A decade later, Mille Lacs netting decision still angers anglers

Mille Lacs fishing
A walleye netted on Lake Mille Lacs in 2009.
MPR Photo/Ambar Espinoza

It's been more than a decade since the U.S. Supreme Court decided in favor of the Mille Lacs band of Ojibwe in a landmark hunting and fishing treaty rights case.

Some members of two other Ojibwe bands, Leech Lake and White Earth, plan to demonstrate on the shore of Lake Bemidji Friday to call attention to their claim of similar hunting and fishing rights.

Many business owners and anglers around Lake Mille Lacs are still angry over the Supreme Court decision 11 years later. Linda Eno, owner of Twin Pines resort in Garrison, Minn., about 10 miles north of the reservation, said the Supreme Court decision has devastated local businesses.

"I mean, you just have to drive around the lake and it's becoming a ghost town," she said.

Eno said 12 resorts and restaurants have gone out of business in the eight miles between Grand Casino Mille Lacs and Garrison.

"That should make me, one of the very few survivors, as busy as can be. When we took this resort over 16 years ago, the only day of the year I closed was Christmas day," Eno said. "That is how busy and successful things were around this lake."

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Now she closes two months of the year: one in the spring and one in the fall.

Other nearby business owners echoed Eno's concerns, but they didn't want to be interviewed on tape, because they say they get labeled "racist" for questioning treaty rights. These local business owners say many of their clients have boycotted the lake.

Emotions run high around tribal rights issues and it's easy for people to blame the decline of businesses on the Supreme Court's decision, said James Zorn, the executive administrator of the Great Lakes Indian Fish and Wildlife Commission, which is the agency responsible for implementing off-reservation treaty rights for 11 Ojibwe nations in Minnesota, Wisconsin and Michigan.

"When in reality," he said. "There are many reasons why the economy has changed. The tourism economy -- we've gone to many more golfers, many more bicyclists. People who just don't use the lakes for the same reasons they did 40 or 50 years ago."

In addition to economic concerns, local business owners also say they don't buy the tribal government's arguments that they need to hunt and fish to feed their families and preserve their cultural heritage. They point to the financial success of the band's casino, and how infrequently they see children and young people net.

Eno said anglers have a culture to maintain, too.

"The bottom line is there is a bigger picture underlying all of this. It's really not a fishing issue. It's an equal rights issue," she said. "You can't have two sets of rules for United States citizens living side-by-side. Nobody is going to argue that some very terrible wrongs happened in the past."

Eno said the Supreme Court decision created an unfair double standard. Eno said the amount of fish anglers can keep per person compared to the tribes' quota per person is disproportionate and unfair. She said anglers often don't reach their allocation, and tribes often do.

Yet data from the state DNR shows that in some years, anglers have exceeded their allocation.

Zorn from the Great Lakes Indian Fish and Wildlife Commission said it's difficult to compare two different systems for harvesting fish: a system that's about subsistence and allocation of fish versus another that's about sport fishing.

"It's a lot like comparing apples and oranges when the purpose is to catch fish to take home to use -- to eat -- versus well, catch a fish or two, and have some fun and go to a resort, have a nice dinner -- something like that," Zorn said. "It's kind of like two different ball games."

John Dunkley
John Dunkley, interim commissioner of the Mille Lacs Department of Natural Resources.
MPR Photo/Ambar Espinoza

John Dunkley, interim commissioner of the Mille Lacs Department of Natural Resources, said while tensions over treaty rights have always existed across the country, that doesn't change the fact that the federal government and tribes have an agreement, including the Mille Lacs treaty upheld by the Supreme Court.

"And I think that's what some of the animosity occurs in the community," Dunkley said. "People feel that somebody has more rights than somebody else. We say treaty rights, but it's a contractual obligation. Nothing more."

One of the top concerns raised by anglers and business owners after the Supreme Court decision was that the tribes would deplete the walleye population. Some of the business owners say netting during the spawning season hurts the biodiversity of the lake.

Don Pereira, fisheries research and policy manager for the Minnesota Department of Natural Resources, said it's difficult to say that only management policies created and implemented after the Supreme Court ruling have affected the health of the walleye population in Lake Mille Lacs. By some measures, the walleye population is doing better than it did in the 1980s.

"So we're seeing a greater diversity of older spawning fish in the lake and there's also a fair bit of new information emerging from the fishery science literature all over the world showing that there's good ecological value in conserving larger older fish in a population," Pereira said.

The lake has more older spawning fish because regulations require anglers to release larger fish back into the lake.

Pereira said these changes to sport fishing began to take place before the start of tribal fishing.

"What happens is some of those fish are not going to survive the act of catching and releasing. They are going to die from delayed mortality."

Pereira said research has found that some fish released after catching may not survive. The death rates of released fish are largely associated with water temperatures above 70 degrees. This is typically when most of the sport harvest occurs, generally after June in most years.

Pereira said death rates are also associated with bleeding from hook injuries. He said it's important to note that in most years, the number of total fish killed has stayed within the safe harvest levels.

"We have good estimates of those number of fish that died after release and those get factored into the state's allocation. So it's not a conservation issue," Pereira said. "It's not a level of fishing mortality that's unaccounted for in the total harvest. It is accounted for."

Netters and anglers can safely harvest 24 percent of catchable-size walleyes in Lake Mille Lacs each year. Zorn said in 1998, anglers and netters in Lake Mille Lacs could harvest up to 260,000 pounds, and this year they can harvest up to 541,000 pounds. Zorn said these figures, showing that the total annual amount of walleye tribes and anglers can harvest has increased over the years, indicate the health of the fish.

If Leech Lake and White Earth decide to pursue treaty rights in court, as Mille Lacs did, a former commissioner of the Mille Lacs Department of Natural Resources said they could face a challenging legal dispute.

Don Wedll was commissioner during the Mille Lacs litigation. He said several factors, including the current make-up of the Supreme Court, make this more challenging than the Mille Lacs case.

"The Court is clearly a very conservative court. The Court is also a very states-rights oriented court," Wedll said. "And so all of these kinds of issues impact how they are going to view a case of a treaty rights case and how they are going to interpret that case."

The 1855 agreement cited by Leech Lake and White Earth, Wedll notes, is different from the Mille Lacs' 1837 treaty, which had explicit language in Article V about the tribes' retained right to hunt, fish, and gather in ceded territory.

Wedll said every court that reviewed the case, at the district, appeals, and Supreme Court levels, concluded that the tribes retained their right.

Wedll said the 1855 treaty doesn't explicitly say the bands can retain the right to hunt, fish, and gather off the reservation. "Which raises issues all on its own about, 'Well, why wasn't it in the treaty? If they put it in earlier treaties, why didn't they put it in this treaty?'" he said.

Because the 1855 treaty doesn't have a "right" clause, Wedll said the legal issue will hinge on whether or not tribes understood that they gave up or retained the right to hunt, fish, and gather.

The courts will have to interpret what the tribes understood at the time by reviewing records of what was said during treaty negotiations, which Wedll said is well documented.

Wedll said the Mille Lacs band decided to take its case to court back in the 80s because elders always talked about their rights. But when tribal members hunted, fished and gathered off the reservation, Wedll said they'd get arrested.

"And affirming that right, I think really told people that grandpa and grandma really did understand. They were right. They weren't making this up. And that's pretty significant, I think," Wedll said.