Making It Simple... Here's a "treaty rights" primer to bring you up to speed!
by Joe Fellegy

    So you've got a dilemma. You want to be "informed" about the Mille Lacs treaty case but you fear the tons of historical details and the legal lingo. You're smarter than you think! Check out these simple definitions and short explanations.
    The Mille Lacs 1837 Treaty case in a nutshell. In 1990, the Mille Lacs Band of Chippewa Indians' tribal government sued the State of Minnesota, contending that the state has no right to regulate the fishing, hunting, and gathering activities of Band members in a large area of east-central Minnesota (the "ceded territory"). This area includes much of Mille Lacs plus over 100 other lakes and miles of stream. (Earlier, Chippewa bands won a similar 1837 Treaty fishing and hunting rights case against the State of Wisconsin.)
    In other words, the Mille Lacs tribal government claims Minnesota has no authority to enforce its fish and game laws on Mille Lacs Band members in millions of acres the Indians ceded to the U. S. by treaty in 1837.
    The plaintiffs are listed as Mille Lacs Band of Chippewa Indians, Arthur Gahbow (the Band's now-deceased leader who preceded Marge Anderson as chief executive), Walter Sutton, Carleen Benjamin, and Joseph Dunkley. The United States of America is listed as an intervenor on behalf of the Indians.
    The defendants are the State of Minnesota, Minnesota Department of Natural Resource, and Rod Sando, Commissioner of Natural Resources; with a group of affected counties as defendant-intervenors; plus John W. Thompson and other individuals listed also as defendant-intervenors. Thus, the defendants include "the state," "the counties," and "the landowners." (The State alone cannot represent all the interests of local governments and citizens.) Each component of this defense trio employs attorneys and varying numbers of expert witnesses.

PERM (Proper Economic Resource Management). The organization that raises money for the Landowners in the 1837 Treaty case. (Unlike the State and the Counties, the Landowners' legal bills are not paid by taxpayers.) P.E.R.M. holds fundraisers, sells wildlife prints and raffle tickets, and helps create an awareness of the importance of the Landowners in the case.

1837 Treaty. Treaty whereby the Mille Lacs Band and other Chippewa Bands ceded (sold) lands covering all or parts of 12 counties in what is now east-central Minnesota. (Minnesota became a state in 1858.) The treaty boundaries also include much of present-day northwestern Wisconsin. The Mille Lacs lawsuit deals with that portion of the 1837 Treaty area located in Minnesota.
    The government paid cash and goods for the land and granted the Indians the "privilege" of fishing, hunting, and gathering wild rice on the ceded lands "at the pleasure of the President." The distinction between temporary "privilege" and everlasting "right" was an issue in Phase I and will likely surface again.

"Ceded territory". "Ceded" simply means "sold." When discussing the Mille Lacs treaty case, "ceded territory" refers to that large area of land sold by the Chippewa to the United States via the Treaty of 1837 - involving all or parts of 12 Minnesota counties .

1855 Treaty. As the territory ceded by the Chippewa to the United States in 1837 became needed for settlement, the U. S. and the Chippewa (including the Mille Lacs Band) signed the 1855 Treaty, which created reservations for the Chippewa, including a 61,000-acre Mille Lacs Reservation comprising four fractional townships - North Kathio, South Kathio, South Harbor, and Isle Harbor hugging the south portion of Mille Lacs Lake in Mille Lacs County." In this treaty the Indians relinquished "all right, title, and interest" in and to the lands they ceded in 1837, except for the new reservation. The defense has contended that this treaty helped nix all Band claims in the ceded territory.

Mille Lacs Reservation. Depends on how you define it! The original Mille Lacs Indian Reservation was created by the Treaty of Feb. 22, 1855, and bordered the south shore of Mille Lacs, covering the present townships of Kathio, South Harbor and Isle Harbor. Over the years this reservation was diminished and has been off the maps for decades. Today, "Mille Lacs Indian Reservation" generally refers to several thousand acres of Indian trust land centered at Vineland on the west shore of Mille Lacs.
    However, the Mille Lacs Band tribal government is attempting to reclaim the old and larger reservation. Non-treaty issues like taxation, licensing, and the authority to conduct various regulatory programs - in the area of water quality, for example - will affect non-Indians. How one defines "on-reservation" and "off-reservation" also relates to the exercise of treaty fishing and hunting rights as well as to who manages natural resources in what areas. The defendants in the case do not recognize the old Mille Lacs reservation, but the Band's legal and political operatives have apparently convinced some agencies of the federal government that the old reservation still exists.

Phase I. Phase I of the Mille Lacs 1837 Treaty trial which took place in the summer of 1994. It dealt with the central question of whether or not the Mille Lacs Band retained the right to fish, hunt, and gather in the 1837 ceded territory independent of state regulation. Judge Diana Murphy ruled in favor of the Band, that they have the "rights" to fish, hunt, and gather in the ceded territory without state regulation. While the defendants have pledged to strongly appeal Phase I, the court indicated that such an appeal could not go forward until after Phase II.

Phase II. Phase II of the Mille Lacs 1837 Treaty trial, originally set to begin in September of 1996 but now postponed for a couple months or more. While Phase I dealt with the question of Band rights and was decided in favor of the Band, Phase II will deal with "allocation" issues - "who gets what" fish and game, methods of take, seasons, limits, locations, monitoring, etc.
    The Fond du Lac Band of Ojibwe was admitted to the Mille Lacs case in 1996, having won their "rights" without a trial. Fond du Lac's recent involvement is a major reason for the postponement of Phase II. Also party to the Mille Lacs case are six Wisconsin Ojibwe bands whose ancestors also signed the 1837 treaty. The Wisconsin Bands have few, if any, cultural or historic ties to the Mille Lacs region.

The "Band's Code." Refers to the Band's 1837 Treaty Conservation Code. This document lies at the heart of Phase II because it details sthe Bands' specific proposals for its regulation of the fishing, hunting, and gathering activities of Band members in the ceded territory.

"Stipulation process." A pre-Phase II negotiation between the State and the Band, ordered by the court; aimed at "settling" as many harvest-related details as possible before the Phase II trial. Representatives of the State say they've been acting to "protect the resource" and to rein in tribal harvest ambitions, while critics claim the State has signed on to such things as gill net mesh sizes, liberal Band harvest quotas, lengthy seasons, and deer shining - a give-away, presenting the court with an excuse to approve the Bands' agenda because the State has already endorsed its key components and concepts. The State says it had no choice.

G.L.I.F.W.C. (Great Lakes Indian Fish & Wildlife Commission). GLIFWC is a scientific-political bureaucracy concerned with natural resource management by Indian tribes. GLIFWC serves eleven member Chippewa bands - three in Michigan, two in Minnesota (Fond du Lac and Mille Lacs), and six in Wisconsin. GLIFWC's Biological Services Division includes four sections: Inland Fisheries, Wildlife, Great Lakes Fisheries, and Environment. Other divisions include Enforcement, Planning and Development, Intergovernmental Affairs, and Public Information. GLIFWC participates in on-reservation and off-reservation resource management. GLIFWC has a presence at Mille Lacs and has already been doing fish population assessment work at Mille Lacs and elsewhere in the 1837 ceded territory - apparently anticipating a Band management role. (Minnesota's DNR says it hopes to retain its role as "ultimate manager" of the resource.)

Interim harvest. This term refers to possible Band exercise of treaty fishing or hunting before the end of Phase II of the 1837 Treaty trial. The defendants have opposed interim harvest. The state announced it will enforce Minnesota fish and game laws in the absence of court-approved interim harvest. (Reportedly, after postponement of the Phase II trial was announced, the Mille Lacs Band sought interim harvest rights from the court, but was denied.)