From the Chairman
MILLE LACS TREATY CASE
PERM supporters have much to be proud of...
By Mark Rotz
Proper Economic Resource Management (PERM), is a non-profit conservation club supporting the Landowners in the Mille Lacs 1837 Treaty Lawsuit.
While no amount of reasoning or explaining can diminish the pain of the March 24, 1999 United States Supreme Court ruling on the Mille Lacs 1837 Treaty case, it must be made clear that though this was not the desired outcome, we have accomplished much we can be proud of in our efforts to seek justice over the past several years. First, however, let me emphasize we all must abide by the law and respect the rights of our Chippewa neighbors.
The first question that begs to be answered is how did this happen? How did the Supreme Court reach this conclusion? Rather than put forth my personal thoughts and remarks, which may be construed by some as just sour grapes, let me quote from Chief Justice Rehnquist, who wrote one of two strong dissenting opinions. (Justice Rehnquist was joined by Justices Thomas, Scalia and Kennedy who signed on in opposition. Justice Thomas wrote an additional dissenting opinion as well. The majority opinion written by Justice O'Connor was supported by Justices Ginsberg, Stevens, Souter, and Breyer.) With regard to the 1850 Presidential Order by President Taylor, Chief Justice Rehnquist writes that the majority opinion "rests upon scattered historical evidence..." that is "...far more ambiguous that the Court admits." Referring to the Court's interpretation of the purpose of the 1850 Order he says, "... this approach to the Executive Order stands it on it's head - the order first extinguishes the hunting privilege and only then - in it's last five words - orders removal. Ho goes on to say "Rather than engage in the flawed analysis put forward by the Court, I would instead hold that the Executive Order constituted a valid revocation of the Chippewa's hunting and fishing privileges." Finally he says "In sum, there is simply no principled reason to invalidate the 150-year-old Executive Order, particularly in view of the heightened deference and wide latitude that we are required to give orders of this sort."
We argued that an 1855 Treaty ended any special privileges that may have survived the 1850 Presidential Order. Chief Justice Rehnquist has this to say. "I think this conclusion (the Court's conclusion that the 1855 Treaty was not applicable) strained, indeed." He writes, "... the definition of 'usufructuary rights' explains further why this is so. Usufructuary rights are 'a real right of limited duration on the property of another.' It seems to me that such a right would fall clearly under the sweeping language of the Treaty under any reasonable interpretation ..." Finally on this point he says "Thus, rather than applying the plain and unequivocal language of the 1855 Treaty, the Court holds that all does not in fact mean all. "
In his strong criticism of the majority on the issue of whether of not Minnesota's admission into the Union extinguished any treaty rights, Chief Justice Rehnquist puts it like this "But the Court, in a feat of jurisprudential legerdemain, effectively overrules Ward sub silentio. Without saying so, this jurisprudential bait-and-switch effectively overrules Ward , a case which we reaffirmed as recently as 1985..."
In conclusion, writing for the narrowest minority, the Chief Justice says "The Court today invalidated for no principled reason a 149-year-old Executive Order, ignores the plain meaning of a 144-year-old treaty provision, and overrules sub silentio a 103-year-old precedent of this Court. I dissent."
Many have asked in recent days, if PERM has any regrets and if the State of Minnesota should have accepted the secretly negotiated settlement made with the Mille Lacs Band in 1993. Our answer is no. While some have argued otherwise, the out of court settlement had many flaws. Settlement proponents continue to miss key facts that we believe warranted litigation. For example, few point out that the settlement required official State recognition of a long since diminished Mille Lacs Reservation, some twenty times larger than what currently exists. Settlement supporters are apt to omit the fact that we were able to prevent tribal harvest codes on private property in court. And most importantly they fail to recognize, that the 1993 settlement was with just the Mille Lacs Band. Only the naive would believe that the other bands who were party to the 1837 Treaty would not have demanded equal if not larger settlements, based on band populations, for their members. In reality take the concessions made in the settlement and multiply them by eight (the number of Chippewa Bands that joined the lawsuit) and you have the total cost of the failed agreement. That's a $10 million cash payment times eight (far more than the legal expenses of all the parties combined), 7,500 acres of unspecified public land times eight, a 6,000 acre (5%) exclusive fishing zone on Lake Mille Lacs times eight and so on. Many of these concessions like the give away of public land, or an "exclusive zone" in which only Band members would be allowed to fish, were not even at stake by choosing to litigate.
But just as importantly, by carrying this case to the legal arena, we have ensured, through the Landowners, we will have a seat at the table to fight to keep tribal harvest levels to a minimum, as issues of allocation were left unsettled by the District Court.
We can take some consolation in the fact that now even some of our critics recognize that our beliefs, our legal arguments, and our goals were not and are not without merit. We ultimately lost by the narrowest of margins. Those that would say "I told you so" surely could not have predicted such a close vote. Four out of nine United States Supreme Court Justices strongly disagree with the majority opinion, and in fact said we should have won on every argument presented! Surely they are not "wacky walleye worshippers" or "red neck sportsmen". Certainly Chief Justice Rehnquist, Justices Thomas, Scalia and Kennedy are not racists. We should be proud for having stood up for something four Supreme Court Justices believe, but more importantly, something that we believe is right. The St. Paul Pioneer Press wrote in their March 25, 1999 editorial "A spirited and impressive dissent backed the state on all counts. This suggests that the legal arguments of treaty rights opponents, while unsuccessful, were not frivolous and were skillfully litigated. At the end of a long and too often bitter dispute, all parties should find satisfaction in the seriousness with which these complex legal issues were debated."
We can be proud of the part we played in preventing the violent and racist responses to tribal rights that occurred in other parts of the Country. We responded with honor and dignity. Be assured, PERM will continue to promote thoughtful opposition to injustice, but by the same token, we have and will continue call for peace and cooperation between all citizens who have a stake in how our public natural resources are managed.
Barring Congressional action or future Presidential order, both things that the Supreme Court confirmed could end this insanity, the Mille Lacs Treaty case is now concluded except for the important effort to keep tribal harvest levels to a minimum. There are several other areas of concern that demand our attention as well. Environmental and jurisdictional conflicts in and around Indian reservations are already popping up across the State. The entire Arrowhead Region of Minnesota is still under pending off reservation hunting and fishing rights claims by the Fond Du Lac Band. The U.S. Supreme Court has not ruled on the Indian Claims Commission defense. If that argument can be successfully presented in Fond Du Lac or another case, it would overturn the 1837 Treaty case too. Make no mistake, the Federal Government and their tribal allies will continue to push their agenda to diminish state's rights and individual liberty. No other organization in the State is more knowledgeable and better equipped to deal with these issues that result in the continued balkanization of our society, threaten the Constitutional rights of states and individuals, and put sound management of our public natural resources, based on science not politics, in serious jeopardy.
PERM will fight on. We are extremely grateful to everyone who has participated in our struggle for equal hunting and fishing rights. To use an old cliche, the battle has been lost but the war is not over. Hold your heads high. You have a lot to be proud of!
For further information regarding PERM and the treaty lawsuits please call Mark Rotz (612) 441-6869. A complete copy of the Court's decision can be found on Cornel University's web site (http://supct.law.cornell.edu/supct/) or in the March 26, 1999 edition of the Native American Press/Ojibwe News. We will be happy to mail you a copy as well. Just send $10.00 to help cover printing, postage and handling.