SUPREME COURT RULING 25TH ANNIVERSARY
By Vivian LaMoore, Inaajimowin Editor
On March 24, 1999, the highest court in the land had ruled 5-4, affirming Indian hunting, fishing, and gathering rights under the treaty of 1837 for eight Anishinaabe tribes. The dispute divided two cultures entwined in a tumultuous battle that lasted longer than WWII. By mid-morning that day, the media swarmed the Mille Lacs Lake area as Mille Lacs Band of Ojibwe leaders gathered in front of the Mille Lacs Band Government Center along with state officials, local residents, and business owners.
Under the spring morning sunshine, the late Chief Executive Marge Anderson spoke eloquently the words that still resonate today, 25 years later. She said, “Today the United States has kept a promise, a promise that agreements are made to be honored, not broken.... Our path has been a long and difficult one, often marked by broken agreements on the part of the government. We are thankful that the nation’s highest court has seen things our way, and has ruled that the treaty between our people and the United States in 1837 means what it says. Our rights are not just words on paper, they are vital to our being.”
The battle began under the leadership of then Chairman Art Gahbow who directed Don Wedll to research the Band’s treaty rights in 1981. In 1982, the Band hired the Seattle law firm of Al Ziontz’s to review legal and historical information about treaties Mille Lacs Band members had signed. Marc Slonim was the attorney assigned to the case.
The Band was also working through a reorganization of the government structure called Separation of Powers and creating departments to provide services to the Band. The creation of the Band’s Department of Natural Resources was assigned to litigate the hunting, fishing, and gathering rights.
It took the Band’s DNR from 1984 to 1990 to raise the one half million dollars to bring the suit. Each of those years, Chairman Gahbow directed the Commissioner of Natural Resources, Don Wedll, to file the lawsuit. And finally, in August of 1990, the case was filed and the state of Minnesota requested to negotiate a settlement of the lawsuit.
In 1990, the Mille Lacs Band, under the leadership of Chairman Gahbow and Speaker of the Assembly Marge Anderson, and four Band members (Chairman Gahbow, Walter Sutton, Carleen Benjamin, and Joe Dunckley) filed suit in federal court (the United States District Court for the District of Minnesota) against the State of Minnesota, seeking a court order affirming the existence of their hunting, fishing, and gathering rights under the 1837 Treaty and prohibiting the State from interfering with the exercise of those rights. Slonim and his partner John Arum represented the Band. The United States intervened in the case to support the claims made by the Band and its members, according to Slonim.
Anti-Indian and anti-treaty groups organized vocal public opposition to the Band’s claims. Resort owners and citizens were outraged and Wedll played a pivital role as he represented the Band as the public spokesperson.
In April 1991, the Mille Lacs County Board of Commissioners voted 3-2 in favor of hiring an attorney, Steve Froehle, with the intention that the county would intervene and join the lawsuit as defendants in the Band’s lawsuit against the State. And by November that year, eight other counties intervened in the treaty lawsuit, as well as landowners. The attorney for the landowners was Randy Thompson.
When Minnesota’s Legislature rejected a settlement agreement negotiated by the Band and Minnesota’s DNR, the case proceeded to trial in 1994. The State argued that the Band’s rights under the 1837 Treaty had been extinguished by an Executive Order issued by President Zachary Taylor in 1850, which directed the removal of the Ojibwe from the territories ceded in the 1837 Treaty (as well as those ceded in an 1842 Treaty), the 1855 Treaty ceding additional lands in Minnesota (and establishing the Mille Lacs Reservation), and the 1858 Act admitting Minnesota to the Union. Band members Herman Kegg, Brenda Boyd, and Joe Dunckley testified about arrests and citations they had received for exercising their hunting, fishing, and gathering rights, the enduring importance of hunting, fishing, and gathering to the Band, and the unlikeliness that their ancestors would have ever relinquished these essential rights, recalled Slonim. Expert witnesses Charles Cleland, James McClurken, Bruce White, John Nichols, Helen Tanner, and Tom Lund provided ethnohistorical, linguistic, and historical legal context for the 1837 Treaty, the 1850 Removal Order, and the 1855 Treaty.
Slonim’s summary
In 1994, Chief District Court Judge Diana Murphy ruled in favor of the Band and its members. She found that President Taylor’s 1850 Order was unauthorized because it exceeded the President’s authority under the 1837 Treaty. She also found that neither the 1855 Treaty nor the 1858 Statehood Act impaired the Band’s rights under the 1837 Treaty. Accordingly, she held that the Band’s rights to hunt, fish, and gather on lands ceded in the Minnesota portion of the 1837 ceded territory remained in force. She ruled that the State could not regulate or otherwise interfere with the exercise of those rights except as necessary for conservation of the resources or public health and safety, that any regulation of the treaty rights had to be non-discriminatory and the least restrictive possible to accomplish its objective, and that the State could not regulate at all if the Band’s own regulations were adequate for conservation, health, and safety purposes.
Judge Murphy’s ruling set the stage for a second phase of the case, in which the lawfulness of specific state hunting, fishing, and gathering regulations would be considered. The case was transferred to Judge Michael Davis to conduct this phase of the case after Judge Murphy was appointed to serve as a judge on the Eighth Circuit Court of Appeals.
During the second phase of the case, a separate lawsuit filed by the Fond du Lac Band was consolidated with the Mille Lacs case to address common regulatory issues. Also, the six Bands of Wisconsin Ojibwe (Bad River, Lac Courte Oreille, Lac du Flambeau, Red Cliff, Sokaogon, and St. Croix) intervened to assert their rights under the 1837 Treaty in Minnesota. The Bands worked together with the assistance of the Great Lakes Indian Fish and Wildlife Commission under the leadership of its Executive Director, Jim Schlender, to develop a comprehensive code to regulate the exercise of their members’ hunting, fishing, and gathering rights. In addition to Wedll, the Commission’s Policy Analyst Jim Zorn, biologists Neil Kmiecik and Jon Gilbert, and two world-renowned fisheries experts, Ransom Myers and John Hoenig, were of great assistance in this process.
With few exceptions, the State agreed that the Bands’ code was adequate for conservation purposes and to protect public health and safety and, therefore, the State could not impose its own regulations. Judge Davis resolved the remaining issues largely in favor of the Bands and entered a final judgment in 1997, bringing the case to a close in the District Court.
The State, the Counties, and the landowners appealed to the Eighth Circuit Court of Appeals. The Court of Appeals, in an opinion by Circuit Judge Donald Lay, affirmed the District Court’s decision in all respects. The State, the Counties, and the landowners then sought review in the United States Supreme Court. The Court granted the State’s petition in early 1998 and, after extensive briefing, the case was set for argument in November 1998. The attorneys for all the Band’s participated in the briefing, with critical contributions from Doug Endresen and Anne Noto representing Fond du Lac, Howard Bichler representing St. Croix, and Jim Jannetta representing Bad River. The Bands were also supported by amicus briefs from other tribes and Indian organizations around the country.
While the case was pending in the Supreme Court, an attorney for the United States and the attorneys for all of the Bands met at Mille Lacs to discuss strategy. They convened for a sunrise ceremony on the shores of Mille Lacs Lake to receive spiritual blessings and strength from Band Elders. During the ceremony, an eagle could be seen circulating overhead. While the attorneys continued to prepare for the Supreme Court argument, the Bands organized a run in which a ceremonial staff was carried by Ojibwe runners from northern Wisconsin to Washington D.C. When the runners arrived in Washington, they assembled at the offices of the National Indian Gaming Commission just a few blocks from the Supreme Court, where a ceremonial fire was lit and additional ceremonies were held in the days leading up the argument. The attorneys again received the blessing of spiritual leaders and Elders. The ceremonial staff was brought to the Supreme Court and was in the building during the argument.
After a spirited argument before the Supreme Court, the State, the Counties, and the landowners left feeling convinced that they would prevail. The Bands’ attorneys were less certain of the outcome, but the Band members who attended the argument were confident their rights would be upheld. They gathered for final ceremonies before leaving Washington D.C.
Tensions mounted at Mille Lacs as all sides awaited the Court’s decision. But in a letter to the Editor of the Mille Lacs Messenger, Chief Executive Marge Anderson again eloquently expressed her most heartfelt concerns. She wrote, “Whether the Mille Lacs Band wins or loses this case, we must move on. For over 100 years we have shared the lake with our non-Indian neighbors. As with all neighbors, we have had our tough times. It is my hope that when this decision is rendered, all of us, Indian and non-Indian alike, can rise to the occasion. Let us not be bitter, let us not be boastful, let us not hurt each other. The decision will be a chance to show our children, win or lose, that neighbors can have a civil dispute — and when that dispute ends, a new day dawns. As a community of Indians and non-Indians, this could be our finest hour.”
Slonim recalled the morning of March 24, 1999 when he received a call from Minnesota Public Radio asking for a comment on the Court’s decision. “I had to ask the reporter what the Court had decided. She simply said ‘you won.’ I told her I was relieved," Slonim said. "I was relieved that after nearly a decade of litigation, the Band’s treaty rights to hunt, fish, and gather had been upheld once and for all by the highest court in the land. These were rights that were central to Band members’ history, identity, and culture; rights that helped define who they were and how they lived. While the litigation was pending, the Band had opened successful gaming enterprises and achieved a level of prosperity it had not known for over a century. Yet at its core, the Band remained an Ojibwe community, with fundamental and unbreakable ties to Mille Lacs Lake and the natural resources found in the lake and the surrounding region. The Band’s ancestors had secured access to those resources in 1837, and the Court’s decision affirmed that the Band and its members would retain access to them in the years to come.”
Chief Justice Sandra Day O’Connor’s opinion was richly woven with history of Indian land negotiations with the United States. The findings upheld the decision of the lower court rulings. She wrote, “After an examination of the historical record, we conclude that the Chippewa retain the... rights guaranteed to them under the 1837 Treaty.”
“March 24, 1999, is a day Band members will continue to celebrate and remember the courageous leaders of our past who fought this battle all the way to the U.S. Supreme Court, showing current and future generations that tribal sovereignty and inherent rights must never be compromised," Chief Executive Melanie Benjamin said. "Band members continue to exercise treaty rights and will continue to teach the youth and future generations the traditional ways. The Mille Lacs Band of Ojibwe will remain the stewards of the rights secured in the 1837 Treaty for generations to come.”