More on the White Earth harvest agreement...

Editor’s Note: In our last issue, we outlined some of our concerns regarding items we think need to be addressed before the State of Minnesota enters into a natural resource harvest agreement with the White Earth Band of Ojibwe. Below is a letter we sent to various state officials outlining our position and the legal precedent we base our arguments on, followed by the response we received from the Minnesota Attorney General’s Office.

July 20, 2001
Stephen Masten, Esq.
Assistant Attorney General
445 Minnesota Street
Suite 900
St. Paul, MN 55101

RE: State of Minnesota/White Earth Band Negotiation of On Reservation Harvest of Natural Resources

Dear Mr. Masten:

I attended the DNR Open House on May 10, 2001 that sought to provide information to and obtain input from the public regarding the proposal to negotiate an agreement between the White Earth Band and the DNR that would govern hunting and fishing on the White Earth Reservation. Our office is counsel for PERM, and we are also counsel for the private landowners who are involved in the Fond du Lac and Mille Lacs lawsuits.

At the Open House, I received a packet of information including a two page handout that discussed litigation concerning hunting and fishing issues on the White Earth Reservation. The cases that were summarized were State v. Clark, 282 N.W. 2d 902 (Minn. 1979) and White Earth v. Alexander, 518 F.Supp. 527 (1981), aff’d, 683 F.2d 1129 (8th Cir. 1982), cert denied 459 U.S. 1070 (1982). My concern, which I expressed at the time of the Open House, was that State v. Clark and White Earth v. Alexander follow the line of reasoning that began with the decision by the United States District Court in Leech Lake Band of Chippewa Indians v. Herbst, 334 F.Supp. 101,104 (D. Minn. 1971) that found that the Leech Lake Reservation had not been disestablished. Although it had doubts regarding the correctness of its decision, the Minnesota Supreme Court in State v. Forge, 262 N.W. 2d 341,356 (Minn. 1977) followed the decision in Herbst. Herbst reasoning is clearly in error in view of subsequent Supreme Court precedent.

What is important to note is that Herbst was decided prior to the modern trend of Supreme Court decisions regarding reservation diminishment/disestablishment. This modern trend followed principles set forth in DeCoteau v. District Court for the Tenth Judicial District, 420 U.S. 425 (1975) and Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977). The modern trend that mandates a re-examination of the tribal diminishment/disestablishment, and related jurisdictional powers issues became evident with Hagen v. Utah, 510 U.S. 399 (1994) and South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998). At the same time, the Supreme Court in South Dakota v. Bourland, 508 U.S. 684 (1993), County of Yakima v. Confederated Tribes, 502 U.S. 251 (1992), Cass County v. Leech Lake Band of Chippewa, 524 U.S. 103 (1998) and Strate v. A-1 Contractors, 520 U.S. 438 (1997) evidenced a new and decisive direction by the Supreme Court which would limit the reach of tribal jurisdiction over the activities on fee owned lands. Two decisions by the Supreme Court in the latest term, Atkinson Trading Company, Inc. vs. Joe Shirley, Jr., 121 S.Ct. 1825 (May 29, 2001) and Nevada v. Hicks, 121 S.Ct. 2304 (June 25, 2001) demonstrate how far the Court has moved with regard to the issue of tribal jurisdiction. Atkinson severely curtailed tribal jurisdiction over non-member activities on fee lands, and Nevada set forth the limitations on tribal "territorial" power as well as the states’ powers and interests on reservations.

These cases raise several points that the State of Minnesota needs to address prior to deciding to enter into negotiations with the White Earth Band.

1. Should the State of Minnesota contest the tribal right to hunt and fish over lands that are not held in trust for the benefit of the White Earth Band? In part, should the State of Minnesota challenge whether the White Earth Reservation was diminished by the alienation of land pursuant to the Nelson Act, the Dawes Act, and the Burke Act? The recent decision by the Eighth Circuit Court of Appeals mandates a fresh analysis of whether the White Earth Reservation was diminished by the alienation of land pursuant to the Nelson Act, the Dawes Act, and the Burke Act. Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010 (1999), cert. denied 120 S.Ct. 2717 (2000) found that the Yankton Sioux Reservation was greatly diminished to at most a few parcels from its original scope by an allotment and sale statute and alienation process similar to the Nelson Act. Like the Yankton Sioux Reservation, the map provided at the Open House shows that the White Earth Reservation has only a small percentage of land that is owned by the band in trust. We know that the sale of the northeastern townships resulted in a diminishment of the original reservation by the sale of those townships from the decision in Minnesota Chippewa Tribe v. United States, 11 Cl. Ct. 221,227-28 (1986).

The Nelson Act was intended to accomplish two objectives. First, it established a process, by agreement with the various Chippewa bands, to cede, sell and relinquish to the United States all of the right, title and interest held by the bands in all of the Chippewa reservations in Minnesota except White Earth and Red Lake which were immediately diminished in size. Id. Supreme Court precedent and principles established over the last ten years strongly indicates that the proper conclusion is that all Chippewa reservations in Minnesota except Red Lake and White Earth were disestablished by the Nelson Act. Any contrary decisions predate the standards currently in place by the United States Supreme Court. Certainly, all of the Chippewa reservations (leaving aside for a moment Red Lake and White Earth) were at a bare minimum diminished under the rationale and findings in Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010 (1999). For example, it is the official position of the State of Minnesota that the Mille Lacs Reservation was disestablished.

With regard to White Earth, we believe that before the State enters into negotiations with the White Earth Band that would permanently recognize an on reservation hunting and fishing right that would extend over the entirety of the reservation (except as diminished for the northeast townships), the State of Minnesota should make a careful analysis as to whether recent decisions by the Eighth Circuit and the United States Supreme Court have the effect of diminishing the White Earth Reservation to those parcels of trust land currently owned on behalf of the Band. As the Supreme Court has reiterated numerous times, and most recently in Atkinson Trading Company v. Shirley, under the General Allotment Act "Congress equated alienation [of land] ‘with the dissolution of tribal affairs and jurisdiction.’ Montana, 450 U.S. at 559, n.9." Atkinson, 2001 WL 567730*5-6,n.1. Even the various federal court decisions concerning the 1837 Treaty in the Mille Lacs litigation never extended the hunting and fishing rights to privately owned fee lands.

This creates two interrelated sub-issues. First, if the White Earth Reservation was diminished to the trust parcels currently held on behalf of the Band, tribal jurisdiction over the activities of its members on the reservation is of necessity limited to those particular parcels. Second, even if the reservation was not "diminished", the process of alienation of land, in the Supreme Court’s own language, dissolves tribal affairs and jurisdiction on those lands. Either way, the State of Minnesota must carefully investigate these issues before conceding that the White Earth Band has the right to regulate hunting and fishing activities, even by its members, on fee owned lands. Fee owned lands arguably include lands owned by the State of Minnesota and the lakes and rivers, because the riverbeds and lakebeds are owned by the State of Minnesota.

2. The second legal precedent that bolsters the above arguments, and that did not exist under the cases decided in the 1970s, is the United States Supreme Court decision in Nevada v. Hicks. The Supreme Court moved decisively to eliminate or severely limit tribal jurisdiction over the activities of non-members even within the boundaries of a reservation. More importantly for this discussion, the Supreme Court in Nevada has repudiated Chief Justice Marshall’s view that the laws of the State can have no force within reservation boundaries from Worcester v. Georgia, 6 Pet. 515,561 (1832):

Ordinarily, it is now clear, an Indian reservation is considered part of the territory of the State. U.S. Dept. of Interior, Federal Indian Law 510 and n.1 (1958), citing, Utah & Northern R. Co. v. Fischer, 116 U.S. 28 (1885); see also Organized Village of Kake v. Egan, 369 U.S. 60,72 (1962).

The Supreme Court went on to hold that the state does not exercise the same degree of regulatory authority within a reservation as they do without, depending on what activity is involved. If the on-reservation activity involves only Indians, state law interests would be minimal, but the Supreme Court noted that when state interests outside the reservation are implicated, states may regulate the activities even of tribal members on tribal lands.

Clearly the White Earth Reservation is not an island. The activities inside the reservation boundaries affect the regulation of fish and game outside the reservation boundaries. Equally important, based upon discussion Number 1 above, when the activities of tribal members within the boundaries of the original White Earth Reservation are occurring on fee owned or alienated lands, the State has a heightened interest. Far from having no voice in regulating the activities of tribal members within the boundaries of the White Earth Reservation, the latest Supreme Court precedent indicates that while the State has little or no voice with regard to the activities of tribal members on trust lands, unless those activities begin affecting the interests of the State elsewhere, the State has interests that allow it to assert its jurisdiction on fee owned lands. This same principle allowed Cass County to tax the tribal owned casino land within the original Leech Lake Reservation until it was placed in trust. Cass County v. Leech Lake Band, supra.

We recognize that the positions we are asserting are contrary to positions taken by the lower federal courts twenty years ago with regard to the White Earth Reservation, and even contrary to some Minnesota Supreme Court precedents. We submit, however, that the analysis has been changed by decisions rendered by the United States Supreme Court over the past ten years, and the State of Minnesota needs to examine the current state of the law before entering into negotiations that might cede forever the regulatory power of the State within the original White Earth Reservation.

We believe that these are serious legal and scholarly issues that merit in depth examination before the State takes any further steps with regard to hunting and fishing negotiations with the White Earth Tribe.

I remain willing to meet with representatives of the State to discuss and explore these issues in depth at your convenience. Please keep us apprised of the State’s decisions in this area.

Very truly yours,

cc: Mr. Mark Rotz
657 Main Street
Suite 210
Elk River, MN 55330

cc: The Honorable Allen Garber
Department of Natural Resources
500 Lafayette Road
St. Paul, MN 55155-4001

cc: The Honorable Jesse Ventura
Governor of the State of Minnesota
130 State Capitol
75 Constitution Avenue
St. Paul, MN 55155

cc: Laurie Martinson
Field Operations Manager
Minnesota Department of Natural Resources
500 Lafayette Road
Box 34
St. Paul, MN 55155-4034

cc: Paul T. Swenson
Regional Director
Minnesota Department of Natural Resources
2115 Birchmont Beach Road N.E.
Bemidji, MN 5660l

cc: Michael Hatch, Esq.
Attorney General
State of Minnesota
102 State Capitol
75 Constitution Avenue
St. Paul, MN 55155

cc: Ken Peterson, Esq.
Deputy Attorney General
State of Minnesota
525 Park Street, Suite 200
St. Paul, MN 55103

State of Minnesota
Office of the Attorney General
September 7, 2001

Re: Natural Resource Agreement between State and White Earth Band

Dear Mr. Thompson:

This is in response to your letter dated July 20, 2001, in which you urge the Department of Natural resources to consider various legal arguments about the status of the White Earth Reservation before pursuing an agreement with the White Earth band for natural resource harvest on the reservation. You suggest that even though Minnesota and federal courts determined 20 years ago that the White earth Reservation still exists (except for the four northeastern townships), federal case law has evolved and a different result might be obtained if the matter were brought before the courts today.

We certainly appreciate your taking the time to explain your point of view. I read the Hicks and Atkinson cases when they came down earlier this year, and re-read the Yankton cases after I received your letter, and have discussed them with my colleagues. These cases do suggest that a high-water mark for Indian reservation jurisdiction may have been reached. However, as you are aware, treaty diminishment cases are highly fact-specific, and whether these recent decisions could lead to a different outcome at White Earth is speculative.

The state’s goal in any effort to reach a natural resource harvest agreement at White Earth will be to manage the natural resources properly and fairly, and balance the best interests of all citizens of the state. In doing so, we will remain mindful of your suggestions.

Very truly yours,
Stephen B. Masten
Assistant Attorney General