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Supreme Court Upholds Mille Lacs Treaty Rights
By Elizabeth Stawicki
March 24, 1999
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The United States Supreme Court has ended one of Minnesota's most contentious disputes by ruling in favor of the Mille Lacs Band of Ojibwe's right to spear-fish and gill-net on the state's premier walleye lake, Lake Mille Lacs.

By a vote of five-to-four , the high court ruled the Band has retained the right to hunt and fish, free from state regulation on 13 million acres of land it sold to the government more than 160 years ago.

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THE U-S SUPREME COURT'S RULING puts an end to a nearly decade-long, arduous and often heated battle through the courts. In the end, the high court ruled in favor of the tribe.

Scott Strand, a former Minnesota Assistant Attorney General who worked on the case since the early '90s, says the ruling implies that the state and tribal rights can coexist.
Strand: And the notion that state sovereignty is not threatened by the exercise of Indian tribal rights, ultimately that was a fundamental part of the argument in the case, and I think they've clarified their position there.
The case turned on two key issues: whether the Band's hunting and fishing rights on land it sold were nullified by a presidential order in 1850 by Zachary Taylor, who ordered the Ojibwe off the ceded land, or when Minnesota became a state in 1858.

Writing for the majority, Justice Sandra Day O'Connor said the state's arguments failed. She said the president's power to issue an order must stem either from Congress or the Constitution itself; and Taylor's 1850 order was not authorized by federal law and never enforced by the federal government.

O'Connor's decision was laden with historical background. The Band's Seattle-based attorney is Marc Slonim who argued the case from the district court level to the U.S. Supreme Court. Slonim says the court's interest in historical records was critical to the Band winning its case.
Slonim: We've always thought to really understand the legal significance of these various documents, you had to understand them in context; and you couldn't just look at a treaty or an executive order without any context and interpret it and decide what it was intended to do and whether it was effective or not.
Those who dissented were Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. In writing the dissent, Rehnquist said there was simply no principled reason to invalidate Zachary Taylor's 150-year old order.

The ruling surprised attorney Randy Thompson who represented the Mille Lacs Lake-area landowners who lobbied to keep the state's challenge of spearfishing alive. Thompson says two-thirds of the time the U.S. Supreme Court takes a case, it reverses it. That would've meant a win for his side. Still, Thomson tempers his disappointment because the ruling was close and four justices agreed with his side.
Thompson: It shows the closeness of the decision, reflects that there were serious and substantial arguments on both sides of the issues, and the court could've really gone either way.
Justice O'Connor also dismissed the idea that Minnesota's entrance into the union overrides Indian treaties. Associate Law Professor Raymond Cross from the University of Montana is a member of the Mandan and Hidatsa tribes and has argued several treaty rights cases before the U.S. Supreme Court. He says the idea that statehood could extinguish treaty rights was a major issue for other tribes around the country.
Cross: What this means, in effect, is you'll have fewer challenges to treaty fishing rights; hunting, trapping, and gathering rights in light of this decision simply because if treaties are read from the standpoint of Indians and secondly that the state's rights don't override those treaty interests, that you'll have fewer challenges to those types of treaty rights.
Another authority on Indian treaty law says the court took into account the idea that the state and the Band have been cooperating on this issue. L. Scott Gould is also an authority on Indian treaty law. He's a law professor at the University of Maine.
Gould: So, I think the reality is that the court here was not faced with a decision that it's either going to be the state or the tribe. I think that the court looked at the fact that the state and the tribes have been able to work together on conservation management programs, they saw that each could work together and there was no reason not to change. The reality is the court was not faced with a decision that it's either going to be the state or the tribe. The court looked at the fact that the state and the tribes have been able to work together on conservation management, they saw that each could work together and there was no reason not to change that.
At Lake Mille Lacs, nothing really changes. The area has lived with spearfishing since last year. But the ruling means finality for those who live around Lake Mille Lacs like Diane Nikkaboine, who's a life-long Band member.
Nikkaboine: I feel the white society will be very upset, they are always upset about something. We can never win when they are concerned.
MPR: But you just won.
Nikkaboine:Yes, we did. And that's very cool. I'm glad. I'm glad.
Some resort owners have long feared a ruling in favor of spearfishing could threaten their livelihoods. But the General Manager of Eddie's Resort, Dave Bentley, is optimistic.
Bentley: I mean, it's a great lake, it's a wonderful place to come and visit. There's some good gambling up the road, a great state park across the highway. We've got a lovely hotel, a great launch service, great restaurant. It's all here, and none of it's going away. That's my point.
The reaction from public officials was geared towards keeping all sides calm in an effort to avoid the violence that marred spearfishing in Wisconsin in the late 1980s. Governor Jesse Ventura, who less than a month ago said native people who want to exercise their treaty rights should go back to using birch-bark canoes, now says Minnesotans need to accept the high court's ruling.
One other treaty rights case is pending. It involves an 1854 treaty covering northeastern Minnesota. It's been on hold pending the outcome of the Mille Lacs case.

Elizabeth Stawicki covers legal issues for Minnesota Public Radio. You can reach her at