The Bud Grant Report
Sports Men and Women Encouraged by Recent Court Decisions
Tribal Claims to Sovereignty and Special Rights Off-Reservation are Being Defeated Nationwide
Those opposed to tribal claims of special rights off reservation have strong, valid and correct arguments that are prevailing in federal courts, including the U.S. Supreme Court. You wouldn't think so from what you typically read in the newspaper or hear from our government officials. But let's take a look at what's really been happening in our federal courts. These recent court decisions may have a decisive impact on the final outcome of the Mille Lacs Band and Fond du Lac Band's lawsuits against the State of Minnesota, in which the bands claim the right to hunt, fish and gather off the reservation without the constraint of state conservation regulations. While Judge Murphy ruled in favor of the Mille Lacs Band in Phase I of the court case, the defense team, which includes the State, Counties and Landowners, will appeal the decision after Phase II of the trial in September 1996.
No matter who wins in the 8th Circuit Court of Appeals, the case will likely be appealed again to the U.S. Supreme Court, where -- contrary to what's often reported -- recent decisions are almost always against Tribal claims. Between 1986 and 1990, tribal interests won in the Supreme Court only 20% of the time, and since 1990 tribal claims have prevailed in only 14% of the cases (Robert N. Clinton in the 1995 Connecticut Law Review).
Recent Court Decisions
December 26, 1995, U.S. 10th Circuit Court of Appeals, Crow Tribe v. Repsis
The court ruled that the right to hunt on public lands of the United States granted to the Crow Tribe in their 1868 treaty ended when Wyoming became a state in 1890, ruling that the treaty right was "temporary and precarious," and not binding on the state. The court held that tribal members must abide by Wyoming's game laws and regulations when they are hunting, fishing or gathering off reservation land, including non-reservation land within reservation boundaries.
The 10th Circuit Court based its decision on the 1896 Supreme Court decision in Ward v. Race Horse. In that case, the Supreme Court said that the fact of state jurisdiction to regulate the taking of fish and game, and the notion of Indian special rights on the same land "are irreconcilable, in the sense that the two, under no reasonable hypothesis, can be construed as co-existing."
The Crow Tribe had claimed in their lawsuit against the state of Wyoming that the treaties entered into between the Tribe and the United States in 1851 and 1868 guaranteed, in perpetuity, the unrestricted right to hunt and fish on public land in violation of Wyoming's later enacted conservation laws. The Mille Lacs Band and Fond du Lac Band's claims currently going through federal courts in Minnesota are very similar to the Crow Tribe's claims.
Tribes residing in Montana, Colorado, Idaho, South Dakota and Utah are bound by this decision, and must abide by all state conservation regulations when hunting, fishing and gathering off the reservation in these states. Tenth Circuit decisions are not directly binding to the 8th Circuit which governs Minnesota, but because the Crow Tribe is appealing this case to the Supreme Court, it could end up having a precedent-setting impact on the Mille Lacs Band and Fond du Lac Band's cases here if the U.S. Supreme Court upholds the 10th Circuit's ruling.
February 15, 1995, U.S. 8th Circuit Court of Appeals, State of South Dakota v. the United States Department of Interior (known as "The Lower Brule Decision")
The court ruled that the Department of Interior's authority to take land and put it in "trust" for Indians is unconstitutional because Congress did not establish guidelines for how and why land could be taken. The court said that the 1934 Indian Reorganization Act gave the Secretary of Interior unrestricted power to acquire land from private citizens, with no safeguards, limits, principles or standards that would constrain that power, except to say that the acquisition must be "for Indians." The court stated that this delegation of authority was "unconstitutionally broad," and that it created "an agency fiefdom...[of] un-restrained power."
When land is placed "in trust" it is owned by the federal government for the use of Indians, is taken out of state and local legal jurisdiction, cannot be taxed, and cannot be purchased by anyone except another Indian tribe unless specially approved by Congress. This decision says that the Secretary of Interior had no right to take land and put it in trust for tribes under the Indian Reorganization Act, and so places in doubt the status of all Indian land acquired after 1934. Indian newspapers are reporting that because of this decision, there is an unofficial "freeze" on all transfers of land into trust status across the entire nation. What will now happen to the status of millions of acres of land put in trust since 1934 is yet to be seen.
June 14, 1995, U.S. Supreme Court, Oklahoma Tax Commission v. Chickasaw Nation
This case determined that the 1830 and 1837 Treaty of Dancing Rabbit Creek with the Chactaw and Chickasaw tribes does not apply off the reservation. The Supreme Court said that the Treaty applies only to person and property within reservation limits. The issue in this case was state authority to tax the income of tribal members who live off the reservation but work for tribal enterprises on the reservation. "We do not read the treaty as conferring supersovereign authority to interfere with another jurisdiction's sovereign right...." In other words, when tribal members are off the reservation, they are subject to state and local laws.
1991, U.S. 9th Circuit Court of Appeals, Shoshone v. Molini
The Shoshone Tribe sued the Nevada Department of Wildlife claiming that state conservation regulations interfered with Shoshone ab-original and treaty rights to hunt and fish. The court ruled that the Shoshone gave up any claim to off-reservation land and treaty rights in 1962 when the Tribe accepted $26 million from the Indian Claims Commission. The Court of Claims and Indian Claims Commission was created by Congress in 1946 to hear grievances from Indian tribes and settle those grievances, with finality, by providing lump sum payments. The Minnesota Chippewa Tribe, which includes the Mille Lacs Band and Fond du Lac Band, also accepted Indian Claims Commission payments in 1974 of $9.02 million as final settlement for all 1837 treaty grievances.
1985, U.S. Supreme Court, Oregon Department of Fish and Wildlife v. Klamath Indian Tribe
The court ruled that tribal members must abide by state conservation regulations when hunting or fishing on ceded lands, ruling that when the Klamath Tribe agreed in 1901 to give up certain lands that had formerly been a part of their reservation, they also gave up special rights to hunt and fish on those lands. The Mille Lacs Band and Fond du Lac Band are also claiming in their lawsuits the right to hunt, fish and gather outside of state conservation regulations on land they ceded to the United States.
Judge Randall Challenges Sovereignty
In addition to federal courts, state courts are also raising questions about sovereignty and separate laws for Indians. Most notably, Judge R.A. (Jim) Randall of the Minnesota Court of Appeals wrote a long, easy-to-read and interesting dissent on February 13, 1996 regarding the case of Cohen v. Little Six, Inc. (Mystic Lake Casino), in which the Casino claims it cannot be sued in state court, only tribal court. Judge Randall -- who is a long-time advocate for Indian culture and causes, and believes America has historically treated Tribes with injustice and condescension -- lambastes the concept of Tribal sovereign nation status. He links the advocating of Indian sovereignty to the old slavery and segregation laws of Dred Scott v. Sandford (1856) and Plessy v. Ferguson (1896), which established in law the "separate but equal" policies that had kept Blacks segregated and oppressed for centuries. In his dissent, Judge Randall says, "Why here, are we tolerating segregating out the American Indians by race and allowing them to maintain a parallel court system and further, subjecting non-Indians to it? To me, this is red apartheid."
Regarding treaty rights, Randall writes, "The final word on treaties is best expressed by the United States Supreme Court in Lone Wolf v. Hitchcock (1903), when it states that when all is said and done, Congress has complete power over Indian tribal property and Congress can abrogate the provisions of an Indian treaty at any time." To read all of Judge Randall's dissent, get a copy of the March 1, 1996 issue of Native American Press/Ojibwe News (612-851-0010 or 218-751-1655). They published Randall's entire dissent, and it's worth reading!
State's Commitment is Questionable
Amazingly, our state officials appear half-hearted in their efforts to fight the Mille Lacs Band and Fond du Lac Band's claims. If it were not for a ground-swell of citizen opposition, an out-of-court settlement between the State and the Mille Lacs Band likely would have passed in the 1993 Legislature. This settlement (which was not a "compromise" because it would have given the Band more than they could ever win in court) would have, among other things, established race-based fishing zones on Mille Lacs where non-Indians could be prohibited from fishing, allowed commercial harvest of fish, game and other natural resources with no state oversight, created an apartheid system of conservation laws in which different laws would have applied to different races on the same land, given the Band approximately $10 million (annual interest on this money alone pays for the state's legal defense in the court case), given the Band 7,500 acres of unspecified land, and expanded the Mille Lacs Band's reservation from 3,800 acres to 61,000 acres. If the settlement would have passed, entire townships and thousands of property owners would have found themselves living on reservation land, subject to tribal jurisdiction under a governmental system in which they have no right to vote because of their race.
Government By and For the People
This is the settlement our Governor, Attorney General, Department of Natural Resources, Speaker of the House, Senate Majority Leader, and leaders of both political parties all wanted for the citizens of Minnesota! Yet, even with all these powerful backers, the settlement was defeated because of loud and clear citizen opposition. According to well-known fisherman and former State representative Brad Stanius, this was the first time in recent memory that a piece of legislation supported by every power broker at the capitol was defeated because the people demanded it. We still can insist that our government be by and for the people.
Large Area is Under
Mille Lacs has been carefully managed by our State DNR, using sportfishing license fees, to become not only the state's most popular and productive sportfishing lake, but also the largest producer of walleye in the entire nation, besides the Great Lakes. And it's not just Mille Lacs that's at stake. The area on which the Mille Lacs Band claims to have the right to hunt, fish and gather outside of State conservation laws encompasses millions of acres in 12 counties, hundreds of miles of rivers and streams, and hundreds of lakes, including Mille Lacs. The Fond du Lac Band's lawsuit against Minnesota claims rights to the public resources in the same area as the Mille Lacs Band, plus the state's Arrowhead region. And if we allow the Bands to prevail in court, other tribal claims to other large areas of the State will certainly follow.
The Mille Lacs Band has approximately 2,800 enrolled members, and the Fond du Lac Band has approximately 3,200 members. Half of these Bands' membership (a total of 3,000 Band members) live on their respective reservations. By comparison, approximately one million people, or one quarter of the state's population, live in the area currently under treaty claim. Approximately half of the State's population, or two million people, go fishing each year, and over 200,000 out-of-state tourists buy a fishing license.
No Historic Basis for Claims
The Mille Lacs Band and Fond du Lac Band's lawsuits against the citizens of Minnesota is a political and economic cause of the 1980s and 1990s, presented under the guise of a cultural, traditional and historic cause. There is much evidence to suggest that the Mille Lacs Band has historically understood, accepted and agreed that hunting, fishing and gathering on land ceded in the 1837 treaty must conform to State conservation regulations. In court the Mille Lacs Band provided no evidence of any kind to the contrary. Mille Lacs Band members, leaders and advocates -- in 150 years of writing, telegraphing and personally bringing grievances to the attention of the State and U.S. governments -- have never complained about abiding by State conservation codes off the reservation. Until now. With the prospect of special access to the public's resources for commercial harvest, the Bands espouse a false traditional, cultural and historic cause. Gillnetting is a fishing method used to take large quantities of fish quickly and indiscriminately for commercial operations. It is not a traditional or cultural Indian method of fishing.
Commercial Taking of
The Mille Lacs Band leadership, while initially claiming they only wanted "a few dozen fish" for ceremonial use, and later arguing that commercial provisions in their lawsuit were only "symbolic," now finally admit the true motivation for this lawsuit. Band leaders openly state that they intend to take tens of thousands of fish a year from public waters to sell commercially, as well as hunt and gather other resources outside of State conservation regulations for commercial sale. And despite safeguards the State is trying to work out with Band leaders in Phase II of the court case, in actuality the State would have no authority over the Band's taking of public resources, if the Band prevails in court.
If any other entity -- say a corporation, for example -- were trying to get the special rights over public land and resources that these Chippewa Bands are trying to get, the press scrutiny and criticism would be tremendous. But in Minnesota's "politically correct" climate, much of the media in this State promotes the Bands' claims without any skepticism or questioning.
And in fact, if commercial fishing operates in the same way that the Mille Lacs Band casinos have, large corporate interests and a few tribal officials will be the only ones who benefit, while Band members will receive virtually nothing. Consider that Lyle Berman and two of his partners, the non-Indian businessmen behind Grand Casino's Inc., recently sold part of their original stock in the casinos for an estimated $59.2 million (according to recent newspaper reports), while individual Mille Lacs Band members, of which there are only 2,800, get $500 a year from casino profits! This is an example of how non-Indians use Indian sovereignty and immunity for their own financial gain. And these treaty rights claims would be another example. Commercial taking of fish by tribal governments would mean the public's resources are taken, outside of State jurisdiction or control, and sold to corporate interests with immunity. This is not a lawsuit intended to benefit Mille Lacs Band citizenry.
To help envision the tremendous impact these Tribal lawsuits could have on this State, consider that sportfishing generates ten times the economic activity as commercial taking of fish. The Red Lake area in northeastern Minnesota, where the Red Lake Band of Chippewa have been netting fish for decades, has the highest unemployment of any region of the State -- 65% unemployment on the reservation, and 24% in Clearwater County. Properly managed for sportfishing, the Red Lakes area could be one of the state's economic strongholds. And another example -- after non-Indian netting was stopped in Lake of Woods in 1983, economic activity in that area quickly doubled and continues to grow, largely due to a resurgence in sportfishing tourism.
If the Mille Lacs and Fond du Lac Bands' claims are allowed to prevail in court, the effect would be devastating to the natural resources, sport hunting and fishing, property rights, property values, local and State economies, and a way of life that has flourished in the area for over one hundred years. So this battle over access to the State's public resources is not "just a fight over a few fish," as some State media have portrayed. In fact, these land and resource claims are quite possibly the biggest challenge this State has ever faced.
We at Proper Economic Resource Management (PERM) and the Hunting and Angling Club believe all Minnesota citizens should have equal access to the State's natural resources, regardless of race. State conservation codes currently apply to all citizens equally. An apartheid system of government, in which different laws apply to different races on the same land, is unacceptable. If the Band is allowed to prevail in court, activities that would place a non-Indian in jail would be allowed when done by a tribal member. It's unconscionable that our State officials want to establish an apartheid system of conservation regulations, and have seemed eager to do so.
Citizens' Concerns Represented
The Mille Lacs Band lawsuit is already a landmark case because it is the first treaty rights lawsuit in which landowners have intervened as full parties. The Landowners represent the interests of many Minnesota citizens, and are raising legal issues and arguments separate from the State's defenses, including the Indian Claims Commission argument which prevailed in the U.S. Supreme Court regarding the Shoshone tribe, the statehood argument which prevailed in the 10th Circuit decision against the Crow Tribe, and potential impacts of the Band's claimed rights on the regional economy, property rights, and property values. Legal history and recent court decisions prove that we can win using these legal defenses. Because of the Landowners, the Defendants have a good chance of winning this case even if the State lacks resolve and commitment.
Citizens Providing Support
In order to win, the Landowners must get continued, on-going financial support from concerned citizens. The Landowners are financially supported primarily through the fundraising efforts of PERM, which holds fundraising dinners and events throughout the year. We anticipate needing a total of $1.5 million dollars over the next three years to pay expert witnesses, attorney fees, and researchers as we defend citizens' interests against the Bands' claims all the way to the U.S. Supreme Court. PERM, a non-profit organization, has raised over $320,000 for the Landowners, and needs $300,000 more this year. PERM is entirely volunteer, and only 4% of contributions goes to pay administrative costs. Supporting PERM is a sound investment in Minnesota's future.
To become involved or for more information, contact Mark Rotz, PERM President, 9193 Parrish Avenue, Elk River, MN 55330, (612) 441-6869.