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Politics blamed for holding up Ojibwe treaty rights issue

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Aaron White, Sr.
Leech Lake Band member Aaron White, Sr., pictured here maintaining nets at his rural home near the east end of Leech Lake, is one of several tribal members who violated state law last spring by fishing with nets in Lake Bemidji.
MPR Photo/Tom Robertson

Aaron White Sr. has yet to be charged for breaking a state law during a fishing protest in May, and some tribal members suspect the political nature of the issue is keeping it on hold.

White broke a state law when he put gill nets into Lake Bemidji the day before the walleye fishing opener in May. The demonstration was designed to exercise what some Ojibwe say are treaty-based rights to hunt and fish throughout much of northern Minnesota.

Outside his rural trailer home in the woods just a few miles from the east shore of Leech Lake, White draped the edges of a tattered, 300-foot gill net over some metal posts to show how the nets are dried after use.

White's gill nets were confiscated by the DNR back in May. Without nets, he lost out on a lot of fishing this summer. He only recently put together a replacement set.  

White aims to feed his family off the land, and he believes his ancestors never gave up the right to hunt and fish where they please, regardless of state regulations or seasons. Some Ojibwe in northern Minnesota point to a treaty signed with the federal government in 1855.

White said the fishing demonstration was a way to put the state on notice that the Ojibwe plan to exercise those rights.

"When I set net on Lake Bemidji, what I was doing was for my children; I was doing it for my children's children," White said.  "We're put on this earth to harvest, to live off what was given to us as a gift."

DNR seizing White's nets
In a May 14, 2010 file photo, Aaron White Sr. (right) and Tuffy Isham (left) are confronted by a Minnesota conservation officer over fishing nets White Sr. dropped into Lake Bemidji during a protest over off-reservation fishing rights.
MPR Photo/Derek Montgomery

White wants to be charged for his gill netting activity so the issue can be decided in the courts. He also wants his nets back.

"If they would charge me, then yeah, then I could see the right for them to steal my nets and still continue to hold my nets under seizure," he said. "But without charging me, they essentially stole my personal property."

Right now it's unclear if White will ever be charged. DNR enforcement officers turned the case over to the Beltrami County Attorney's office. 

County Attorney Tim Faver declined to speak on tape for this story. But he confirmed in an e-mail he believes the case has statewide implications and should be in the hands of state prosecutors.  

Faver thinks the issue will ultimately end up before the U.S. Supreme Court.  Twice, he's asked state Attorney General Lori Swanson to handle the matter. She's declined, saying jurisdiction lies with the county.

"It is very frustrating when the Attorney General refuses to handle a matter of this importance to all the citizens of the state, to help define the scope of rights granted by the treaties with the Aboriginal peoples of Minnesota," Faver said. "If the courts hold that the treaties reserved hunting and fishing rights, we need to respect those rights. If the courts hold that these rights were not reserved, we need to know that as well."

Faver said that regardless of the outcome, it's an important issue that needs to be resolved.

DNR talks to Aaron White
In a May 14, 2010 file photo, Aaron White Sr. (left) and Tuffy Isham (center) are confronted by a Minnesota conservation officer (right) over fishing nets White Sr. dropped into Lake Bemidji during a protest over off-reservation fishing rights.
MPR Photo/Derek Montgomery

Faver is also concerned that costly litigation would be an unfair financial burden for Beltrami County. He said the statute of limitations gives him three years to decide whether or not to file charges.

Some Ojibwe band members believe the treaty issue has become a political football. Bob Shimek was one of the organizers of the fishing demonstration in Bemidji. Shimek said White has the civil right to a speedy trial, which can't happen without charges.

Shimek and others have been meeting to contemplate their next move. He said one idea being discussed is an organized rice-off event, where tribal members intentionally break the state's wild rice harvesting laws.

"We have the wild rice season rapidly approaching, and we're starting to talk to a few individuals who may be willing to go out and get some wild rice in the 1855 treaty area without a state permit," Shimek said.

Those discussions are happening outside the circles of tribal government. Tribal leaders have criticized civil disobedience demonstrations, saying they favor direct talks with the state. 

The so-called 1855 Conservation Code has already been approved by White Earth's tribal council. The Leech Lake Band is working on a similar code. The measures would require band members to purchase tribal permits to hunt and fish off-reservation within the 1855 treaty territory. Tribal members without permits would be referred to the tribal court system rather than face citations from the state.

Mike Carroll, the DNR's northwest regional director, said he's not aware of any formal 1855 treaty talks between the state and the tribes. He said informally, state and tribal field officers have talked about the implications of new conservation measures the tribes would like to see replace state regulations for band members.

Carroll acknowledges the treaty rights issue will need to be resolved.  In the meantime, he said the DNR will continue to equitably enforce state laws, and that includes anyone who violates wild rice harvest regulations.

"I may be foolish, but I hope this year will be a pretty typical fall," Carroll said. "I'm not into politics, but it obviously is a politically sensitive issue, for both the bands and for non-band members."

Privately, some observers speculate that the issue is so politically charged it's unlikely the state would do anything about it until after the November election.