Court: Fond du Lac’s suit against U.S. Forest Service to block PolyMet land transfer can move forward

Patrick Schultz, Chief Judge for the U.S. District Court for Minnesota, issued an order Friday saying the Fond du Lac Band of Lake Superior Chippewa has legal standing to challenge a land transfer between the U.S. Forest Service and the PolyMet mine. The land transfer would open the door for the company to pursue its plans to operate an open-pit copper-nickel mine on that land.

PolyMet challenged Fond du Lac’s legal standing to bring the lawsuit, arguing the Band had no legal interest in the land exchange.

Schultz disagreed. He ruled the Treaty of 1854 between the Fond du Lac Band and the U.S. government gave the Band treaty-protected rights to hunt, fish, and gather on the lands in question, so it has legal standing to bring the case.

Camp Fire Light court case seeks to uphold treaty rights

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.

State of Washington, courts use broken treaty promises to justify breaking more treaty promises

The state of Minnesota failed miserably to uphold, let alone consider, how the Enbridge Line 3 pipeline violated Anishinaabe treaty rights to hunt, fish, and gather on the lands they ceded to the U.S. government.

Those “usufractuary” rights to hunt, fish, and gather outside reservation boundaries are critical to many if not all Native Nations. The Anishinaabe’s struggle to keep its hunting and fishing rights gets repeated across the country.

Consider the State of Washington’s ludicrous efforts to strip Snoqualmie Nation of its treaty rights.

In the courts: Making the case that treaty rights could force government action on climate change

It’s nearly impossible to get politicians who operate on a two- to four-year election cycles to take the long view on the climate crisis. It would require political courage to overhaul our energy infrastructure, disrupt the status quo — and risk voters’ wrath — for a better future. Those of us in Minnesota saw first hand how political leaders and regulators ignored the Enbridge Line 3 pipeline’s projected climate damage.

A recent Harvard Law Review article makes a strong case that treaty rights could be a powerful tool to force state and federal governments to address this existential threat. The argument rests on established U.S. Supreme Court precedents.

It would take a lot of courage for the leaders of Native Nations to sue in court. These cases are costly and drag on for years. Further, Tribes risk losing. That means further erosion of their treaty rights.