Should the DNR & White Earth Band make a harvest agreement?
This past May, the Minnesota DNR and the White Earth Band of Ojibwe hosted a series of public meetings to gauge the feelings and concerns about negotiating a natural resource harvest agreement on the White Earth Indian Reservation. According to DNR press releases, the State is considering negotiating a deal similar to the one with the Leech Lake Band which allows substantial tribal harvest, and pays the Band an amount equal to 5% of the State's hunting and fishing license revenues. According to DNR regional director from Bemidji, Paul Swenson, this was not a forum to decide whether or not tribal hunting and fishing rights exist, that fact has already been established.
PERM representatives attended the meeting in St. Paul, MN on May 10, 2001. They voiced some serious concerns that need to be addressed by the State of Minnesota before entering into a complicated, expensive harvest agreement with the tribe.
The DNR believes an agreement with the Band would be better than the current situation in which there is no coordination or limitation on the activities of the White Earth Band. While this makes sense from a natural resource management perspective, the basis and extent of tribal harvest rights should be thoroughly examined and based on a solid legal footing.
The State of Minnesota does not contest the Band's right to hunt and fish outside State conservation laws. We believe recent court decisions such as South Dakota v. Yankton Sioux Tribe, 118 S.Ct. 789 (1998), Cass County v. Leech Lake Band of Chippewa, 118 S.Ct. 1904 (1998), Strate v. A-1 Contractors, 117 S.Ct. 1404 (1997) and Atkinson Trading Company v. Joe Shirley, Jr., 2001 WL 567730 (May 29, 2001) demonstrate that there is broad support at the United States Supreme Court for limiting tribal jurisdiction and rights to tribal lands.
PERM would urge the State of Minnesota to challenge the tribe on just what is "reservation" land. The above mentioned cases, all decided after the cases from the 1970s which the State says establish the Band's harvest rights, indicate that the White Earth Reservation has been greatly diminished by the sale of land into private ownership under the Nelson Act of Congress. The Band's rights extend only to tribal lands held in trust by the U.S. Government. Now is the time to argue that the reservation has been diminished!
At the very least, the State should contest the Band's rights on private property. Clearly the Supreme Court has said in Atkinson, that the tribes have no special jurisdiction on private land owned by non-band members.
At the present time, the State of Minnesota has no plans to explore these legal challenges. Officials are hesitant about contesting tribal rights and jurisdiction in light of the Mille Lacs 1837 Treaty case. It would be a big mistake to enter into a harvest agreement without first exhausting our legal options. Failure to contest these issues by entering into an agreement might for all practical purposes, mean that we have conceded forever that the Band has certain harvest rights.
Citizens concerned about this issue must demand the DNR and Attorney General establish a legal footing on which to begin negotiations that may impact state management authority, DNR budgets and citizens' constitutional rights.
PERM is in the process of drafting a letter to the Governor, Attorney General and DNR in the form of a legal brief outlining the case law, to force them to make a decision about whether or not to challenge the scope of the Band's rights. At the same time, we need everyone who lives, works, hunts or fishes in and near the White Earth Reservation to call the DNR 1-800-646-6367, and let them know that you want the State to take a new look at the legal basis for the White Earth treaty harvest negotiations.