Indians' Fishing Rights Upheld
Washington Post Staff Writers
Thursday, March 25, 1999; Page A2
The Supreme Court ruled yesterday that Chippewa Indians can fish and hunt on 13 million acres of public land in Minnesota without having to abide by the usual state regulations on the number of fish that can be taken or other limits of the sporting season.
By a 5-4 vote, the justices rejected arguments by state officials that an 1837 treaty guaranteeing several Chippewa bands "the right to fish, to hunt, and to gather wild rice" on territory relinquished to the federal government had long expired.
The decision came as a relief not only to the Chippewa, who use spears and nets to catch vast quantities of walleye, but to tribal advocates nationwide who were concerned that a narrow interpretation of the Chippewa treaty could have undermined treaties in other cases.
"After an examination of the historical record, we conclude that the Chippewa retain the‚. . . rights guaranteed to them under the 1837 treaty," Justice Sandra Day O'Connor wrote. She dismissed arguments that either an 1850 executive order by President Zachary Taylor, a later treaty with the Mille Lacs Band, or Minnesota's 1858 statehood extinguished the hunting and fishing rights of the Chippewa.
Her opinion, which was richly woven with the history of U.S.-Indian land negotiations and which upheld lower court rulings, was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
Dissenting justices, led by Chief Justice William H. Rehnquist, contended that the original treaty gave only limited hunting and fishing privileges and that they were extinguished by intervening events, particularly Minnesota's statehood.
Because numerous battles over ancient treaties and Indian sovereignty continually arise, several tribes and state officials outside Minnesota had closely followed the dispute. Mark Jarboe, an attorney who heads an Indian law practice group in Minneapolis, said the ruling shows "treaties are as effective today as they were when they were signed 150 years ago." But Jarboe and other lawyers on both sides of the issue said treaties in other cases would be considered in their own historical context.
O'Connor's opinion focused on the background of the official actions concerning the Chippewa. For example, she said Taylor's 1850 order requiring their removal from the territory was not authorized by federal law, thereby invalidating any revocation of hunting and fishing rights in the order.
Howard Funke, a Lake Superior Chippewa who now is tribal attorney for the Coeur d'Alene tribe in Idaho, said the decision in Minnesota v. Mille Lacs Band of Chippewa Indians was consistent with previous rulings giving treaties precedence over actions taken by state governments or federal executive officers.
In this case, the federal government had agreed that the 1837 treaty survived and had sided with the Mille Lacs Band, which sued the state in 1990 to challenge its regulation of tribe members. Seven other bands in Minnesota and Wisconsin joined, and nine counties and a coalition of resort, business and other landowners intervened on the state's side.
In a state known for more than 10,000 lakes, businesses that cater to the tourist industry were concerned that the great access of the Chippewa and limits on non-Indian anglers would hurt the area's economy. But while deputy attorney general Ken Peterson said he was disappointed with the ruling, he said the state's natural resources department believes the Indian harvest is not a problem. Said Peterson, "There's an awful lot of walleye."
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