Leech Lake-White Earth Fishing Protest
Key 1855 Treaty fact dodged
By Joe Fellegy (From Outdoor News, May 21, 2010)
“The illegal “treaty rights” fishing on Lake Bemidji on May 14, was related to the new quest for White Earth and Leech Lake Chippewa off-reservation harvesting rights across millions of acres and multiple counties in the 1855 Treaty ceded territory. Tribal co-management authority is also being sought.
“Somehow, 1855 Treaty basics were absent from all the ‘treaty rights’ coverage.
“A key [treaty] aim was to consolidate the Indians by creating certain Chippewa reservations—and by ending off-reservation rights.
“Obviously, the plain meaning and clear intent of the 1855 Treaty was to extinguish the off-reservation ‘rights’ now being claimed.
“ … know that the 1855 Treaty was intended to extinguish, not preserve, off-reservation ‘rights.’”
Treaty with the Chippewa, 1855 - Full Text
'Son of Mille Lacs' lawsuit pending?
The recent Leech Lake White Earth protest to assert “hunting and fishing rights” started out with illegal fishing, as well as use of illegal gillnets.
Were gillnets in these protests used to establish gillnetting as part of treaty-based harvest rights in upcoming negotiations or lawsuits?
Use of gillnets would fit under claimed treaty rights. Dale Green, with the Leech Lake Band’s legal department, was quoted on MN Public Radio saying the 1855 Treaty included the right to “hunt, fish and gather using modern means.” Did "modern" in 1855 include 4 by 100 foot monofilament gillnets?
Is spearing also planned for in the exercise of claimed treaty rights? Muskie guru Pete Maina compared the violent incidents when the Ojibwe asserted their right to spear walleye in northern Wisconsin, with Green’s comments about peaceful demonstrations and negotiations. |
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An earlier demand for recognition of harvest rights in Minnesota did lead to gillnetting—during walleye spawning season no less—in Mille Lacs. Gillnetting and quotas turned up, even though court affirmation of harvest rights never covered what exercise of those rights included.
That was negotiated behind the scenes instead and presented to the court for approval. Ongoing tweaks were allowed, again, to be carried out almost entirely behind the scenes. On top of this, a huge, unwieldy, and expensive “co-management” bureaucracy was created.
“Modern methods” and massive co-management could be coming to vast stretches of northern Minnesota.
Still, it is well established that Minnesota citizens, and likely the majority of rank and file tribal members, have a strong sense of stewardship when it comes to Minnesota’s natural resource heritage. They are not going to buy the exploitation of hunting and fishing rights under the window dressing of claimed “treaty rights."
Peter Erlinder 'Treaty Rights paper
Is this what 'usufructuary' looks like?
'Rights' exploited
Fish gut piles are boorish and irritating, but certainly not reflective of the attitude of most tribal members (we will argue.)
The bigger issue is the extent to which recognized—Supreme Court affirmed—harvest privileges are being exploited. That is, exercised far beyond the original intent of either parties to the 1837 Treaty.
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| Mille Lacs gut piles show destructive capacity of gill netting | Some fish are discarded whole |
The 1999 Supreme Court ruling, Chippewa v. Minnesota, referred to usufructuary rights.
What is a usufructuary right? It is a right that allows the use of property that belongs to another. Usufruct is the right of temporary possession and enjoyment of something that belongs to somebody else, so far as that can be done without causing damage or changing its substance.
Usufructuary rights are assigned, can be rescinded, and confer a responsibility to preserve the asset. In the case of assets that are consumed, preservation confers a responsibility for sustainable consumption. |
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Lost Gillnet's payload |
Wasted fish |
Is gillnetting covered as a usufructuary right?
Gillnetting walleye during spawning does not preserve renewable natural resources! And, as both the gut piles abandoned on private property, and the recovered fish-laden “ghost” (lost) gill nets show, the destructive power of gillnetting totally contradicts the meaning of usufructuary rights and sustainable consumption.
Get the gillnets out of Mille Lacs!
See also...
Mille Lacs gill-netting: biggest scam on state’s outdoor scene
Gillnetted-fish gut piles draw attention to bigger issues
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Stop the commercial gillnetting
Get the gillnets out of Mille Lacs!
Red Lake Ownership
Red Lake Ownership established by Supreme Court Ruling
U.S. vs. Holt State Bank Supreme Court ruling in 1926 concludes with the following statements:
“… the lake, and therefore the lands under it, was within the limits of the Red Lake Reservation when the State was admitted. The existence of the reservation is conceded, but that it operated as a disposal of lands underlying navigable waters within its limits is disputed. We are of opinion that the reservation was not intended to effect such a disposal and that there was none.”
“… There was no formal setting apart of what was not ceded, nor any affirmative declaration of the rights of the Indians therein, nor any attempted exclusion of others from the use of navigable waters. The effect of what was done was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory; and thus it came to be known and recognized as a reservation. There was nothing in this which even approaches a grant of rights in lands underlying navigable waters; nor anything evincing a purpose to depart from the established policy, before stated, of treating such lands as held for the benefit of the future State.”
"… Without doubt the Indians were to have access to the navigable waters and to be entitled to use them in accustomed ways; but these were common rights vouchsafed to all, whether white or Indian, by the early legislation reviewed in Railroad Company v. Schurmeir, 7 Wall. 272, 287-289, and Economy Light & Power Co. v. United States, supra, pp. 118-120, and emphasized in the Enabling Act under which Minnesota was admitted as a State, c. 60, 11 Stat. 166, which declared that the rivers and waters bounding the State "and the navigable waters leading into the same shall be common highways, and forever free, as well to the inhabitants of said State as to all other citizens of the United States."
"We conclude that the State on its admission into the Union became the owner of the bed of the lake. It is conceded that, if the bed thus passed to the State, the defendants have succeeded to the State's right therein; and the decisions and statutes of the State brought to our attention show that the concession is rightly made."
Click on US v Holt State Bank to read the actual ruling. (Right click, select "Open Link in New Window" for full page view.)
The next PERM meeting is scheduled for Monday, August 9. It will be held in the Boardroom of the Cinema Professional Building, 657 Main Street in Elk River, starting at 7:30 pm.
Winners of PERM 2010 Winter Raffle
Winners below are listed by first name and hometown only. The PERM Board made this decision after a discussion on respecting privacy, Internet posting without having written permission, and ownership of firearms.
Proper Economic Resource Management NEWSLETTER
Vol. 5, No. 1 MAR/APR 2010
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