State-tribal gambling talks unlikely to include treaty fishing by Joe Fellegy

Editor’s note: The following commentary was first published in the Oct. 22, 2004 Outdoor News.

Politicians and state government people don’t mention it. Nor do editors of mainline newspapers. But Minnesota anglers frequently chatter about how state/tribal gambling discussions might produce a magical agreement that would evaporate the impacts and costs of treaty-related natural resource harvests and management.

Similar dreamy thinking popped up several years ago while state and tribal leaders in Wisconsin revisited that state’s gaming compacts when they came up for review. Hope recently came alive as Gov. Tim Pawlenty called for a state share of tribal gaming proceeds in Minnesota, where willing officials often get sucked into “forever” deals by savvy tribal representatives.

One fishing-gambling deal some envision touches Mille Lacs and the broader 1837 ceded territory. There, taxpayers fund tribal “co-management” activities to the tune of millions, especially through the Great Lakes Indian Fish & Wildlife Commission (GLIFWC) and through individual tribal DNRs. The Minnesota DNR and other government units spend additional large sums and countless hours of personnel time on “adjusting” to the separate tribal harvests and co-management. Costs to local economies, restricted angler harvests, ultra-scrutinizing of the Mille Lacs fishery, public relations debacles, and harm to the social fabric are all part of the 1837 “treaty rights” equation.

A little review

The “1837 ceded territory” refers to the millions of acres of present east-central Minnesota and northern Wisconsin that were ceded, or sold, by the Chippewa to the United States via the 1837 Treaty. That treaty was mainly a land transaction. But Article V, a kind of sweetener, allowed the Chippewa the “privilege” of fishing and hunting on the lands they sold “at the pleasure of the President.” Similar provisions in treaties of that era sometimes used the phrase “until needed for settlement.”

The temporary and precarious nature of this Chippewa harvest privilege is obvious. In its 5-4 ruling in the Mille Lacs case in 1999, the U. S. Supreme Court narrowly affirmed the continued existence of the Article V tribal harvest privilege. Although five justices supported tribal claims that an 1850 executive order (presidential “pleasure”) extinguishing the privilege was flawed, the high court also opined that a future president (George Bush? John Kerry?) might end it with a new presidential order.

Meanwhile, absent such a dramatic stroke of a presidential pen, Minnesota’s Mille Lacs and Fond du Lac Chippewa plus six Wisconsin bands net Mille Lacs Lake. It’s the only spawning-time walleye gill net fishery in the United States, tribal or non-tribal, midst high costs, double standards, and cultural pretenses. In this regard, remember that while federal treaty and court rulings allow separate tribal-managed harvests, their playing out — like the hows, whens, and wheres of harvest, including to net or not to net — are tribal management decisions. Fair game for the political arena, eh?

Elsewhere in Minnesota, the state has paid well over $100 million in no-end-in-sight annual payments of ransom money to other Chippewa bands. Thank “settlements” wherein the bands agree not to exercise certain treaty harvest rights (including commercial fishing at Leech Lake) that they probably wouldn’t much exercise anyway.

No hardball

Yes, anything can happen in love, war, and politics. But there’s little chance state government will play hardball on these costly resource-related issues. Even if there’s an opening, they’ll avoid it. You see, when the topic is tribal the standard principles of politics and journalism don’t apply. Rather, gospel among Minnesota media, politicians, and government personnel is that it’s naughty to question, criticize, or oppose anyone or anything tribal. So the usual rough ‘n tumble of political debate and editorial scrutiny, as well as the “public’s right to know,” go out the door.

That’s why in several years of discussing proposals for state-run gambling ventures — topics like one or more state-run casinos, state-tribal casino partnerships, rich tribes versus poor tribes, possible impacts on Indian people, and statements about tribal gaming revenues being essential for tribal well-being, etc. — we read nothing about how much non-casino revenues flow to tribal government operations (including tribal DNRs), housing, education, health care, law enforcement, social programs, nutrition, and tons more. And through all the ink and politics surrounding funding proposals and DNR’s money needs, there’s rarely a question about Minnesota dollars spent on treaty management, co-management, and “adjusting” to treaty harvests.

Tribal governments employ lobbyists from St. Paul to Washington, D. C., are huge political contributors, hire big-bucks law firms, hold more sway with media and legislators than any other group in sight, and push high-impact and big-bucks agendas. At Mille Lacs they’re the largest employer, the biggest consumer of energy, the highest campaign contributor, the most influential political force, and recipient of millions in taxpayer subsidies. Yet, shielded by “the Indians” label — innocent and flawless children of the forest — they’re treated with kid gloves.

Question anything tribal and you’re apt to be called offensive, intolerant, anti-Indian, or racist.

What politician, even an enlightened and well-spoken governor, would risk that R label? When Gov. Pawlenty’s DNR Commissioner, Gene Merriam, opined last year that, yes, he would support a new (treaty-authorized) presidential order nixing that old 1837 Chippewa harvest privilege, he was trotted out to publicly apologize! Pawlenty’s education commissioner, Sharon Pearson Yecke, took her public flogging for suggesting that little kids shouldn’t have to be taught that Columbus was guilty of genocide.

When state leaders and agency personnel interface and “partner” with tribal officials, we’re usually out of the loop anyway. Secrecy reigns. Meetings are usually closed, their contents secret. If there are issues involving state citizen interests and pocketbooks, you probably won’t hear about them.

So don’t hold your breaths waiting for a treaty fishing link to the Governor’s secret gambling pow-wows!