For 60 years the Lac Courte Oreilles band of Chippewa Indians has been unhappy about what happened to its wild rice crop, and now its effort to right what it regards as an old wrong is presenting the federal government with a Hobson's choice, not between butter and guns, but between wild rice and energy.
For generations, the Indians grew wild rice on the east and west forks of the Chippewa River in northern Wisconsin. When they received the land as their reservation in an 1854 treaty, the Indians were guaranteed continued production of the rice, which plays a cultural and religious role in tribal life as well as feeds them.
In 1921, however, Northern States Power Co. dammed the river, creating a 17,600-acre lake.
The Indians -- a band of 2,100 members, of whom a mere 681 live on the reservation -- claim the dam was built without their approval. They chafed for 50 years, and when the power company's liscence expired in 1971 they moved to gain control of the lake area by denying Northern states a new license.
If they controlled the lake, the Indians make clear, they would manage its water level to maximize rice production along the shoreline in a way that would substanitally reduce, if not eliminate the power-producing capacity of the dam.
Once the rice vs. power issue was joined it became a tangle of testimony and countertestimony. To put it mercifully briefly, the secretaries of agriculture and interior chose rice and support the Lac Courte Oreilles' arguments against relicensing which have been presented to the Federal Energy Regulatory Commission.
Northern States and the Indians don't agree on much, but their attorneys share a frustration at the bureaucratic tangle into which the dispute has led them.
By December 1977, six years after the contest began, the written record consisted of 44 volumes with 6,145 pages of text.
In addition to the departments of Agriculture and Interior, 12 parties have been permitted to intervenve, including other Indian groups, environmentalists, and the governor of Wisconsin and the Wisconsin Public Service Commission.
At that point, Max Kane, an FERC administrative law judge, added his 68-page decision to the record.Kane found for the power company on every important point.
Kane's decision amounts to a recommendation for FERC action. It went to the commissioners almost three years ago and has been joined by additional pages of paperwork, but the commissioners have not ruled .
On Oct. 23 they shied away from ruling and suggested that although the provision in the original license to protect the Indians' rice-growing tradition has proved ineffective, there was still room for a compromise that would compensate the Indians or provide them with an alternate rice area under a new license.
The commissioners directed the parties to seek such a compromise at a meeting with a settlement judge Dec. 12
Larry B. Leventhal, one of the lawyers for the Indians, dosen't think there is room for compromise. Leventahl said that the Indians are not interested in anything short of recapturing the flooded acreage which is part of their reservation and growing wild rice on the lake shore.
The Indians have tried growing rice in paddies, but they say paddy rice doesn't taste as good.
"I don't think we're going to have any success until we get into court," Leventahl said. The Indians tried once to escape the slow-moving FERC proceedings by taking their case to court, but they were rebuffed and told to wait until FERC ruled. They argued at the time that each year FERC does not decide the case is a year of decision against their cause since the power company is continuing to operate tha dam.
The key to the choice between rice and power is the water level of the lake.
Each winter, Northern States draws the water level down by an average 16 feet in order to maintain a downstream flow and to ensure that the lake has the capacity to hold the spring runoffs from melting snow and ice.
(The dam does not generate power itself, but regulates the flow on the Chippewa River to seven generating plants further downstream.)
Rice needs water cover during the winter, but the drawdown uncovers shoreline growing areas and make raising a crop impossible.
The case record is strewn with lore about the cultivation of wild rice. Experts debated the absence of a "muck bottom" in the lake, the "phosphorous fertility" of the water and the topography of the lakeshore.
Kane found that "notwithstanding the time and attention devoted to this question during the hearings," rice should not be the controlling issue. Approvingly he quoted testimony that no matter how the water level is managed "it is highly questionable that wild rice will persist in more than traces of very small stands without considerable work and expenditure of funds."
The Indians reply that before the dam was built 60 years ago, they were harvesting about 25,000 pounds of wild rice from the river banks. Their crop filled all their needs and left them rice to trade for other goods.
At today's prices, they add, wild rice brings about $8 a pound.
Energy prices have risen even faster. In this enery-conscious era, what the Indians demand runs counter to the national policy of energy conservation. tThey would take out of production hydroelectric generating capacity at the same time that the federal government and others are scouring the nation for abandoned dams that can be restored and brought into production.
The Indians' rights to use their reservation as they wish predate and supersede any concerns about energy, the Indians argue, and override any worries about the financial health of the stockholders of Northern States Power.
Kane recommended that the company be given a new license for 30 years. Although the case is still pending, one-third of those 30 years has passed.
If, as appears likely, the Indians don't get what they want from FERC, there will be more months and perhaps years of arguement in the courts and probably before Congress, too.