lacs Band met in councils with government commissions in the 1880s, lobbied for legislation at the turn of the century, and later carried rights causes to the Supreme Court, the U. S. Court of Claims, and the Indian Claims Commission.
Not a traditional "rights" cause!
Surely a key to ascertaining the Mille Lacs Band's "understanding" of rights lies in the Mille Lacs-specific letters, petitions, council minutes, speech summaries, media statements, and other sources where the Mille Lacs Band leaders and their allies are amply on record about their "rights" concerns.
This historian conducted such a review. I gained much respect for chiefs Shaw-bosh-kung, Mazomonie, Wah-we-yea-cumig, Mi-gi-zi, and others, who despite language and cultural differences, were able to forge effective political alliances with powerful people for the very purpose of conveying their "understanding" on issues important to them.
There is no indication, through a century and a half of Mille Lacs-specific Ojibwe oratory and writings, nor in the speeches and writings of the Band's prominent advocates and legal advisors, that the Mille Lacs Band leaders understood they retained fishing, hunting, and gathering rights in the large area of east-central Minnesota ceded in 1837.
Moreover, the history of the Mille Lacs Band contains no 1837 treaty rights "cause," and no 1837 treaty rights "fight." This is not a historic, "sacred," or traditional rights concern of the Mille Lacs Band. Rather, in the pre-casino 1980s - that's 1980s - the treaty of 1837 popped up as a potential source of revenue and power for the tribal government. Consequently the lawsuit was orchestrated. While lucrative Indian gaming has since intervened, somebody decided to push the costly and divisive lawsuit anyway.
People who believe the present 1837 treaty rights cause of the Mille Lacs Band leadership flows from some historic or "sacred" rights fight of the Band have been severely misled!