Treaty Rights Fact Sheet (text)

SUMMARY:   

Even on ceded territory (off-reservation), Ojibwe tribal members retain certain property rights that allow them to “make a modest living from the land.”  These use-rights are called usufructuary rights, and are guaranteed by the treaties between Ojibwe bands and the US government, protected by the US Constitution, and affirmed by the US Supreme Court.  They include the rights to hunt, fish, gather medicinal plants, harvest and cultivate wild rice, and preserve sacred or culturally significant sites. 

 

The proposed new oil pipelines in northern MN violate the treaty rights of the Anishinaabeg by endangering critical natural resources in the 1854, 1855, and 1867 treaty areas.  All pipelines leak, and catastrophes like Enbridge’s 1 million gallon spill in 2010 on the Kalamazoo River are not unlikely.  The pipelines threaten the culture, way of life, and physical survival of the Ojibwe people.   Where there is wild rice, there are Anishinaabeg, and where there are Anishinaabeg, there is wild rice.  It is our sacred food.  Without it we will die.   It’s that simple. 

 

HISTORY:

•1837 White Pine Treaty (aka Treaty of St. Peters) – July 29, 1837 at Fort Snelling. 

The Ojibwe nations ceded to the US a large tract of modern-day MN and WI (east of the Mississippi River and south of Lake Superior).  The purpose was to exploit the region’s lumber resources, especially giant white pines, for use in the construction boom across the country.  The United States bought millions of acres for about $24,000.  In turn, Article 5 granted the signatory Ojibwe bands usufructuary rights to hunt, fish and gather within the ceded territory.  An Ojibwe chief from Leech Lake known as Eshkibagikoonzhe (Flat Mouth) demanded that his people retain the right to “get their living from the lakes and rivers” because “we cannot live, deprived of our lakes and rivers.”

 

•1855 Treaty with the Chippewa – February 22, 1855 in Washington DC.

The Ojibwe ceded 10 million acres of northern Minnesota lake country, including the headwaters of the Mississippi River, and the US government established 9 small reservations.  

 

•The Voigt Decision (1983) - In the 1970s, the Lac Court Orielles Band of Ojibwe challenged Wisconsin’s efforts to regulate their hunting and fishing off-reservation.  The conflict started when 2 Ojibwe men were arrested for harvesting fish with spears, and charged with poaching.  In 1983, the US 7th Circuit Court of Appeals delivered the “Voigt Decision” inLCO Band of Chippewa Indians v. Lester P. Voigt, et al, affirming Ojibwe rights to hunt and fish anywhere on ceded territory, even on privately owned land.   Over the next 8 years, which were marked by civil unrest and racial conflict as white sport fishermen protested tribal members’ exercising of treaty rights, the US District Court rejected repeated appeals by the State of Wisconsin.  The US Supreme Court refused to hear the case, and the Voigt decision still stands today.

 

1999 Supreme Court Decision - Minnesota v. Mille Lacs Band of Chippewa Indians

This is the landmark decision.  During the 70s and 80s, Ojibwe tribal members in Minnesota 

were repeatedly arrested and harassed for asserting their fishing rights.   This led to a series of protracted legal battles, culminating in the 1999 U.S. Supreme Court decision Minnesota v. Mille Lacs.  The Court ruled that the Ojibwe retained hunting, fishing, and gathering rights on the lands it had ceded to the federal government in the 1837 White Pine Treaty and that the state governments of MI, MN, and WI, had unfairly asserted authority of hunting and fishing rights without regard for treaty rights guaranteed to the Ojibwe before those states were even formed.  The Court also concluded that the same protections survived in the 1855 Treaty, even though it did not explicitly outline usufructuary rights, because the Chippewa delegates that signed it clearly did not believe they were relinquishing such rights. 

 

• 2015 Squarehook case 

Operation Squarehook was a large multi-year state and federal investigation into black market walleye.  On Feb. 10, 2015, the 8th Circuit U.S. Court of Appeals ruled that the federal government could not prosecute 4 Ojibwe men for netting walleye on Leech Lake Reservation and selling them.  This upheld the 2013 US District Court decision to toss the cases.  The men were accused of selling hundreds of thousands of dollars’ worth of netted fish and charged with wildlife trafficking under the Lacey Act.  The court upheld the rights guaranteed by the 1837 White Pine Treaty as the same rights the signatory Chiefs would have understood in 1855, even though the 1855 treaty did not directly apply because the Leech Lake Reservation did not exist yet.   In its decision, the court repeatedly referenced the Supreme Court’s landmark 1999 Mille Lacs decision.  It effectively ended Operation Squarehook. 

 

TRIBAL INTERVENTION AGAINST THE SANDPIPER/LINE 3 CORRIDOR:

Tribal nations have federally protected property rights in the treaty areas, yet have not even been consulted about the Sandpiper/Line 3 corridor.  The PUC bluntly denied requests for public hearings on the reservations.  So in June 2015, the White Earth and Mille Lacs Bands each held their own public hearings to document public sentiment and expert testimony on potential impacts.  The bands also wrote letters to the PUC asking for a stay on the permitting process until tribes could be property consulted, and letters to Governor Mark Dayton asking him to fulfill his responsibilities for cooperation with tribal governments as outlined in Executive Order 13-10.  Approval of this pipeline corridor is a declaration of war against the Anishinaabeg, a slap in the face of tribal governments, and a threat to the precious fresh water of Minnesota.  Tribal governments are now exploring options for intervention at the federal level and expect a long and protracted legal and regulatory battle over the coming years. 

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