State concedes treaty rights for Chippewa
in Minnesota's Arrowhead region
by Larry Oaks
Last year (1999) the U.S. Supreme Court ruled that under an 1837 treaty, eight bands of Chippewa Indians still have special off-reservation hunting, fishing and gathering rights in east-central Minnesota, including on Lake Mille Lacs.
In light of that decision, the state now says it has no plans to appeal a lower court's 1996 ruling upholding similar rights for three Chippewa bands that ceded what is now Minnesota's Arrowhead country to the federal government in 1854.
A pair of private landowners involved in the 1854 case still could appeal. But the state's position appears to amount to greater official recognition that some bands retain resource-harvesting autonomy despite being subjected to state fish and game laws for most of the 20th century.
As state officials prepare for resource-allocation meetings
with the Fond du Lac Band of Chippewa, which filed the lawsuit over the 1854 treaty, officials today will begin holding public informational meetings on the issue in northeastern Minnesota.
While legally and perhaps symbolically significant, the state's position isn't likely to change markedly the way Indians and non-Indians share fish and game in the region. The three bands involved - the Fond du Lac, Grand Portage and Bois Forte - have been setting and regulating their harvests in a limited way and in cooperation with the state for more than a decade.
"There's general agreement that the status quo is working pretty well," said Ed Boggess, wildlife program manager for the Minnesota Department of Natural Resources (DNR).
Final disposition of the 1854 treaty lawsuit had been on hold pending the Supreme Court's decision on the 1837 case.
Now the state says it is ready to complete the court-mandated Phase II of the 1854 case: meeting with the Fond du Lac Band to agree on a conservation and enforcement code. "It's clear now that the rights do exist, and we need to work out the harvest regulations," said Michelle Beeman, the DNR's legislative director.
The Grand Portage and Bois Forte bands say they plan to abide by a 1988 agreement in which the state pays each about $1.5 million a year to limit their treaty harvests and refrain from most commercial harvesting.
The Fond du Lac Band, near Cloquet, Minn., pulled out of that deal and sued the state, asserting claims to hunt, fish and gather in the ceded land with no state interference except when resources or public safety are at stake.
U.S. District Judge Richard Kyle ruled in the band's favor in 1996. The band is in the unique position of being a signatory to both the 1837 and 1854 treaties.
Fond du Lac now sets its own fish and game rules, but adjusts harvest levels and bag limits in consultation with the state and the 1854 Authority, an intertribal agency that regulates the harvests by the other two bands.
While the Chippewa say the special privileges are the least the government could do to compensate them for giving up most of their homelands, many non-Indian hunters and anglers and others are troubled by the situation.
Although non-Indians generally are limited to one deer per hunter, a Fond du Lac Band member can take as many as nine, though most take three or fewer. While non-Indian anglers are limited on most lakes to six walleye, a Grand Portage or Bois Forte band member can take 12.
Because only a few hundred Chippewa from the three small bands hunt and fish, they have little impact on the total harvest of most resources. For example, last year, members of the bands killed about 300 deer, compared with about 12,000 killed by non-Indians in the 1854 treaty area.
But a small number of tribal trappers take almost 20 percent of the pine marten harvested in the state, and band hunters take a quarter to a third of the state's very limited moose harvest. The 1854 treaty area encompasses the state's best moose habitat. Last year the three bands harvested 68 moose, compared with a non-Indian harvest of 139.
Chippewa moose hunters from Grand Portage or Bois Forte are virtually assured a tribal moose permit at least every other year; most non-Indian hunters wait years for a state moose permit and can't apply again.
No changes planned
State officials say the bands probably could take more of the region's game and fish if they wishedthe court-set standard in treaty cases has been 50 percent. But Chippewa leaders say they have no plans to push for significantly increased harvest levels. Said Sonny Myers, executive director of the 1854 Authority: "Things are running smoothly, and our board of directors wants to maintain our agreement with the state. Band members have been exercising their treaty rights without hurting the resources."
Under the agreement, the two bands limit their annual moose take to 30. Last year, Fond du Lac hunters took 38, after tribal biologists consulted state biologists and the 1854 Authority, compared moose survey figures and decided on a ceiling.
Beeman said the state also wants to continue paying the Grand Portage and Bois Forte bands to limit harvests, provided Fond du Lac continues to voluntarily keeps its harvest levels low enough "so we don't lose the benefit of our bargain."
"Up to this point their harvest levels, other than moose, have been low enough where we haven't been that concerned, " she said." Moose is one of the species we expect to spend a long time talking about. Between the bands and the state, we take every moose available for harvest."
The DNR's Boggess said the state doesn't plan to ask Fond du Lac to reduce its moose take, but rather to formalize limits for the future. "Right now, what they're talking seems to be in the ballpark, but there are no formal assurances it will stay in that ballpark."
Ferdinand Martineau, Fond du Lac's natural-resources director, said he doesn't think the "actual exercising of rights will change much. For now, our intention is to not get anything less than we get right now."
Leaders of Proper Economic Resource Management, a large group of both the 1837 and 1854 hunters and fishermen who oppose reassertion of the Chippewas' harvesting privileges, say they're disappointed that the state appears reluctant to fight the 1854 case further.
The group says it will continue to support two landowners who joined the state as defendants in the case. "The landowners certainly will consider an appeal at the end of Phase II," said Randy Thompson, their Minneapolis attorney. Thompson said the Supreme Court hasn't addressed all arguments against treaty rights. He said a win in the 1854 case could raise the potential for reopening litigation in the 1837 case.
So far, the 1854 case hasn't generated nearly the heat the 1837 case did. In the 1854 area, "most people don't even notice the band members, and they're typically not using methods others don't have," Beeman said. "The flash points we saw over netting at Mille Lacs just aren't the same issue up there."
In the Arrowhead, the Chippewa are more interested in hunting than fishing, though Martineau said he can foresee band members wanting to invoke rights to limited netting and spearing on such popular lakes as Vermilion and Saganaga. "It's several years away," he said. "Our biologists need to collect more data."
Editor's note: This article appeared in the 11/13/00 edition of the Star Tribune. According to Larry Oaks, the Minnesota Department of Natural Resources was not pleased with his assertion that the State had conceded that the Fond du Lac still maintain special rights under the 1854 Treaty and that the State has no plans to appeal. According to Mr. Oaks, the DNR insists it will not make a final decision on whether or not to appeal until after Phase II of the litigation has been completed. But according to a DNR press release dated 11/2/00, the DNR said, "The 1999 U.S. Supreme Court decision in the Mille Lacs Band lawsuit, which had similar legal arguments to the Fond du Lac case, brought finality to the underlying question of whether the 1854 Treaty rights continue to exist and left only the questions of harvest regulation and allocation to be resolved in Phase II of the current case." And as Michelle Beeman of the DNR was quoted by Larry Oaks in his article, "It's clear now that the rights do exist and we need to work out harvest regulations."
So it would seem that once again the DNR is sending conflicting messages on treaty rights issues. Larry stands by his story, and he and I agree, that while the State may change it's mind, currently there are no plans to appeal the 1854 Treaty case to a higher court. This is despite the fact that the Mille Lacs decision was a narrowly lost 5-4 decision at the Supreme Court, and that one of the most prominent defenses, the Indian Claims Commission Act, was never ruled upon by the high court.
Attempts by PERM to reach Dennis Stauffer, DNR Communications Director for comment were not answered.