Tribal members to net, spear on Lake Bemidji in latest treaty protest

Tribal members from the White Earth and Leech Lake reservations plan to go out on Lake Bemidji Friday with spears and gill nets, hoping to force Minnesota to recognize fishing rights they believe were guaranteed by a treaty signed more than 150 years ago.

The strategy, coming the day before Minnesota's fishing opener, is to get cited or arrested then press their fishing rights in a series of court appeals, said White Earth member and attorney Frank Bibeau. "It all comes down to the same thing," he said. "We have to stand up and have a court case that makes the state comply with existing treaties and federal law."

Tribal members have used similar tactics in past years. Three years ago, a confrontation at Hole-in-the-Day Lake, north of Brainerd, Minn., led to charges but no changes in the state's position that it's illegal to harvest wild rice without a license off reservation land or gillnet off reservation.

Most of what is now Minnesota was originally home to Ojibwe tribes, and was signed over to the U.S. government in a series of a dozen treaties in the mid-1800s. The treaties themselves are old and incredibly complex, and each one is a little different.

A huge swath of northern Wisconsin and a small section of central Minnesota were signed over in 1837. That treaty had specific language granting tribes the ability to continue hunting, fishing and gathering on the land they were giving up. Those rights were affirmed in a 1999 supreme court case.

But most of northern Minnesota was signed over in 1855. That treaty is silent on hunting, fishing, and gathering rights, according to Colette Routel, director of the Indian Law Program at Mitchell Hamline School of Law.

"That's where the conflict comes," Routel said. "When there's silence in a treaty about whether those rights are retained, do the tribes still keep them? Or have they been extinguished?"

Bibeau argues that if the rights were never explicitly given up, they're retained, and that if tribe members do have the right to hunt, fish and gather, he says, they should have a hand in managing those resources, alongside the state Department of Natural Resources.

DNR officials on Monday reiterated the agency's position, saying in a statement: "Off-reservation harvest rights do not exist in the 1855 treaty area and that state laws will be upheld. Persons who violate state law will be subject to enforcement action that may include warnings, citations, seizure of fishing equipment, nets, and spears."

Friday's harvest and protest will come nearly eight years to the day of the tribes' last netting attempt on Lake Bemidji. Nearly 200 Ojibwe tribal members gathered but the DNR seized their nets.

The demonstration later fizzled out when Beltrami County prosecutors refused to bring a case against the tribe members.

But the legal landscape has changed somewhat since then. Treaty rights demonstrators did find some success in 2015 on Hole-in-the-Day Lake.. They gathered wild rice without state required harvest permits. It led to DNR citations, and a court case.

In the next legislative session, however, state lawmakers passed a bill allowing tribe members to gather wild rice without permits.

"They're concerned about their public image," Bibeau said, "and how they treat their Indians. That's what we figured out at Hole-in-the-Day."

There's a chance netting in Bemidji might yield similar legislation, without the massive court battle, but it's a small chance. Minnesotans, Bibeau said, care a lot more about walleye, than they do about wild rice.

MPR News reporter Kirsti Marohn contributed to this report.