Ojibwe treaty rights can benefit us all

During the latter part of the 20th century, the 19th century treaties between sovereign Indian nations and the U.S. government took on new life. The treaties between the United States and bands of the Anishinabe Nation, or Ojibwe, in Minnesota are no exception.

Through a series of cases brought in federal courts to enforce and define treaty rights guaranteed to tribes and tribal members, a body of federal case law has developed that firmly establishes the concept of tribal sovereignty on the order of that enjoyed by the states within the federal Union. In addition, Congress established tribal authority over a wide range of administrative and civil regulatory matters.

In Minnesota, tribal sovereignty on the reservations has been recognized for civil functions like the regulation of gaming, auto registration and traffic regulations. But the recognition of off-reservation hunting, fishing and gathering rights has not kept pace. Now the Leech Lake and White Earth Anishinabe bands are preparing to reassert those rights.

Indigenous people occupied territory of Minnesota as sovereign nations under treaty agreements between Indian nations and the United States. Because the right to hunt, fish and gather was so important to the survival of indigenous people, Anishinabe and Lakota enjoyed what are called "usufructuary rights" everywhere in Minnesota. These rights remained intact through a series of treaties and laws enacted through the middle of the 20th century.

The first successful assertion of Anishinabe off-reservation hunting, fishing and gathering rights occurred in the Wisconsin Lac Court Oreilles cases in the late 1980s, which involved interpretation of an 1854 Treaty that ceded Anishinabe territory in northern Wisconsin and Minnesota's "Arrowhead" region, north of Lake Superior, to the United States. The federal courts held that rights retained under the 1854 Treaty entitled the Anishinabe to the right to a "modest living" from the exercise of off-reservation usufructuary rights in the 1854 ceded territory.

A second successful assertion of off-reservation rights occurred in the 1999 U.S. Supreme Court opinion in Minnesota vs. Mille Lacs Band of Chippewa Indians, which recognized the continuing validity of such rights. The Supreme Court held that nothing in treaty, executive orders or federal laws suggested that the pre-existing off-reservation usufructuary rights of Anishinabe bands in Minnesota had been diminished.

In tandem with the Lac Courte Oreilles case, the Mille Lacs case established the principle that traditional rights are retained by the Anishinabe unless specifically "bargained away" by subsequent treaties or specifically removed by a clearly articulated act of Congress. As part of the Mille Lacs litigation in the 1990s, a federal court noted that "usufructuary rights reserved by the Band included the rights to harvest resources for commercial purposes, and were not limited to use of any particular techniques, methods, devices, or gear." Further, "any regulation imposed by the State must be necessary to ensure public health and safety, and the State could not impose its own regulations if the Chippewa could establish tribal regulations adequate to meet conservation, public health and public safety needs." The Supreme Court came to a similar conclusion.

The immediate financial consequences for the state's failure to recognize Ashinabe treaty rights may be quite significant. The direct loss to the largest bands must be in the hundreds of millions of dollars. Further, if the state is found to have intentionally withheld recognition of treaty rights properly belonging to Anishinabe people, the damages could be greatly increased.

Perhaps even more important than any financial settlement are the necessary changes in the political/power relationship between the state of Minnesota and the Anishinabe Nation that are a likely consequence of recognition and assertion of Anishinabe rights in all of northern Minnesota. On-reservation gaming has provided both economic and political resources for bands located near large population centers, but the more isolated northern bands lack on-reservation sources of income and employment. However, when off-reservation rights are finally recognized in northern Minnesota, even remote Anishinabe bands will be in a position to:

Guarantee all members a "modest income" from living off the land.

Enjoy greater exercise of sovereignty on the reservation, with respect to criminal offenses related to civil or wildlife regulation.

Share income from off-reservation resources used by non-Indians, as co-equal sovereigns with the state of Minnesota.

Exercise co-equal management of wildlife and natural resources with the state of Minnesota.

And although the Anishinabe agreed to cede mining rights to the United States as early as 1826, they did not agree to forgo compensation for the loss of their ability to exercise traditional rights, which are an inevitable consequence of mining, logging or other land use inconsistent with their "right to a modest income" from living off the land.

Had Anishinabe off-reservation rights been properly respected by the state of Minnesota in the 19th and 20th centuries, a much larger share of the vast wealth produced by Minnesota's resources would have remained in the state. All Minnesotans, Indians and non-Indian alike, have a stake in the kind of long-term thinking about the protection of the wilderness and environmental issues that is at the heart of the continuing exercise of Anishinabe rights. It is just possible that the thus far unacknowledged usufructory rights of the Anishinabe people in all of northern Minnesota will help us save the best of Minnesota for our children and our children's children.

We can only hope they succeed, on behalf of all of us.

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Peter Erlinder, a law professor at William Mitchell College of Law in St. Paul, outlined the argument for the northern Ojibwe bands in a paper that was being sent to Gov. Tim Pawlenty and other state officials this week.

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