Treaties are a two-way street, with rights and responsibilities on both parties.
Non-Indigenous landowners in this country might not think about it, but our land titles trace back to treaties between the U.S. government and Native Nations. We have benefited immensely from these treaties and their legacy of cheap land.
The U.S. government coerced treaties, got vastly disproportionate benefits from treaties, and yet still broke treaties. Native Nations have struggled to enforce the few treaty provisions that benefit them. They deserve support.
A case now before the District Court in Clearwater County reflects an attempt by non-Indigenous people to uphold U.S. treaty obligations, specifically, that Anishinaabe people retain rights to hunt, fish, gather, and hold ceremony on lands they ceded to the U.S. government under the Treaty of 1855. (Full disclosure, I am a defendant.)
While the U.S. Supreme Court already has ruled that the Anishinaabe retain such rights under the 1855 Treaty, Clearwater County Attorney Kathryn Lorsbach is trying to relitigate the issue.
The case
In June of 2021 — as Enbridge was building its new Line 3 tar sands pipeline 337 miles across northern Minnesota, wrecking the environment as it went — Indigenous women leaders called on non-Indigenous allies to stand with them to defend their rights under the Treaty of 1855.
The group occupied a wood-plank road on the Line 3 route, and called it Camp Fire Light. The plank road was part of Enbridge’s infrastructure to tunnel Line 3 under the Mississippi River and surrounding wetlands.
Fifty-one water protectors stayed on the Line 3 easement after Enbridge ordered us off. We later left peacefully and got cited for criminal trespass.
Three defendants were Anishinaabe. Their cases got moved to White Earth Tribal Court where their charges were dismissed. The court ruled they were lawfully exercising their treaty rights.
The non-Native defendants are still in District Court, awaiting a judge’s decision on our Motion to Dismiss all charges.
Lorsbach argues the 1855 Treaty doesn’t give the Anishinaabe rights to hunt, fish, and gather on ceded lands, because it’s not written in the treaty. Regardless, she write, non-Native people don’t have treaty rights, so the trespass charges should stick.
Speaking for myself, I never claimed I had treaty rights, only that I was an invited guest of those who did.
A ruling is expected soon. If the judge denies the Motion to Dismiss, the case go to trial.
Context matters
Lorsbach’s legal brief, filed 11 days late, begins with a lengthy review of 15 treaties between the U.S. government and the Anishinaabe. (Note: The U.S. government refers to the Anishinaabe as “Chippewa” and “Ojibwe.”)
Lorsbach focuses narrowly on treaty language around Indigenous rights to hunt, fish, and gather.
She misses the big picture. The United States and U.S. treaty negotiators routinely abused the treaty process for personal gain and to help business interests. These abuses have shaped how the U.S. Supreme Court interprets treaties. In short, the general rule is Native Nations should get the benefit of the doubt when resolving treaty disputes.
Before diving into legal arguments, consider the backstories of four treaties Lorsbach cites.
Treaty of Greenville, 1795
The Treaty of Greenville covered the “Northwest Territory” which extended to the future state of Minnesota. Lorbach’s argument seems extraneous, and I won’t try to summarize it.
The important context here is it offers a classic example of how the United States breaks treaties.
Following the Revolutionary War, westward expansion led to ongoing battles between Nation Nations and militia and the U.S. Army on the frontier (the area that is now New York, Pennsylvania, Indiana and Ohio). The Treaty of Greenville was an effort to end hostilities.
The treaty redefined the boundary between the United States and Indian Country. The United States dropped its claims to the Northwest Territory.
In the treaty, the United States pledges to “protect all the said Indian Tribes in the quiet enjoyment of their lands against all citizens of the United States, and against all other persons who intrude upon the same.”
Settlers continued moving west occupying Indigenous lands and the United States did nothing. “American expansion quickly nullified the [treaty] agreement,” the U.S. Park Service said.
Treaty of Saint Peters, 1837
This treaty involved lands in what later would become parts of Minnesota and Wisconsin. (Lorsbach points out it explicitly gives Anishinaabe hunting, fishing, and gathering rights, unlike the Treaty of 1855.)
For more context, the treaty was negotiated as the fur trade was collapsing, according to the website Why Treaties Matter, a project of the Minnesota Indian Affairs Council, the Minnesota Humanities Center, and the Smithsonian Institution’s National Museum of the American Indian.
U.S. treaty signers included Henry Sibley and Hercules Dousman; both had ownership stakes in the American Fur Company. They “and other traders changed their business strategy from trading for furs to making treaties,” Why Treaties Matter said. “They used powerful connections in the U.S. political system to ensure that when Dakota and Ojibwe people received compensation for ceded land, much of the cash would be used to pay fur trade debts,” (real or made-up debts).
Under the treaty, the Anishinaabe received $24,000 in cash, goods and services, Why Treaties Matter said. “Their mixed-blood relatives (including men who signed treaties on behalf of the U.S.) received $100,000; and fur traders received $70,000.”
Lumber interests also benefited from what became known as the “White Pines Treaty.” According to the Wisconsin Academy of Sciences, Arts & Letters:
“Officials in the administration of President Martin Van Buren sought land cession not to accommodate white settlers … but to enable lumbering on a large scale along the eastern tributaries of the Mississippi River. Demand for cheap pine grew rapidly among the new towns of the Mississippi River Valley as the cost of lumber from western New York and Pennsylvania reached prohibitive levels.”
Treaty of LaPointe, 1854
This treaty covers the Arrowhead region in what is now the northeast corner of Minnesota. Again, Lorsbach points out this treaty explicitly gives Anishinaabe hunting, fishing, and gathering rights.
For more context, surveyors found a copper vein along Lake Superior’s North Shore in 1848. Eastern mining interests took note and began pressuring the U.S. government to remove the Anishinaabe who lived there, Why Treaties Matter said.
The Treaty of 1854 transferred the Arrowhead region to the United States.
To this day, Anishinaabe bands are fighting northern Minnesota mining interests over their environmental harm, such as the waste water discharge from U.S. Steel’s Minntac taconite mine that kills wild rice.
Treaty of 1855
As noted in defendants’ legal brief, the 1855 Treaty negotiations were unjust.
U.S. officials “invited only a select few Anishinaabe representatives to the District of Columbia and did not inform them that the purpose of the invitation was to negotiate a treaty. … The United States intentionally invited only a small number of people … although the Treaty purported to bind all Anishinaabe people in the ceded area, including many who had no representative in the negotiations to advocate for their interests or convey their sovereignty.”
In exchange for vast amounts of land, the Treaty of 1855 promised Tribal members annuity payments. “The annuity system, however, was vulnerable to fraud,” Why Treaties Matter said. “Annuity recipients had to show up at appointed times and places to receive their funds, and any funds not distributed could be pocketed by the Indian agents in charge of annuities.”
The legal argument
Recognizing the many treaty abuses, such as those described above, past U.S. Supreme Court decisions have set three guiding principals for interpreting treaties, the Defendants’ brief said. The first principal is “ambiguities in treaties must be resolved in favor of the Indigenous signatories. … Second, treaties must be interpreted as the Indigenous signatories would have understood them at the time of signing. … Third, treaties must be construed liberally in favor of Indigenous people.”
Lorsbach focuses on the fact that the Treaty of 1855 doesn’t specifically guarantee Anishinaabe hunting, fishing, and gathering rights, as the treaties of 1837 and 1854 did.
It seems fair to infer — under the U.S. Supreme Court’s guidance — that the Anishinaabe treaty signers would have understood they maintained these same rights as granted to their relatives in the treaties of 1837 and 1854.
More to the point, the U.S. Supreme Court’s decision in Minnesota v. Mille Lacs Band definitively addresses the issue. The Court’s majority seems untroubled, as Lorbach is, that the 1855 Treaty didn’t explicitly grant the Anishinaabe rights to hunt, fish, and gather — because the treaty didn’t expressly revoke those rights, either.
“These are telling omissions, since federal treaty drafters had the sophistication and experience to use express language when abrogating [revoking] treaty rights,” the Court’s decision said. “The historical record, purpose, and context of the negotiations all support the conclusion that the 1855 Treaty was designed to transfer Chippewa land to the United States, not terminate usufructuary [hunting, fishing, and gathering] rights.”
Lastly, the U.S. Supreme Court has established the “Reserved Rights Doctrine” as a fundamental principle of treaty law, Defendants argue. It says that unless a treaty or federal law explicitly revokes rights, Native Nations retain them.
The Treaty of 1855 does not explicitly revoke those hunting, fishing, and gathering rights, therefore they are retained.
Post Script
During Camp Fire Light, unknown to water protectors, Enbridge quietly was trying to clean up after Line 3 construction ruptured an aquifer elsewhere in Clearwater County. Enbridge failed to follow its own construction plans, dug too deep, and broke through an aquifer cap. Enbridge failed to report the breach to state regulators in a timely manner. It took Enbridge a year to fix the breach. In the meantime it released at least 72.8 million gallons of groundwater to the surface, a violation of its permit and state law.
To stop the breach, workers pumped 547,692 gallons of grout (think cement) into the ground. (That’s enough grout to build wall two-feet thick, 15-feet tall, and nearly a half-mile long (or .46 miles to be exact).
For all that, the only criminal charge Enbridge faced was one misdemeanor count for appropriating water without a permit, the same level of crime, a misdemeanor, faced by Camp Fire Light Defendants.
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