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American Indian Community Data Profile, 2002
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1997 Fall: Tribal Sovereignty and
American Indian Leadership
1996 Fall: Tribal Governments: What will they look like in the year 2010?
1996 Spring: The Threatened State of Tribal Sovereignty
Tribal Sovereignty and American Indian Leadership
October 18, 1997
Jim Genia
Solicitor General, Mille Lacs Band of Ojibwe
Don Wedll
Commissioner of Natural Resources, Mille Lacs Band of Ojibwe
The Mille Lacs Band of Ojibwe has recently been involved in a series of court hearings regarding treaty rights negotiated in 1837 with the federal government. The treaty was negotiated prior to Minnesota becoming a state in 1858. The Eighth Circuit Court of Appeals recently upheld Mille Lacs Band rights by treaty to hunt, fish and gather within the original boundaries of the 1837 treaty. Jim Genia, Solicitor General, Mille Lacs Band of Ojibwe, and Don Wedll, Commissioner of Natural Resources, Mille Lacs Band of Ojibwe, spoke about tribal sovereignty and its relationship to the state's recent challenge to tribal treaty rights.
Tribal sovereignty is the core of tribes' power to govern themselves. Genia, defined sovereignty as "The ability of a people to make and live by their own laws." He reminded the audience that sovereignty predates the U.S. Constitution, as illustrated by Columbus' treatment of Indian tribes as separate governments. Therefore, tribes have inherent sovereign powers that predate the formation of the United States government.
Tribal sovereignty is recognized by the United States government. Treaties, the U.S. Constitution and Supreme Court precedence have legally established the sovereign status of American tribes. In 1831, in Cherokee Nation v. Georgia, the Supreme Court ruled that tribes are, "domestic dependent nations." Thus, Genia stated, "Indian tribes are more sovereign than states but less sovereign than the federal government." Still, tribes are considered to have a nation-to-nation relationship with the U.S. federal government.
In 1837, the Mille Lacs Band exercised its powers as a sovereign nation and entered into a treaty with the federal government. Treaty negotiations between the Mille Lacs Band and the U.S. federal government came about because Indian people knew that they could either sell the land or the U.S. government would come in and take it anyway. In the agreement, the tribe retained their hunting, fishing and gathering rights in exchange for land cessation. These rights were retained by, rather than given to, the Indian people. Reserving hunting, fishing and gathering rights was central to the treaty negotiation because the lifestyle of the people was tied to those resources; if given away, the people would have ceased to exist. At the time of the treaties, there was little controversy over tribal hunting and fishing rights because there were so few non-Indians living in the area.
In the 1880s to 1890s, minor disputes started between the state and the tribe surrounding treaty rights with the arrival of increasing numbers of non-Indians. The disputes became more pronounced during the 1920s to 1930s, when the state of Minnesota wanted to develop resources for sport use and to regulate resources for sport harvest. The state's approach was, and still is, to make gathering as difficult as possible. This is a strategy to spread the harvest among as many people as possible so as to bring money into rural areas.
Because of its position, the state of Minnesota has attempted to negotiate with the tribe over the 1837 treaty rights. In good faith, the tribe agreed to negotiate with the state and formed a tentative agreement about resource use. In 1993, this proposed settlement between the Mille Lacs Band and the state was voted down by two votes in the Minnesota House of Representatives, after it had passed the Minnesota Senate.
This action by the legislature led to a series of court cases in which the state of Minnesota attempted to challenge the legal basis of the tribe's treaty rights. Because the tribe as a sovereign nation and the United States are the actual parties to the treaty, the U.S. federal government intervened in the lawsuit on the side of the tribe. Genia reported, the issues addressed by the courts in the case were "Phase One: do rights still exist?" and "Phase Two: what does that mean?" In 1994, Judge Murphy ruled in the affirmative on Phase One that treaty rights still exist. Courts in Wisconsin had already ruled that rights exist under the same treaty for Wisconsin Chippewa tribes. In 1997, Judge Davis ruled in favor of the tribe on five of six issues surrounding treaty rights. As stated earlier, his ruling was upheld when later appealed. Minnesota is currently appealing the case to the Supreme Court with no guarantee of a hearing as the court only hears two to three percent of the cases it is asked to review.
A significant point made by the presenters was that there is a fundamental difference in how the tribe and the state view the natural resources, and neither is right or wrong, but they simply have different perspectives. The Mille Lacs Band does not want to do anything to hurt its home, Mille Lacs lake. It can control the total number of fish taken with netting and spearing, particularly through one-day permits, with the catch carefully monitored. Controlling the total number of a resource is the most important factor in preserving that resource.
While the state monitors anglers' use of resources, it does not guarantee protection of the resources. According to Wedll, "Modern technology increases angler's efficiency, which is approaching the effectiveness of spearing or netting. Ten percent of anglers take 90% of the fish on Mille Lacs." Don Wedll cited data that indicates, "540,000 pounds of fish were caught by 10% of the anglers on Mille Lacs." Thus, non-Indians remove far more fish from the lake than Mille Lacs tribal members. While the tribe regulates how its members use resources, the state is working against tribal treaty rights in favor of non-Indian anglers.
In addition to treaty rights, Genia discussed how tribal sovereign powers relate to the Mille Lacs casino. Essentially, the tribe can maintain a casino because it is a sovereign nation. Unfortunately, ignorance about tribal sovereignty has led to misunderstanding about tribal casinos. Some inaccurately view tribal casinos as an example of tribes having "special rights," rather than sovereign rights.
Moreover, Genia reminded the audience, "Reservations were usually lands that no one else wanted and they have not had a lot of other economic resources." Genia stated, "In 1990, unemployment was 48% at Mille Lacs prior to the casino, while it was 95% at the Rosebud Sioux reservation."
The casino has brought economic growth not only to the tribe, but to the surrounding communities. Unfortunately, the surrounding local communities do not always recognize the tribe's economic contribution. Since reservations are trust land owned by the federal government, they cannot be taxed by counties. The local county government claims that it has had to increase spending as a result of gaming activity at Mille Lacs but have not provided any proof of this claim. Genia said, "Eighty percent of Grand Casino Mille Lacs employees are non-Indian, which has obviously had a positive [economic] impact on the surrounding community."
The Mille Lacs Band treaty rights case and the tensions over tribal casinos are only two examples of the importance of understanding tribal sovereignty and how it operates to affect tribal relationships with other governmental entities. Wedll closed by pointing out, "It is impossible to get the complexity of issues across to the public in 30-second TV bites and in newspapers." Those interested in learning more about tribal sovereignty, the Mille Lacs casino, and the Mille Lacs treaty rights issue can visit the Mille Lacs Band website at: http://www.millelacsojibwe.org
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