Chippewa fishing rights - Fallout and debate regarding the agreement between the state of Minnesota and Chippewa Indian

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The two sides at odds in the Leech Lake area over fishing rights discuss their motivations and philosophies regarding the introduction of a one dollar tax stamp for fishing permits for non-Chippewa Indian Reservation citizens.

Owners of local businesses protesting the law, as well as the lawyers representing the Chippewa Indians are interviewed.

Part three of a three part report.


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SPEAKER 1: Last night, you were arrested for fishing here without paying the fee to the Leech Lake Indian Reservation.


SPEAKER 1: Why did you take this action?

SPEAKER 2: Because I feel my constitutional rights were violated.

SPEAKER 1: Could you explain that a little more fully?

SPEAKER 2: Well, the governor and the state legislature put my property in a reservation, which was never in the reservation before, and we do not believe that he has the right to change federal boundaries. This is a Chippewa National Forest that belongs to all the citizens of the United States. And this is why.

SPEAKER 1: Now this action then is to test the constitutionality of jurisdiction of land.

SPEAKER 2: We feel that our constitutional rights have been violated.

SPEAKER 1: And are you planning to appeal this? How far?

SPEAKER 2: All the way. All the way to the Supreme Court, if necessary.

SPEAKER 1: And this is going to require a good deal of money, won't it?

SPEAKER 2: Yeah.

SPEAKER 1: Are the resort owners pooling resources for this?

SPEAKER 2: I don't know what the rest are doing, but I'm going to use everything I own.

SPEAKER 1: You feel very strongly about this.

SPEAKER 2: Mm-hmm.

SPEAKER 1: Have you had good relations with the Indians in the area?

SPEAKER 2: Yeah, I have nothing against the Indians, nothing at all. I feel that if they have anything coming, it's up to the Federal government to give it to them, not us as individuals. And this is-- what they have passed is class legislation as far as I'm concerned. And I do not feel that they have a right to pass when you buy your license in the beginning of the season, and they add a buck on in the middle of the season. I think this is illegal and unconstitutional.

SPEAKER 1: You are the owner of the Maple Leaf Resort.

SPEAKER 2: Yes, I am.

SPEAKER 1: And how has business been? Has this been affected by business at all?

SPEAKER 2: Well, we haven't had any effect because I think it's-- right now being that the stand that I've taken to my customers, I've done a little bit better than normal because they feel just as strongly as I do. And several of them that were arrested are my customers last night. And they're from out of state, and they feel just as strong as I do.

SPEAKER 1: Is there any action plan today?

SPEAKER 2: We have. We have announced the fishing and anybody is welcome to come and fish if they want to and take their chances.

SPEAKER 1: Are there other sites on Leech Lake that are--

SPEAKER 2: This I don't know. I couldn't tell you that. I have-- all I know is what I'm doing and I feel very strongly in what I'm doing, very, very strong. So what anybody else is doing, I don't know. I couldn't tell you, honestly. But I know that I am going to go all the way with this.

SPEAKER 1: Why is it that this came to a head at this point in time, do you think?

SPEAKER 2: I don't know, but we've tried through the courts. Nobody will listen to us. The state legislature just-- as far as I'm concerned, I was up at the hearings, they just ignored us. They were told what the constitution of the United States is. They paid no attention to us. In fact, Senator Udall to me, he's a disgrace to his chair.

He got up there. And when our speaker was speaking in our behalf, he got up and sat back in a chair and had his moccasins shoes up-- feet up in the air. And he even fell over backwards. That's the way he-- how much he listened. He fell over backwards in the chair. And I think a man like this, I don't think he belongs in office.

SPEAKER 3: How do you feel about this illegal fishing that's supposed to take place today?

SPEAKER 4: Well, if they break in the law, they'll get a ticket for it. That's all there is.

SPEAKER 3: Do you think there's strong feelings in this area about this issue?

SPEAKER 4: No, I don't think so.

SPEAKER 3: How have the Indians in the area reacted to this whole organization, the Leech Lake area Citizens Committee?

SPEAKER 4: They've stayed pretty calm. All they're doing is observing. They're not trying to do anything about it. It's up to the state law officials to do whatever has to be done.

SPEAKER 3: Well, the Leech Lake area Citizens Committee says that the reason they're taking this action is because they feel like second class citizens. How do the other people in the area, especially the Indians react to that statement?

SPEAKER 4: Well, I think they've had to feel like second class citizens for a long time. Shoes another foot for once. That's the way it should be.

SPEAKER 3: Thank you very much.

SPEAKER 1: I'm speaking with Kent Tupper, one of the attorneys representing the Chippewa Indians in this dispute. The people that we talked to representing the Leech Lake Citizens' Council indicated that this was a test of constitutional law. And that it was a matter of only Congress can make treaties with the Indians. What is your response to that?

KENT TUPPER: Well, secondly, the president or firstly, maybe President makes treaties with Indians or deed. Congress-- the Senate ratified them. But the case that we're talking about, the agreement with the state is not a treaty. It was a settlement of litigation. The judge, Federal Judge Davitt, characterized it that in his order, that it was the settlement of the pending appeals in the litigation. The State was a party to that litigation. The United States was, and so was the Chippewa tribe in the Leech Lake Band. It's not a treaty.

SPEAKER 1: And you don't see this as a test of constitutional law?

KENT TUPPER: Well, I don't know what the Leech Lake Citizens Committee is going to do when they get to court or what they're going to claim. So I wouldn't presume to say what they intend to test.

SPEAKER 1: But as far as you're concerned, it's not a constitutional matter.

KENT TUPPER: Well, I don't know what you mean by it's not a constitutional matter. I don't know.

SPEAKER 5: Well, what they think the issues are in this case?

KENT TUPPER: If they think the issue is that this is a treaty, we don't think it is.

SPEAKER 3: Well, they seem to be saying that if this law is allowed to stand, that it sets a president, and that treaties from here to the East Coast can be brought out and made valid according to the Indian Point of view. That seems to be a fear on their part.

KENT TUPPER: Well, the treaties are part of the law of the land. That's what the constitution calls them. Whether they're entered into in the East or the West, it doesn't make any difference. Certainly if Indians have rights under treaties, there's no reason why they shouldn't litigate them. There's no reason because of the passage of 50 or 75 or 100 years that somehow all their rights under treaties should be abrogated.

SPEAKER 1: The Citizens' Council claims that the money is going to a private group so that it's not going to the state.

KENT TUPPER: That is absolutely false. The money will go to the Leech Lake Band, the Chippewas, the political arm of the tribe that governs this reservation. They are the governing body just like the state has its governing body and counties have their governing bodies, cities have their governing bodies. They govern their people like any other governing body, and they'll use the money for things governments use money for, improvements, jobs, employment, economic development.

I might just add something that Bernie said that all practicing lawyers know that about 90% of all cases brought in court do not go to trial but are settled because the parties reach a compromise or an agreement and that satisfactory to both sides. And rather leave it up to a final decision by a judge or a jury, they themselves reach an agreement. So the fact that the appeals were dropped and a final agreement was reached is certainly not unique in the legal annals of what happens in courts.

SPEAKER 3: The Citizens Committee has denied that there's anything to do with race involved in this fishing issue. They say that it's a matter of constitutionality. And you've said that it isn't. Do you think that racism is involved in this?

KENT TUPPER: You remember the days when Jim Barnett down in Mississippi used to stand in the door and say, this isn't an issue of race, it's an issue of states' rights. Well, I have the same feeling to what the Citizens Committee has said. We noticed that the people doing the fishing or the protesting are not Indians. And the people whose rights they are protesting are Indians. So if they don't feel that's a racial issue, I guess they can feel whatever they want.

SPEAKER 1: They felt it was discriminatory against the Whites.

KENT TUPPER: Well, I think that's really a unique position to take. The Chippewa Indians have resided on this reservation for almost-- this area wasn't a reservation. Leech Lake was one of the principal Indian settlements long before there was a state and long before the United States government even moved into this area. At the time when France and Britain had control over this area, the Chippewas-- this was one of the important settlements.

By probably intimidation and force, they were forced to cede much of the rest of their holdings, but they remained here. And to say that somehow that they're discriminating against White people if they have some kind of rights that they've reserved, that seems to me to be kind of a ludicrous statement. They are merely trying to maintain some property rights. The little assets that they have remaining to them that might provide some economic development.

Their timber is basically all been taken from the area. The minerals, the iron ore of Northern Minnesota is basically all gone. They receive virtually nothing for it. And to say that somehow for White people to come on their reservation and be discriminated against because the Indians are getting $1 fee for not exercising their rights to commercial the hunt fish, it doesn't make any sense to me.

SPEAKER 5: If you look at the other reservations in the United States, particularly take Red Lake in Minnesota and most of the reservations in the Western states, the White man is almost totally excluded from there, absolutely excluded from there. So to talk about the recognition which the constitution authorizes of separate Indian tribes in a relationship different in apart from the general citizenry with Indian tribes because of a historic relationship of essentially conquerors and conquered peoples is to negate 250 years of constitutional history in the United States.

And I don't think anybody is about to do that. Somebody said there are 367 treaties, and maybe that's a fair number. But there are probably-- as I understand it, somebody counted them, there are over 5,000 court decisions dealing with Indian rights and treaties. And these case decisions go way back to the very first years of this Republic.

KENT TUPPER: There's a whole chapter. Title 25 of the United States Code deals with nothing but Indians. There's section after section of law, which has no application to the general [? citizenry, ?] only to Indians. Since 1871, those federal statutes have taken the place of treaties as far as setting out Indian rights are concerned.

SPEAKER 6: The United States government who is the other party to this treaty completely agreed in this case with the Chippewa interpretation of what the treaty meant. The two parties who agreed to this basically contract agreed what the terms were and what the rights were. It was the state of Minnesota who was not even in existence, at that time, who would challenge the meaning of the treaty and what the states' rights were. The judge found that the United States and the Chippewa tribe were correct in their interpretation of these treaty rights.

SPEAKER 7: Our Indian reservations is like a nation within a nation.

SPEAKER 8: It's somewhat unique. Like Bernie said, it's an easy way to characterize it.

KENT TUPPER: A lot depends on what reservations you're talking about. The reservations vary to some degree in their relationships with state governments and the federal government, although not as much-- the variance is not nearly as great between the federal government and the tribes as it is between the state and the tribes. In the Western states, the Dakotas, Colorado, Utah Arizona, New Mexico, and Red Lake Reservation in this state, the state has absolutely no power. It can't even serve a legal process within the boundaries of the reservation.

On Leech Lake and the other six five reservations in Minnesota because of an outgrowth of the federal termination policy in the early '50s and late '40s and beyond before that even, Congress passed a statute, which authorized the general civil and criminal jurisdiction in a state court system and through the state governmental units. And that, of course, had a major effect towards narrowing the scope of the political jurisdiction available to Indian tribal government. The Indian tribal government in this country has as a constitutional base.

First of all, it's got a basis in inherent sovereignty, which the Supreme Court has recognized as early as 1802 in Worcester versus Georgia. It is true that you can't talk about Indians as a sovereign nation anymore. In a legal sense, it would be a mistake and misleading to do. But they certainly to the extent that Congress has not in any way taken away through statutes or treaty, whatever normal attributes of sovereignty a nation will have, the tribe retains that.

Chief Justice Marshall in the Worcester versus Georgia case tried to characterize it as a relationship similar to a guardian, and a Ward. And I think he first used the term dependent domestic sovereign, which I guess has been used a great deal since to try and characterize it somewhat as. Obviously, the tribe has no Foreign Relations. [INAUDIBLE] Foreign Relations are under the suzerainty of the United States in that respect. To the extent that Congress has determined it's not necessary to preempt the power of the tribe, the tribe generally retains its full power.

There are court systems in most states. In most Western states in the United States, every tribe has a court system. They put people in jail for under six months, up to six months. They convict them of various kinds of crimes. They have civil causes of action. They take care of juveniles, domestic relations.

Same thing here on Red Light. They have a whole code that takes care of these things. There's a court of Indian offenses. There's a police department. There's a reservation government. And this Leech Lake now has this a tribal conservation court with Judge and Indian game wardens, and they have full authority to arrest, search, seize, and imprison and fine their own people for not complying with their own conservation program. And that's just an exercise of their sovereignty in their powers.

The important thing that most people, I think, have overlooked, that the court decisions of-- consistently held that these treaties were not grants of Rights to the Indians. The Indians weren't being given something. They were grants of rights from the Indian people to the United States government. And basically, they were grants of land. And the courts of-- Supreme Court has consistently upheld the fact that what they didn't grant away, they retained. And that's led to a lot of, I think, misconceptions on the part of a lot of the public.

I know the citizens action group consistently raises the point that the treaties-- that they say the treaties don't say the Indians get any rights to hunt and fish. Well, that has been interpreted by the United States Supreme Court in a case called the United States versus Winans.

The Minnesota Supreme Court in the state versus Jackson a Leech Lake case in 1944 said these were not grants of Rights to the Indians, but grants from them. And what they didn't grant to the government, they reserved. And hunting and fishing were necessary for them to live. And if they didn't grant away, they reserved those rights. The treaties don't require that they spell them out.

It's dealing essentially with communal property rights. Just like a person when-- I suppose I own a piece of land somewhere and I have whatever, as we lawyers call, the bundle of sticks that makes up my ownership. And I decide that I want to sell something to somebody. I want a grant. In fact, in the law, we call that person who gives, a grantor, the person who receives, a grantee.

You make that grant. I can carve out and say, I'm going to give you 8 of the 10 sticks that make up the rights that I have in property, and I'm going to-- and I'll give you the other two. I don't have to say I specifically reserved. If I don't give them to you, I keep them because I haven't sold them to you. It's the same thing in analysis of treaties.


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