Tribes propose 5-year harvest
Suggestion that bands may start commercial fishing concerns DNR
The Mille Lacs Band of Ojibwe and seven other Chippewa tribes in Minnesota
and Wisconsin have proposed taking 100,000 pounds of walleye a year from
Mille Lacs Lake between 2003 and 2007.
The bands' proposed five-year harvest plan was initially welcomed by
Department of Natural Resource officials as 'reasonable.'
But a DNR official is concerned with the suggestion in the proposal
that some tribes, not including the Mille Lacs Band, may start fishing
commercially on the big lake.
"I thought this was a subsistence fishery," said Rick Bruesewitz, 1837
Treaty biologist for the DNR. "We're looking over the commercial fishery
idea and trying to determine what it means."
More central to the bands' proposal, is a 100,000-pound tribal limit
in 2003 and 2004 � the same allocation as this year.
Then, if band members harvest at least 85 percent of that allocation,
levels would rise to 105,000 pounds in 2005, 110,000 pounds in 2006 and
115,000 pounds in 2007. The increased poundage would be shared equally
by the bands.
According to the Dec. 28 proposal, as submitted by the Great Lakes Indian
Fish and Wildlife Commission to the DNR, the changes proposed in the new
five-year plan "will provide a very limited opportunity for expansion
of band harvests if the bands demonstrate the ability to utilize their
Curt Kalk, commissioner of natural resources for the Mille Lacs Band,
said, "We designed it based on need and to get something stable in place.'
Bruesewitz responded to the proposal by saying, "We're pleased to see
a rather moderate harvest declaration, but we have concerns about the
commercializing aspects of it."
HARVEST RESERVE The Mille Lacs Band will still get 50 percent of the
harvest, leaving the other 50 percent to be shared among the other bands.
The Mille Lacs Band has proposed to keep 25,000 pounds of their share
in reserve. If any of the other bands exceed 90 percent of their individual
allocations, that reserve could be tapped by mutual agreement.
What would remain for the Mille Lacs Band, Kalk said, is about how much
the members harvest each year. The band just over 22,800 pound of walleye
Kalk said this formula helps meet the desire of some bands, such as
the Fond du Lac Chippewa, for a greater allocation, while it addresses
the complaints of sport fishermen who say the bands' total allocation
far exceeds their need.
"If the other bands show they need more, the Mille Lacs Band could give
up some but we won't be taking more from the lake," Kalk said.
But the new harvest plan doesn't satisfy at least one area sports fisherman.
NOT REASONABLE Joe Fellegy, editor of the Mille Lacs Fishing Digest
and a Mille Lacs Lake Advisory Association board member, took the DNR
to task for calling the proposal reasonable.
"Such high tribal allocations would be terribly disproportionate and
potentially very challenging for the sport fishery and its DNR managers,"
he said. "Good grief. With last year's band declaration of 85,000 pounds
and band harvest of 45,000 pounds, the sport fishing community was in
damaging controversy with walleye harvest nearly shut down."
Fellegy added, "With larger allocations and a whiff of �commercialization'
thrown in, how can they (DNR officials) be so mellow now?"
COMMERCIAL PERMITS Bruesewitz said commercial fishing, while allowed
under the U.S. Supreme Court's 1999 decision in the treaty case, could
According to the new proposal, some bands "may revise ... their codes
to permit the issuance of permits for commercial harvest during the period
from March 2 to May 31."
The document continues: "The bands contemplating this change do not
anticipate that it will have a material impact on the level of their harvests,
but will permit their members to recoup some of their expenses in participating
in the Mille Lacs Lake fishery."
Kalk said, "Commercial fishing is absolutely not something the Mille
Lacs Band will be participating in."
But the bands that might sell their catch won't make much money doing
so, he said.
"I've done the math. If you tried to sell all 100,000 pounds, by the
time you've cleaned, fileted and marketed it, you wouldn't make $30,000.
Everybody knows that," Kalk said. "Basically the bands just want to sell
enough to afford to fill their gas tank to get here."
According to the proposal, the gill netting, spearing and angling regulations
now in effect would not be altered for commercial fishing.
But Bruesewitz said the introduction of commercial fishing could make
managing the total walleye harvest more difficult.
"Subsistence and sport fishing is driven by the demand of fishermen,
not profit," he said. "While effort and the harvest will go down with
the fish population, commercial fishing pressure will only increase."
Bruesewitz said the entire proposal will be reviewed and discussed with
tribal biologists over the coming months.
"The majority of the plan seems reasonable. Even the commercial aspect
with limits - who knows?" he said.
Mille Lac Chippewa win in Supreme Court
Court upholds Indian hunting, fishing rights
March 24, 1999
WASHINGTON -- Eight bands of Chippewa Indians can continue to hunt and
fish on 13 million acres of public land in Minnesota without state regulation,
the Supreme Court ruled today in a case that attracted the attention of
By a 5-4 vote, the court said that neither an 1850 presidential order
nor Minnesota's statehood in 1858 stripped the Chippewas of the hunting
and fishing privilege they received in an 1837 treaty.
``After an examination of the historical record, we conclude that the
Chippewa retain the ... rights guaranteed to them under the 1837 treaty,''
Justice Sandra Day O'Connor wrote for the court.
Some Indian law experts had said the court's decision could affect the
security of other Indian treaty rights. The Chippewas were supported in
friend-of-the-court briefs submitted by the National Congress of American
Indians, Affiliated Tribes of Northwest Indians and 32 individual tribes.
The Mille Lacs Band of Chippewa sued the state in 1990, challenging
its authority to impose hunting and fishing regulations on tribal members.
The federal government and seven other Chippewa bands in Minnesota and
Wisconsin joined the lawsuit. Nine counties and eight private landowners
intervened on the state's side.
``It's been a long case. It's been complex. But everyone has gotten
their input,'' said Don Wedll, the Mille Lacs band's commissioner of natural
resources.'' Every issue that could possibly be raised has been raised.
The court has ruled.''
A federal trial judge ruled in 1994 that the package of rights guaranteed
by the Chippewas' 1837 treaty with the United States ``continues to exist,''
and the 8th U.S. Circuit Court of Appeals agreed. Today, the nation's
highest court said those courts were correct.
The 1837 treaty gave the Chippewa Indians the rights to hunt and fish
``during the pleasure of the president'' on 13 million acres it ceded
to the United States. Minnesota's lawyers contended that an order President
Zachary Taylor signed 13 years later took those rights away and ordered
the Chippewas removed from the previously ceded lands.
``The Supreme Court has ruled. We accept and respect that decision and
now it's time to look to the future,'' said Marcy Dowse, spokeswoman for
the Minnesota Department of Natural Resources. ''... Mille Lacs is in
really good shape right now. People should look forward to fishing on
The Chippewas opposed the removal order, and the federal government
never enforced it. The bands continued to hunt and fish in the ceded territories
-- an expanse of land in central Minnesota that includes Lake Mille Lacs,
one of the state's prime walleye lakes.
``It's a sad day. It's awful.'', said Gary Roach, a fishing professional
from Merrifield, as he prepared his boat today for the upcoming fishing
``It sounded like (the Supreme Court justices) were certainly aware
of the issues, and from the sound of the questions I thought it was going
to go the other way,'' said Dean Hanson, owner of the Agate Bay Resort
on Lake Mille Lacs. ''We will live with what the court has decided.''
O'Connor wrote that Taylor's order requiring the Chippewas' removal
from the land was not authorized by federal law, and that other provisions
in Taylor's order revoking the hunting and fishing rights could not stand
The state's lawyers also contended that the hunting and fishing privilege
free of state regulation ended when Minnesota became a state in 1858 and
entered the union on an equal footing with all other states.
However, O'Connor said Indian treaty rights can be revoked only when
Congress clearly states its intent to do so. The legislation admitting
Minnesota into the union did not mention Indian treaty rights, she said.
``Statehood by itself is insufficient to extinguish Indian treaty rights
to hunt, fish and gather on land within state boundaries,'' O'Connor wrote.
Her opinion was joined by Justices John Paul Stevens, David H. Souter,
Ruth Bader Ginsburg and Stephen G. Breyer.
Dissenting were Chief Justice William H. Rehnquist and Justices Antonin
Scalia, Anthony M. Kennedy and Clarence Thomas.
Writing for the four, Rehnquist said Taylor's order ending the Chippewas'
treaty privileges was valid, adding, ``There is simply no principled reason
to invalidate the 150-year-old executive order.''
``I'm extremely disappointed with the Supreme Court on this decision,
said Sen. Dan Stevens, R-Mora, an outspoken opponent of the treaty rights.
''I don't know what they were looking at. ... The Supreme Court has opened
up commercial netting.'' he said.
The case is Minnesota vs. Mille Lacs Band, 97-1337.
SUPREME COURT OF THE UNITED STATES
MINNESOTA et al. v. MILLE LACS BAND OF CHIPPEWA INDIANS et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 97�1337. Argued December 2, 1998�Decided March 24,
Pursuant to an 1837 Treaty, several Chippewa Bands ceded land in present-day
Minnesota and Wisconsin to the United States. The United States, in turn,
guaranteed to the Indians certain hunting, fishing, and gathering rights
on the ceded land "during the pleasure of the President of the United
States." In an 1850 Executive Order, President Taylor ordered the Chippewa's
removal from the ceded territory and revoked their usufructuary rights.
The United States ultimately abandoned its removal policy, but its attempts
to acquire Chippewa lands continued. An 1855 Treaty set aside lands as
reservations for the Mille Lacs Band, but made no mention of, among other
things, whether it abolished rights guaranteed by previous treaties.
Minnesota was admitted to the Union in 1858. In 1990, the Mille Lacs
Band and several members sued Minnesota, its Department of Natural Resources,
and state officials (collectively State), seeking, among other things,
a declaratory judgment that they retained their usufructuary rights and
an injunction to prevent the State's interference with those rights. The
United States and several counties and landowners intervened. In later
stages of the case, several Wisconsin Bands of Chippewa intervened and
the District Court consolidated the Mille Lacs Band litigation with the
portion of another suit involving usufructuary rights under the 1837 Treaty.
The District Court ultimately concluded that the Chippewa retained their
usufructuary rights under the 1837 Treaty and resolved several resource
allocation and regulation issues. The Eighth Circuit affirmed. As relevant
here, it rejected the State's argument that the 1850 Executive Order abrogated
the usufructuary rights guaranteed by the 1837 Treaty, concluded that
the 1855 Treaty did not extinguish those privileges for the Mille Lacs
Band, and rejected the State's argument that, under the "equal footing
doctrine," Minnesota's entrance into the Union extinguished any Indian
Held: The Chippewa retain the usufructuary rights guaranteed to them
by the 1837 Treaty. Pp. 15�35. .................
26 Mar 1999
From: Tom Schlosser email@example.com
Morisset Schlosser Ayer & Jozwiak, 801 2nd Ave., Ste. 1115,
Seattle, WA 98104, 206 386 5200, (206 386 7322 fax)
Our firm web page describes a lot of treaty rights cases. See http://msaj.com
The Supreme Court's March 24, 1999, full opinion in favor of Mille Lacs
treaty rights can be found at http://lw.bna.com/lw/19990330/971337.htm
1. The President must have authority from Congress or the Constitution
to take actions with respect to Indians. Slip Op. at 15.
2. The severability rules for dividing statutes into valid and invalid
parts apply to executive orders. Slip Op. at 17.
3. The canons of construction requiring that treaties be interpreted
liberally, and as the Indians understood them, still exist. Slip Op. at
4. Treaties ceding "all" interests in land do not necessarily abrogate
use rights reserved by other treaties in those same lands unless the historical
context of the treaties and the practical construction adopted by the
parties suggests that intent. Slip Op. at 21-27.
5. Treaty rights must be expressly abrogated or they still exist. Slip
Op. at 29.
6. Oregon Department of Fish and Wildlife v. Klamath Tribe (1985), resulted
from express language in an 1864 treaty that reserved "exclusive" rights
within a reservation, and does not apply to nonexclusive rights in ceded
areas. Slip Op. at 27-29.
7. The contention that treaty use rights were extinguished when States
were admitted to the Union is wrong. The decision in Ward v. Race Horse
(1896) has been "qualified" (majority opinion) or "overruled" (dissent)
by later decisions of the Supreme Court. Slip Op. at 29-32; Rehnquist
dissent at 12-13.
8. The continuing effect of treaty rights does not turn on whether the
words "rights" or "privileges" were used in the treaties. Slip Op. at
9. If a particular treaty states that rights would continue only upon
certain conditions and the happening of these conditions was "clearly
contemplated" when the treaty was ratified, then those rights end when
the clearly contemplated events occur. For example, the treaty in Race
Horse contemplated that rights would continue only so long as the hunting
grounds remained unoccupied and owned by the United States. Slip Op. at
10. Although treaties use different language, reserved tribal hunting
and fishing rights are subject only to reasonable and necessary nondiscriminatory
state regulations adopted in the interest of conservation. Slip Op. at