Tribal fishing battles loom in Minnesota

LEECH LAKE RESERVATION -- The stage is set for an off-reservation treaty rights battle to begin Friday in Bemidji that ultimately could engulf much of northern Minnesota. Some Leech Lake Chippewa band members say they'll set nets in Lake Bemidji the day before Minnesota's walleye and northern pike seasons begin.

The Indians are gambling they'll be busted for violating state angling rules, sparking a legal battle not only over northern Minnesota fish but also its wildlife and perhaps its timber, minerals and other resources.

Citing a treaty more than 150 years old, the Chippewa say most state fish and wildlife rules don't apply to them across a large section of northern Minnesota -- generally north of Interstate 94 -- that they ceded to the federal government in 1855.

The stakes are high for everyone. The Leech Lake Chippewa, and those of the White Earth band about an hour away, risk backlashes that could cut into their casino profits and fracture relations with nonband members that in some instances are already tenuous.

And while the state has signaled it will hold fast to its contention that the bands have no off-reservation hunting, fishing and gathering rights, its costly defeat in the U.S. Supreme Court to the Mille Lacs and other Chippewa bands over similar treaty claims in 1999 hasn't been forgotten.

"We need to exercise our rights or our sovereignty is just a thought," said Renée Jones-Judkins, 52, of Cass Lake, who with her four sons will net Lake Bemidji on Friday. She was one of about 125 Leech Lake members (out of a tribal enrollment of 9,400) who attended a tribal treaty rights meeting Friday at the band's Palace Casino in Cass Lake.

The White Earth and Leech Lake tribal councils aren't sanctioning the protests. Instead, they will sponsor a public forum on Friday in Bemidji to inform nonband members about rights the Chippewa say they hold.

The councils want to adopt a conservation code governing off-reservation resource use before advocating regional fishing by band members. "We want to have a code so they [the state] can't prosecute in state court; it will go to tribal court instead," tribal attorney Frank Bibeau said.

This latest push for treaty rights was first reported two weeks ago. But the minutes of a Leech Lake and White Earth treaty rights committee meeting in March indicate that a decision to demand off-reservation rights by some band members and Chippewa leaders, including Leech Lake tribal chairman Arthur LaRose, was made months ago.

"If the state does not comply [with the band's demands], our next step would be to do the fish-off on May 14th, but only in public places, and in daylight hours," the minutes say. "We will need some nonviolence training and some legal witnesses. Get 20-30 lawyers to be legal observers. We could do this at the south end of [Lake] Bemidji, where we will have the press and they can see how many people are exercising their rights. We will need people with video cameras so it does not get violent, because it is a possibility."

Bibeau acknowledges a long treaty rights legal battle with the state would be costly. But he said he believes the federal government will pick up the tab if the bands and the state face off in court. "If the state doesn't respond, we'll ask the Department of Justice to come in," Bibeau said.

Meanwhile, Audrey Thayer, executive director of the American Civil Liberties Union in Bemidji, has said her group's lawyers likely will defend any Chippewa cited by the state for illegal fishing.

Tribe members split

The bands' treaty rights claim has further split an already divided Leech Lake tribal council, just weeks ahead of a June 8 election whose outcome could affect how quickly the band pushes its demands.

LaRose, 38, is a life-long reservation resident. Now midway in his first four-year term, he is campaigning to unseat the band's secretary-treasurer and fellow council member, Mike Bongo.

"Four of six [Chippewa] reservations in Minnesota already exercise their treaty rights," LaRose said. "It makes sense for Leech Lake and White Earth to do the same."

Bongo, 53, who was born on the reservation and worked for 20 years in various corporate positions in the Twin Cities before returning in 2003, agrees treaty rights are important. But so are the band's pressing economic and social issues, he said, such as widespread poverty and its need for a new hospital and high school.

"Among Indians, the issue [treaty rights] is so emotional, it can be difficult to make the decision that is best for the band unless we think it through carefully," Bongo said. "We should get more legal opinions and historians' expert opinions about how winnable our case is, then make a decision."

Bongo said most band members knew nothing about the treaty rights issue until recently. "We were blindsided," he said.

On a reservation where some say nepotism and cronyism have long been part of the political fabric, dissension among council members is common -- as are firings and rehirings.

Bibeau, for example, was fired about 10 days ago at a special council meeting held by Bongo and council members Robbie Howe and Lyman Losh, after Bibeau publicly advocated for a treaty rights protest.

As quickly, LaRose voided the firing, saying the meeting was illegal.

Said council member Howe, 38: "This is like being in the movie 'The Departed.' It's chaos. This is a new day. We have to find a new way to express ourselves. We're not going back to 1855."

Treaty history long

Treaties with the Chippewa, also known as the Anishinabe, predate Minnesota's founding and form the backbone of the 1999 U.S. Supreme Court decision in the Mille Lacs case.

Federal court decisions in the 1980s granted Wisconsin Chippewa similar rights and awarded them as much as half the harvestable fish, game and other resources across most of the northern part of that state.

But whether those rights exist for the Leech Lake and White Earth bands isn't clear.

Unlike the government's 1854 treaty on which the Wisconsin treaty rights case turned and the 1837 treaty that supported the Mille Lacs band's claims, the 1855 treaty affecting Leech Lake and White Earth is silent about hunting, fishing and gathering rights in the ceded territory.

"They [the bands] are making a different kind of argument here, and it's more challenging," said Bruce White, a St. Paul historical anthropologist who was among the Mille Lacs band's expert witnesses in their successful U.S. Supreme Court petition.

"In the Mille Lacs case, the 1855 treaty came up because there was no explicit termination of hunting, fishing and gathering rights in it. That meant the rights still existed. I'm not saying [the Leech Lake and White Earth treaty case] is impossible. But it's challenging."

Peter Erlinder, a William Mitchell Law School professor, said he believes the bands can win a treaty case. Erlinder is an Indian-rights activist whose recently completed legal treatise forms virtually the sole opinion on which the Leech Lake and White Earth bands base their treaty assertions. Erlinder also believes the state might owe the bands $350 million or more for failing to recognize their off-reservation rights.

Leech Lake and White Earth would have joined the Mille Lacs and Wisconsin cases, some band members say. But the bands were broke at the time, those band members say, and their governments corrupt.

Said Jones-Judkins, the Leech Lake member who will net Lake Bemidji on Friday: "If the state of Minnesota owes us $350 million for not exercising our rights, then why the heck shouldn't I fish? Those are my resources."