Proper Economic Resource Management NEWSLETTER
Vol. 3, No. 1 MAR/APR 08

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Murky legal basis for special rights on Red Lake

Division goes far beyond lake’s waters

  With the perspective of 28 years, retired game warden Greg Spaulding gave first-hand insights into the troublesome issues surrounding Red Lake. He spoke at PERM’s Annual Metro Area Fundraiser at Blainbrook.

  Spaulding’s position is that Red Lake is on an equal footing with every other Minnesota lake, a natural resource that belongs to every citizen of Minnesota. He believes in the rule of law, and that treaties have a rightful place under this principle. He found that most people, including most Indians, are unfamiliar with the actual content of any treaties.

  Most treaties were about buying land, the last one being signed in 1869. Treaties  for Red Lake were signed in 1863 and 1864. Red Lake is different in that the tribe did not vote for Public Law 280, giving the state criminal jurisdiction within their reservation.

  He noted the irony of Red Lake tribal members voting for Minnesota legislators who make laws that can never be enforced on the Red Lake reservation. They have their own election rules when voting in state elections. Their voter participation rates can be double that of the general non-tribal population.

  After he was assigned to the Red lake area in 1980, Spaulding encountered extensive violations of conservation laws. At one point, he was responsible for 25 percent of all over-limit arrests in the state.

  Questions about jurisdiction sometimes hindered his ability to enforce the law. In those cases, DNR officials asked him to find ways of doing his job that wouldn’t bring attention to the state’s legal relationship with the Red Lake tribe.

  Spaulding shook his head describing the indifference of the Attorney General’s office toward his concerns. It didn’t matter that they came from a law enforcement employee of the state. He was clearly frustrated by the brush-off he got. If legal counsel for his own employer wouldn’t respond to his concerns, who would?

  In 1987, he started to do research on his own. His early efforts with county attorneys helped preserve the independence of four townships from tribal jurisdiction. He also helped head off a plan by the state of Minnesota to pay the White Earth tribe $1.2 million a year, in perpetuity, to end the practice of selling “descendent” cards to non-tribal anglers to fish on the reservation.

  After the tribal seizure of an airplane in 2002, he stepped up his efforts. He, and researcher Neil Illis, then pulled together a trove of documents backing the assertion of state ownership of all Red Lake waters. These can be accessed at equalrightsforall.org. He also mentioned a resource on treaties, Kappler’s Indian Affairs: Laws and Treaties, found at digital.library.okstate.edu/kappler.

  Spaulding found that people around reservations really want these issues to come to the public’s attention. They want them addressed, not ignored. “Go get them,” he would often hear regarding his efforts to enforce the law.

  But who should be most concerned when it comes to these issues, such as ownership of Red Lake waters? Spaulding’s answer: “It’s your issue as a Minnesota citizen!”

  He encouraged PERM members to get the word out, get others involved, support organizations like PERM and CERA, and write to the Governor and legislators. He said to thank the legislators who support PERM’s mission, especially those present: Rep.s Sondra Erickson, Rob Eastlund Tom Hackbarth, and Ron Shimanski.

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Sunshine or shade?

How much does your government let you know?

  Rep. Sondra Erickson has introduced HF 3432, to make meetings between the Dept. of Natural Resources, Ojibwe tribes, and the Great Lakes Indian Fish and Wildlife Commission subject to open meeting law. Co-authors include Rep.s Tom Hackbarth, Ron Shimanski, and Rob Eastlund.

  In 1983, a federal court decision affirmed off-reservation hunting and fishing rights in territories ceded under the Chippewa treaties. GLIFWC was formed in 1984 to help bridge the rift leading to the 1983 decision.

  Comprised of 11 tribal governments in three states, GLIFWC’s purpose is to educate the public, assist member tribes to protect and enhance treaty rights, and to provide cooperative management of these resources.
  If the millions of taxpayer dollars being spent on the “cooperative management” can be considered “public business,” then the DNR-GLIFWC meetings should be subject to Minnesota’s Open Meeting Law. Response to HR 3432 will be one measure of how the state represents its citizens.

  PERM members can speak up on behalf of HF 3432. As Charles Krauthammer puts it, “Everyone knows the First Amendment protects freedom of religion, speech, press, and assembly. How many remember that, in addition, the First Amendment protects a fifth freedom — to lobby? … the right ‘to petition the Government for a redress of grievances.’”

  It is the role of lawmakers to make sure laws are fairly enforced. And citizens have a constitutional right to remind them.

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Five-Gun Raffle Winners!

Congratulations to the following lucky winners of PERM Legal Fund Raffle!
Savage 243 Winchester     Tom Mrosla                   Royalton
Tikka T3                            Sarah Pfingsten            Brainerd
Benelli Nova                       Floyd Ondracek             Hutchinson
Marlin 60                           Dewayne Eberhardt      Richmond, WI
Remington 597                  Bobby Keene                 Minneapolis
Outdoor Art Prints              Joe Ward                       Minneapolis

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Sportsmen to Save Minnesota – Sold Out
Fundraiser and Banquet
Rice Area Sportsmen’s Club
Friday, April 25
Henry’s Banquet Center, Foley

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Spring Rally
MLERF — PERM
Joint Fundraiser and Informational Meeting
Sunday, April 27th
Noon at Wahkon Inn

Live Auction Raffles Silent Auctions Live Music — Edgar Lee and Friends
Chicken and Rib Dinner — $12 (Includes Dessert) — Starts at 12 noon

Informational Meeting — Starts right after dinner
Guest Speaker — Craig Engwall, N.E. MN DNR Regional Director

Get the information you need to know Save Minnesota!
Information or to make donations Call 320-983-5357 or 320-676-1129

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Mille Lacs: Don’t blame high court or ‘the Indians’

By Joe Fellegy (First published in Outdoor News, February 9, 2008. © Outdoor News, Reprinted with permission.)

  Recent news about the Mille Lacs walleye population and the annual state-tribal agreement on a “safe allowable” walleye harvest have prompted interest and chatter about the workings of treaty fisheries management. Expect more media commentary, too, especially since Dennis Anderson’s breakthrough column in last Friday’s Star Tribune.

  Breakthrough? Yes. While Outdoor News readers get news and opinion about treaty management at Mille Lacs, the broader media have offered little commentary questioning the beast. Anderson’s column may help legitimize long-overdue scrutiny of the whole works and its costs. He admirably pointed to the double standards involved. For example, while everything else is down (walleye population down, overall allowable walleye harvest for ’08 down, sport fishing allocation down), the tribal walleye declaration goes up. He also cited the tribal spawning-time gillnetting, economic impacts, and how the release of tons of walleyes forced by treaty management may be counterproductive. He properly called the whole kaboodle a “mess.”

  Anyway, with a 2008 Mille Lacs safe allowable angling harvest lower than in ’07, and with last season’s dramatic July 9 emergency slot-tightening still in mind, there’s plenty of curiosity and speculation about the approach DNR managers will take in setting the coming season’s walleye rules. How restrictive will they be? We’ll know soon.

  Meanwhile, if you’re into a new game of post-Super Bowl Mille Lacs Watch, consider a few notes to guide you through various facts and fictions.

  • A NO-WIN DEAL Perhaps the biggest negative of the treaty fisheries management system is that it places Mille Lacs in a perpetual no-win hot seat. If there’s a fast bite, the fishing is “too good” (DNR’s spin last July), anglers might “exceed” something, and there’s a crisis. (Where else is good fishing a crisis?) Every wiggle of the statistical needle is forced into the management mix, and into the public relations arena as well. Mille Lacs news lurches from safe harvest levels to reg changes; from tribal harvest declarations to “dead fish” from regulation-forced angler release; from how close the Indian bands and sport anglers are towards their respective fish allocations to the latest Mille Lacs “study.” It never ends.

  • NO 50-50 COURT RULING Watch out for misstatements about what federal courts ordered and didn’t order. Contrary to Anderson’s assertion, neither the Supreme Court (1999)—nor other courts—ever ruled that “eight Chippewa (Ojibwe) bands reserved the right to half the game and fish over a wide swath of east central Minnesota in an 1837 treaty they signed with the federal government.” That’s not in the treaty. Also, Phase I of the Mille Lacs lawsuit, the case that rose through the courts, dealt with “rights”—whether or not the Chippewa retained an 1837 treaty fishing, hunting, and gathering privilege—not with dividing fish and game. Phase II of the case, sometimes called the allocation phase, dealt with resource management, harvests, how state and tribal sides must collaborate, etc. Even there, in Judge Michael Davis’s Phase II opinion, there was no final resource allocation, let alone a 50-50 split. Judge Davis (1997, p. 72): “The court will not make any allocation determination of resources at this time because there has been no showing of a need for allocation.” Rather, the state and bands were to reach “consensus” on annual harvestable surplus determinations, according to various protocols “stipulated” (agreed to) by the parties.

  • DNR’S ROLE In the mid-1990s, DNR and Attorney General’s Office personnel agreed to protocols governing treaty management. These folks, not the Supreme Court or other courts, caved in on 50-50 splits of Mille Lacs pike, perch, tullibee, and maybe other species—ill-advised precedent perhaps—but not on walleyes. Nevertheless, beware. DNR Fisheries personnel too often run cover for the Chippewa walleye declarations (like 122,000 pounds, or 61 tons, this year), by suggesting things like, “You know, they could declare up to 50 percent!” Really? Says whom?

NETTING NOT COURT-ORDERED

No court ordered a single spawning-time gill net in Mille Lacs. While the eight 1837 treaty Chippewa bands retain a privilege to run a fishery apart from the state’s, it is tribal politicos who determined harvest methods. It was tribal and state bureaucrats and lawyers who stipulated to the madness. You see, Minnesota could authorize citizen walleye harvests by gill net, dynamite, 100 tip-ups, or 500 hooks, with bag limits of 25 or 50 walleyes per fisherman. But our cultural norms and conservation values preclude such extremism. Well-funded tribal DNRs and the political Great Lakes Indian Fish & Wildlife Commission (GLIFWC), cogs in the broader Indian Industry, make the “tribal” decisions and do much of the so-called tribal fishing. “The Indians,” the rank and file, had no say in launching the original lawsuit and never pushed for it. Participation in the political subsistence net fishery by tribal enrollees is proportionately low.

NO TO ‘AGREEMENTS’

For now, I’d dismiss Dennis Anderson’s suggestion that the state consider some Leech Lake-style agreement (ransom payments) to end the Mille Lacs mess. More on why that’s a bad idea later...

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PERM 2008 Legal Fund Gun Raffle
Winners’ Drawing September 8, 2008

ENTER TO WIN! And support PERM’s Legal Defense Fund to
ensure equal protection of the law regarding land and managing natural resources for the benefit of all citizens.

Browning       Tikka       Mossberg       Winchester       Remington

$5      PERM LEGAL FUND RAFFLE      $5

1.    BROWNING BPS CAMO 12 GA
2.    TIKKA T-3 WALNUT 30-06
3.    MOSSBERG MDL 702 22 CAL
4.    SNAKE CHARMER 410
5.    WINCHESTER MDL 70 300 WIN MAG
6.    REMINGTOM MDL 597 22 CAL
7.    TRADITIONS PURSUIT 50 CAL MUZZLELOADER
8.    MOSSBERG MDL 702 22 CAL
9.    1 SET OF PERM PRINTS (unframed)

Drawing will be held on September 8, 2008
8:30 pm at the Cinema Professional Building, 657 Main St., Elk River
Need not be present to win.

Call for Tickets! 763-360-3777

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