Original intent? History, language blur Minnesota Indian treaty disputes

Harvesting wild rice
Ojibwe protesters harvest wild rice at Hole-in-the-Day Lake near Nisswa. The protesters were members of the 1855 Treaty Authority group, which advocates for tribe members' hunting, fishing and gathering rights under the treaty.
Vickie Kettlewell for MPR News

Updated: 1:10 p.m. | Posted 4 a.m.

Four Ojibwe protesters appeared in court Monday morning on charges of harvesting wild rice without a permit and illegal fish netting. The protesters argue the state of Minnesota has no jurisdiction in their case, because an 1855 treaty gives Ojibwe band members rights to hunt, fish and gather.

The state disagrees. Tribal officials say they will ask a federal court to resolve the dispute.

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Interpreting a treaty

Understanding an American Indian treaty more than 150 years old is a complicated process.

It's more than simply reading the words. Courts have developed specific rules for interpreting treaties, and those rules require liberally construing the terms in favor of the Native American leaders who signed them.

"Treaties are to be understood as the Indian signers would have understood them," says treaty expert Charles Cleland.

That means the court needs to not only interpret the treaty language, but understand the history.

Todd Thompson and Jim Northrup
Todd Thompson and Jim Northrup set a net on Gull Lake on Aug. 28, 2015, the second day of efforts to challenge Ojibwe land use rights under an 1855 treaty. Both men were issued citations by the Minnesota Department of Natural Resources.
Vickie Kettlewell for MPR News

For the four protesters appearing in court Monday, that history is very much alive.

Monday's hearing could be the first step in what Ojibwe bands hope is a path to federal court and a potentially precedent-setting treaty victory. The bands in the 1855 treaty territory believe they can follow the success of two earlier court challenges that gave Indians in Minnesota hunting and fishing rights.

• An 1837 treaty covering Lake Mille Lacs has the highest profile of the two challenges. A settlement with the state proposed in 1993 was rejected by the Legislature amid angry protests by non-Indian anglers. The case went to the U.S. Supreme Court, which recognized the bands' rights to hunt and fish.

• An 1854 treaty, which covered much of Minnesota's Arrowhead region, was settled with less controversy.

But there's a key difference between those two treaties and the 1855 Treaty, which covers much of northern Minnesota: The earlier treaties specifically mentioned — and granted to tribes — the rights to hunt and fish.

The 1855 Treaty says nothing about hunting, fishing or gathering.

Taking a treaty to court

If Ojibwe bands take the 1855 Treaty to federal court, the Minnesota Department of Natural Resources will argue it has the right to regulate hunting and fishing by band members.

Sherry Enzler, legal counsel for the DNR, said the state has always taken the position that the 1855 Treaty does not give Indians special rights to hunt or fish.

Joe Plummer
Joe Plumer, White Earth Band general counsel and attorney for the 1855 Treaty Authority, speaks with DNR Conservation Officer Thomas Provost after DNR officers ticketed Todd Thompson and Jim Northrup for illegally setting gillnets in Gull Lake in August 2015.
Vickie Kettlewell for MPR News

"We look at the plain language of the treaty and we do not see that those rights have been reserved and so we have operated according to the plain language of the treaty," Enzler said.

But White Earth Tribal Attorney Joe Plumer said context is important to understanding the treaty.

"The same parties to the 1854 Treaty were the parties to the 1855 Treaty, three months apart," he said. "One was an addendum to the other. You can't look at one in isolation."

Plumer thinks it's clear what the Indian signers of the 1855 Treaty intended.

"It doesn't make sense that the same parties on one area would keep something and on the next area give all of those valuable sustenance rights up," he said.

If the case makes it to federal level, the courts will consider a number of questions in the absence of explicit language:

Chief Hole-in-the-Day
Ojibwe Chief Bug-O-Nay-Ge-Shig, a treaty signer, photographed around 1860
Courtesy Minnesota Historical Society | File 1860

The rules generally require the interpretation to lean in favor of the tribes. The legal reasoning: The government held most of the power in treaty negotiations and often benefited from the language barrier.

Courts have ruled that when treaties don't mention hunting, tribes retain those rights — on reservations. That's known as the reserved rights doctrine. It means that, unless a right was clearly given up in a treaty, the tribes keep it.

But rights in territories given up through a treaty are a different matter, according to Mitchell Hamline Law School professor Colette Routel, who specializes in federal Indian law.

"When it comes to hunting and fishing rights in a territory that's been ceded to the United States, there haven't been any court cases that have decided whether the reserved rights doctrine should be applied in that context," Routel said.

A key question for the court, she said, is this: Would tribal leaders who signed the 1855 Treaty have understood that giving up the land was the same as giving up hunting and fishing rights?

"If there is a lawsuit brought in federal court by one of those tribes, then I do think this will be a case of significant scope that is at least equal to the previous Mille Lacs litigation," she said.

That's partly because the 1855 Treaty territory is larger: From the northern edge of Lake Mille Lacs, north to Bemidji and west to the North Dakota border, it covers much of Minnesota's lake country.

But, Routel said, even bigger than the geographic territory is the precedent the case could set nationally. If the Minnesota bands win treaty rights in the 1855 Treaty territory, it will encourage tribes nationwide to pursue similar rights.

History speaks

The Minnesota bands need to prove the 1855 Treaty retained hunting and fishing rights. Legal experts say that's not a given.

The legal case will rely heavily on the historical record to prove what tribal leaders understood when they signed the treaty.

Charles Cleland, a professor emeritus of anthropology at Michigan State University who has been involved in nearly 40 treaty court cases in the upper Midwest, said researchers study the official record of the treaty negotiation. They also look for journals and letters, not only at the time the treaty was signed, but even years later to help understand what Indians said about the treaty. But the answers aren't always clear.

"All the records are biased to some extent," Cleland said. "It's the job of the historian really to recognize that and to try to look at all of the records and come to some fair conclusion."

Wild rice harvest in the first half of the century
An Ojibwe woman poles a canoe during a wild rice harvest, sometime in the first half of the 20th century. Photographed by Frances Theresa Densmore.
Courtesy Minnesota Historical Society

While the courts focus on how tribal leaders understood the treaty, it's interesting — if not as legally relevant — to ponder what the U.S. treaty negotiators were thinking.

Cleland said it's likely they never expected hunting and fishing rights to be an issue decades later. They assumed tribes would establish farms and villages and settle down.

"Civilized people would not be running around the countryside hunting and gathering. They would become farmers and agriculturists," Cleland said. "That was the end, as far as the government was concerned."

But that didn't happen. Tribe members continued to hunt, fish and gather across the region. Eventually those rights began to clash with the state's ramped-up efforts to manage natural resources.

Minnesota historian and anthropologist Bruce White said he's found many examples from the early 1900's of Indians complaining to the Minnesota Game and Fish Commission about interference with hunting and fishing in ceded territories.

White consults with Indian bands on treaty cases. He helped research the Mille Lacs case in the 1990's.

"People in the Game and Fish Commission said, 'Well, I don't think that's really relevant, because it's so long ago and it may have had some meaning then, but it doesn't have any meaning now,' which was the usual answer," White said.

John Czeck of Leech Lake
John Czeck of Leech Lake holds a sign during a treaty rights protest in Bemidji, Minn., May 14, 2010.
Derek Montgomery for MPR News | File 2010

Federal officials, White said, were often unaware of treaty rights.

Even decades after a treaty was signed, he said, those complaints help show how Indians understood a treaty.

Dale Greene, a member of the Leech Lake Band of Ojibwe and the 1855 Treaty Authority, which pushes for treaty rights, said his ancestors always assumed they had rights to take the natural resources they needed to live.

"The Indians were living on the land," he said. "They were hunting fishing and gathering. But more importantly, they were traveling, thriving and living in the ceded territory and believed that they would continue to do so."

Greene and other 1855 Treaty Authority members believe a federal lawsuit will bring the Minnesota DNR to the table to negotiate an agreement to share resources. That's what happened in the 1854 Treaty case and what the state tried to do in the 1837 Treaty case.

But DNR Fish and Wildlife Division director Ed Boggess said the 1855 Treaty likely will need to be interpreted by the courts before any settlement negotiations can happen.

"If it's unclear whether the rights still exist, then I would not advocate for settling until you know if they exist or not," he said.

Both sides, then, could be in for a long and costly legal battle.

1855 Treaty with the Chippewa

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