Why We Oppose Tribal Hunting and Fishing Claims

Letter to the Minneapolis Star Tribune: WHY WE OPPOSE TRIBAL HUNTING AND FISHING CLAIMS

We are writing to respond to the Star Tribune Editorial entitled “Tribal Wrongs – Disastrous Lawsuit Continues Apace” published February 8, 1997. Predictably, this newspaper, which supported the claim of the Mille Lacs Band from the outset, laments the failure of the state and the Band to settle the case in 1993. With full awareness of the power of language, the editorial denigrates the motivation and reasoning of the landowners and others who oppose the tribal claims by dismissing them as “misguided” and “ignorant.”

One questions why this newspaper resorts to name calling when those who oppose the tribal claims raised monies voluntarily through a genuine grassroots effort in order to be heard in the legal forum rather than pursuing protests at boat landings which produced the racial tensions that tore apart Northern Wisconsin. Our society has created the courtroom as the appropriate place to allow concerned people to disagree.

Serious issues underlie the claims of the landowners, counties and the state. Those issues have largely been unexplored by the media, but provide support for the positions taken by the landowners. These issues impact public policy issues as well as the lives of both Band members as well as non-Indians. While it is true that the Bands have prevailed on most issues in the district court, one must bear in mind that the district court would not even allow the landowners to intervene in either the Mille Lacs or Fond Du Lac cases. In both cases, the district court was reversed by the Eighth Circuit Court of Appeals which believed that the landowners’ claims and issues were serious enough to allow them to be parties to the lawsuit. We are behind at half-time, but the appeals process, and hence the game, isn’t over.

Those who opposed the tribal claims recognized that they could become easy targets to be tarred with the brush of racism by those who believe that anyone opposing treaty claims is wrong. Accordingly, a deliberate decision was made to proceed through the proper channels, both legislative and judicial, which is both the right of citizens and the hallmark of thoughtful opposition.

Far reaching public policy, resource ownership and management, and economic consequences, as well as legal issues, are at stake. A remarkable level of voluntary support belies the attempts by the media to point to “ignorance” (as the code word for racism) as the motivating factor behind the claims advanced by the landowners. The Minnesotans who oppose the treaty claims would oppose a claim to allocate a substantial percentage of our natural resources to only a small fraction of the population, under special rules, with competing regulation by Minnesota and another government on the same land or water, regardless of race. Since when is advocating equal access under the same rules for all “ignorant”?

Remember, this is a claim by various tribal governments, not a claim on behalf of Indians as a people. Under two different rulings by the U.S. District Courts, the Red Lake Ojibwa (one of Minnesota’s largest Bands) cannot hunt and fish outside of tribal lands except under state law, but a Mille Lacs Band member who is 3/4 European ancestry and 1/4 Mille Lacs Ojibwa can hunt and fish without regard to state laws outside of tribal lands. Both are citizens of Minnesota and the United States. The district court has determined that tribal membership, not blood quantum, is the determining factor. Based on trends with other tribes, the percentage of Mille Lacs Ojibwa ancestry required to be a Band member will further diminish in the future. Did anyone intend that the treaty of 1837 would give special hunting and fishing privileges to those whose ancestry is predominately European, African or Asian? This will occur under the district court’s decision. Having two sets of rules, for two sets of citizens, due to their racial heritage, is contrary to our democratic tradition, and a core principal of our Constitution – equal treatment under the law.

One of the landowners who intervened in the Mille Lacs suit is part Indian. One of the former attorneys for the counties and one of the attorneys for the landowners are both married to women with Native American ancestry. I made my career in sports, an industry at the forefront of integration and the destruction of racial barriers. While I cannot vouch for the motivations of all who oppose the treaty claims, neither racism nor ignorance motivates my opposition nor that of most Minnesotans who support us. There is a grave danger that the treaty claims are an important vehicle to transfer vast amounts of our natural resources from state control to tribal control, where those resources will be susceptible to exploitation by large corporations whose motivation is not preserving the traditional ways of the Ojibwa.

If “ignorance” was not intended by the editorial as the code word for racism, then an examination of the issues that this newspaper has not explored in depth will refute the claim that we are uninformed.

MYTHS AND REALITY

Without question, the peoples and cultures native to the North American continent suffered greatly from the European/American migration and conquest (both economic and military) of this land. The American Indians were inevitably overwhelmed by millions of immigrants of an agricultural/industrial culture that would someday become the strongest nation in the world. And while change was inevitable, native people suffered cultural destruction as well as the ravages of disease, dislocation, prejudice, and war.

The history of the world is replete with the suffering, loss of life, destruction and assimilation that are attendant to economic and military conquest. We can lament the actions of our ancestors, but we must also acknowledge the advances in science, medicine, democracy and living standards which resulted from the new systems and institutions that were created.

No one alive today is responsible for these historical processes, yet we can all be said to be the heirs and beneficiaries. If we are going to provide redress for the wrongs or errors of the past, all of us should bear the burden: not just those persons living, working, hunting or fishing in the 1837 Treaty ceded territory; not by ignoring the plain language of treaties to assuage our guilt; not by giving tribal governments regulatory authority on lands sold long ago and, until now, subject to regulation by the State of Minnesota; and not by making the people who own land and businesses dependent on the hunting and fishing industry pay for the mistakes of the United State government.

Quite naturally, great sympathy lies with native people who signed treaties that promised to last “as long as the grass grows and the sun shines”. Fact: No U.S. Government Treaty ever gave this promise. Fact: The Mille Lacs Band in 1837 sold the lands in question, retaining only a privilege (not a right) to hunt, fish and gather wild rice “during the pleasure of the president.” President Zachary Taylor specifically revoked that privilege by Executive Order in 1850, and that order has never been rescinded by a subsequent president. The continuing validity of President Taylor’s revocation was affirmed by President Franklin Roosevelt in a 1938 letter to the Ojibwa.

Nevertheless, isn’t the Mille Lacs Band merely seeking to hunt and fish the lands and waters in and around Lake Mille Lacs like their ancestors have for Millennia? Fact: The first people that the Europeans explorers Hennepin, Du Luth and Le Sueur encountered living on the shores of Lake Mille Lacs were Dakota, not Ojibwa. The Ojibwa drove the Dakota from the shores of Lake Mille Lacs in the 1750’s by dropping gun powder bombs (obtained from the French) through the smoke hole openings of the Dakota wigwams. The Dakota fled south, never to return. By the time this lawsuit was filed in 1990, the lands around Lake Mille Lacs had been owned by the United States and European settlers longer than the Mille Lacs Band had resided at Lake Mille Lacs before they sold the lands in 1837.

Nor should we look at history through the rose colored glasses of our modern comforts. Both the Dakota and Ojibwa fought frequent battles, invading each other’s hunting grounds and villages, killing and carrying off captives. The Ojibwa were feared and respected for their war-like prowess. The early Minnesota author, William W. Warren, a man who was part Ojibwa and part European, traced the origin of the name Ojibwa to its meaning “to roast until puckered up.” This name, according to the author, arose from the practice of the Ojibwa of torturing their captives with fire. An early goal of U.S. Indian policy in Minnesota was to separate the Dakota and Ojibwa geographically to eliminate the conflicts. We must recognize that Minnesota, and all its peoples, were very different 160 years ago. The treaty issues need to be resolved according to their plain language; we cannot return the Bands to an idyllic life that never was by ignoring the provisions of the treaties.

Whether or not we now view them as misguided zealots or caring advocates, the missionaries and many others who supported the Ojibwa recognized that cultural changes were inevitable and saw that the preservation of the Indian peoples lay in getting them to “give up the chase,” settle in one place, become educated, adopt agricultural ways for food and support and ultimately become assimilated into Christianity and American society. This sentiment, coupled with the desire of the Mille Lacs Band to remain in Minnesota and the change in federal Indian policy from moving the Indians ever westward to establishing reservations, resulted in the 1855 Treaty establishing the Mille Lacs reservation.

LEGAL ISSUES

The 1837 Treaty territory covers a large part of Northern Wisconsin and extends like a finger from the east into the center of Minnesota, ending at the Mississippi river. The 1837 Treaty negotiations were a colorful affair with negotiators from the United States meeting over nine days with the negotiators representing several Ojibwa Bands. The tribal negotiators were not alone, but were accompanied by a large contingent of tribal members, missionaries and traders encamped across the river from Fort Snelling. Indicative of their knowledge and experience in treaty matters, the Ojibwa first offered to lease the land to the United States, but the U.S. insisted upon a sale. After several meetings, plus intensive discussions for days between the meetings in which the Bands and their allies caucused to discuss the issues, merits and strategy, the treaty was signed.

The 1837 Treaty sold the lands to the United States. The Bands were guaranteed the privilege to hunt, fish and gather wild rice during the pleasure of the president. The language “during the pleasure of” has been interpreted by the United States Supreme Court to mean revocable at will. Consistent with this interpretation, we believe that President Taylor’s order, regardless of his reasons, effectively revoked the privilege in 1850. If President Taylor acted improperly, as the Bands claim and which we dispute, the proper remedy was a claim against the United States. Waiting a century and a half to raise this claim against persons who blamelessly bought land and built homes and businesses under the belief that the treaty privilege no longer existed is fundamentally unfair.

In 1855, in exchange for the Mille Lacs reservation, the Mille Lacs Band ceded all right, title and interest in and to all lands in Minnesota. In the Red Lake case, decided in U.S. District Court of Minnesota by Judge Devitt in 1980, and affirmed by the Eighth Circuit Court of Appeals, similar language was interpreted to extinguish all hunting and fishing claims. This same result was reached by the United States Supreme Court in the Klamath Indian case in 1985, which reversed the lower courts, and held that this broad treaty language when selling land extinguishes any special hunting and fishing rights.

Not only were the hunting and fishing privileges gone under either the 1850 Order or the 1855 Treaty, but also in 1889 under the Nelson Act. This act established the White Earth Reservation, where the Mille Lacs Band was to move (and a large number did), and contained this same broad language extinguishing hunting and fishing rights on lands in Minnesota. Henry Rice, a chief negotiator for the United States, and a negotiator on behalf of Indians in other treaty negotiations, explained to the Bands that while they could hunt and fish off the reservations, they must follow state laws when they did so.

In 1946, the United States Congress, seeking to bring closure to all tribal treaty claims once and for all, established the Indian Claims Commission. The Bands had until 1951 (later extended into the 1970’s) to file their claims or lose them. Bands that were parties to the 1837 Treaty filed ICC claims, including hunting and fishing claims. While the Bands ultimately pursued, and received, payments based on the value of the lands for timber, since that was the highest and best use and hence yielded the most dollars, this payment also included payment for hunting and fishing claims of these lands. The United States Supreme Court has held that if you receive payment for lands, and there is no deduction for retained hunting and fishing rights, then it is presumed that those rights were part of the payment received.

There are four ways in which the treaty privilege was fundamentally and conclusively sold, extinguished, released or settled: The 1850 executive order of President Taylor; the 1855 Treaty; the Nelson Act; and the Indian Claims Commission. There are numerous other defenses, but these four basic defenses establish why the 1837 Treaty has fundamentally been altered over the past century and a half.

The landowners also Counterclaimed against the United States, alleging that they received land transferred by government patent which was warranted to include all rights and privileges. Furthermore, if the U.S. Government violated the treaties, as the Bands allege, this damaged the value of the lands and businesses of the landowners, and the U.S. Government should bear this burden, not the innocent purchasers of land in the 1837 treaty area.

Other defenses exist including claims that:

A.The Bands cannot even bring a lawsuit against the State of Minnesota under the 11th Amendment to the United States Constitution;

B.The harm from treaty privilege exercise far outweighs the benefits to the Bands and therefore, if the privilege still exists, Bands should only be able to use the privilege for ceremonial or religious purposes;

C.When the land in Minnesota was surveyed and sold, the 1837 Treaty privilege was extinguished;

D.If the treaty privilege still exists, it became subject to regulation by Minnesota when it became a state in 1858; and

E.Even if the privilege still exists, having obtained a moderate living from casino revenues and other sources, the Bands can no longer exercise the privilege.

This case also differs in three important respects from the earlier Wisconsin case. In the Wisconsin case, the only historical commentary came from a version of events from the late 1800’s recorded by Benjamin Armstrong (who was married to a tribal leader’s daughter), whose accounts have been rejected as biased and not credible by serious historical scholars. Second, the Wisconsin tribes signed the 1854, not the 1855 Treaty, which differs in important respects. Third, the Wisconsin case was decided in 1983, two years before the important U.S. Supreme Court’s decision in Klamath. A recent decision by Judge Crabb in the Menominee case, dismissing a treaty claim in Wisconsin, adopts the landowners’ defense that the plain language of the treaty controls.

INDIAN WAYS AND PUBLIC POLICY

Mille Lacs Band members testified in Phase I of the proceedings that commercialization of the natural resources was contrary to Indian ways. The Band government still sought commercial “rights”, and the media never reported this difference between the Band’s agenda and the testimony of the Mille Lacs elders. Commercialization was rejected by Band elders as contrary to Indian ways, yet it was pushed by the Band government and allowed by the district court.

Public policy issues abound. Ultimately, continuing conflict and prejudice is foreseeable when we give two governments competing regulatory control over the same land and water area and grant to one group of citizens the ability to hunt and fish on the same lands and waters under a much different set of rules. This nation has grown in strength from its diversity, and has been successful in making progress against the worst impulses of prejudice, when it adheres to the principle of equal rights.

Who controls our natural resources, and their use, is ultimately at stake. Don’t we prefer that those resources are subject to state control, with constitutional protections, under a political system in which all can and do participate, rather than under the control of Band governments and tribal courts? Wasn’t the 1837 Treaty privilege designed to assure that the Indians, landless and non-citizens after signing the treaty in 1837, would be allowed an equal ability to hunt and fish with the Whites?

Public safety remains a serious concern of the landowners. We all recognize the dangers inherent in hunting deer with high powered rifles. In order to minimize these dangers, the firearms hunting season for Minnesota deer hunters is very short (either two weekends or nine days in most places), and hunters are easily seen and identifiable by non-hunters by blaze orange clothing. The Bands objected to being required to identify themselves when deer hunting with blaze orange clothing (except during the state hunting season), apparently because they feared becoming targets. Unfortunately, the Bands’ deer hunting season stretches from September through the end of the year. This means that tribal members will be hunting with full foliage on the trees, and during times that it is foreseeable that non-hunters will be in the woods and children will be at school bus stops. There is no reason to believe that Band members will not exercise the same caution hunting as non-Band hunters, but human beings make mistakes. It is a virtual certainty that the first Band member who is charged with injury or damage to persons or property while hunting or fishing under the 1837 Treaty privilege will claim immunity because he was carrying out an activity guaranteed to the tribal government which claims sovereign immunity.

WHY WE OPPOSED THE SETTLEMENT

It is naive in the extreme to believe that if the State of Minnesota had settled with the Mille Lacs Band that the six Wisconsin Bands would not have asserted the same hunting and fishing privileges in Minnesota and the Fond Du Lac Band would not have filed its claims under the 1837 Treaty. After the settlement between the Wisconsin Bands and the State of Wisconsin, Mille Lacs Band members were allowed to hunt and fish in Wisconsin without ever bringing their lawsuit. The Fond Du Lac Band had entered into a prior settlement with the State of Minnesota for hunting and fishing rights in the area north of Lake Mille Lacs, but kept the option to change its mind and back out of the settlement. When Fond Du Lac opted out of its earlier settlement, it asserted its claims under the 1837 Treaty in a separate lawsuit. To believe that the settlement with the Mille Lacs Band would have been all that was required with all of these Bands simply ignores what has occurred and is occurring.

Having settled with the Mille Lacs Band, the State of Minnesota would have been in an impossible position to claim that it didn’t have to give rights to the other Bands. Indeed, as part of the settlement, the State of Minnesota would have acknowledged the existence of the 1837 Treaty privilege. While technical language in the settlement agreement allowed the state to preserve its defenses against other Bands, the practical reality is that acknowledgment of the treaty privilege as to one Band would have made the state more vulnerable to the claims by other Bands.

The proposed settlement gave the Mille Lacs Band exclusive rights to net and spear 4.5% of Lake Mille Lacs, netting and spearing on several smaller lakes, and up to 50% of the harvestable resources elsewhere. Multiply these figures by eight Bands, and this equals 36% of the Mille Lacs harvest, and spearing and netting on virtually all of the 40 some walleye lakes in the 1837 ceded territory. The court’s decision so far allows the Bands to harvest up to 22% of the walleye.

An important part of the agenda of the Mille Lacs Band in the settlement in 1993 was obtaining recognition of the original boundaries of the 1855 reservation. The original 1855 reservation was substantially diminished by the 1863 Treaty, and was subsequently totally eliminated by the Nelson Act in 1889 and 1890. It was not until the 1920’s and 30’s that the United States bought some parcels of land and put them in trust for the Mille Lacs Band. Technically, the Mille Lacs Band does not have a reservation, but it does have some trust lands.

The importance of reservation recognition for the Mille Lacs Band cannot be understated. First, by having the state as well as the federal government recognize the original boundaries of the 1855 Reservation, the Band would have a 61,000 acre reservation that stretched across the entire south end of Lake Mille Lacs. The Band could have then asserted additional hunting and fishing privileges based on the existence of the reservation. With the reservation would come a potential claim that they had authority as a government to control those areas. For example, the Mille Lacs Band could have claimed the right to collect sales tax and property tax from Izaty’s resort, which was in the original, but long since relinquished, 1855 reservation. The lawsuit does not address the reservation boundaries issue.

Under the settlement, the Mille Lacs Band was given an exclusive zone in which it alone could fish in Lake Mille Lacs. This meant that any other Bands filing 1837 Treaty claims would have to fish the rest of Lake Mille Lacs. The settlement precluded any non-Band members from fishing the exclusive zone except by passing through the Mille Lacs Band access point and obtaining Band permission. While an exception was created for those landowners who had lake property in the portion of the lake that was exclusive to the Mille Lacs Band, the language of the settlement did not allow a lake shore owner to fish with his friends in the exclusive area, or even pass through it.

The settlement allowed the Band to exercise the treaty privilege on private or non-public lands, meaning that they could hunt on private lands outside of state regulations if they got permission of the landowner. This was specifically denied by the district court in its decision, substantially reducing the area available to tribal hunting.

Without question, some of the provisions of the proposed Settlement were better for the state than the decisions reached by the district court, but some were worse. Since the settlement did not resolve issues against all other Bands, no one can state that ultimately settlement would have been better than the current state of affairs in litigation, even if it ended now. The settlement did prevent the courts, at the trial and appellate level, from deciding whether or not these privileges exist and whether or not they can be exercised.

CONCLUSION

I assure you that the Bands have responsive arguments to all of these issues. The point, however, is that there are serious issues that merit thoughtful consideration, and the ultimate judicial outcome is not yet known. We should not assume that a treaty claim made on behalf of a Band government is correct, nor should we assume that a claim made on behalf of those who hunt and fish in Minnesota’s great outdoors is wrong or ignorant. We do not oppose hunting and fishing by the Band members for religious and ceremonial purposes, for that is a right protected by a United State statute separate and apart from the 1837 privilege. We must not succumb, however, to the belief that enjoyment and appreciation of nature, or one’s harmony with nature, is dependent on one’s race or culture.

As Henry David Thoreau observed in Walden:

“The wildness and adventure that are in fishing still recommended it to me. I like sometimes to take rank hold on life and spend my day more as the animals do. Perhaps I have owed to this employment and to hunting, when quite young, my closest acquaintance with Nature. They early introduce us to and detain us in scenery with which otherwise, at that age, we should have little acquaintance. Fishermen, hunters, wood-choppers, and others, spending their lives in the fields and woods, in a peculiar sense a part of Nature themselves, are often in a more favorable mood for observing her, in the intervals of their pursuits, than philosophers or poets even, who approach her with expectation. She is not afraid to exhibit herself to them.”

Every human being in Minnesota has a right, and a need, to establish a connection to the natural world. The 1837 Treaty granted only a temporary privilege to the Ojibwa that is not only gone, but outdated and unnecessary. Providing equal access for all is a far better policy for the generations that follow us. This is important in a world increasingly separated from the outdoors. What Thoreau observed in Walden in 1850 is even more true today: “In wildness is the preservation of the world.”

Sincerely,

BUD GRANT

For the members of Proper Economic Resource Management