On this day in history, March 24, 1999, the U.S. Supreme Court affirmed the Mille Lacs Band of Chippewa had treaty-protected rights to hunt, fish, and gather on the lands the Band ceded to the U.S. government by an 1837 treaty. It’s known as the Treaty of St. Peters (present day Mendota), the first treaty in which the Anishinaabe people ceded significant lands in what would become the state of Minnesota.
This treaty — and the 1999 U.S. Supreme Court decision — have particular relevance today. The Red Lake and White Earth nations have opposed the Enbridge Line 3 crude oil pipeline through northern Minnesota based on treaty rights to hunt, fish and gather along Line 3’s proposed route. They cite the 1999 U.S. Supreme Court case as precedent.
The proposed Line 3 pipeline would carry 760,000 barrels of tar sands crude oil daily; it would travel 355 miles border-to-border across northern Minnesota. Red Lake and White Earth say the pipeline’s environmental damage — both from construction and crude oil spills — would violate their treaty rights.
The Indigenous peoples of northern Minnesota call themselves Anishinaabe. Early settlers and treaty documents refer to them as Ojibwe or Chippewa, names which continue today.
The Treaty of 1837 between the U.S. government and the Mille Lacs Band of Chippewa ceded lands that would become part of western Wisconsin and east central 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.
The U.S. government and state of Minnesota broke that solemn pledge. The Mille Lacs Band’s website provides a brief recap:
… 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:
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
The Red Lake Nation and the White Earth Nation repeatedly raised their treaty rights issues with the Minnesota Public Utilities Commission (PUC), the body changed with reviewing key Line 3 permits. Red Lake and White Earth are within the 1855 Treaty Territory.
Some context is in order. The 1837 Treaty and the 1854 Treay (which ceded the Arrowhead region) had specific language giving the Ojibwe people the rights to hunt, fish and gather in the ceded territory. The 1855 Treaty, in which Anishinaabe people ceded much of what would become north central Minnesota, did not have such language.
Administrative Law Judge (ALJ) Ann O’Reilly took pubic and expert testimony in the Line 3 case and issued a report with recommendations to the PUC. She incorrectly concluded that the 1855 treaty’s silence on hunting, fishing, and gathering rights meant those rights did not exist. (See 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 1855 Treaty didn’t explicitly revoke 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, such as in the 1837 and 1854 treaties.
PUC double talk
The PUC feigned concern about treaty rights. On page 29 of its 2018 Certificate of Need 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 other 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 identified treaty issues as “serious concerns,” yet apparently not serious enough to make sure they got resolved before construction started. The PUC decided it didn’t have to consider treaties as a legitimate part of the debate.
Clearly, the PUC was not the right venue to resolve treaty issues. Treaties are a federal matter. Yet PUC Commissioners should have known two key things. First, treaties are the supreme law of the land; they override state law. Second, they shouldn’t approve a project when there is a credible argument it violates federal law. Commissioners could have tentatively approved Line 3, but required treaty issues get resolved first. It did not.
This is an example of institutional racism. With no basis for ignoring treaty issues, with no basis for taking one side over the other, the PUC favored international corporate interests over Minnesota’s Indigenous peoples.