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Treaties and Treachery: The Legal Battles of the 1837 Minnesota Treaty with the Chippewa

Authored by Jessica Manner

A photocopy of the Treaty of 1837.
The Treaty with the Chippewa signed in 1837, ceding the bulk of Native territory in Minnesota in exchange for payments and the rights to hunt, fish, and gather on the land. This treaty has been the basis for multiple court cases and a continuing presence of prejudice against Natives in the upper Midwest.

In 1837 the Chippewa Nation of Indians signed a treaty with the State of Minnesota, ceding most of their land in exchange for a lump sum, annual payments in goods and money for twenty years, and the right to hunt, fish, and gather wild rice in the ceded territory.

The most valuable piece of land relinquished, in terms of fishing and gathering, is the Mille Lacs Lake territory ceded by the Mille Lacs Band of Ojibwe. In the article five of the original treaty, the Natives were guaranteed the “privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded,” (Chippewa Tribe 1938, 2). At the time of its inception, the rights were clear. A century and a half of fishing laws later, those rights in the eyes of the State were very different.

In 1850, tribal hunting and fishing rights were revoked by the President of the United States (Enger 1998). Traditional Native methods of fishing, specifically spears and gillnets, were no longer legal to practice, and no fishing at all was legal in the territory without a permit.

Finally, after several Band members were fined or arrested for fishing without permits in the Mille Lacs ceded territory, the Mille Lacs Band of Ojibwe sued the State of Minnesota for not properly upholding the Treaty of 1837.

While their rights are clear on paper, a lengthy legal battle ensued. Since Mille Lacs Lake had become the most popular fishing destination in the state, its tourism industry lead a major backlash in the press and in court, writing scathing opinion pieces and appearing on behalf of the defendants (Nyquist 1991, 537). The Band had originally wanted to settle the matter quickly, out of court, but the resistance from the surrounding communities forced them to fight. Phase I of the trial concluded in 1994, with the court ruling in favor of the Ojibwe (Minnesota 1993, 1).

In phase II, the Ojibwe were able to create their own hunting and fishing rules, and won in court again. Even with the previous victory, the Counties and Landowners’ organizations tried to block the decision, filing motions and injunctions at every turn. Because of this, several other Native American tribes joined the Ojibwe as the prosecution (Enger 1998), including the Fond du Lac Band and the La Courte Oreilles, who had been fighting for their own treaty rights in Wisconsin for years. The case made it all the way to the Supreme Court, where a 5-4 decision was made upholding the Band’s rights to fish on the land (Minnesota v. Mille Lacs Band of Chippewa Indians 1999).

Today, the rights of the Ojibwe to fish on Mille Lacs Lake is still a hot button issue on all sides. As recently as 2016 Band members have been arrested for gillnetting without a permit (Enger 2016), and in 2014 the Save Lake Mille Lacs Sport Fishing Inc. sued the Department of Natural Resources to basically undo the previous legislation enacted following the 1994 ruling. And even though the Band has implemented a conservation code to help protect the natural resources, some in the government and environmental community have reservations about the different laws for fishing (Mille Lacs Band of Ojibwe 2019).

A short, two page treaty from 1837 has become 150 years of contention. All across the country Native treaties have been disregarded, unenforced, and even reversed, with officials turning a blind eye in favor of a more lucrative and profitable group, such as the Minnesota tourism industry, who wants the land. Hopefully the State and its citizens can learn from the past, and recognize Native land rights as they should have been for centuries. After all, it was their land first.

References

Chippewa Tribe. 1837. Treaty between the United States of America and the Chippewa Nation of Indians: Concluded January 14, 1837, Ratified July 2, 1838. Washington, D.C., 1838. 1-2.

Enger, John. 2016. “Explaining Minnesota’s 1837, 1854 and 1855 Ojibwe Treaties.” Minnesota Public Radio News. February 01, 2016. Accessed March 13, 2019. https://www.mprnews.org/story/2016/02/01/explaining-minnesota-ojibwe-treaties.

Enger, Leif. 1998. “Ojibways Exercising Rights in 1837 Treaty.” Transcript. In Minnesota Public Radio. April 13, 1998.

Mille Lacs Band of Ojibwe. 2019. “Treaty of 1837.” Mille Lacs Band of Ojibwe. Accessed March 13, 2019. https://millelacsband.com/about/treaty-of-1837.

Minnesota. Congress. Senate. 1993. Mille Lacs Treaty Settlement. Steven Morse. Senate file #1619. 1993. Retrieved from
https://www.leg.state.mn.us/docs/2017/other/171061.pdf

Minnesota v. Mille Lacs Band of Chippewa Indians (1999).

Nyquist, Steven. 1991. “Self-Determination and Reconciliation: A Cooperative Model for Negotiating Treaty Rights in Minnesota.” Law and Inequality 9 (3): 537-540.