Minnesota Journal of Law & Inequality Volume 33 Issue 1 Article 3 June 2015 Minnesota v. Mille Lacs Band of Chippewa: 19th Century U.S. Treaty-Guaranteed Usufructuary Property Rights, the Foundation for 21st Century Indigenous Sovereignty Peter Erlinder Follow this and additional works at: https://lawandinequality.org/ Recommended Citation Peter Erlinder, Minnesota v. Mille Lacs Band of Chippewa: 19th Century U.S. Treaty-Guaranteed Usufructuary Property Rights, the Foundation for 21st Century Indigenous Sovereignty, 33(1) LAW & INEQ. 143 (2015). Available at: https://scholarship.law.umn.edu/lawineq/vol33/iss1/3 Minnesota Journal of Law & Inequality is published by the University of Minnesota Libraries Publishing. Minnesota v. Mille Lacs Band of Chippewa: 19th Century U.S. Treaty-Guaranteed Usufructuary Property Rights, the Foundation for 2 1 t Century Indigenous Sovereignty Peter Erlindert Table of Contents INTRODUCTION ............................................ 145 I. BACKGROUND TO THE RESTORATION OF CHIPPEWA TREATY- GUARANTEED USUFRUCTUARY PROPERTY RIGHTS IN NORTHERN M INNESOTA ............................................... 151 A. The Late 20'l Century Grassroots Activism: The Rule of Law Returns After 160 Years of Systemic Usufructuary Property Theft ................................. 153 T. Professor of Law (ret.), William Mitchell College of Law, St. Paul, MN 55105; Director, International Humanitarian Law Institute, St. Paul, MN 55101. The Author's research for this Article began on boat launching ramps in Northern Wisconsin in early spring of the 1980s. Legal observers from the Minnesota Chapter of the National Lawyers Guild spent long, cold nights interposed between 1854 Treaty rights activists from the Lac Courte Oreilles Reservation launching canoes for the spring walleye harvest and armed, non-Indian, anti-Treaty protestors threatening violence under the motto, "Save a Fish, Spear an Indian." From these tense, armed stand-offs that, fortunately, did not become violent, came Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341 (7th Cir. 1983) and the treaty-created usufructuary property analysis that the U.S. Supreme Court unanimously adopted in State of Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). The Author owes a debt of gratitude to living Chippewa Band activists and their forebears for keeping alive the oral history of the "usufructuary property" guarantees made before any Minnesota Territory was ceded to the United States. In particular, thanks is due to former Leech Lake Tribal Attorney, Frank Bibeau, Esq., for education on the legal, historical, and practical synthesis of the Anishinabe people and culture that made the Article possible. His understanding of the continuing struggle for survival and sovereignty despite ceaseless efforts to displace and eliminate Native Americans informs the entire Article. Lisa Mayne, J.D., Gigi Penn, Esq., and Amity Johnson provided invaluable research and editing assistance, as did the editors and staff of Law and Inequality: A Journal of Theory and Practice. The errors that remain are my responsibility alone. To all, my thanks, Miigwitch. Law and Inequality [Vol. 33: 143 B. Usufructuary Property in Sovereign Objibwe Territory: The Northwest Ordinance and the "Forgotten Treaties" of 1795, 1825, 1826, and 1854 ....................... 155 II. "RE-DISCOVERY" OF TREATY-GUARANTEED USUFRUCTUARY PROPERTY: MINNESOTA V. MILLE LACS BAND OF CHIPPEWA INDIANS ........... ....... ............ .......... ...... ....... .... 1 6 7 A. An 1850 Presidential Order Ratifies Treaty- Guaranteed Usufructuary Property Rights in All Northern Minnesota, Outside 1837 Treaty Land- Cession Territory ............................ 169 B. Allegedly Silent Abrogation of Pre-Existing Treaty- Guaranteed Property Rights Violates Basic Principles of Treaty Interpretation and Due Process ........ 173 C. The 1858 Minnesota Statehood Act in Prior Supreme Court Treaty Litigation ....................... 178 D. The Treaty of 1854, Lac Courte Oreilles v. Voigt (LCO I-VIII), and Minnesota v. Milles Lacs Band of Chippewa .................................. 182 III. MINNESOTA TREATY PRECEDENT IN RETROSPECT: MILLE LACS USUFRUCTUARY PROPERTY ANALYSIS, AS APPLIED ............. 186 A. Leech Lake Band of Chippewa v. Herbst ......... 187 B. United States v. Minnesota .................... 188 C. State v. Keezer .............................. 193 IV. POST-MILLE LACS USUFRUCTUARY PROPERTY RIGHTS: THE "RIGHT TO A MODEST LIVING".................................. 197 V. PROSPECTS FOR 21sT CENTURY RESOURCE CO-MANAGEMENT IN ALL OF NORTHERN MINNESOTA-1825 AND 1826 "SOVEREIGNTY TREATY" TERRITORY ........................................ 203 A. Co-Management of Treaty-Guaranteed Usufructuary Property Rights: Preventing an Unconstitutional "Taking"-Protecting Natural Resources for All ...... 206 B. Mille Lacs Usufructuary Property Off-Reservation: The Crandon Mine Dispute ........................... 207 C. PolyMet Mining and "Sandpiper" Pipeline Proposals in Minnesota's 1854 Treaty Territory: Mille Lacs Usufructuary Property Analysis and the Crandon Mine Experience .................................... 208 VI. FEDERAL PROSECUTIONS OF TRIBAL MEMBERS FOR EXERCISING TREATY RIGHTS: MILLE LACS AND TREATY-GUARANTEED USUFRUCTUARY PROPERTY "IMMUNITY"......................... 214 A. United States v. Bresette ..................... 214 B. United States v. Gotchnik ..................... 215 2015] USUFRUCTUARY PROPERTY RIGHTS C. United States v. Smiskin ...................... 217 D. Federal Lacey Act "Sting" Prosecutions of Minnesota Chippewa for On-Reservation Exercise of Treaty- Guaranteed Usufructuary Rights ............... 220 i. Passage and Brief History of the Lacey Act 1900- 1988 ................................... 22 1 ii. The 1988 Lacey Act Amendments Add Tribal Regulation of Usufructuary Property Rights to Trigger Federal Prosecution on Reservations ............ 224 C ONCLUSION .............................................. 226 A PPENDIX I ................................................ 229 A PPENDIX II ............................................... 230 INTRODUCTION' In 1837, the United States entered into a Treaty with several Bands of Chippewa Indians. Under the terms of this Treaty... the United States guaranteed to the Indians certain hunting, fishing, and gathering rights on the ceded land .... After an examination of the historical record, we conclude that the Chippewa retain the usufructuary rights guaranteed to them under the 1837 Treaty. 2 - Justice Sandra Day O'Connor In Minnesota v. Mille Lacs Band of Chippewa Indians (Mille Lacs), a closely divided 5-4 opinion on the merits before the Court 1. Land use and environmental regulation implications of treaty-guaranteed usufructuary property interests arising in Minnesota v. Mille Lacs Band of Chippewa Indians (Mille Lacs), 526 U.S. 172 (1999), in a broad sense, were first discussed by this Author in a short article that described the background to the 1837 Treaty and majority and dissenting opinions in the 5-4 opinion on the merits. See Peter Erlinder, Treaty-Guaranteed Usufructuary Rights: Minnesota v. Mille Lacs Band of Chippewa Indians Ten Years On, 41 ENVTL. L. REP. NEWS & ANALYSIS 10921 (2011), available at http://elr.info/news-analysis/41/10921/treaty- guaranteed-usufructuary-rights-minnesota-v-mille-lacs-band-chippewa-in [hereinafter Erlinder, Ten Years On]. The article was the first to point out that the closely-divided opinion disguised the Court's unanimity on the nature and origin of treaty-guaranteed usufructuary property interests. See id. The present Article builds upon this Author's 2011 article by applying the Mille Lacs usufructuary property analysis to pre-1837 treaties and long-decided "Minnesota treaty cases" to reveal the limited scope of "treaty rights" recognized prior to the Mille Lacs analysis. This provides a new way of understanding 160-year-old treaties and long- standing precedent and is likely to become even more far-reaching with time, as recent cases arising in civil regulatory and criminal contexts are beginning to demonstrate. 2. Mille Lacs, 526 U.S. at 175-76. Law and Inequality [Vol. 33: 143 analyzing the continuing viability of the hunting, fishing, and gathering guarantees in an 1837 Treaty, which ceded territory to the United States, masked a unanimous opinion establishing the analytical methodology for finding such "usufructuary property" guarantees in the language used by U.S. treaty negotiators to sever the continuing right to use land for the survival of its inhabitants from mere "title" to real property.3 This "use of the land for survival purposes" has been denominated "usufructuary property" since Roman times4 and is but one of the "sticks" that make up the fee simple "bundle of sticks," long recognized in the common law as alienable from mere formal title. Unanimity Within a Divided Opinion: Treaty-Created Usufructuary PropertyRights By separating "title" from "use," U.S. treaty negotiators created treaty-guaranteed property interests which, like subsurface mineral rights or utility easements, do not transfer with "title."' Created by the language of treaties between sovereigns, these property interests may not be lawfully taken from the indigenous nations without specific congressional authorization to abrogate the property interests memorialized in a treaty between sovereigns.7 Moreover, the abrogation of treaties with native people must be expressed in language that clearly