Mille Lacs treaty case reaches final round Story-Date: 03:15 a.m. PST Sunday , November 29, 1998 ------------------------------------------------------------ Mille Lacs treaty case reaches final round U.S. Supreme Court scheduled to hear oral arguments this week DENNIS LIEN STAFF WRITER Eight years after the Mille Lacs band of Chippewa sued the state of Minnesota to re-establish special hunting, fishing and gathering rights across east-central Minnesota, the divisive and torturous dispute at last appears headed for its final chapter. On Wednesday, in a cavernous Washington, D.C., courtroom graced with Italian marble columns and red velvet curtains, the U.S. Supreme Court will hear oral arguments on whether the government ever rescinded rights it guaranteed the Chippewa in an 1837 land-sale treaty. The court's decision is expected sometime between February and July. When it's rendered, the ruling could settle what an ill-fated agreement and two lower court decisions favoring the Indians could not do. It could establish, finally, who regulates off-reservation Chippewa hunting and fishing in a 12-county area -- the bands or the state. For many people, especially those who fish Lake Mille Lacs, the case is Minnesota's most important natural resources issue. Most of Mille Lacs, the state's premier walleye lake, lies within the treaty territory, and the question of how its rich waters are fished has propelled much of the dispute. New emphasis from the state As they have in the past, lawyers for the state, counties and landowners will argue that the privileges reserved for the Chippewa were revoked in 1850 by President Zachary Taylor and in an 1855 treaty signed by the Mille Lacs band. In affirming the Chippewa claims, the district and appeals courts rejected those two arguments. But this time, lawyers will emphasize a third argument -- that Minnesota's admission into the Union in 1858 on an equal footing with the original 13 states also ended those rights. That argument is based on an 1896 court ruling that says when a treaty grants Indians a right that is "temporary and precarious" and would encroach on a traditional area of state sovereignty, the right ends when the new state is admitted into the Union. "We argue (that) one of them (the state's rights) is the ability to manage natural resources," said Scott Strand, deputy counsel for the Minnesota attorney general's office. That argument, a minor element in the initial trial, was rejected by the 8th Circuit Court of Appeals, which ruled that the 1837 privilege was continuing, not temporary, and therefore not affected by the equal-footing doctrine. For its part, the state contends that the ruling applies because the 1837 privilege was temporary and existed only at the "pleasure of the president." The equal-footing doctrine got a boost in 1995 when the 10th Circuit Court of Appeals affirmed its principles. Those differing legal views, Strand said, may be what interested the Supreme Court, which tries to reconcile conflicting laws. "The argument has always been there, but it's gaining strength," Strand said. "This is, frankly, the state's best chance to win this case." "The lower courts may have been more concerned with the impact on the parties," said Randy Thompson, an attorney for the landowners. "The Supreme Court takes a broader policy view. I think that favors us." However, Marc Slonim, a lawyer representing the Mille Lacs band, isn't conceding anything. "We think there are some serious problems with their issues," Slonim said. Options for the high court In Wednesday's oral arguments, each side will be given a half-hour to argue its case. On one side, the state will use 20 minutes and the landowners 10 minutes. On the other side, the bands and the federal government will evenly split the half-hour available to them. The Supreme Court has several options, including affirming the lower court's decision, sending the case back for further deliberation, or reversing the lower court decision. A court decision dealing with Taylor's 1850 order and the 1855 treaty would likely have little impact beyond Minnesota and Wisconsin, according to Slonim. But the equal-footing argument has the potential for greater national impact, he said. "The court's resolution of that issue could affect rights in other treaties elsewhere in the country," said Slonim, who declined to predict how the court might view that argument. "I think it's possible to reconcile the 8th and the 10th (Circuit Court) rulings even though they did involve different treaties," he said. The decision is being watched closely in Wisconsin, where a federal court has determined that Chippewa have similar treaty rights. "We're very interested in this case," said Jim Haney, a spokesman for Wisconsin Attorney General Jim Doyle. "While the Minnesota case is different than litigation that Wisconsin had with the Chippewa tribes years ago, there are some of the same issues present." A matter of limits Not long after the lawsuit was filed, people on both sides predicted the case eventually would reach the Supreme Court. Others had misgivings about pursuing it that far. "There were people who were really thinking this was an effort of futility, a waste of taxpayer money," Mille Lacs County Commissioner David Oberfeld said. "Our rebuttal was, we didn't think it was. We were on the right course, that the way we looked at the case was accurate. That at some point along the way, someone is going to see that and agree with us." At the district and appeals court levels, the Chippewa prevailed on almost every issue and, in collaboration with the state, prepared a conservation code to regulate band members. Last year, the appeals court cleared the way for the bands to begin their harvest. Earlier this year, they announced a 40,000-pound walleye limit, using nets and spears, on Lake Mille Lacs. The lake's target figure for non-Indians, meanwhile, was set at 220,000 pounds with hook and line. Even before the fishing season unfolded, there was speculation the state might have to shut down the lake to walleye fishing because prospects for exceeding that limit were so strong. Ultimately, the non-Indian take exceeded projections by 137,000 pounds, but that was primarily a result of adding night and late October surveys into the harvest estimates. Once the season began, the DNR did not limit fishing. For each of the next four years, the band's annual maximum harvest will increase 15,000 pounds a year, reaching 100,000 pounds. In those years, the non-Indian target will depend on the band's harvest and the quality of the fishery, according to Rick Bruesewitz, a Minnesota Department of Natural Resources fisheries biologist. Although there has been plenty of debate about spearing and netting on Lake Mille Lacs, public response has been dramatically different from the boisterous confrontations in Wisconsin a decade ago. Part of the reason is an extraordinary level of cooperation between the band and local law enforcement authorities. But even opponents have asked for calm. "I think we had a great deal to do with the fact there was no violence or racial response to spearing the last couple of seasons," said Mark Rotz, chairman of Proper Economic Resource Management, a nonprofit organization that has raised money to help the landowners pay legal expenses. "This was a means of doing something as opposed to taking it out the wrong way. I think we did more than anybody to make sure the peace was maintained throughout this whole deal." The reason opponents pursued the case so vigorously, he said, was because they did not believe two sets of game and fish laws represented sound natural resources management. "We always believed our arguments were sound," Rotz said. "It seemed to me, personally, the lower courts had to dodge and weave their way through the law to contrive rulings for the band." A long ordeal Don Wedll, natural resources commissioner for the Mille Lacs band, said he will be relieved when the ordeal is over. "The bottom line is, there's nothing in this case that has come easy," Wedll said. "I mean, everything has been one complex issue after another. This is an extraordinarily complex case. The settlement, the litigation -- now we've got another round. It's been a struggle at every step of the way." Wedll said the most obvious difference between today and before the bands could exercise their rights is the availability of fish for ceremonies. "A couple of months ago, there was a funeral, where they usually have fish," Wedll said. "Generally, if you're not among the first few people in line, it's gone. But at this last funeral, and it was a large funeral, I was close to the end of the line, and there were still five or six fish in the bowl. I commented to my wife that this is the first time in 25 years I had been at a funeral and there was fish at the end. "Now, we're not changing the world, but those are the kinds of small things that for a vast number of people are seemingly insignificant, but from the tribal perspective are nice." Wedll and Oberfeld see an advantage to the extended legal process: a finality that couldn't have been achieved if the case had ended at an earlier stage. "Any thought anyone could possibly have had about this has certainly been filtered through this legal process," Wedll said. "We've gone from 200 initial arguments down to three. We have to win on every one of them. That is something that a lot of people don't understand. The band has to win on every argument. If it doesn't, it has lost. "Hopefully, nobody can say they didn't have their day in court," he concluded. "The only way this case was going to get resolved once and for all was to go to the U.S. Supreme Court," Oberfeld said. "It had to continue to the end. There had to be some final closure." If the bands prevail at the Supreme Court, Wedll predicted the public will see little change in how the treaty rights are exercised. "There will be an increase here, a decrease there," he said, referring to various fish and game harvest levels. Regardless of the outcome, people in the Mille Lacs treaty area will react with restraint, Oberfeld predicted. "Whatever the decision is at the Supreme Court, we have to live with it," Oberfeld said. "Whatever comes out of it, we're going to adapt and live with the decision. We're no longer going to be debating the issue. We can't take it anyplace else." Dennis Lien can be reached at dlien@pioneerpress.com or at (651) 228-5588. ------------------------------------------------------------