A court battle over treaty rights is heating up in northern Minnesota.
Four Ojibwe tribe members are headed to district court this week after gillnetting fish and gathering wild rice without a required state permit on land that is not part of a reservation. The state's longtime position has been that it's illegal to harvest wild rice without a license on off-reservation land. Gillnetting without a permit is a gross misdemeanor.
The tribe members hope the charges against them will open the DNR to a court battle that could clarify treaty rights, and reaffirm hunting and gathering rights they believe were guaranteed by a treaty signed more than 150 years ago.
The outcome could affect hunting and fishing across much of northern Minnesota, but most Minnesotans won't really understand what's going on, said University of Minnesota Duluth professor and treaty historian Erik Redix.
"People know very little about treaties," he said.
The bulk of what is now Minnesota was signed over to the U.S. government in a series of a dozen treaties over about three decades in the mid-1800s. Tribes ceded the land in exchange for payments, reservations and certain rights.
The treaties themselves are old, complex, and handled differently than any other legal document.
Each of the dozen land cession treaties is a little different — promising different things, and sparking different controversies.
In recent years, treaty conflicts have focused on land use rights, with tribe members asserting the right to hunt, fish and gather on ceded lands and with traditional techniques prohibited by state law.
The 1837 Treaty with the Ojibwe
In 1837, Ojibwe and Dakota leaders signed over a massive swath of what is now east-central Minnesota and western Wisconsin to the U.S. government.
The land ceded by the Ojibwe included Mille Lacs Lake, one of Minnesota's most famous fisheries. At the time, though, the U.S. government was more interested in logging off the white pine that ran through Wisconsin to the eastern banks of the Mississippi.
"Those trees built the expansion of this country," said Redix.
In exchange for millions of acres of land, Ojibwe tribes were promised payments of $35,000 each year for 20 years. The payments were split among cash and a long list of goods and services, including food, blacksmith shops and a yearly ration of $500 worth of tobacco.
The tribes were also granted the right to hunt, fish and gather on the ceded land — a pivotal line in a decade-long battle over tribal land use rights.
The treaty grants tribes the right to hunt, fish and gather on ceded lands, but the Minnesota Department of Natural Resources instead have enforced Minnesota law, arresting tribe members for gillnetting and spearfishing outside the bounds of state regulations.
In 1990, the Mille Lacs Band of Ojibwe sued for the rights granted them under the 1837 treaty. For the next decade, they fought a legal battle that reached the U.S. Supreme Court. Tribe members were arrested during protests on Lake Mille Lacs. Land owners and sport anglers held counter-protests. Even now, as walleye numbers decline on Lake Mille Lacs, tensions remain between tribe members and anglers.
In 1999 the U.S. Supreme Court affirmed tribal fishing rights on ceded land. Since then, state and band officials split management of the Mille Lacs fishery. Tribe members are allowed to gillnet a limited amount of fish each year.
The 1854 Treaty with the Ojibwe
The 1854 treaty ceded the lands in Minnesota's Arrowhead region. At the time, the U.S. government wanted to mine a vein of copper on the northern shore of Lake Superior.
Many of the same tribal leaders who signed the 1837 treaty, including well-known Chief Hole-in-the-Day, made their way to La Pointe, Wis., to negotiate the 1854 treaty.
But a lot had changed in those 17 years.
Treaties themselves were more complex by 1854, with detailed plans for one-time and annual payments. The 1854 treaty also established permanent reservations for the Fond du Lac, Grand Portage and Bois Forte Bands.
In exchange for giving up more than 2 million acres of land, the bands received yearly payments of less than $20,000, split among cash, goods, agricultural supplies and school funds. They also received a number of one-time payments to help them resettle on reservation land.
As with the 1837 treaty, tribes were also granted rights to hunt, fish and gather on the ceded land.
Ojibwe tribes that lived on the 1854 ceded lands made their move to establish hunting rights a few years before tribal anglers staged protests on Mille Lacs.
Their effort began in 1984, when Grand Portage member Curtis Gagnon shot a moose in the woods near the edge of the reservation. He tracked the animal off reservation through a portion of ceded land. Gagnon lost the moose, but decided to assert his hunting rights under the 1854 treaty.
He turned himself in to the DNR. The Grand Portage, Fond du Lac and Bois Forte Bands joined him in a lawsuit, seeking affirmation of treaty rights from a federal court. Before that happened, the bands settled with the state, trading some of their rights for yearly payments of over $1.5 million to each band.
Under the agreement, the bands established their own hunting and fishing regulations, avoiding some of the more controversial techniques, such as spearfishing and gillnetting.
Fond du Lac later backed out of the agreement, but still enforces hunting and fishing regulations.
The 1855 Treaty with the Ojibwe
Previous treaties were negotiated on or near the land in question, but tribal leaders had to travel to Washington, D.C., to sign the 1855 Treaty.
This time, the U.S. government wanted access to logging and mining opportunities across the bulk of north-central Minnesota. Negotiators also made an attempt to push tribes toward an agricultural lifestyle.
In addition to $20,000 in annual payments, the treaty established the Mille Lacs and Leech Lake reservations and promised to provide equipment and skilled labor to plow land for each tribe.
But one line is conspicuously missing from the 1855 treaty. Both the 1837 and 1854 documents give tribe members the right to hunt and fish on ceded land. The 1855 treaty does not explicitly grant those rights.
But tribe members depended on the land for sustenance, especially during the lean years of the Great Depression and World War II. They continued to hunt, fish and gather across the region.
Those efforts began to clash with the state's ramped-up management of its natural resources.
In August 2015, a group of tribe members from across the 1855 ceded lands met at Hole-in-the-Day Lake near Nisswa, Minn., to harvest wild rice in an attempt to strengthen hunting and gathering rights under the 1855 Treaty.
Four were cited under state law for gillnetting and harvesting wild rice without a permit. Early this year they were charged in Crow Wing County. All four will appear in court Feb. 1.
Their plan, according to White Earth member and attorney Frank Bibeau, is to affirm tribal land use rights through a series of court appeals.
It's not clear how the legal process will move forward. The tribes could reach a settlement with the state, like the Grand Portage and Bois Forte Bands did nearly 30 years ago.
The case could also reach the U.S. Supreme Court, as the Mille Lacs Band case did in 1999.
Either way, the decision will have broad implications. Many of Minnesota's best fishing lakes fall within 1855 ceded lands. It could also allow — or discourage — other tribes across the country from asserting their treaty rights.
Map: The 1837, 1854 and 1855 treaties with the Ojibwe
Data courtesy of the U.S. Forest Service
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