Mille Lacs & Fond du Lac status...

Editor’s note: On April 12, 2001, PERM sent a letter to the Minnesota Attorney General’s Office for a status report on the Mille Lacs 1837 Treaty as well as the Fond du Lac 1854 Treaty lawsuits.

With regard to the Mille Lacs issue, we are nearing the end of the five-year phase-in period that the State of Minnesota and the Ojibwe Bands negotiated as part of Phase II of the litigation. We assume that new negotiations will be underway soon that will affect harvest levels and allocation of fish between tribal members and the rest of Minnesota citizens. We asked the AG’s Office to advise us of the status of any negotiations and we made it clear that PERM, through the Landowners who are part of the litigation, wish to be involved.

As for the Fond du Lac litigation, we cited recent media reports regarding the State of Minnesota’s position on appealing the District Court ruling that affirmed the Ojibwe treaty harvest rights in the Arrowhead Region of Minnesota. We asked the State to advise us whether or not they have decided to appeal when the Phase II portion of this ongoing lawsuit is finalized.

In addition, we informed the State of Minnesota that PERM, through the Landowners who are parties to the lawsuit, would like to be informed of the status of any Phase II negotiations between the State and the Ojibwe, and that we desire to be involved in any negotiations to protect our interests.

Finally, we asked the AG’s Office if the State planned to pursue any Phase II legal defenses that could significantly lower the impact of tribal treaty harvest such as the “moderate standard of living” defense, which basically means that the Ojibwe must establish an economic need to harvest a significant portion of public natural resources beyond those needed for religious or cultural purposes.

On August 23, 2001, our attorney received the following letter from the Minnesota Attorney General’s office. As you will see, the State of Minnesota does not really want us involved with any discussions they may have with the Bands. They have no intentions of pursuing any legal challenges to the level of tribal harvest, and ultimately, what ever agreement they reach with the bands is what they will ask the Courts to accept. Remember, this is how the current management plan at Mille Lacs was formed. The Courts did not make the current mess at Mille Lacs. As the AG’s Office states in the following letter, they will reach a consensus with the Bands and ask the Court to approve it. It is, and will be, the State’s and the Bands’ management plan, not the Court’s. This is why it is so critical that we let our State officials know right away, before new negotiations begin, that they must stand up for the interest of all Minnesota citizens.

State of Minnesota

August 23, 2001

Re: 1837 Treaty Conservation Code and 1854 Treaty Litigation

Dear Mr. Thompson,

This is in response to your letter to Ken Peterson of this office regarding the status of the above-referenced matters. As you may recall, I have provided counsel to the Department of Natural resources during the agency’s implementation of the Stipulated Agreement resulting from Phase II of the Mille Lacs litigation, and Steve Masten and I are currently handling Phase II of the Fond du Lac matter. Please feel free to contact either of us directly if any future questions arise.

Addressing first the 1837 Treaty Conservation Code and the Bands’ new fisheries management plan, it is anticipated that the Bands will submit their proposed plan late this year for the Department’s review and comment. The bands and the Department will then discuss the plan at their February 2002 Fisheries Technical Committee meeting. At this meeting, the Bands and the Department will attempt to work out any disagreements they may have over the proposed plan. Any unresolvable disagreement would be subject to the dispute resolution process set forth in Protocol No.1 of the Mille Lacs Stipulated Agreement. Unless and until legal disputes arise, there are no plans at this time for the Attorney General’s Office to be involved in these discussions.

As you are aware from the original Mille Lacs litigation, the Department’s position has been and continues to be that only the state government and the tribal governments have the legal authority and responsibility to regulate the harvest of natural resources in the 1837 ceded territory. However, the Department does intend to involve members of the public, including the landowners you represented in the litigation, during the process of discussions over the new management plan. Specifically, the department anticipates hosting public information meetings as well as making other efforts to obtain input from the public.

With respect to the ongoing Fond du Lac litigation, contrary to recent media reports, the State has not yet made a decision with regard to appeal. With Phase II of the litigation yet to be completed, it is too early to make such a decision.

Regarding any upcoming negotiations between the Department and the Fond du Lac Band, since the landowners you represent are separate parties, you are certainly welcome to provide input on any stipulations or protocols that may be developed. We have not yet scheduled any face-to-face negotiations, but we will inform you when the first such meeting is scheduled and invite you to attend. The Department also plans to continue to work with members of the public to discuss options as it proceeds through Phase II of the litigation. Ultimately however, as was the case in the Mille Lacs litigation, it is the Department’s position that if the State and the Band are able to reach consensus on Phase II issues, the Department will ask the Court to accept the resolution.

The Department anticipates that much of the discussion in Phase II will be between the State’s and the Band’s biologists and technical people and will not focus on arguing the legal merits of the case. I would ask that if your clients are planning to hire biologists or other experts to participate in these discussions, you let me know as soon as possible so that the Department can include them at the earliest possible time.

If you would like to discuss this matter further, please do not hesitate to give me a call.

David P. Iverson
Assistant Attorney General