Treaty harvest raises questions of whose laws apply, which courts have jurisdiction
By Julie Shortridge
In talking with band members, non-band members state DNR and federal law enforcement staff, it is evident that there is a lot of confusion about exactly how to implement different laws for different groups of people on the same land.
"It's an evolving process," said Bruce Hall, conservation officer in Isle, MN with the state Department of Natural Resources (DNR). "We represent different factions of people with different rights. We want to keep the peace and we want everyone to have their rights," Hall continued. "Would it be easier if we had the same laws for all people? Of course. But that decision has been made by people in higher positions than us."
"We feel the U.S. Supreme Court decision does not include commercial sale of Minnesota fish," said Hall.
But some of the Wisconsin band members would like to implement a commercial harvest and open a fish processing plant. The Mille Lacs Band has stated they are not interested in a commercial harvest, although tribal DNR Commissioner Don Wedll has suggested in recent years that a commercial harvest is open for future consideration, linking such a decision to the state's effort or non-effort to open its own casino or modify the tribal gambling compacts
Several area residents have reported witnessing, or being approached by tribal members to buy fish caught by tribal harvest. "Sales are going on, for sure," said Hall, who says that Wedll has expressed concern that such sales could create a community backlash leading to casino boycotts.
Whose laws apply, and who has authority to implement those laws?
Exactly who has authority to enforce laws, and which laws apply to which group of people, is unclear. The issues are coming to the fore around the investigation of three fish dumping incidences near Mille Lacs.
According to Hall, the state and tribal DNRs are investigating three instances of illegally dumped fish, all of which occurred on the west side of Mille Lacs Lake in late April. The Mille Lacs Band has a designated area to dump fish carcasses, which was not used in these dumping incidences.
"We have suspects, and action may be taken soon," said Hall, who patrols the east side of the lake. Hall said the charges would likely be littering and wanton waste of a resource because the fish were "legally caught by Native American harvest, but illegally or inappropriately disposed of."
The fish were dumped in bulk along Hwy. 169 visible from the road, apparently with the intent of taunting non-Indians in the area. Two of the dumping areas were on trust land. A total of approximately 280 fish carcasses, primarily walleye, were dumped in three locations. One site included about 60 whole fish. "It looks like they just got tired of cleaning fish," said Hall.
When this reporter asked Hall what the fine might be for such a violation, Hall responded, "Well, that depends on who's laws apply and which court has jurisdiction. The fine differs from state court to the eight different tribal courts." This reporter asked, "Wasn't the Band Code established under federal court order supposed to bring all of the bands under one code?" Hall responded, "That's what we thought, but it appears to be breaking apart."
Hall isn't the only one to notice the divisions and factionalization that is occurring since the U.S. Supreme Court decision in March stating that eight Chippewa bands in Minnesota and Wisconsin retain a privilege under an 1837 treaty to hunt, fish and gather in east central Minnesota without having to abide by state conservation regulations. Others have contacted this newspaper with similar observations.
There appears to be four factions: the Wisconsin bands headed by the Great Lakes Indian Fish and Wildlife Commission (GLIFWC), the Mille Lacs Band, the Fond du Lac Band, and the State. "The federal government is no where to be seen even though they are the ones that caused this situation to exist," said Hall.
Another faction is members of the non-federally recognized Sandy Lake and Rice Lake bands, which are under Mille Lacs Band authority and are counted by the Mille Lacs Band in its "head count" for receiving federal funds. However, members of these bands have asserted that they are not bound by Mille Lacs tribal authority, and the Mille Lacs Band has reportedly told some Sandy Lake and Rice Lake members that they do not have rights under the Mille Lacs treaty because they live outside of the 1837 treaty area.
On the other hand, Mille Lacs Band members, and Band members from the other Chippewa bands who live in the Twin Cities or other areas outside of the 1837 treaty area, are generally granted the right to hunt and fish under the treaty.
"It's up to the Mille Lacs Band to decide who qualifies and who doesn't. It comes down to who's on good graces with the Mille Lacs Band officials," said Hall. Others confirm his observation.
"Basically, when we document incidents involving tribal members, we turn it over to the band courts and we expect them to take action on it. We're not sure what will take place with this, who will have jurisdiction, and which court it will appear in," said Hall. "The state is out of it. We're trying to remain neutral," he said.
Staff at the U.S. Fish and Wildlife Service do not believe they have any authority to enforce the federal court-ordered Band Code. "We let the tribes handle violations by tribal members," said John Neal, Deputy Assistant Regional Director for Law Enforcement with the U.S. Fish and Wildlife Service's Fort Snelling office. "But if a non-Band member violated Indian tribal law, we could take it to the U.S Attorney and pursue it under the Lacey Act," said Neal.
Dick Hassinger in the Fish and Wildlife Division of the state DNR said in a phone interview that the Chippewa bands themselves have the responsibility to resolve disputes among the bands on interpretation of the Band Code. "The Management Plan is the overriding document right now," said Hassinger. "The Code fits in behind that." The Management Plan provides for a gradual increase in implementing hunting and fishing under the treaty.
Hassinger believes that a commercial harvest would not be allowed for at least another three years when the existing Management Plan expires, because it specifies that there would be no selling of fish and game. "According to the current Management Plan, the bands intend to come up with a second Plan at the end of five years, which will be in 2002," said Hassinger.
"The state can enforce the code, along with the bands, and disputes go to band court," said Hassinger. When this reporter asked Hassinger if the "band court" meant the Mille Lacs Band or one of the seven other Chippewa bands who were party to the Mille Lacs treaty case, Hassinger wasn't sure.
The appropriate people within the State Attorney General's Office, Mille Lacs Band DNR and U.S. Attorneys Office could not be reached for comment in time for publication.
Keeping the peace
Hall says that the early ice-out on the lakes and the late fishing openers of recent years, along with a good fish harvest, have minimized the conflicts. "But someday the two will cross and we'll have nets in the water and anglers at the same time. They will undoubtedly react to each other's presence," predicts Hall.
Anyone with information about hunting or fishing violations should call the DNR or Turn in Poachers (TIP) at 1-800-652-9093.