DNR will enforce state rules on Chippewa ricers
The Minnesota Department of Natural Resources on Tuesday said it will issue citations to any Chippewa tribal member caught harvesting wild rice off reservations without a state-issued license, a move that could culminate in a treaty rights battle in federal court.
Chippewa wild rice harvesters announced Monday they would challenge state licensing laws, saying an 1855 treaty between the many bands of Chippewa in the region and the U.S. government allows them to hunt, fish and gather without regulation by the state.
The 1855 Treaty Authority officials said individual Chippewa harvesters are out this week on lakes outside reservations but within the 1855 ceded territory. A major off-reservation harvesting event is planned for Aug. 27 near Nisswa.
Authority officials say they hoped to reach an understanding with state officials whereby the DNR would recognize the treaty rights. But DNR Commissioner Tom Landwehr on Tuesday, speaking for the state and Gov. Mark Dayton, said no deal.
"The state's position has been and continues to be that the bands that are members of the 1855 Treaty Authority have no hunting, fishing and gathering rights off reservation in the 1855 ceded territory,'' Landwehr wrote in a letter to Arthur LaRose, chairman of the 1855 Treaty Authority. "Harvest of wild rice by any person, both non-band members and band members ... is a violation of state law and subject to criminal prosecution."
But that's in part what Chippewa activists had hoped for — a test case that's fully prosecuted that can be challenged in federal court to potentially affirm the 1855 treaty's coverage.
"Minnesota is simply afraid and unwilling to accept the reality of Chippewa treaty rights throughout most of Minnesota above I-94, said Frank Bibeau, spokesman for the 1855 Treaty Authority. "Public Law 280 specifically exempts Minnesota's state regulations of our federally protected treaty rights in Indian Country. ... Harvesting wild rice is part of our Chippewa civil rights and our most sacred, spiritual food."
Bibeau said the 1855 Treaty Authority is asking the U.S. Department of Justice and federal Bureau of Indian Affairs to intervene and protect Chippewa wild rice harvesters from "unlawful application of state law'' by state conservation officers.
A 1999 federal court decision that focused on the 1837 treaty between the Chippewa and the United States — the now-famous Mille Lacs case covering north-central Minnesota — 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 because the treaty doesn't say they were given up in exchange for federal payments.
Chippewa bands also have broad rights to hunt, fish and gather in much of Northeastern Minnesota in the 1855 treaty-ceded territory.
The 1855 treaty area runs from about 40 miles west of Duluth to the North Dakota border, and from near the Ontario border to near Brainerd.
Past efforts by Ojibwe or Chippewa activists to challenge state authority in the 1855 territory, including a 2010 netting effort on Lake Bemidji, have not been prosecuted, Bibeau said.