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Wild rice harvest will test treaty rights

Wild rice harvested on Perch Lake on the Fond du Lac Reservation. (2013 file / News Tribune)

Members of Minnesota's Chippewa tribes will begin harvesting wild rice this week, off their reservations and without a state license, in an effort to gain affirmation of hunting, fishing and gathering rights under an 1855 treaty with the federal government.

Moreover, some of the activists are looking for a court decision that recognizes a tribal regulatory authority under the treaty to protect the environment — water quality, wild rice, wild game and fish — including authority over major projects with potential environmental impacts, such as pipelines, powerlines and mines.

Members of the 1855 Treaty Authority say they want an agreement with the state of Minnesota that recognizes their rights to hunt, fish and gather without restraint by state law inside the 1855 treaty area that runs from about 40 miles west of Duluth to the North Dakota border, and from near the Ontario border to near Brainerd.

The 1855 Treaty Authority sent a letter to Gov. Mark Dayton on Aug. 7 outlining its plans to harvest wild rice outside the reservation as well as its requests for ricing authority.

"We have offered to meet to initiate co-management of the natural resources of the 1855 territory previously, but Minnesota has continuously declined," the letter to Dayton notes. "We remain willing to meet and work toward the goal of meaningful co-management and thoughtful environmental protection of our Chippewa treaty territories. However, we can be idle no more."

So far there's been no response from the state.

"Governor Dayton just returned from a state trade mission to Mexico and has not yet read the letter. He will respond after he has a chance to review it with the appropriate administration officials," Cambray Crozier, Dayton's deputy press secretary, told the News Tribune.

If no agreement is reached — and so far the two sides aren't even talking — the Chippewa band members want a test case in which a band member is issued a Minnesota DNR citation for ricing on Minnesota public waters without a state wild-rice harvesting license.

"We're looking for a case to bring this to the (federal) court where we will undoubtedly prevail the same way we did with the 1837 case for Mille Lacs and the 1854 case for the Lake Superior region," said Frank Bibeau, an attorney for the 1855 Treaty Authority.

The group is planning a major wild-rice harvesting event for Aug. 27 on Hole-in-the-Day Lake near Nisswa in north-central Minnesota. The lake is named after an Ojibwe or Chippewa chief who was among the signatories to major treaties with the federal government in the 19th century.

"Hole-in-the-Day Lake was selected in part in remembrance of the Chippewa Chief Hole-in-the-Day and Gull Lake reservation during the 2015 harvesting season," said Boone Wadena, a member of the White Earth Band, in a statement. "And to remind people how important wild rice is to our culture, traditions and whole way of life."

Wadena and others contend that, while their forefathers sold off large chunks of northern Minnesota to the government, those sales never included giving up the right to hunt, fish and gather.

A 1999 federal court decision that focused on the 1837 treaty between the Chippewa and the United States concluded the Chippewa did not give up their 1837 rights under the 1855 treaty. But other details on the 1855 document are not clear. While the 1855 treaty doesn't specifically mention hunting, fishing and gathering as retained rights, Bibeau said the rights are inherent.

"If there's no wording that we gave them up, we still have them; that's the way the treaties are interpreted," he said.

Organizers remind ricers that they believe the treaty only protects members of all Minnesota Chippewa bands — even those based outside the 1855 territory — but they must be licensed to harvest rice by their specific band.

Bibeau said several tribal members have been cited for harvesting off-reservation without a state license in recent years, but charges have always been dropped, denying a test case.

That happened in 2010 when Chippewa band members gathered to net fish on Lake Bemidji. State DNR conservation officers seized the nets, but made no arrests, which let the issue linger.

"We have people out ricing off-reservation right now. But if they fail to get a citation that's prosecuted, then we are sort of forcing the issue," Bibeau said.

Bibeau said the Aug. 27 event also will call attention to the Chippewa assertion that, in order to protect their rights to hunt, fish and gather, their people must also be allowed to protect the environment — and that means the authority to make decisions on projects that might affect the environment. Several Chippewa groups are opposed to the Enbridge Sandpiper pipeline which is proposed to run through the 1855 treaty area.

So far there is no precedent-setting court decision that would grant such broad, off-reservation authority to Indian tribes.

"If we are going to have rice to harvest, fish to catch and game to hunt, the environment must be protected," Bibeau said. "We believe have the right to do that under this treaty, to stop things that would harm the environment."

One state judge already has ruled against that concept, although the issue is likely to be decided in federal court. Administrative Law Judge Eric Lipman in May 2014 ruled that the 1855 treaty "does not forbid creation of new rights of way on the land that was sold in 1855," and that the treaty couldn't be used to stop the pipeline.

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