Minnesota DNR warns Chippewa group against treaty rights

From todays Pioneer Press.

http://www.twincities.com/localnews/ci_28661902/minnesota-dnr-warns-chippewa-group-against-treaty-rights?source=rss

Minnesota DNR warns Chippewa group against treaty rights
By John Myers
Forum News Service
Posted: 08/18/2015 12:01:00 AM CDT | Updated: about 16 hours ago

The Minnesota Department of Natural Resources on Tuesday said it will issue citations to any Chippewa tribal member caught harvesting wild rice off reservations without a state-issued license, a move that could culminate in a treaty rights battle in federal court.

Chippewa wild rice harvesters announced Monday they would challenge state licensing laws, saying an 1855 treaty between the many bands of Chippewa in the region and the U.S. government allows them to hunt, fish and gather without regulation by the state.

The 1855 Treaty Authority officials said individual Chippewa harvesters are out this week on lakes outside reservations but within the 1855 ceded territory. A major off-reservation harvesting event is planned for Aug. 27 near Nisswa.

Authority officials say they hoped to reach an understanding with state officials whereby the DNR would recognize the treaty rights. But DNR Commissioner Tom Landwehr on Tuesday, speaking for the state and Gov. Mark Dayton, said no deal.

“The state’s position has been and continues to be that the bands that are members of the 1855 Treaty Authority have no hunting, fishing and gathering rights off reservation in the 1855 ceded territory,” Landwehr wrote in a letter to Arthur LaRose, chairman of the 1855 Treaty Authority. “Harvest of wild rice by any person, both non-band members and band members … is a violation of state law and subject to criminal prosecution.”

But that’s in part what Chippewa activists had hoped for — a test case that’s fully prosecuted that can be challenged in federal court to potentially affirm the 1855 treaty’s coverage.

“Minnesota is simply afraid and unwilling to accept the reality of Chippewa treaty rights throughout most of Minnesota above I-94, said Frank Bibeau, spokesman for the 1855 Treaty Authority. “Public Law 280 specifically exempts Minnesota’s state regulations of our federally protected treaty rights in Indian Country. … Harvesting wild rice is part of our Chippewa civil rights and our most sacred, spiritual food.”

Bibeau said the 1855 Treaty Authority is asking the U.S. Department of Justice and federal Bureau of Indian Affairs to intervene and protect Chippewa wild rice harvesters from “unlawful application of state law” by state conservation officers.

A 1999 federal court decision that focused on the 1837 treaty between the Chippewa and the United States — the now-famous Mille Lacs case covering north-central Minnesota — concluded the Chippewa did not give up their 1837 rights under the 1855 treaty. But other details on the 1855 document are not clear. While the 1855 treaty doesn’t specifically mention hunting, fishing and gathering as retained rights, Bibeau said the rights are inherent because the treaty doesn’t say they were given up in exchange for federal payments.

Chippewa bands also have broad rights to hunt, fish and gather in much of northeastern Minnesota in the 1855 treaty-ceded territory.

The 1855 treaty area runs from about 40 miles west of Duluth to the North Dakota border, and from near the Ontario border to near Brainerd.

Past efforts by Ojibwe or Chippewa activists to challenge state authority in the 1855 territory, including a 2010 netting effort on Lake Bemidji, have not been prosecuted, Bibeau said.

This move will be very interesting to watch unfold. It tells me the pressure from Minnesota sportsmen on the DNR is starting to take hold. I hope to see this as step one in a long process to fairly regulate the resources the tribes are taking. I hope to see this pressure applied to any future netting on Mille Lacs. As I mentioned in a prior posting, the state needs to get a tight grip on the actual poundage of fish taken. Right now there is nothing stopping the tribe from illegal over harvest and wonton waste of unwanted fish like Pike, smallmouth and musky. They can net, but they need to be highly regulated no matter the cost!

-J.

Hire the lawyers and lets get to it. At 60 years old i won’t live to see a resolution to this matter. It will be in the courts for years and years and millions and millions of dollars. But i don’t care. Fight this thing to the end no matter what the cost or outcome.

I agree with both John and Brian… This will be interesting. I hope I’m wrong but it sure seems like the courts have been leaning towards the side of expansion of treaty rights versus reduction.

I believe there is only one person that can correct these issues with a stroke of his pen and he is in Washington for another 16 months and then we have a new one that has the same authority.

Mocha wrote:

I believe there is only one person that can correct these issues with a stroke of his pen and he is in Washington for another 16 months and then we have a new one that has the same authority.

Congress is in trusted with taking care of Indian lands and rights. While I don’t think that many of the rights are justified for today. Telling someone one to stop when they have the golden ticket will just make them mad and push back harder. Making lawyers rich is a terrible policy for dealing with people. Most northern reservation are like a third world country. The people need real economic solutions. Then maybe they will use there rights to educate about past Minnesota culture apossed to a free for all. I think Clint Eastwood said it best in The Outlaw Josey Whales ( governments don’t live with people, people live with people)

brad-o wrote:

<div class=”d4p-bbt-quote-title”>Mocha wrote:</div>
I believe there is only one person that can correct these issues with a stroke of his pen and he is in Washington for another 16 months and then we have a new one that has the same authority.

Congress is in trusted with taking care of Indian lands and rights. While I don’t think that many of the rights are justified for today. Telling someone one to stop when they have the golden ticket will just make them mad and push back harder. Making lawyers rich is a terrible policy for dealing with people. Most northern reservation are like a third world country. The people need real economic solutions. Then maybe they will use there rights to educate about past Minnesota culture apossed to a free for all. I think Clint Eastwood said it best in The Outlaw Josey Whales ( governments don’t live with people, people live with people)

“Taking care of indian lands and rights” that maybe with congress but I believe the president of the US has the authority to supersede the treaties. Correct me if I am wrong but I have read that somewhere.

Sad part is that when there is a law suit with the tribes the state or federal government pays for all the legal costs…..

10 years ago when I used to duck hunt Lake Onamia a friend and I would always scout the lake prior to opener. One year we ran into a First Nation American (I don’t like the term “Native American” as there is no such thing since we are all immigrants to this land. First Nation Americans came across from Russia/Asia when the Bearing Sea froze over.) he was just wrapping up his wild rice harvest, he told us that in the 25 plus years he had been harvesting this was the best he had ever seen it. He also added that he did not encounter another tribe member harvesting in all the days he spent on the water. The back of his pick up was full with burlap sacks of wild rice. So my question is how many First Nation Members actually harvest wild rice any more? Or will more of them do it this year just to exercise their treaty rights?

Will Roseberg wrote:

I agree with both John and Brian… This will be interesting. I hope I’m wrong but it sure seems like the courts have been leaning towards the side of expansion of treaty rights versus reduction.

Yeah I agree. It’s almost a be careful what you ask for sort of thing. I don’t forsee this going the way most of us hope it will.

Wild rice showdown looms in northern Minnesota

Chippewa band members push for off-reservation rights in 1855 Treaty territory.

By Tony Kennedy Star Tribune

August 23, 2015 — 10:18pm

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.

I see the bands point….when it’s time to fight, it’s time to fight. From the tax payers side, it’s time to fight. Lets get this thing into court. Win, lose or draw it’s time. Lets challenge this whole “sovereign state” thing which I don’t understand. If Minnesota as a state voted to secede from the union do we automatically qualify for foreign aid in the millions of dollars per year? Will we be able to travel in and out of our country without passports and customs? Will our state be able to survive without taxing our citizens?

Yep, it’s time to fight.

Mocha, unfortunately you are wrong.

“Taking care of indian lands and rights” that maybe with congress but I believe the president of the US has the authority to supersede the treaties. Correct me if I am wrong but I have read that somewhere.

I used to think the same thing. Part of the treaty says something like “as long as it pleases the president”. That always made me think any one of our presidents could have fixed this. It turns out that Zachary Taylor already did that and the Supreme Court undid it. Their interpretation was that the tribes needed to do something very wrong for the president to invoke this.

GlennRengo wrote:

He also added that he did not encounter another tribe member harvesting in all the days he spent on the water. The back of his pick up was full with burlap sacks of wild rice. So my question is how many First Nation Members actually harvest wild rice any more? Or will more of them do it this year just to exercise their treaty rights?

My father and I harvested wild rice in the 1980s and 1990s. In general, there were very few people harvesting rice, Indians or otherwise. It was rare to meet anyone else in the rice beds, many of which are in remote areas and are relatively difficult to access.

Wild rice has to be extensively processed after it is harvested in its “green” state. Each kernel of rice has a hull that surrounds it that has to be removed by a mechanical process and then the chaff has to be separated from the finished rice. The amount of labor involved in both gathering and processing the rice tends, IMO, to extremely limit the number of people willing to harvest.

I don’t think that wild rice, per se, has anything to do with this anyway.

The point is that the tribes are looking for any and every opportunity where they feel that some aspect of what they see as unlimited rights under the various treaties are being limited by some aspect of state or federal law or regulation.

My main concern is that I believe the state needs to consider a mechanism for funding these incredibly expensive lawsuits so the taxpayer is protected from this costly litigation. I think it’s time to consider a wheelage tax on all vehicles that are not licensed in the US, Canada, or Mexico. Any vehicle carrying a license plate from a nation other than the 3 NAFTA countries should be subject to a $500 annual fee to use any roads in Minnesota. This would at least help offset some of the costly lawsuits.

Grouse

I love that idea Grouse!!

Can we charge another $500 if the plate is blue?

If you research the BIA funding in this country it’s mind boggling. They (tribes) collect BILLIONS in gas and oil rights that the government collects for them. Which I have no problem with. It’s their land. However, it’s the other millions I have a problem with especially when you wanna bite the hand that feeds you.

Are you or are you not a sovereign nation? We will fund things accordingly.

One 1st nation dude had a truck load of rice ?? Must be some really sacred stuff to him…

WTF? It’s like the left hand doesn’t know what the right hand is doing!!! Who is running the show over there?

DNR Moves To Defuse Chippewa Plan To Test Treaty Rights
August 27, 2015 9:09 AM
NISSWA, Minn. (AP) — The Minnesota Department of Natural Resources has moved to defuse a treaty rights challenge by issuing a group of Chippewa Indians a special permit to harvest wild rice on Hole-in-the-Day Lake.
Members of the 1855 Treaty Authority had planned to harvest wild rice on the lake in Nisswa on Thursday without state licenses to try to assert rights they contend they hold under an 1855 treaty.
While the DNR disputes that, it issued a one-day permit Thursday, citing its authority to do so for educational purposes.
That means conservation officers won’t issue citations that could lead to a court challenge.
Frank Bibeau, a lawyer for the group, welcomed the special permit but says DNR threats of prosecution won’t stop them from harvesting wild rice without a permit in the future.

-J.

I think the balk is the AG wants more time or have a constitutional lawyer look at it. There might not want to deligate resource for a fight they may loose.

brad-o wrote:

I think the balk is the AG wants more time or have a constitutional lawyer look at it. There might not want to deligate resource for a fight they may loose.

Exactly my point. Why pick a fight in the first place? If someone pulled a stunt like this at my office, they would be fired on the spot.

-J.

Jon Jordan wrote:

WTF? It’s like the left hand doesn’t know what the right hand is doing!!! Who is running the show over there?

DNR Moves To Defuse Chippewa Plan To Test Treaty Rights
August 27, 2015 9:09 AM
NISSWA, Minn. (AP) — The Minnesota Department of Natural Resources has moved to defuse a treaty rights challenge by issuing a group of Chippewa Indians a special permit to harvest wild rice on Hole-in-the-Day Lake.
Members of the 1855 Treaty Authority had planned to harvest wild rice on the lake in Nisswa on Thursday without state licenses to try to assert rights they contend they hold under an 1855 treaty.
While the DNR disputes that, it issued a one-day permit Thursday, citing its authority to do so for educational purposes.
That means conservation officers won’t issue citations that could lead to a court challenge.
Frank Bibeau, a lawyer for the group, welcomed the special permit but says DNR threats of prosecution won’t stop them from harvesting wild rice without a permit in the future.

-J.

WOW, the DNR has no spine at all.

Not to change the subject but I always thought that most of the treaties in MN & WI were worded as such: harvesting for sustenance. How does thousands of lbs. of fish or truckloads of rice seem needed. Or is this all being sold? Just curious as to the eventual use of the resource?

ptc wrote:

I used to think the same thing. Part of the treaty says something like “as long as it pleases the president”. That always made me think any one of our presidents could have fixed this. It turns out that Zachary Taylor already did that and the Supreme Court undid it. Their interpretation was that the tribes needed to do something very wrong for the president to invoke this.

Correct, the executive order of February 6th, 1850 was pretty much thrown out in the name of current day political correctness (my opinion) by a few courts including the Supreme Court and Justice O’Conner ( Reagan appointee ) leading the charge.

Chief Justice Rehnquist’s view of the executive order and the requirement that additional legislation was required for it to be valid shows quite a different interpretation to say the least.

It was his belief that this issue alone was sufficient to resolve the case contrary to what the majority thought.

As a side note, like the NFL players, I am sure the tribe has been judge shopping on this issue, they are pretty sharp on that going back to the case from WI.

sticker wrote:

WOW, the DNR has no spine at all.

In fairness, I think the DNR really should not be made into the fall guy for this situation. The DNR is the enforcement arm of the State of MN, nothing more, nothing less. The DNR didn’t make the law, nor did they create or sign the treaties.

This isn’t a DNR vs the Indians situation. The DNR is just the traffic cop on the scene of a train wreck that’s about to happen. The Indians are picking a fight with the State of MN and therefore by default picking a fight with the Federal Government.

The issues the Indians are trying to force to the forefront here have nothing to do with the DNR or really natural resources of any kind. What’s really going on here is an the Indians are making regulation of wild rice a test case that would open the door to VASTLY increasing the powers the tribes have as so-called “sovereign nations”. Currently that power is largely confined to the bounds of the reservations.

If this goes where the Indians are currently steering it, the Indians would have vastly expanded powers for their tribal members to do things off of the reservations, but while being governed by tribal law instead of state and local laws.

The Indians would also have essentially a veto power over a wide variety of activities that they might determine to impact off-reservation lands where they claim to have treaty rights. So in theory building a road, a pipeline, opening a mine, developing land, selling land, etc would all be subject to tribal approval and potential denial and the only criteria would be that the Indians do not “approve” of how that activity might impact their activities under the various treaties.

Look, I know we as sportsmen have some feedback for the DNR over some of their management “directions”. But let’s not make them the whipping boy for a fight that the Indians are picking with the State and Feds.

Grouse

The DNR head guy said they were going to ticket them if they riced and then they issued them a one day permit to do so. That is what I meant by spineless. If you have no intention to enforce it then don’t pound your chest and say if you try to rice we will give you a ticket.

I understand the rest of this is not their fight, but when you go public with it and then turn the other cheek I see fault in that by the DNR

Grouse,

You have this all wrong. The DNR made the legal threats. They should have followed through. If they have no legal standing to make these threats, then they should do nothing. Period. Better yet, they should have just showed up and handed out a few tickets and confiscated a few vehicles. No warning needed here…. Grrrr

-J.

TheFamousGrouse wrote:

<div class=”d4p-bbt-quote-title”>sticker wrote:</div>
WOW, the DNR has no spine at all.

In fairness, I think the DNR really should not be made into the fall guy for this situation. The DNR is the enforcement arm of the State of MN, nothing more, nothing less. The DNR didn’t make the law, nor did they create or sign the treaties.

This isn’t a DNR vs the Indians situation. The DNR is just the traffic cop on the scene of a train wreck that’s about to happen. The Indians are picking a fight with the State of MN and therefore by default picking a fight with the Federal Government.

The issues the Indians are trying to force to the forefront here have nothing to do with the DNR or really natural resources of any kind. What’s really going on here is an the Indians are making regulation of wild rice a test case that would open the door to VASTLY increasing the powers the tribes have as so-called “sovereign nations”. Currently that power is largely confined to the bounds of the reservations.

If this goes where the Indians are currently steering it, the Indians would have vastly expanded powers for their tribal members to do things off of the reservations, but while being governed by tribal law instead of state and local laws.

The Indians would also have essentially a veto power over a wide variety of activities that they might determine to impact off-reservation lands where they claim to have treaty rights. So in theory building a road, a pipeline, opening a mine, developing land, selling land, etc would all be subject to tribal approval and potential denial and the only criteria would be that the Indians do not “approve” of how that activity might impact their activities under the various treaties.

Look, I know we as sportsmen have some feedback for the DNR over some of their management “directions”. But let’s not make them the whipping boy for a fight that the Indians are picking with the State and Feds.

Grouse

I like what you are saying I get what Jon is saying to. Should the DNR head cheese had talk to the AG and Dayton on this yes. He wrote the check with out checking the account first.

I am wondering about what happened to this guy with a truckload of rice ? He has gotta be laying somewhere all bloated from eating it all…??

big_g wrote:

I am wondering about what happened to this guy with a truckload of rice ? He has gotta be laying somewhere all bloated from eating it all…??

Or a great tasting duck

Isn’t just unbelievable………say no more!

Jon Jordan wrote:

Grouse,

You have this all wrong. The DNR made the legal threats. They should have followed through. If they have no legal standing to make these threats, then they should do nothing. Period. Better yet, they should have just showed up and handed out a few tickets and confiscated a few vehicles. No warning needed here…. Grrrr

-J.

You really think that this last minute “permit” thing was the DNR’s own idea? Really? Why would they do that NOW? If they wanted to just bail out with this permit thing on their own, the could have done that any time within the last 2 weeks.

Whole thing smells to me like the Governor’s office called up the DNR and said nix the showdown at the HOD Corral for now. Go into stalling mode until we can get some treaty lawyers limbered up in the bullpen.

I know it’s hard to resist another good round of DNR bashing, but honestly you guys don’t think there are other forces at play here?

The Indians have just made it clear that they want a veto power of anything that touches dirt, water, rock, or air anywhere north of I 94 in MN. You think the Governor’s office is just saying, “No biggie, we’ll let the DNR handle it.”?

You guys have an interesting view of a DNR that runs the state on it’s own and reports to nobody.

Grouse