A wooded lake just south of Nisswa, Minn., could become the site of an unprecedented wild rice showdown this week when some Chippewa band members attempt to conduct a harvest without obtaining state-issued licenses.
Frank Bibeau, attorney for the 1855 Treaty Authority, said the planned act of civil disobedience is meant to actively challenge Minnesota’s position that band members have no off-reservation hunting, fishing or gathering rights on northern lands that were ceded in the 1855 Treaty with the federal government.
If violators are prosecuted for their “en masse wild rice harvest,’’ the issue could land in court as an important test case and engulf the state in another treaty rights battle.
State officials are holding fast to their stance that tribal governments in the 1855 Treaty area surrendered off-reservation sovereignty when they ceded the land in question to the United States. Tom Landwehr, commissioner of the state Department of Natural Resources, notified the group in a letter last week that violators will be subject to prosecution.
“Any wild rice or harvesting equipment involved in the illegal harvest of wild rice may be seized by a law enforcement officer,’’ the commissioner warned.
His letter said band members are welcome to harvest wild rice off their reservations as long as they conform to DNR regulations that include license fees of $25 for the season or $15 per day. This year’s season opened a week ago and runs through Sept. 30 on 1,500 lakes and rivers, mostly in Aitkin, Cass, Crow Wing, Itasca and St. Louis counties.
Any person violating any of the laws or rules pertaining to wild rice collection is subject to a fine up to $1,000 and/or 90 days in jail.
The potentially pivotal off-reservation gathering of rice is scheduled for Thursday at Hole-in-the-Day Lake, just east of Gull Lake. The shallow lake rests in a large, irregular footprint of ceded territory that runs from about 40 miles west of Duluth all the way to North Dakota. The 1855 land touches Ontario in one spot, but excludes the extreme northwest corner of the state. It also excludes Minnesota’s Arrowhead region north and east of Duluth, a territory where three Chippewa bands won off-reservation rights in a court fight nearly 30 years ago under the separate 1854 Treaty.
“You have to engage the system or they will continue to ignore your rights,’’ said Bibeau, whose group is independent of tribal governments.
Leech Lake Ojibwe band member Arthur LaRose, chairman of the 1855 Treaty Authority, has said that his group’s concerns go beyond ricing, fishing and hunting. If the group can establish off-reservation rights in those areas, it can more forcefully assert management or regulatory rights on larger environmental issues such as the burying of oil pipelines or the relaxation of mining-related sulfate standards for wild rice. Band members have opposed both of those measures.
“From pipelines, to wild rice and walleye, the State of Minnesota does not appear to be protectively regulating the natural resources,’’ LaRose wrote to Gov. Mark Dayton on Aug. 7. Rather than safeguarding the state’s northern tier, LaRose said Minnesota is “defining acceptable levels of degradation in the land of sky blue waters for the profits of foreign corporations.’’
The 1855 Treaty Authority has instructed tribal members who participate in Thursday’s off-reservation rice harvest to carry their tribal IDs in the event state conservation officers check them. If prosecuted, band members will assert that Minnesota lacks jurisdiction over them because of the 1855 Treaty.
“We are just going to go out and exercise our rights,’’ Bibeau said. “It’s a fluid, dynamic situation right now.’’
Bibeau said it’s the first time band members have organized a large-scale off-reservation rice harvest, even though individual members have been asserting the right on their own.
The only thing similar to the upcoming “en masse’’ rice harvest was an organized off-reservation fish-netting challenge on Lake Bemidji in 2010. Chippewa, or Ojibwe, members were cited for violations and the event was covered by the media, but charges were later dropped and no test case resulted.
Bibeau said he doesn’t foresee any settlement of off-reservation rights before next week’s standoff.
Col. Ken Soring, chief DNR enforcement officer, said the agency is “always willing to work with groups,’’ but is prepared to carry out its duty to enforce ricing laws. He said rice beds on designated Chippewa lands in Minnesota are exclusive to band members, who must follow their own tribal government regulations.
Twin Cities lawyer Mark Anderson, a former U.S. Department of Interior lawyer who now represents tribes, said the 1855 Treaty Authority could possibly prevail on its off-reservation challenge if the dispute gets into the courts. But the 1855 Treaty doesn’t include language that expressly grants off-reservation rights, Anderson said.
By comparison, off-reservation rights were more clearly provided in the 1854 Treaty in the Arrowhead region and in the 1837 Treaty that allows band members to commercially net walleye on Lake Mille Lacs. The DNR challenged those rights but was defeated in a historic 1999 ruling by the U.S. Supreme Court.
“The state doesn’t give in easily even when the rights are acknowledged in the treaty,’’ Anderson said.