The highly publicized Ojibwe Indian "fish-off" on Lake Bemidji this spring has emboldened members of another Minnesota tribe to exercise what they believe to be their fishing rights.
A small number of Dakota activists say they plan to ignore state law and cast their nets in a Minneapolis lake as early as next summer.
Chris Mato Nunpa and his buddies want to repeat their effort of two summers ago, when they put on their swim trunks and set a gill net in the waters of Lake Harriet in Minneapolis. Another friend played drums along the shore, as captured in a video on YouTube.
Joggers stopped to watch. After all, a crime was being committed: Fishing with a net is illegal. Mato Nunpa was hopeful that a citation would follow.
"Our intention was to get arrested, get ticketed, and then to appear in court, and use the Treaty of 1805 as our legal defense," he said. "But nobody came."
He said a ponytailed park police officer even smiled and waved to the group as he glided by on his bicycle.
But Mato Nunpa, a retired professor of Dakota studies at Southwest Minnesota State University in Marshall, said he's encouraged by the treaty-rights demonstration in Bemidji this May. That fish-off, carried out a day before the official fishing season began, made front-page news across the state.
Mato Nunpa said his group, known as Seven Fires Summit, will probably take some cues from the Ojibwe activists and announce its plans to fish ahead of time.
Under the U.S. Constitution, treaty law supersedes state law, he said.
More than a decade ago, the U.S. Supreme Court ruled in favor of the Mille Lacs band of Ojibwe in a landmark hunting and fishing rights case involving a different treaty.
The 1805 agreement he cites is one of the earliest of its kind in Minnesota involving the Dakota Sioux.
Dakota leaders gave the U.S. government the right to use parts of what is now St. Paul and Minneapolis as a military reservation. In exchange, Zebulon Pike, the young army officer who negotiated the deal, doled out presents and gallons of whiskey. But Pike also made a pledge that some say would be impossible to keep:
The treaty says the U.S. government "promises, on their part, to permit the Sioux to pass, repass, hunt, or make other uses of the said districts, as they have formerly done."
"We lived there before white men came, and we fished there, we hunted there, we trapped there, we farmed there, we conducted ceremonies there -- all of these things, we have formerly done," Mato Nunpa said.
The Lake Harriet fish-off two years ago wasn't the first time Mato Nunpa tried to bring attention to the 1805 treaty.
He said the state Department of Natural Resources knew of an earlier fishing demonstration, held in 2005, near Fort Snelling State Park at the confluence of the Minnesota and Mississippi rivers. Mato Nunpa said he tipped off a DNR employee ahead of time, and she told him no one would bother his group.
He said when authorities seemed to look the other way, he was left with mixed feelings -- "half relieved, half disappointed."
That same year, Mato Nunpa was also one of the three activists charged with entering Camp Coldwater Spring, near Fort Snelling, without a required permit. Nunpa and fellow activist Jim Anderson had argued that they didn't need permission, citing the 1805 treaty.
A judge later dismissed the charges.
"They don't want to deal with the treaty," said Anderson, of the Mendota-Mdewakanton Dakota community. "They know they're wrong."
DNR officials said they have no record of the fishing incident, but wouldn't turn a blind eye to an apparent violation of state law. They said they weren't well-versed enough on the 1805 treaty to comment for this story, but will consider possible enforcement if the Dakota members decide to cast nets or fish without licenses.
"If they choose to exercise what they think are their rights, we're going to have to take a look at the situation and see if we believe the laws of the state were violated and proceed on that basis," DNR spokesman Harland Hiemstra said. "I don't think this is something we're going to take lightly or leap into one way or the other."
Paul Swenson, a retired tribal liaison with the DNR who is familiar with the treaty, said there's one problem with the activists' claims: The U.S. government threw out all of its treaties with the Dakota in Minnesota after the Dakota War of 1862.
"It doesn't make any difference what the words are, because of what the federal government did in 1863," he said.
After the war, Swenson said, the federal government rounded up Dakota survivors and expelled them from the state.
"We can argue whether that was appropriate or fair, but at that point, the 1805 treaty no longer existed," he said.
And, a few years ago, a federal judge ruled that the treaty was invalid because it was never signed by President Thomas Jefferson.
Dakota activists believe that if the treaty is invalid, then the land was never transferred to the U.S. government and still belongs to the Dakota.
Aside from the land issue, St. Paul historian Bruce White thinks the Dakota have a good case when it comes to fishing rights. He's surprised tribal leaders haven't pushed harder for those rights.
"Lots of people have opinions, but until it's tested in court, our individual opinions shouldn't define how we view it," White said.
Mato Nunpa acknowledges he's fighting for rights that aren't even relevant to his lifestyle. Unlike many Ojibwe who rely on the lakes for walleye and wild rice, many Dakota people have lost their traditions because of forced removal or assimilation, he said.
The group that gathered on Lake Harriet two summers ago didn't even know how to cast a net, so they only caught one fish: a bass.
The next time, Mato Nunpa hopes to net something much bigger -- the beginnings of a legal battle.
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