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Skoe, Olson comment on Indian hunting, fishing rights

As Senators representing the districts that include the Leech Lake and White Earth Reservations, we want to share our thoughts about the decision of some band members to test the parameters of an 1855 treaty by fishing prior to the fishing opener on Lake Bemidji, and possibly other lakes. While our thoughts are not a legal opinion, we want to share with you what we have learned from our Senate Research staff about the law as it relates to this issue, as well as how this treaty issue differs from the Mille Lacs case.

But first we want to say we feel privileged to be part of the coalition of state, local and tribal government leaders who have worked together in the past to advance priorities that benefit our American Indian communities as well as our community at large.

Operating on the premise: "We all do better when we all do better," we've been encouraged by the success of such efforts to work together and enhance relationships between governments and races in our area. In light of these positive accomplishments and as the debate concerning hunting, fishing and gathering in Minnesota continues in the press, we thought some facts on the situation would be helpful.

In 1999, the U.S. Supreme court ruled that the 1855 treaty - the treaty on which advocates base their claims - did not extinguish the treaty rights granted on lands ceded to the federal government in a separate 1837 treaty. Therefore, the Mille Lacs Band, who signed the 1837 treaty, maintained the rights granted in the 1837 treaty, which addresses that tribe's right to hunt, fish and gather on ceded lands in 11 counties around Lake Mille Lacs. White Earth and Leech Lake did not cede lands in 1837; they ceded lands in the 1855 treaty, which deals with most Minnesota land roughly north of I-94. That treaty makes no mention of the ability to hunt, fish or gather on ceded lands.

The claim being made today states because the 1855 treaty did not address the right to hunt, fish and gather, the rights belong to the original land owners. Unfortunately for those making these claims, a U.S. District court judge ruled in a 1980 decision, Red Lake Band v. Minnesota, that the Red Lake Band gave up these same rights on the land they ceded. The judge wrote, "If the cessation extinguished Indian title to the ceded areas, they also would have the effect of abrogating any aboriginal hunting, fishing, trapping, or wild ricing rights. These rights are mere incidents of Indian title, not separate from Indian title and, consequently, if Indian title is extinguished, so also would these aboriginal rights be extinguished."

The Court of Appeals upheld this decision and the U.S. Supreme Court refused an appeal of this decision. However, the U. S. Supreme Court did decide to hear the appeal of Oregon Department of Fish and Wildlife v. Klamath Indian Tribe, which was in conflict with the Red Lake case. The court ruled that the Klamath case had been decided incorrectly and aligned their decision with the previous Red Lake decision. Justice Stevens wrote, "Careful examination of the entire record of this case leaves us with the firm conviction that the exclusive right to hunt, fish and gather roots, berries and seed on the lands reserved to the Klamath Tribe by the 1864 Treaty was not intended to survive as a special right to be free of state regulation in the ceded lands that were outside the reservation after the 1901 agreement."

The 1855 treaty that ceded land and was signed by White Earth and Leech Lake does not mention the right to hunt, fish or gather. Therefore, unless there is some historical documentation that proves the tribe intended to retain those rights, we're told the law almost certainly is that these rights do not belong to the band but, instead, belong with the current title holder.

This issue is complicated, and evokes strong emotions and opinions on both sides, but we must look beyond these emotions to the law. The rulings in previous courts cases, when compared to what we know about this case, appear to indicate the courts would not agree with the interpretation of treaty rights advocated by some band members who have said they intend to fish ahead of the state fishing opener.