Treaty case doesn’t deserve day in court

Treaties between Native Americans and the U.S. government have always had their opponents. These agreements — designed largely to facilitate white settlement — are often contested in court. Earlier this month, the state of Minnesota, nine counties and eight landowners filed their last possible appeal in a treaty case, requesting a review of an 1837 Mille Lacs treaty. Under the treaty, the Mille Lacs, Fond du Lac and six other Chippewa bands can hunt, fish and gather in certain public areas of east-central Minnesota, without state regulation. Since 1990, Minnesota and its co-plaintiffs have been spending millions to present their case in different courts. They lost each time. With three district court judges and the Eighth U.S. Circuit Court of Appeals upholding the treaty rights, the U.S. Supreme Court is left to decide if it should hear the case. However, based on the history of the case, the treaty’s opponents don’t deserve another hearing.
The plaintiffs have no new arguments to support their case, says Jim Genia, Mille Lacs Band attorney general. But Peter Tester, an assistant attorney general representing the state, insists that the Supreme Court might accept the appeal for two reasons. One is that although each federal appeals court ruled in favor of the Chippewa, they did so on different grounds. Moreover, the Eighth Appeals Court did not adhere to Supreme Court precedent.
If the Supreme Court does decide to review the case, attorneys for the plaintiffs plan to rehash old arguments that have already been struck down. First, they claim that the treaty was abolished when Minnesota became a state in 1858. Under the equal footing doctrine, treaties made before territories became states are temporary and revocable upon statehood. Second, an 1850 executive order by President Zachary Taylor rescinded the treaty rights. Third, the Mille Lacs Band gave up all land rights in an 1855 treaty with the federal government. And finally, they argue, the Chippewa were already compensated earlier this century when they received indemnities from the U.S. Court of Claims and Indian Claims Commission.
The lower courts, however, fully support the Chippewa and U.S. government claims that the treaty is still valid. For instance, they ruled that Taylor’s executive order included a behavior standard that nullified the treaty only if the bands “misbehaved.” Also, they maintained that the language in the 1855 treaty, which was signed by the Mille Lacs Band alone, was not specific enough to cancel privileges.
Clearly, the plaintiffs have their legal work cut out for them if the Supreme Court takes the case. Their effort to preserve fish and game for sport has forced the Chippewa to fight for their way of life. Tribal harvesting poses a limited threat to recreational fishing and hunting. This year, the bands may fish up to 55,000 pounds of walleye on Lake Mille Lacs. Their catch will leave at least 260,000 pounds for non-band members. And if the treaty stands, tribal harvesting will continue to be monitored by tribal and state agencies, including the Minnesota Department of Natural Resources. With this in mind, the Supreme Court — which reviews about 1 percent of the appeals forwarded to it each year –should let this case stand.