Facts Show that "Settlement" Would Have Been More Costly

By Joe Fellegy

In recent weeks, editorials in the Star Tribune, the St. Cloud Times, and elsewhere, plus columns by such notables as Gary Dawson and Nick Coleman in the St. Paul Pioneer Press, have all argued that it was a mistake in 1993 for the Minnesota Legislature to reject the proposed out-of-court settlement in the Mille Lacs 1837 treaty case.

Not only do these media titans argue that the settlement should have been accepted, they sometimes surround their shallow pronouncements with disrespect and ridicule. Coleman, for example, referred to those who challenge the "treaty rights" agenda as "Bud's Band of Bonehead Walleye Worshippers." In an earlier column, he had referred to those who raise questions, or who support the legal process against the Mille Lacs Band tribal government, as a bunch of "yahoos." Last summer, the Star Tribune called them "loudmouths."

Is that really the character of this legal contest - the Mille Lacs Band tribal government, its attorneys, the media, and the Band government's political supporters perched atop some legal and moral high ground versus a bunch of lowlife ignorant loudmouths and yahoos who are costing the state millions in a hopeless and, by strong implication, dishonorable challenge to the Band government's claims?

Let's take a look at some of the issues and why many respectable people feel the settlement should indeed have been rejected. Some of the Mille Lacs Band's longtime friends and admirers opposed the settlement and feel the 1837 treaty case is a sham and not in the best interests of anyone, including the Band. Following are various claims made by media supporters of the settlement, and how those claims can be refuted.

As one of the Landowner's attorneys recently remarked, "the full cost of settlement, and whether settlement simply leads to more demands, must be weighed against the costs of litigation and an informed assessment of the issues."

Balancing the costs

1. Claim: Wisconsin spent 12 million dollars on an unsuccessful 17-year court battle over the same 1837 treaty. Fact: The Wisconsin treaty case involved the 1837, 1842, and 1854 treaties. The Mille Lacs case, on the other hand, involves the 1837 and 1855 treaties. Different treaties present different issues. Also the Wisconsin case was decided prior to the United States Supreme Court decision in Oregon vs. Klamath Indian Tribe - where the state won.

2. Claim: Fighting the Mille Lacs Band tribal government in court will cost Minnesotans more than the settlement would have cost. Fact: The settlement would have cost 8.6 to 10 million dollars (depending on payment schedule), not to mention thousands of acres of land plus other compromises and giveaways worth millions. Invested at 10% interest, the 8.6 million in cash alone would have returned 1.72 million since 1993, enough to pay some pretty hefty legal bills for the state.

3. Claim: The settlement defeated in 1993 would have included 7,500 acres of state-owned land, and no private or county land would have been affected. Fact: Before the settlements defeat, the land acreage was as high as 15,000 acres of unspecified lands. Without knowing what land was to be given away, regardless of acreage, state citizens have no way of assessing the would-have-been dollar costs.

Also, and very importantly, the settlement would have re-established the old Mille Lacs Reservation to it's original 61,000 acres - even though the state has traditionally recognized a 3,800-acre reservation. Such a change, involving over 57,000 additional acres across several townships of northern Mille Lacs county and a considerable portion of Mille Lacs Lake, would have led to far-reaching jurisdictional claims by the Band government. These could potentially involve taxing authority, local zoning ordinances, water quality standards, building permits, liquor licenses, and many other issues normally dealt with by democratically-elected state and local governments. Resorts, private land, and government land would have been placed in an expanded reservation.

The proposed 1993 settlement encouraged this course; it did not prevent the Band from pursuing this goal, and proponents generally kept this "reservation" aspect and its possible consequences from the public.

4. Claim: The state will spend more on litigation than it would have spent on the 1993 settlement. Fact: The settlement's proposed 6,000 acre race-based "exclusive zone" for Band fishing on Minnesota's most popular sportfishing lake would have spawned considerable legal hassles with private citizens, including riparian landowners, and possibly with local governments. With a boundary in Mille Lacs being a constant symbol of unequal rights and "differences", social conflict and related costs could have been high. And whose fish would have been straying either side of the boundary?

Also, had the state "settled" with the Mille Lacs Band, would it have then been forced into similar settlements, with similar price tags, with other Minnesota Chippewa bands, plus the six Wisconsin tribes who have now intervened in the Mille Lacs case? Surely the costs would have ballooned as other tribes sought to "settle" their own 1837 treaty claims. It is likely that the extent of treaty exercise, money given away, and land claims would have expanded had the settlement been passed.

5. Claim: The settlement would have ensured community peace and harmony, and would have spared us the of the controversy and "strife" that are now possible if the Band begins exercising rights. Fact: The division of popular Mille Lacs into Indian and non-Indian fishing zones would have caused plenty of outrage, and would have stood as a symbol of division and differences for years to come.

A sneaky approach to re-establishing the old 61,000 acre Mille Lacs reservation - with all the economic, legal, political and social ramifications of that dramatic move - would have led to more anger. Ditto for surprise land give-aways.

The fact is that the Landowners are providing a sane and high-road channel for opposition to the lawsuit, within the legal framework. To their credit, prominent "sportsman" voices, including Bud Grant, urge participation in that arena and warn against Wisconsin-style strife.