"Indian Understanding" Judge Murphy Was Wrong!
by Joe Fellegy
One of the key issues in Phase I of the Mille Lacs treaty case was that of "Indian understanding." Despite no Mille Lacs-specific evidence to support her decision, Judge Diana Murphy ruled that the Mille Lacs Band understood that it retained fishing, hunting, and gathering rights in the ceded territory independent of state control.
Some points about Indian understanding:
· Throughout the trial, no body of evidence, not a single document, was introduced to indicate that the Mille Lacs Band understood it retained fishing, hunting, and gathering rights in the 12-county area ceded to the United States in the Treaty of 1837.
· The printed record from the 1837 period as it relates to "understanding" is almost non-existent. We do know that treaty-making was not new to the Ojibwe at this time; Mille Lacs Band leaders had been traveling to the Indian agency at Fort Snelling to transact business for 18 years; thousands of people were present at the 1837 Treaty signing, including a cosmopolitan mix of Ojibwe, Dakota, and other Indians, government agents, missionaries, traders, trappers, and others many of them multilingual. Nobody neither expert witnesses nor Judge Murphy can say for sure what the Mille Lacs Band definitely understood in 1837.
· The Ojibwe, who possessed no written language, placed con-siderable importance on oratory and oral tradition. As the decades unfolded, Mille Lacs Band leaders articulated their rights understandings very precisely and in many arenas from the minutes of the Rice Commission negotiations in 1889 to the pages of frontier newspapers, from the halls of Congress to the chambers of the United States Supreme Court. Nowhere in this extensive record is there any indication that 1837 Treaty "rights" to hunt, fish, and gather in the large ceded territory outside state control was ever a concern of the Mille Lacs Band. This, despite the old chiefs' brilliant use of prominent and sym-pathetic advocates who possessed expertise and influence in legal and political circles.
· From the mid-1890s to the present through a century of active enforcement of state game and fish laws the Mille Lacs Band did not challenge Minnesota's regulatory authority in the off-reservation ceded territory. The Band's own history book, Against the tide of American History: The Story of the Mille Lacs Anishinabe, published in 1985, highlighted no 1837 Treaty rights cause in the Mille Lacs Band because there was none. Contrary to wishful thinking and blind "rights" advocacy, there has been no historic fight or struggle by the Mille Lacs Band for 1837 treaty rights. It is purely a political "cause" of the 1980s and 1990s, orchestrated and pro-moted by interests having little or nothing to do with the heart, soul, and history of the Mille Lacs Band.
Through years of research, expert witnesses at trial produced no evidence that the Mille Lacs Band understood that it retained harvest rights outside of state control in millions of acres of ceded territory. Nevertheless, confirming pretrial cautions about "bias" by the court, Judge Murphy made her decision!