Bud Grant praises sportsmen, applauds
Supreme Court review of treaty case

A Commentary from Bud Grant

Like DNR Commissioner Rod Sando (recent Commentary, Outdoor News and other publications), I receive numerous inquiries about "what's happening" in the Mille Lacs 1837 Treaty case. Early on, I became prominently involved in urging the Landowners, Counties, and State to vigorously pursue a strong legal defense of Minnesota's right to be sole manager of the state's natural resources, and to make the case for equal treatment of all citizens under one set of laws.

I firmly believe in those sound principles, especially after witnessing the Wisconsin experience, and that's why I lent my name to a "Save Minnesota" fundraising effort by PERM (Proper Economic Resource Management) on behalf of the Landowners and citizen/sportsmen interests in the treaty case. Now that the U. S. Supreme Court has agreed to review lower court rulings against the state, a recognition that our case is reasoned and strong, let me share some of my thoughts.

First, all Minnesotans should be happy that in a few months the highest court in our country will pass judgement on claims that the Ojibwe still retain an old temporary treaty privilege enabling them to fish, hunt, and gather according to their own harvest codes outside state regulation. Our position is that the privilege has been legally extinguished and relinquished, and that Minnesota - not a federal judge, and not some unworkable treaty co-management process - should be in charge.

Had the Supreme Court declined to hear this case, an area covering 12 counties of east-central Minnesota - the 1837 Minnesota Ceded Territory, including Lake Mille Lacs - would have been sentenced to never-ending controversy and uncertainty, thanks to a disastrous management process with two sets of laws resulting in costly impacts on tourism and the social climate. Interested parties would have faced a lack of closure to the dispute, a future of "what ifs," a sense of unfairness, and disillusionment with our legal system.

I am glad that following the high court's decision to hear the appeal Minnesota Governor Arne Carlson voiced a position that has been ours for eight years. He said the high court's decision to hear the case "will allow the state of Minnesota to vigorously fight for state control of Lake Mille Lacs."

Commissioner Sando urges Minnesotans to read the tribal harvest Code. I suggest instead readings of the 1850 Executive Order, which revoked the 1837 harvest privilege, and of the 1855 Treaty, where tribal signers relinquished all rights, title, and interest of whatsoever nature in the 1837 Ceded Territory - some of the arguments advanced by the Landowners, Counties, and State attorneys in defense of Minnesota's interests in the case.

Over the years, some state officials have been less than forceful in advancing Minnesota's interests, even suggesting that the Code governing tribal harvest is similar to state regulations. Actually, the tribal Code dramatically differs from state regs, whether we're talking seasons (year round fishing, four months of deer hunting, etc.), harvest methods (including gill nets), or limits (tons of walleyes for a few dozen netters, ultra-liberal angling rules, etc.).

The Commissioner dismisses the tribal harvest of 30,000 pounds of Mille Lacs walleyes this spring as "minimal." I disagree. Even at this early stage of accommodating a separate tribal harvest and management role, businesses and those who participate in the fishery have been forced to pay a price - in dollars and negative atmosphere - because of unequal rules and the inevitable media scrutiny and confusion they invite. DNR's resource management has become very difficult and more costly.

State attorney Peter Tester observed recently that the treaty case raises the important issue of a state's right to manage its resources equally for all citizens. I support that right. And I agree with State attorneys who said in their recent brief to the high court that lower court rulings against the state do "considerable violence" to state sovereignty, which includes the power to manage game and fish. The brief notes that if the lower rulings stand, "Minnesota's policymaking discretion over the natural resources in its east-central region will be sharply curtailed."

The present treaty harvest program would forever tie the state's management hand. For example, in issues involving public health, public safety, and conservation, the "burden of proof" rests on the state. To challenge tribal management on issues of conservation, the state can plead a case only if a species is threatened with extinction. That is unacceptable!

The Commissioner refers to his earlier efforts at an out-of-court settlement. Many of us favored the court route and opposed that settlement because its many components (including millions of dollars, thousands of acres of land, resource division, and jurisdictional compromises - rarely laid out thoroughly for public scrutiny), would have amounted to a court victory for the Mille Lacs Band government, signed by Judge Murphy, with other bands threatening to seek similar settlements. Imagine the costs of this "forever" arrangement, not to mention the legal battles it might have spawned.

The Commissioner rightly praises Minnesota sportsmen for their sensible behavior. I applaud all those lake groups and angling leaders who emphasized peace. From day one, I have repeatedly urged that any "fight" belongs in the court room. I believe PERM and the Landowners deserve special credit for helping citizen/sportsmen focus on the legal issues in this case. PERM publications and fundraising functions have raised the level of public understanding by highlighting the efforts of Landowner attorneys and historians. I'm proud of my support, and your support, for that effort, which has come via great expense and hard work by caring and far-sighted volunteers.

Referring to the treaty case, Commissioner Sando says the State has invested "more time, money and manpower than the Counties and Landowners combined." That's a bit disingenuous, given our lack of a state treasury to draw from, and the need to raise money for legal fees through events, special promotions, and the sale of wildlife prints. Also, the state spent a considerable amount promoting the failed out-of-court settlement. The Landowners' and Counties' legal teams won the 1997 "stay" on tribal harvest (a year of peace and dollar savings), and successfully won the legal opinion that state regulations, not a tribal code, govern band harvest on millions of acres of private property.

The Landowners, funded by the volunteer efforts of PERM and generously supported by citizens and sportsmen, have been a major force in keeping Minnesota in the game. We've sometimes been vilified. Our motives have been questioned. We've endured name-calling and put-downs. But this has been an honorable grassroots effort. The issues are legitimate. We've taken the high road.

All along, our goal has been to defend citizen interests through the legal process, all the way to the top if necessary. That's where we are now, with our case before the U. S. Supreme Court. I congratulate the legal teams and those who have helped bring us this far.

The costs continue as we prepare for the big one. We need continued financial and moral support.