Minnesota State DNR vs. Anishinaabeg

By Jeff Armstrong
Contributing Writer

For generations, the Anishinaabe people in Minnesota have quietly asserted the right to fish, hunt, and gather wild rice free of state regulation under international treaties with the United States. On May 14, the Anishinaabeg (otherwise known as Chippewa or Ojibwe) launched what promises to be a lengthy legal struggle over treaty rights to much of northern Minnesota under the 1855 Treaty.

Nearly 200 Anishinaabeg and their supporters assembled on the shores of Lake Bemidji to claim their ancestral rights in the off-reservation town of the same name, one not noted for harmonious race relations.

Defying threats of arrest by the State Department of Natural Resources (DNR), warnings of a white backlash in the local media, and attempts by some tribal officials to derail the event, several boatloads of Anishinaabeg set nets in the off-reservation lake, while others cast lines from the shore on the day preceding the May 15 state fishing opener.

No one knew what to expect from state law enforcement and anti-treaty activists, but organizers sponsored non-violence training in the event of counter-demonstrations that never materialized. The few anti-treaty activists present were outnumbered even by non-Natives who came in solidarity with the Anishinabeg. Picketers who held up signs to support treaty rights along a busy street into Bemidji said they received more honks of support than racial epithets.
The DNR avoided open confrontation, seizing nets and fish but not boats and automobiles, a common practice of state conservation officers in the past. Netting citations were referred to the Beltrami County Attorney for possible prosecution on gross misdemeanor charges carrying a maximum one-year jail sentence. As HPR goes to press, no charges have been filed.

It was a far cry from 1972, when white residents of Leech Lake Reservation took up arms and state law enforcement threatened to violently disperse armed reservation blockades of Anishinaabe and American Indian Movement activists aimed at forcing the state to accept a federal court ruling in the reservation’s favor.

Treaty rights activist Aaron White, Sr. said people power and a heavy media presence were the only factors keeping him out of jail.
“If there weren’t all this press out here, all this radio and TV, I’d be sitting in jail. They’d have pulled me out of the boat right there and put me into jail.”

Media attention notwithstanding, White said a DNR agent pulled out a knife and cut the net away from him inches away from his fingers when he refused to relinquish it immediately.

Treaty rights activists maintain that the state has no legal leg to stand on, but is rather continuing a long pattern of harassment and intimidation. In recent years, the state has aggressively enforced its conservation laws against the Anishinaabeg in the ceded territories but dropped charges when the defendants asserted their treaty rights.
“They haul ‘em into court and they drop charges. That’s harassment,” said Bob Shimek, an organizer of the event. “The United States Supreme Court has already ruled on the treaty rights in the 1855 ceded territory. I don’t know what the state of Minnesota doesn’t understand. It’s right there in black and white.”

The Anishinaabeg claim their rights under an 1855 Treaty with the U.S. government that opened the door to statehood and white settlement in northern Minnesota. Minnesota officials have long contended that the treaty implicitly relinquished Anishinaabe hunting and fishing rights, but that argument was blown out of the water by the U.S. Supreme Court ruling in Minnesota v. Mille Lacs in 1999. The court held in that case that “The historical record, purpose, and context of negotiations all support the conclusion that the 1855 Treaty was designed to transfer Chippewa land to the United States, not terminate usufructuary rights.”

A Wilder Research study last year found that 88% of Native reservation residents strongly agree that federal recognition of treaty rights is important, while 12% agree less strongly. More surprisingly, however, 65% of their non-Native neighbors agree, though only 21% agree strongly.

Despite the strength of the tribe’s legal argument and evidence of growing non-Native acceptance of treaty rights, some tribal officials seem to possess an institutional instinct for accommodation. White Earth Reservation Business Committee chair Erma Vizenor and Leech Lake secretary-treasurer Mike Bongo quickly sought to break up tribal unity on the issue and cancel the May 14 action when it received unexpected media attention. Vizenor, who is the subject of a recall petition on her reservation for opening enrollment to non-Natives and “establishing an unconstitutional and illegal court system” and police force, may have been courting state political support to prop up an increasingly repressive reservation regime.

Bongo, who is a longshot for reelection in a tribal vote this month, may have been grasping for a polarizing issue against popular tribal chairman Archie LaRose, whose family has been at the forefront of decades of struggle against state jurisdiction and tribal complicity. Bongo called for a referendum on the treaty rights issue, but tribal elections this month may serve the same purpose when Bongo squares off against Donnie Headbird. At a May 7 public meeting on Leech Lake, Headbird vowed to take the lead in the treaty rights struggle.

The Leech Lake Legal Department, which initiated the treaty rights claims and withstood an attempt by Bongo and his supporters to fire its employees, has given the state 90 days to respond to its arguments, which include a lengthy legal analysis by law professor Peter Erlinder. Erlinder is currently incarcerated in Rwanda on dubious charges.

The simmering conflict over treaty rights with the state also has political implications for Gov. Tim Pawlenty, who has been mentioned as a potential presidential nominee for the Republican party. Pawlenty has taken a strong stance against Native sovereignty which may serve him politically at the state level, but he clearly does not want to be in the center of a nationally-publicized racial conflict of the sort that took place in Wisconsin in the 1980s, after the Anishinaabeg prevailed in federal court with the Voigt decisions.

Predicting a “long, hot summer,” American Indian Movement activist and Leech Lake tribal member Dennis Banks pointed to the fundamental inequity of the fact that non-Natives can fish on his home reservation with a state license and without being subject to tribal jurisdiction, yet he is subject to state criminal penalties for fishing on state land with a reservation license, despite treaty rights more than 150 years old.

“You’ve seen today these people confiscating our nets, citing people, threatening them with jail, but when people come and fish in our lakes, we cannot impound their boats, we cannot confiscate their cars or their trailers,” said Banks.

“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 rights.” Read more at Suite101: Minnesota Chippewa Fishing for Treaty Rights. http://tiny.cc/nativerights

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