Ojibwe bands still upset about treaty rights battle with stateby Tom Robertson, Minnesota Public Radio
Bemidji, Minn. — Minnesota is approaching another walleye fishing opener this weekend, but there is still no resolution to a treaty rights dispute between the state and two Ojibwe bands in northern Minnesota.
The Leech Lake and White Earth bands say an 1855 treaty with the federal government gives them the right to fish and hunt in much of northern Minnesota without state interference. But state officials limit the time when people can fish and hunt — regulations they say also apply to members of the tribes.
Despite the stalemate, a lot has happened since a year ago, when some tribal members rallied for treaty rights on the shore of Lake Bemidji.
The White Earth and Leech Lake bands have created a conservation code to one day regulate hunting and fishing for band members not just on their reservations, but across much of northern Minnesota. The code would even regulate off-reservation spearing and netting on some lakes.
Just last month, the two bands established a treaty rights commission to move the issue forward.
The tribes want to avoid an ugly court battle like the case between the state and the Mille Lacs band, said Mike Swan, director of natural resources at White Earth. In that case, the U.S. Supreme Court ruled against the state.
Swan, who helped write the new conservation rules, said the tribes would rather negotiate with the state. Their ultimate goal is to protect resources.
"People hear that the tribes are getting their treaty rights and they think that the Indians are going to come and take all their fish away," he said. "Well, that's not the case. We want to make sure this is done in a good way and properly."
The tribes want to co-manage resources within the treaty area with the state Department of Natural Resources. If that occurred, the tribes would issue hunting and fishing permits to band members. Violators would go to tribal rather than state court.
During the rally on Lake Bemidji last year, organizers had hoped to force the issue into the courts. Leech Lake tribal member Aaron White Sr. broke state law by fishing with gill nets the day before the fishing opener.
The DNR confiscated White's nets, but he hasn't been charged with a crime. There are two years left on the statute of limitations, but no indications that he will ever be charged.
Rally organizer Bob Shimek, of the White Earth reservation suspects that state officials do not want to charge White to avoid a showdown on the issue.
"From my perspective, it has all the appearances that they are kind of deflecting the issue at this point," Shimek said.
Although the Aaron White case is in the hands of Beltrami County Attorney Tim Faver, he has asked the state Attorney General's office twice to handle the case.
Faver didn't respond to an interview request for this story. But in a written statement last summer, he argued the treaty rights issue belongs with the attorney general because it's a constitutional question with statewide implications.
A spokesman for the Attorney General's office said its position hasn't changed -- that misdemeanor cases belong at the county level.
Shimek said he believes the inaction comes down to a lack of resources.
"Right now the state is broke," he said. "Everybody is broke. Nobody has the money, the millions, the tens of millions of dollars it takes to go to into a court action like this."
Members of the tribal commission have had direct talks with attorneys from the U.S. Justice Department. They say they've also had informal discussions with the DNR over the past year regarding treaty rights.
DNR spokesman Chris Niskanen wouldn't confirm whether such talks took place, but he said the agency will continue to enforce game and fish laws. Niskanen says DNR officials want county attorneys to prosecute those cases in court, whether violators are tribal members or not.
"I think everybody would like to see some resolution," he said. "We're hopeful that the larger treaty issues can find an appropriate resolution through the judicial process."
No events are planned by White Earth or Leech Lake band members for the fishing opener this weekend. But there may be other protests.
Members of a Twin Cities based group called First Nations United intend to break state law by fishing with nets on Upper Red Lake on Friday. A small group of Dakota Indians plans to do the same on Cedar Lake in Minneapolis.
- Morning Edition, 05/11/2011, 7:21 a.m.