Replay of Mille Lacs 1837 Treaty case would go far beyond ‘harvest
Chippewa tribal members have announced they will challenge state wild rice harvest licensing laws. They plan a major off-reservation harvesting event on Aug. 27. They are hoping for a test case that can be brought to federal court to affirm their claims regarding the 1855 treaty’s coverage.
Behind the scene is a much larger concept, that of “usufructuary property rights.” Joe Fellegy first described this strategy in an Outdoor News article, which PERM discussed in its August Member Update newsletter, ‘Co-management’ land-grab? Move to expand 1855 treaty rights to include property rights
The treaty rights expansion effort springs from attorney Peter Erlinder’s analysis of treaties going back to 1795. These treaties, … “are likely to be sources of as yet unrecognized Anishinabe usufructuary property rights in the 21st Century.”
He also refers to “sources of a deeper understanding of as yet undeveloped Anishinabe usufructuary property rights…”
These usufructuary property rights [somehow] include “the right to modest living.” Which then requires “environmental protection to maintain the long-term value of the usufructuary property rights…”
Erlinder continues, “This, in turn, will have land-use management implications far beyond wildlife harvest, and promises a broadened role for tribal governments in land use decisions that might impact the harvest of wild game, fishing or gathering.” State of Minnesota v. Mille Lacs Band of Chippewa Indians, Ten Years On
LaRose echo’s Erlinder’s description, saying his group’s concerns go beyond ricing, fishing and hunting. “If the group can establish off-reservation rights in those areas, it can more forcefully assert management or regulatory rights on larger environmental issues such as the burying of oil pipelines or the relaxation of mining-related sulfate standards for wild rice.”
Besides pipelines and mining, “environmental issues” could easily include water usage policies, agriculture, sanitation, as well as protected flora and fauna. And the list could go on.
Instead of treaty harvest of Mille Lacs walleye, picture the DNR handling a “co-management” relationship with the EPA.
The case for no expansion
The Supreme Court’s ruling in the Mille Lacs1837 Treaty case concluded the Chippewa did not give up their 1837 rights under the 1855 treaty. But the 1855 treaty doesn’t specifically mention hunting, fishing and gathering as retained rights.
In a specific instance, one state judge ruled that the 1855 treaty “does not forbid creation of new rights of way on the land that was sold in 1855,” and that the treaty couldn’t be used to stop the pipeline. Wild rice harvest will test treaty rights
Finally, on July 27, 1965, the Indian Claims Commission awarded the Chippewa, including the Mille Lacs Band, $3.93 million for insufficient payment under the 1855 Treaty. As in all ICC cases, the Chippewa were forever barred from making future claims against the Federal government.