The beginnings of the next round of federal treaty rights litigation is brewing in northern Minnesota.
On November 1, 2015, two Leech Lake Band of Ojibwe members, Tony Morris and Randy Finn, went into the field near Blackduck, Minnesota with a goal of putting food on the table. Their sole objective was to harvest a deer, not to trigger litigation. However, they managed to do both.
As Morris and Finn dragged a dressed deer out of the woods they were met by a woman who had heard their gunshots. This was her property, she told the two band members, and they were trespassing. The confrontation led to a formal complaint filed in Beltrami County Court in January by the State of Minnesota charging both tribal members with hunting out of season. If convicted, they could receive up to a year in jail and a $3,000 fine. The tribal members argued in their defense that they were merely invoking preexisting treaty rights, which supercede state law.
“These two gentlemen are not subject to state game laws because they are Indian,” said attorney and White Earth Band of Ojibwe member Frank Bibeau. “The right to harvest that deer was never taken away by the various treaties negotiated with the United States.”
He filed for a dismissal of charges. The two Leech Lake Band members are due back in court on March 24.
The case is the latest salvo in a longstanding conflict over treaty rights. Tribal rights to natural resources in the upper Midwest were the subject of years of legal battles between the states of Wisconsin and Minnesota, and the Ojibwe of the region. The situation finally culminated in a landmark US Supreme Court ruling in 1999 affirming tribal rights to natural resources (Minnesota v. Mille Lacs Band of Chippewa). The Mille Lacs ruling affirmed the rights of tribes to go off-reservation for hunting, fishing and gathering on land that their ancestors had ceded through the 1837 Treaty with the United States.
However, Blackduck, where Morris and Finn shot their deer, is located in the 1855 Treaty Ceded Territory, a vast area just north of the lands ceded in the 1837 Treaty agreement that covers practically all of north central Minnesota, including both the White Earth and Leech Lake Reservations. Morris and Finn’s case is proceeding through the court system on a parallel track with another case involving tribal assertion of treaty rights in the 1855 Ceded Territory. Four other Ojibwe band members are challenging state requirements that they obtain permits for harvesting wild rice and fish in the 1855 Ceded Territory, according to Minnesota Public Radio.
Bibeau, who is involved in both matters, noted that though this is all starting in state court, the federal courts ultimately must resolve these disputes.
The incident is not isolated. A similar case arose last year between the State of Wyoming and three Crow tribal members.
“These treaties were between our people and the United States before Minnesota even existed,” said Bibeau. “What the State of Minnesota can’t seem to grasp is that the rights to natural resources that were affirmed through the Mille Lacs litigation for the 1837 Treaty Ceded Territory also apply to our rights in the 1855 Territory. Our people took part in both treaty sessions, and our historical understanding was that we retained the same rights under both processes. Our ownership rights to natural resources were never taken away, and therefore, remain.”