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Continued: Chippewa to fish early in treaty clash

  • Article by: DENNIS ANDERSON , Star Tribune
  • Last update: April 21, 2010 - 11:40 PM

Members of the Leech Lake and White Earth bands of Chippewa will fish off their reservations in violation of state law on May 14 -- a day before the opening of walleye and northern pike seasons -- to assert treaty rights they claim across virtually all of northern Minnesota.

The bands say those rights include not only off-reservation hunting, fishing and gathering, but perhaps also co-management of much of the region's timber and mining -- the first such claims made by Minnesota Chippewa.

If the Chippewa do fish before the season, they'll likely be arrested by Department of Natural Resources conservation officers.

"We hope and expect they'll abide by the law," said Brian McClung, a spokesman for Gov. Tim Pawlenty. "If they don't, they'll have to abide by the consequences."

Leech Lake tribal attorney Frank Bibeau said Wednesday that an 1854 treaty with the federal government grants the Leech Lake and White Earth bands off-reservation rights north of Interstate Hwy. 94. The two bands have 30,000 members.

"What we are talking about doing is having a demonstration of solidarity," Bibeau said. "We will have a fishing day probably in the Bemidji area to show we do have the right and could exercise it if we want."

By fishing before the season opens, the bands are "taking the path of least resistance," said Dale Greene, a Leech Lake Band treaty coordinator.

"We want to be good neighbors, and this is the route we're taking now," he said. "We understand we have these rights, now let's work out how we're going to exercise them. If the state wants to arrest people, our attorneys are ready to move forward."

Peter Erlinder, a William Mitchell College of Law professor who has advised the Leech Lake and White Earth bands, said the state of Minnesota should have known since the 1999 U.S. Supreme Court Mille Lacs ruling that off-reservation tribal rights to hunt, fish and gather extend to other Minnesota Chippewa.

The state already has hunting, fishing and gathering agreements with Minnesota Chippewa bands, including Leech Lake, Mille Lacs, Bois Forte, Fond du Lac and Grand Portage. But the Leech Lake and White Earth claims reach farther, to other resources that might affect the bands' ability to harvest fish and game.

Erlinder also said the state might owe reparations of as much as $350 million.

"Smart lawyers should have known [after the Wisconsin Chippewa court decisions] in 1988 or after the Mille Lacs decision in 1999 that the state has been sandbagging what it should have been paying the Chippewa," Erlinder said.

What's at stake, he said, "is joint management of all resources in northern Minnesota."

Few public protests against netting by non-band members have occurred in Minnesota, but Wisconsin had near-riotous scenes when Chippewa treaty rights there were affirmed.

The Minnesota Chippewa, Bibeau said, hope to negotiate a resolution to the claims without going to court because a legal battle would be time-consuming and expensive for both sides.

DNR Commissioner Mark Holsten said Wednesday that neither he nor Pawlenty had been notified of the bands' intentions or claims.

Treaty battles

The federal government in the 1800s signed numerous treaties with the Chippewa, or Anishinabe, as they were known.

A century later, in the 1980s, some of the treaties were at the heart of a Chippewa lawsuit against the state of Wisconsin.

The Chippewa won that long-running battle and were awarded hunting, fishing and gathering rights across much of northern Wisconsin.

The Mille Lacs Band of Chippewa followed in 1990, suing Minnesota over similar rights it said were retained in an 1837 treaty. The state countered, unsuccessfully, that subsequent treaties in 1854 and 1855, as well as other litigation and the organization of Minnesota as a state, extinguished those rights.

In 1999 the U.S. Supreme Court ruled 5-4 in favor of the Mille Lacs. The heart of the band's argument -- and a central point the Leech Lake and White Earth bands make -- was that the 1854 treaty affirmed the bands' hunting, fishing and gathering rights in the ceded territory, and a subsequent treaty agreed to in 1855 left unsaid anything about those rights.

Three northeast Minnesota Chippewa bands -- Fond du Lac, Grand Portage and Bois Forte -- were directly affected by the Wisconsin litigation. When the case was resolved, they and the state of Minnesota formed a pact calling for the state, essentially, to lease the bands' off-reservation rights in the northeast for an annual payment of $6 million.

Fond du Lac has since pulled out of the agreement, and its members exercise off-reservation hunting and fishing rights.

A similar 1972 agreement exists between the state and the Leech Lake Band over non-band fishing access to Leech Lake, which is widely recognized as a jewel in Minnesota's crown of world-class fishing lakes.

The $6 million paid to the northeast Minnesota bands each year buoys Erlinder's belief that overdue payments of perhaps hundreds of millions of dollars are owed by the state to the Leech Lake and White Earth bands.

"The land we're talking about is three or four times as big as the land in the northeast," Erlinder said. "Over the past 20 years of not paying the bands, the state might owe them $350 million."

Greene acknowledged the bands never asked the state for the money. Nor have the Leech Lake or White Earth bands previously asserted the rights they now claim.

"In the 1990s, our elected officials' attentions were elsewhere," Greene said.

Regardless, "Those [in state government] who are empowered to enforce the law" were obligated to extend off-reservation rights or compensation to the bands after the Wisconsin and Mille Lacs decisions, Greene said.

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