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Ojibways Exercising Rights in 1837 Treaty
By Leif Enger
April 13, 1998
Click for audio RealAudio 2.0 14.4

Part of the Mainstreet Radio series Treaty Rights and Tribal Sovereignty

Ojibway Indians are gillnetting and spearing this spring under rights first granted in 1837. After a long court battle, the Mille Lacs and other tribes were given authority to regulate their own hunting and fishing in a large section of east-central Minnesota - including Lake Mille Lacs, the state's most popular walleye lake. It's a historic spring for the bands - and a dark one for treaty opponents, who still hope the Supreme Court will take up their cause.

THE 161-YEAR-OLD TREATY IS A SHORT, SIMPLE DOCUMENT - you could read it twice before this story's over. In plain language, the Ojibway yield to the US government a big chunk of what's now eastern Minnesota and northwestern Wisconsin. In return, the government provides cash, tobacco, blacksmithing tools, and the right to hunt and fish unrestricted on the territory in question. Mille Lacs Band natural resources commissioner Don Wedll says that simple contract is what the last seven-and-a-half years have been all about.

Wedll: The real fundamental principle is: here's an agreement. And there may be some benefits to the tribe now and in the future, and they should be allowed to have those. That's what was agreed to.
So how did such a short document turn into such a long fight? Well:

In 1850, President Zachary Taylor revoked tribal hunting and fishing rights.

Around 1900, tourists found abundant large walleyes in a pristine Mille Lacs Lake.

By 1990 resorts, fishing guides and restaurants had made Mille Lacs the most popular fishery in the state, with an annual economy of $50 million.

That year, the Band filed suit to retrieve its rights. Local tourism operators were furious. Resorters like Joe Karpen wondered how long their hook-and-line customers would stay, once forced to compete against Natives with spears and hundred-foot gillnets.

Karpen: Everything I owned went into the resort. And this comes along and it destroys your dream. And I'm not gonna take it laying down.
By April of 1992, fear that the Ojibway might regain their treaty rights had spread. In what's remembered as a bitter symbol of the dispute, members of the Minnesota Hunting and Angling Club rallied at the capitol. Former Vikings coach Bud Grant spoke for the sportsmen, and was confronted by Ojibway Leonard Thompson.

The Hunting and Angling Club claimed to represent the average Minnesota outdoorsman - the blue-collar Mille Lacs enthusiast with a Lund boat and a couple free weekends a summer. Club members said, above all, they didn't want their government negotiating away their favorite lake. Ironically, a lot of Band members felt the same way.

Unidentified Band member:You ready guys? OK? Looks like it could be a long night..."
Shortly after the capitol rally, a few dozen Ojibway gathered with spears and flashlights near Mille Lacs. At this time Band and State officials were trying to reach a settlement - a compromise including cash for the Band and a small native-only fishing zone on Mille Lacs. Determined that the treaty rights be tested in court - not diminished by compromise - this group set out to spear some fish, and get themselves arrested.
Unidentified Band member: Will the Band leadership be mad at me? Probably. Will the State be mad at me? Probably. Will the old people I bring fish to be mad at me? I don't think so.
Nine Ojibway were cited for illegal spearing. Much later, the settlement agreed on by the state and band failed for lack of support in the Minnesota legislature. The crumbled compromise disappointed Band and state officials who'd worked for months to craft the agreement, but it delighted native traditionalists and the Hunting and Angling Club. Both sides wanted all or nothing. Both sides KNEW they could win in court.

Bill Thompson: The fish in the lake are the only reason that the people come up here. It's quite simple.
In 1993, six landowners and nine counties in the ceded area joined the state's case against the Band. Lake homeowner Bill Thompson argued unbridled native fishing would destroy property values - and the local economy.
Thompson: If the county goes broke - if the tourism industry up here dies - somewhere along the lines, the taxes have to be made up. I can see no other way of doing it except by raising the taxes. Someone has to make it up.
The landowners were supported in the case by a new group called Proper Economic Resource Management, or PERM. PERM raised hundreds of thousands of dollars to pay the landowners' legal bills as the trial approached. Meantime, acrimony between the sides increased. PERM attacked not only the lawsuit but the whole concept of Native sovereignty. The Ojibway retaliated with charges of racism.

In 1994 the Band won Phase One of the trial in US District Court. 1837 Treaty rights, the Court said, still existed in the lands yielded to the US government. That victory in hand, the Mille Lacs Band found itself joined by six Wisconsin Ojibway tribes for Phase Two - in which the Ojibway would set its own hunting and fishing rules, within Court guidelines. The specter of not only the Mille Lacs, but thousands more natives coming to net and spear fish, sparked more complaints from non-Indian groups, and this response from Band natural resources commissioner Don Wedll:

Don: So some people don't like it. They don't think it's "fair." I'm sorry. The fairness of this has long ago been determined.
Phase Two of the trial ended only last year. Again, the Band got most of what it sought, including 40,000 pounds of walleye from Mille Lacs the first year of harvest. Dreading the sort of violence that occurred against Wisconsin spearfishers a decade ago, Governor Arne Carlson made a televised appeal for coolheadedness; the legislature set aside $6 million for extra law enforcement around Mille Lacs. Residents like Sandy Jellum had to brace for the worst - and they resented it.
Jellum: I mean, I work two jobs, 60 hours a week, just to survive. I mean I have nothing. Just to survive. And then my tax dollars go for something like this.
But the violence never came. Days before the start of the Ojibway harvest, a federal appeals court delayed tribal fishing until it could rule on a landowners' motion that the government had fulfilled its obligations to the bands. When the ruling came - again, in favor of the Ojibway - it was late summer. The Mille Lacs took a small, ceremonial harvest, regrouped, and prepared for the spring of 1998. As far as the Bands are concerned, the dispute is over. The 1837 Treaty is law.

But at PERM meetings - like this recent one in Foley, where hundreds of anglers paid $25 for a meal and a Bud Grant speech - the battle goes on. With all other avenues exhausted, PERM is waiting for the Supreme Court to decide whether it will review the decision upholding the 1837 Treaty. Chances are slight the Supreme Court will do so, but there's a zeal at this meeting that makes the most of any chance at all. Bud Grant:

Grant:We knew when we started this that it was going to end up in the Supreme Court. This is where we were headed, and we're finally there. And now we'll see what happens.
The Supreme Court is expected to decide whether to look at the Mille Lacs case by the end of June.