Ojibwe rice harvest is latest test of treaty limits in Minnesota

Wild rice
Harvesters gathered approximately 50 pounds of wild rice from Birch Lake on Sept 20, 2013. A group is planning a wild rice harvest outside Nisswa Thursday that is outside the bounds of state law and DNR policy -- but that the group says is within the bounds of a 19th century treaty with the U.S.
Dan Kraker | MPR News 2013

When Ojibwe tribal members today harvest rice outside reservation boundaries without a required permit, it will mark the latest chapter in Minnesota's long history of treaty conflicts.

This time, however, the fight may go far beyond fish and wild rice.

Tribes believe the 1855 treaty they plan to put to the test today gives them the right to hunt, fish and gather in a large area of northern Minnesota. They argue those rights should also give them a say in any land use decisions that might affect natural resources — on or off reservation land.

That would include decisions about proposed oil pipelines in northern Minnesota, which they're trying to stop.

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The treaty's commitment to tribal hunting and fishing rights creates a "corresponding duty to maintain that off reservation area so it's as pure as possible, so it will continue to produce these resources," said Joe Plumer, tribal attorney for the White Earth Band of Ojibwe.

Tribal members hope state conservation officers will cite members today, forcing the case into the courts and leading to a ruling in their favor. It's a place Minnesota and its tribes have been before.

In 1999, the United States Supreme Court upheld tribal rights in a case that led to state-tribal co-management of Lake Mille Lacs. That 1837 treaty, guaranteed hunting, fishing and wild rice harvest rights to tribal members.

Another treaty signed in 1854 in the Arrowhead also specifically noted hunting and fishing rights. The Grand Portage Band sued the state in 1985, which led to the state and tribes co-managing natural resources.

The same tribes signed the 1855 treaty, which sold a large chunk of northern Minnesota to the U.S. government. The treaty makes no mention of hunting fishing or wild rice. The state believes since harvest rights aren't laid out in the treaty, they don't exist.

"The DNR position is that while on reservation rights do exist for the band there are not off reservation harvest rights in the 1855 treaty area," said Ken Soring, who heads the enforcement division for the Minnesota Department of Natural Resources.

Plumer has a very different interpretation. "There's nothing in that 1855 treaty which clearly and unequivocally gives up any rights to off reservation gathering," he said.

Treaty interpretation is complex and requires a careful examination of other relevant treaties as well as the historical record around the treaty negotiations, said William Mitchell College of Law professor Colette Routel. Even translations of negotiations from English to Ojibwe are scrutinized, she added.

When judges interpret a law, for instance, they consider the plain meaning of the language. But that's not the case with treaties, said Routel, who teaches federal Indian law.

"That's very different from treaty interpretation, where we don't consider plain meaning," Routel said. "Instead, the question primarily is how would the tribal representatives who negotiated the treaty, how would they have understood the terms of the treaty?"

The long established legal precedent is that treaties are a grant of rights from tribes to the federal government, she added.

"The tribe is arguing in this case that there is no language in the treaty that takes away their hunting and fishing rights. And if they had those rights before the treaty was negotiated, then they would retain them unless they expressly relinquished them," she said.

She says it's very difficult to predict the legal outcome of most treaty cases but that the outcome here may depend on an interpretation of what Indians understood. There's some evidence tribes were concerned about habitat protection in the 1850s when they challenged a dam on the Rum river near Lake Mille Lacs because it was damaging wild rice beds.

"There was a lot of federal correspondence surrounding that issue and whether the dam could continue to exist or whether it would need to be taken down," Routel said. "That's the sort of thing that expert witnesses would look at."

For any of that to happen, the case has to get into court. In 2010 tribal members netted fish on Lake Bemidji without state permission. The DNR seized fish and nets, but no one was charged.

DNR Commissioner Tom Landwehr promised enforcement action at today's rice harvest. but Soring, the DNR's enforcement chief, says he doesn't know what that action will be.

"That could range anywhere from an appropriate warning or a citation or a long form complaint," he said. "That depends on what takes place."

The Ojibwe bands recently petitioned the U.S. Interior Department to support their treaty rights and expect to meet with federal officials next month. They say whatever happens today, they expect to eventually prevail.