The Mille Lacs Band of Ojibwe had a milestone win in U.S. District Court last week, in a case remarkable for how clear-cut the decision should have been from the start.
U.S. District Judge Susan Richard Nelson ruled that the Mille Lacs Band’s reservation boundaries set in the Treaty of 1855 are still its boundaries today, according to the Pioneer Press.
Seems pretty straight forward. But with treaties, things are never straight forward.
The backstory for this case is the backstory for every treaty between the U.S. government and Indigenous peoples: The Treaty of 1855 was terribly one sided in favor of the U.S. government, but even then settlers and their descendants tried, and continue to try, to break faith with Indigenous communities and renege on what small treaty promises they made.
Treaties are a two-way street with rights and responsibilities for both parties. On Line 3, Minnesota is failing its duty.
Photo: Ron Turney, EIN
The Treaty People Gathering, June 5-8, garnered extensive media coverage, notably the June 7 actions taken to stop construction of the Enbridge Line 3 tar sands pipeline through northern Minnesota.
The media covered the political pressure placed on President Joe Biden to live up to his campaign promises to address climate change and respect Tribal sovereignty. It covered water protectors chaining themselves to Enbridge equipment and the subsequent arrests of approximately 200 people. It covered speeches by important movement leaders and celebrities such as Winona LaDuke, Tara Houska and Jane Fonda.
Most stories made a passing reference to treaty rights, but failed to give the topice much ink. It’s not something that fits easily into a two-paragraph summary or a 30-second video clip.
The problem is that many non-Indigenous people erroneously view treaty rights as a gift from the United State government to Indigenous Nations. Treaty rights are a binding contract between two parties, each with their own rights and responsibilities.
The Minnesota Pollution Control Agency’s (MPCA’s) commitment to environmental and racial justice is being tested and it’s not doing that great. It gets an incomplete at best.
At issue is the MPCA’s environmental review of Enbridge’s plans to build a tar sands crude oil pipeline across northern Minnesota. To proceed, Enbridge needs the MPCA to approve a water crossing (Section 401) certificate. The proposed Line 3 crosses a lot of water — more than 200 streams and other water bodies and 79 miles of wetlands.
Native Nations have offered strong opposition to Line 3 for violating treaty rights and its threats to clean water and wild rice. Both the pipeline’s construction and future spills would endanger northern Minnesota’s environment.
So what were the MPCA’s goals for engaging Tribal communities in this important decision, and how well did it meet them?
After years of research, testimony, organizing, letter writing, pleas, protests, and other public pressure by Indigenous Nations, environmental groups and regular citizens, one Minnesota Public Utilities Commission (PUC) Commissioner came around to vote “no” on Enbridge’s proposed Line 3 tar sands pipeline expansion.
Commissioner Matthew Schuerger’s lone “no” vote Monday didn’t change the outcome; the PUC approved Line 3’s Certificate of Need and Route Permit on 3-1 votes. Significantly, however, Schuerger’s arguments will lend credibility to the pending lawsuits seeking to overturn the PUC’s ill-considered decisions. Continue reading →
On this day in history, March 11, 1863, Ojibwe leaders signed a treaty with the United States, acknowledging the Mille Lacs Band for its role in backing the United States in the Dakota-U.S. War.
The treaty also:
Ceded additional Ojibwe lands to the United States.
Bribed Ojibwe treaty signers with special one-time payments and houses.
Defined — in U.S. terms — what it meant to be an Ojibwe Chief.
Appointed Christian leaders to oversee annuity payments.
‘This would be the first law to recognize the legal rights of a plant species‘
The White Earth Band of Ojibwe and the 1855 Treaty Authority are taking action to address the growing threats to native wild rice, such as potential crude oil pipeline spills or the spread of genetically modified wild rice. They are establishing new laws and claiming treaty rights to protect their culture and sacred food.
The 1855 Treaty Alliance was established to protect the treaty rights of Leech Lake, Mille Lacs, White Earth, East Lake and Sandy Lake bands. The Alliance covers those lands the Anishinaabe ceded as part of their 1855 Treaty with the United States. (Among those treaty rights, bands claim the right to hunt, fish and gather — including harvesting wild rice — on ceded lands.)
According to a media statement from the 1855 Treaty Alliance:
Recently the White Earth Band of Ojibwe and the 1855 Treaty Alliance adopted Rights of Manoomn for on and off reservation protection of wild rice and the clean, fresh water resources and habitats in which it thrives. The Rights of Manoomin were adopted because “it has become necessary to provide a legal basis to protect wild rice and fresh water resources as part of our primary treaty foods for future generations” …
This is the first in a series that will review responses to Enbridge’s last-minute promises on its Line 3 pipeline project. The PUC adopted these with no pubic scrutiny. This blog looks at the responses from Native Nations. The next blogs will look at responses from state agencies and an environmental group.
In late June, the Minnesota Public Utilities Commission (PUC) was entering its final deliberations on the Enbridge Line 3 tar sands pipeline. The debate spanned years, including public hearings, an environmental impact statement, and recommendations from an administrative law judge. With a final vote imminent, the PUC changed the rules. It allowed Enbridge to change its proposal after the official record had closed. The PUC accepted Enbridge’s deal sweeteners and voted to approve them without giving regulators or the public a chance to review and critique them.
While Enbridge’s promises might look good on paper that’s no guarantee they will deliver.
Now, predictably, many parties — tribal nations, state agencies and an environmental group — have filed responses to the PUC seeking significant changes. These responses show just how little thought the Commissioners gave to Enbridge’s proposals before giving them the green light. In particular, Enbridge gave no consideration to indigenous rights. While perhaps it’s not surprising that Enbridge tried to game the system, it is disappointing that the PUC went along with it, one more example of its flawed process.
Part III of a series looking at Ojibwe Band responses to Administrative Law Judge Ann O’Reilly’s report and recommendations on the Enbridge Line 3 tar sands pipeline. [Note: Ojibwe is the colonial name for the Anishinaabe. Ojibwe is used in this story because of its use as an official band name.]
While other bands tended to focus on treaty rights, the Mille Lacs Band led with a strong argument on the economic reasons to deny Line 3. The Mille Lacs Band said: “THE EVIDENCE IN THE RECORD DOES NOT SUPPORT A NEED FOR THE PROJECT.”
O’Reilly’s report, and Mille Lacs response, were sent to the Minnesota Public Utilities Commission (PUC), the body expected to vote on Line 3 in late June. The PUC will vote on Line 3’s Certificate of Need and Route Permit. The Mille Lacs letter addresses both issues.
Treaties — and their implications for Native American hunting and fishing rights — are always a contentious topic. Many people are unaware of treaty language, or chose to ignore it when they clash with their business interests. The latest flare up centers on Ojibwe fishing rights on Lake Mille Lacs and its dwindling walleye population.
In spite of a U.S. Supreme Court decision which holds the Mille Lacs bands hunting and fishing rights, the state of Minnesota set up a process that guaranteed the band would have a weakened voice in the debate over fishing limits.
Last year, the state created a 17-member panel to advise the state on walleye fishing on Mille Lacs. There was a single tribal representative on that panel: Jamie Edwards, the Mille Lacs Band of Ojibwe’s director of government affairs. Edwards just resigned by letter, according to a story in Minnesota Public Radio. He sited the committee’s disrespect for tribal sovereignty.
The Edwards resignation letter said that the Mille Lacs Fisheries Advisory Committee, “had devolved into anti-science, anti-treaty-rights forum subsidized by state resources.” It continued:
To say that I am a minority on this committee is an understatement. Rather than representing a diversity of interests and perspectives, the overwhelming majority of [committee] members are persons who own businesses dependent upon walleye fishing. [The committee] does not include conservationists, owners of businesses dependent on other species of fish, representatives of other types of businesses or any of the other myriad stakeholders of Mille Lacs fisheries.
According to an 1855 Treaty, the south shore of Lake Mille Lacs is part of the Mille Band of Ojibwe Reservation. So are the cities of Isle and Wahkon; Kathio State Park and the Bayview community. (Photo: Wikipedia)
Mille Lacs County and the Mille Lacs Band of Ojibwe are in a contentious disagreement about law enforcement roles and responsibilities, and more importantly, tribal sovereignty. The disagreement raises significant questions about the reach of tribal jurisdiction that goes back to an 1855 treaty.
The immediate dispute came on June 21, when, with no warning, the Mille Lacs County Board of Commissioners revoked the law enforcement agreement with the Band, an effort to severely restrict the band’s law enforcement powers. An article in the Mille Lacs County Times — County revokes policing agreement with Mille Lacs Band — provides important context:
While the action involves an eight-year-old law enforcement agreement, a generations-old land dispute over boundaries remains largely at issue. The band recognizes its territory as 61,000 acres established by the Treaty of 1855 made between the U.S. government and the Chippewa [Ojibwe] band. The county recognizes band territory as the 4,000 acres held in federal trust due to a number of acts and developments since the treaty. The longstanding conflict complicates a lot of things that are already complex.
Go back a few months, at a key part the dispute grew out of the Band’s request to get federal law enforcement help under the 2010 Tribal Law and Order Act. According to a media release from the Band, the federal decision sided with the Band’s view of its boundaries:
Last November, the Office of the Solicitor of the U.S. Department of Interior released Solicitor’s Opinion M-37032, a legal opinion concluding that the 1855 Reservation boundaries are still intact, contradicting claims by the State and the County that the reservation was diminished and disestablished by subsequent treaties and laws.
This generated a strong reaction in Mille Lacs County.
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