On this day in history, March 24, 1999, the U.S. Supreme Court affirmed the Mille Lacs Band of Chippewa had the treaty-protected rights to hunt, fish, and gather on the lands the Band ceded to the U.S. government by the 1837 treaty.
This treaty has particular relevance today. Anihsinaabe bands (called either Ojibwe or Chippewa by early settlers and treaty documents) are resisting the Enbridge Line 3 crude oil pipeline through northern Minnesota based on similar claims to hunting, fishing and gathering rights along the pipeline’s proposed route.
The 1837 treaty is also known as the Treaty of St. Peters (the former name of Mendota). It was the first treaty in which the Anishinaabe people ceded major areas of land in what would become the state of Minnesota,.
Article V of the Treaty reads:
The pleasure of hunting, fishing, and gathering the wild rice upon the lands, the rivers and the lakes included in the territory ceded, is guaranteed to the Indians, during the pleasure of the President of the United States.
Like all treaties, commitments were broken. The Mille Lacs Band’s website provides a brief recap on how the state simply ignored treaty provisions:
… the State of Minnesota prosecuted Band members for violation of state conservation laws for many decades. In 1990, the Mille Lacs Band was ready to sue the state of Minnesota because too many Band members were being wrongly arrested for hunting and fishing in the ceded territory. But to avoid unnecessary and unpleasant confrontations, the Band tried to settle the issue out of court.
After a challenging negotiation process, the Band and the Minnesota executive branch of government reached a settlement. That settlement was later voted down by the Minnesota Legislature, which felt that the case should be settled in court.
The case — Minnesota v. Mille Lacs Band of Chippewa Indians— went all the way to the U.S. Supreme Court and the Mille Lacs Band won.
The Band’s website provides this post script to the decision:
Today’s Mille Lacs Band members, like their ancestors, are committed to protecting and preserving natural resources. That is why the Mille Lacs Band worked with the state of Minnesota to develop and implement a conservation code for the 1837 ceded territory.
Implications for Enbridge Line 3
Anishinaabe bands Red Lake and White Earth have argued against the Line 3 pipeline on the grounds that it would harm their hunting, fishing and gathering rights guaranteed under the Treaty of 1855 (covering a large area of north central Minnesota. Clink on the link for a map.)
Some context is needed. Both the 1837 and 1854 treaties had specific language giving the Ojibwe people the rights to hunt, fish and gather in the ceded territory. The 1855 Treaty did not. Ann O’Reilly, the Administrative Law Judge in the Line 3 case, concluded that the treaty’s silence on the issue meant those rights don’t exist. (Se page 141 of her report.)
There are three basic Indian canons employed by the Supreme Court. First, treaty language must be construed as the Indians would have understood it, and the rights reserved by treaties remain intact unless Congress has express clear and unambiguous contrary intent. Second, Indian treaties must be construed liberally in favor of the Indians. Finally, ambiguities in the treaty language must be resolved in favor of the Indians. These interpretive rules reflect the Supreme Court’s understanding that a “treaty was not a grant of rights to the Indians, but a grant of right from them – a reservation of those not granted. …
Since the treaty did not deny the hunting, fishing and gathering rights, the Anishinaabe treaty signers at the time would have understood that they existed, just like they had in other treaties the U.S. government made with their relatives, including the 1837 Treaty.
The PUC Shuffle
The PUC feigned concern about indigenous issues. On page 29 of its order, the PUC writes:
The Project’s impacts to indigenous populations are of serious concern to the Commission. The Project route would traverse territory that was originally ceded by Minnesota’s Ojibwe and Chippewa tribes (collectively referred to as the Anishinaabe tribes or people) through treaties with the federal government, which determine the rights the Tribes retain to hunt, fish, and gather wild rice and other resources in these lands in accordance with their traditional practices.
But the order only uses the word “treaties” twice. In the second reference, the PUC dismisses treaty rights in a footnote (Page 9):
[T[he ALJ Report included a section discussing the treaties between the federal government and the Native American sovereign nations located in Minnesota. The Commission concludes that this discussion is not necessary to the Commission’s decision, and therefore does not adopt these findings.
The PUC could have identified treaty issues as important and unresolved. Since treaties are a federal matter, the Commissioners could have acknowledged that the PUC was not the right venue to adjudicate those issue — but the pipeline should not move forward until they are resolved.
It did not. Instead, it green-lighted the project, forcing a costly legal challenge on the Anishinaabe people.