Red Lake tribe faces water rights challengeby Tom Robertson, Minnesota Public Radio
There's an invisible line across Upper Red Lake in northern Minnesota. It's the border on water between the Red Lake Indian Reservation and the state of Minnesota. Every few years, white anglers cross the unmarked border into tribal waters. When that happens, tribal conservation officers confiscate equipment and charge the intruder with trespassing. Now, some people are questioning the tribe's water rights. They say the lake should be open to all Minnesotans. Tribal officials say the lake belongs to them, and they'll do what they have to to defend it.
Red Lake Indian Reservation — Red Lake officials say trespassing on tribal waters is rare. Four years ago, a Minnesota pilot landed his plane on lower Red Lake and began fishing. Tribal authorities confiscated the plane. The pilot paid $4,000 in fines and other penalties to get it back.
Last May, when the Red Lake tribe confiscated Princeton angler Jerry Mueller's boat, it sparked renewed questions about whether the tribe has that authority. Mueller is set to appear in tribal court later this month. Red Lake Tribal Chairman Buck Jourdain has no apologies for the tribe's policies.
"If somebody came on our tribal waters with a jet ski or an ocean liner, nevertheless, it's the same," said Jourdain. "They've trespassed into an area that they have no business being in."
Angler Jerry Mueller is reportedly considering a challenge to Red Lake's authority in federal court. An organization called Proper Economic Resource Management is backing Mueller. It's a non-profit group that challenges and frequently opposes Indian treaty rights.
The organization has challenged Minnesota Ojibwe tribes before. It was involved in a hunting and fishing rights dispute with the Mille Lacs Band of Ojibwe in central Minnesota. In 1999, the U.S. Supreme Court ruled in favor of the tribe. Proper Economic Resource Management is now calling on the governor and the state Department of Natural Resources to begin managing all of Red Lake. Organization officials did not return phone calls for this story.
Red Lake tribal leaders say they have the right to manage Red Lake as they see fit. Jourdain says that inherent right is recognized by the state and federal governments.
"In my opinion, and the opinion of the Red Lake people as a whole, there is no question who holds the title and the land and the inherent right to control this area. It's the Red Lake Band," said the chairman.
Newly elected tribal secretary Kathryn Beaulieu agrees. Beaulieu says challengers are ignorant of treaties between the tribe and the U.S. government.
"Why should they come over here and try to say what right do we have to do this?" said Beaulieu. "Why are they questioning us? Because they don't understand the very concept of a nation within a nation. That's what they need to educate themselves about."
The Red Lake Ojibwe once controlled most of northwest Minnesota. Through treaties with the federal government in the mid to late 1800s, the tribe agreed to give up some 14 million acres in exchange for things like health care and education. Chairman Jourdain says the tribe never ceded its rights to control Red Lake.
Jourdain says the confiscations are intended to send a strong signal to deter others from encroaching on the tribe's waters. He says he's not surprised that politicians and sportsmen's groups are sifting through lawbooks to try to dispute the tribe's jurisdiction.
"It's something that we knew, we anticipated would happen some day," Jourdain said. "And the band is of a mind that, hey, we don't care what anybody says. We own these tribal waters, we have a right to control them. We have a process here and people have to respect that process, just like we respect the state of Minnesota's waters."
The controversy has become a campaign issue for a few northern Minnesota politicians. Republican Doug Lindgren is running for the House seat in the district that includes Red Lake. Lindgren says if he's elected, the first thing he'll do is ask the state to clarify who has jurisdiction on Red Lake.
Lindgren and others point to a 1926 Supreme Court decision they claim gives the state of Minnesota full ownership of all waters in Minnesota. The case involved a drained lake bed located not within Red Lake reservation boundaries, but on lands ceded by the tribe. In that case, the Supreme Court gave jurisdiction to the state. "It's been upheld in the highest court in the nation, that Red Lake belongs -- and this is from the U.S. Supreme Court -- is that they are saying that the navigable waters belong to the state of Minnesota," said Lindgren. If Minnesota has the right, through the laws, then yes, Minnesota should step in and have all control over what goes on on the Red Lakes."
Lindgren's opponent, incumbent DFL Rep. Brita Sailer, says she believes any questions regarding Red Lake sovereignty are federal issues. Sailer says raising it as a campaign issue only pulls people apart.
"I don't think it helps when we raise divisive issues, and I really believe that that's what's going on here," said Sailer. "I believe that issues are being raised to get people to think about certain things rather than focus on issues that really, truly make differences in people's lives."
Lindgren isn't the only candidate raising the issue. Michael Barrett is the Republican candidate for the 7th District U.S. House seat. Barrett has called on Red Lake to release its claims on the lake. He says if elected, he'll ask Congress to enforce Supreme Court decisions that he says give the state of Minnesota jurisdiction over Red Lake waters. U.S. Rep. Collin Peterson, the Democratic incumbent, did not return calls for this story.
Some district Republicans have distanced themselves from Barrett's position. Tribal members say Barrett is anti-Indian. Barrett says his position is not about race, but about equal access to the lake.
"This is not meant to be racist in any manner," said Barrett. "In fact, the opposite is true. This is a statement that identifies that we're all Minnesotans, that we should all have the same opportunities and we should all live by the same rules. We have to have a state and a nation that embraces equal rights and equal access for all, not special privileges for a few."
What Barrett refers to as special privileges, tribal leaders and the federal government define as sovereignty -- Indian tribes' inherent right to manage their lands and govern themselves.
Some legal experts say the 1926 Supreme Court case cited by Red Lake's challengers does not deal specifically with the waters of Red Lake.
Associate Professor Kevin Washburn specializes in Indian law at the University of Minnesota Law School. Washburn says more recent Supreme Court cases have tended to be much more deferential to Indian land and water claims. Washburn says the 1926 case doesn't present a strong legal challenge to the tribe's jurisdictional sovereignty.
"Red Lake wins in that argument. The tribe wins in that argument," said Washburn. "That's not to say that there isn't statements in cases here and there that might help someone who is challenging the tribe's authority. But, boy, the overwhelming weight of history and cases, is that Red Lake gets to keep the lake, that that's probably not something that's going to be overturned."
Minnesota DNR Commissioner Gene Merriam did not respond to calls for this story. Merriam has said there's no question in his mind the Red Lake tribe has jurisdiction over reservation waters. That relationship is based on state legal opinions from the 1930s.
But just recently, DNR legislative affairs staff asked the state Attorney General's office to review the matter. They want to know whether any legal opinions have been issued since then.