Members of several northern Minnesota Ojibwe Bands are preparing a legal challenge to reaffirm hunting, fishing and gathering rights guaranteed by their 1855 Treaty with the United States. In recent decades, tribes have overwhelmingly prevailed in similar legal challenges in the Pacific Northwest and the Great Lakes Region. However, the implications of the 1855 challenge go deeper.
“It is important that everyone understands the indigenous environmental justice focus of this challenge,” says Winona LaDuke, White Earth Ojibwe and executive director of Honor the Earth. “This landscape is threatened by two major pipeline proposals, Sandpiper and Enbridge Energy’s Line 3 Replacement, which could adversely affect the health of our people for generations. It is clear that neither the state nor these companies are going to voluntarily accept the existence of our legal rights.”
The Sandpiper and Line 3 Replacement, two of the most controversial environmental proposals in Minnesota, traverse an area of abundant and pristine lakes and rivers, and large unfragmented forests in the 1855 ceded territory, which comprises the heart of Minnesota’s iconic north woods, and includes the headwaters of the Mississippi River. A successful 1855 Treaty challenge could compel compensation to tribes for damages caused to treaty resources such as wild rice waters and wildlife habitat as a result of the Sandpiper or Line 3 projects, or projects like them.
LaDuke notes the similarities between the 1855 Treaty challenge, Minnesota’s pipeline proposals, and the recent Cherry Point victory on the Pacific coast. There, the United States Army Corps of Engineers denied an application for an aquatic land lease in the Lummi Nation’s historical territory at Cherry Point. The proposal would have established the largest coal-shipping terminal in North America, affecting waters that the Lummi have fished since time immemorial. However, the Army Corps of Engineers publicly acknowledged that the project could not be permitted due to the potential for interference with the Lummi Nation’s treaty protected fishing rights.
The 1855 Treaty challenge in Minnesota is being led by an organization called the 1855 Treaty Authority, which lists its members as the Chippewa from East Lake, Leech Lake, Mille Lacs, Sandy Lake and White Earth. Frank Bibeau, White Earth Ojibwe, who serves as executive director for the organization notes that it is modeled after other intertribal treaty commissions in the Pacific Northwest and the upper Great Lakes that assist tribal members in the implementation of off-reservation treaty rights. Tribes in the 1855 ceded territory, however, do not currently enjoy court-affirmed treaty rights to hunt, fish, and gather off-reservation.
“One of the ways we are going about changing this is we are defending individual Ojibwe tribal members in state court using treaty rights and other federal laws as a defense to state jurisdiction,” says Bibeau. “We are also deliberately advancing our treaty rights through direct challenges to state law.”
Bibeau refers to an off-reservation protest by dozens of 1855 Treaty Authority members at Hole-in-the-Day Lake near Nisswa, Minnesota, last August. Two tribal members were cited for harvesting wild rice without a permit, and two others for setting gillnets. All four entered not guilty pleas in Crow Wing County District Court in February, Minnesota Public Radio reported.
“We will ask the state court to dismiss the case,” says Bibeau. “The state does not have authority over us anyway. We plan on filing motions for declaratory judgment and injunctive relief in federal court. Federal court is where we need to be to get our rights affirmed, and by actually bringing charges against our members, the county attorney has opened that door for us.”
Tribal rights to natural resources have been the subject of years of litigation in Wisconsin and Minnesota, culminating in the landmark U.S. Supreme Court Minnesota v. Mille Lacs Band of Chippewa ruling in 1999, which established that treaties assuring tribal rights to natural resources are the supreme law of the land.
The Mille Lacs litigation involved the 1837 Treaty with the Chippewa, which specifically guaranteed continued hunting, fishing, and gathering of wild rice in the 1837 ceded territory. The Mille Lacs Court ruled that the tribes retained these rights as a form of payment. However, unlike the 1837 Treaty, no mention was made of hunting, fishing and gathering rights in the 1855 Treaty.
The absence of language granting these rights is immaterial to Joe Plumer, White Earth Band of Ojibwe attorney and enrolled member of the Leech Lake Band of Ojibwe.
“There is nothing in the 1855 Treaty that unequivocally gives up any rights to hunt, fish and gather in our ceded territory,” says Plumer. “It is well established that rights not taken away in treaties remain with the tribes.”
The doctrine Plumer refers to, termed the reserved rights doctrine, is utilized by the U.S. Supreme Court in treaty interpretation. Under this time-honored doctrine, the court interprets treaty provisions as reserving to the tribes any rights not expressly granted by them.
“The U.S. Treaty negotiators had the sophistication to attempt to negotiate all of our property rights away,” said Plumer. “A case in point is the 1855 Treaty with the Chippewa of Sault Ste. Marie, which explicitly revoked tribal fishing rights on the St. Marys River in Michigan. That treaty was signed within six months of our treaty and involved the same negotiators. They knew what it took to acquire our off-reservation property rights in the lands we ceded here in Minnesota, and they did not do that.”
A legal challenge to reassert treaty rights in the 1855 ceded territory could have been brought at the time of the Mille Lacs litigation. However, that did not occur.
“The hunting, fishing and gathering rights that were reaffirmed in the Mille Lacs litigation should be extended to the 1855 ceded territory,” says Bedonahkwaad, Mang-nindoodem, Minisinaakwaan Menominakii nindoonjabah, Dale Greene, 1855 Treaty Authority board member and enrolled member of the Minnesota Chippewa Tribe, Leech Lake Band of Ojibwe. “Our tribal governments were in turmoil at the time that [Mille Lacs] suit was filed, so we did not join. We feel we are now in a position, however, to move forward on this, and the Mille Lacs decision gives us a solid foundation to stand on.”
Greene says the 1855 Treaty Authority will advance tribal rights to natural resources a step further than has been done in the past by explicitly asserting that treaty rights are constitutionally protected property rights that cannot be taken without just compensation.
“Our people, our ancestors—the Anishinaabe' Ojibwe have always understood we had these rights ‘to live,’ ” Greene said. “They passed them down from generation to generation in the manner they understood.”
In Minnesota, the Bois Forte and Grand Portage Bands receive several million dollars from the state annually, Greene says, in return for waiving certain rights to hunt, fish and gather. A federal court decision in Wisconsin in the 1980s, Lac Courte Oreilles Band of Lake Superior Chippewa v. Wisconsin, valued those treaty rights at nearly $100 million, Greene says.
“Tribes there chose not to advance the compensation issue to the Supreme Court,” Greene says. “Of course a primary goal is to have our rights to co-manage our natural resources recognized, but we will also establish that these rights are constitutionally protected property rights, requiring compensation if they are damaged or taken from us.”
LaDuke concurs with Greene in summing up her perspective on the 1855 challenge.
“If successful, the 1855 Treaty Authority’s legal challenge will not only reestablish our rights to hunt, fish and gather, but will also provide a broadened role for tribal governments in land-use decisions, as well as a potential source of income for some of northern Minnesota’s most forcibly impoverished citizens,” she says.