Opener could include treaty rights showdown
MINNEAPOLIS- Members of two northern Minnesota Chippewa Indian bands seeking to reclaim hunting and fishing rights under an 1855 treaty have planned protests that may include some members fishing out of season.
While elected leaders of the Leech Lake and White Earth bands have disavowed the protest in favor of diplomatic efforts, some members of their tribes say the time is right to assert their rights.
On Friday, the day before Minnesota's walleye and northern pike season opens, the tribal governments and the grass-roots protest movement plan to hold separate events a couple miles apart on the shore of Lake Bemidji. State officials have warned that anyone caught fishing illegally will be ticketed.
"We're going to be safely and respectfully enforcing the state's fishing laws," said Colleen Coyne, a spokeswoman for the Minnesota Department of Natural Resources. "The larger issues of treaty rights will be resolved in the courts."
Tribal leaders and advocates of more aggressive action agree on one thing: their ancestors never agreed to give up the rights to fish, hunt or gather food such as wild rice off-reservation when they signed treaties in the 1800s that gave the federal government a large part of their lands in northern Minnesota.
Leech Lake Tribal Chairman Archie LaRose told Minnesota DNR Commissioner Mark Holsted in a letter late last month that he wanted to work together for a "diplomatic solution" that would include the state's recognition of tribal rights and a plan for co-managing resources in the territory they ceded in 1855.
At least some tribal members don't want to wait for diplomacy, and the American Civil Liberties Union chapter in Bemidji says it will defend anyone who gets ticketed for fishing Friday.
"We need to do this. It's time. Many of our old people have gone to their graves saying we have these rights, and we need to acknowledge that," said Robert Shimek, a White Earth member who's one of the organizers of the protest.
The protesters plan to rally at 1 p.m. Friday at a waterfront park while the two tribal councils hold a public forum and barbecue at the same time at another park.
"I know we're going to have a lot of people. How many are going to fish? I don't know," Shimek said.
The renewed attention to treaty rights has its roots in the long legal battle by the Mille Lacs Band of Chippewa in the 1990s to assert its fishing, hunting,and gathering rights on territory it ceded to the federal government under an 1837 treaty. The U.S. Supreme Court ruled in 1998 that those rights remain in force. The White Earth and Leech Lake bands didn't participate in that lawsuit.
Peter Erlinder, a professor at the William Mitchell College of Law in St. Paul, recently issued a paper setting forth a legal framework for the Leech Lake and White Earth bands to reclaim their rights. Relying on the Supreme Court decision in the Mille Lacs case and several other precedents, Erlinder wrote that the same rights apply to all Minnesota Chippewa, also known as Ojibwe or Anishinabe.
But Scott Strand, a former assistant Minnesota attorney general who tried the Mille Lacs case for the state, said there's a key difference. While the Mille Lacs case turned on an 1837 treaty that expressly said the tribe would retain its fishing, hunting and gathering rights, the 1855 treaty affecting the Leech Lake and White Earth was silent on the issue.
Erlinder, however, said its clear from the Supreme Court ruling and other case law that the absence of that language in the 1855 treaty means the other bands never relinquished those rights.
The talk of treaty rights has revived memories of ugly confrontations between whites and Indians in Wisconsin in the 1990s when Chippewa there resumed netting and spearing. There was no violence in Minnesota as the Mille Lacs band reasserted its treaty rights, but some hard feelings remain. Critics of the high court's decision say the same rules should apply to everyone, regardless of race.
"I'm not anticipating problems," Shimek said.