Fish in the Lakes, Wild Rice, and Game in Abundance Fish in the Lakes, Wild Rice, and Gam.e in Abundance Testimony on Behalf of Mille Lacs Ojibwe Hunting and Fishing Rights JAMES M. MCCLURKEN, COMPILER with CHARLES E. CLELAND, THOMAS LUND, JOHN D. NICHOLS, HELEN TANNER, AND BRUCE WHITE Michigan State University Press East Lansing Copyright © 2000 by Michigan State University Press § The paper used in this publication meets the minimum requirements of ANSIINISO Z39.48-1992 (R 1997) Michigan State University Press East Lansing, Michigan 48823-5202 05 04 03 02 01 00 1 2 3 4 5 6 7 8 9 LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA McClurken, James M. Fish in the lakes, wild rice, and game in abundance: testimony on behalf of Mille Lacs Ojibwe hunting and fishing rights / James M. McClurken, compiler; with C. Cleland ... let al.] p. cm. Includes index. ISBN 0-87013-492-2 (alk. paper) 1. Indians of North America-Hunting-Law and legislation-Minnesota. 2. Indians of North America Fishing-Law and Legislation-Minnesota. 3. Ojibwa Indians-Minnesota-Treaties. 4. Mille Lacs Indian Reservation (Minn.) 1. Cleland, Charles E., 1936- II. Title. KFM5905.6.H85 M39 2000 346.77604'69549-dc21 99-088247 COVER PHOTOGRAPHS Indian delegation to Washington, D.C. (ca. 1860s), photo by Alexander Gardner; Henry Mower Rice photo attributed to the Matthew Brady Studio; Hole-in-the-Day (1858) photo attributed to J. E. Whitney; Governor Alexander Ramsey (ca. 1848-50); and Sha-bosh-sgun (ca. 1860) photo by Martin's Gallery. All photos are used courtesy of the Minnesota Historical Society. Cover design by Michael Smith of View '!\vo Plus Book design by Sharp Des!gns Visit Michigan State University Press on the World-Wide Web at: www.msu.edulunitlmsupress Contents Foreword .................................................................................................................................. vii Section :a PRIMARY TESTIMONY PRESENTED ON BEHALF OF THE MILLE LACS BAND IN MINNESOTA V. MILLE LACS BAND OF CHIPPEWA INDIANS (97-1337) Preliminary Report of the Ethnohistorical Basis of the Hunting, Fishing. and Gathering Rights of the Mille Lacs Chippewa, Charles E. Cleland ........................ 1 • An Overview of Chippewa Use of Natural Resources in Historical Perspective • The Western Chippewa in the Early Nineteenth Century • The 1837 Treaty of St. Peters • The 1842 Treaty of La Pointe • Chippewa-American Relations 1825-1850: A Clash of Cultures • The Treaty of Fond du Lac-1847 • Attempts to Remove the Chippewa • The Mille Lacs Chippewa in the 1850S • The Reservation Policy and the Treaty of La Pointe -1854 • The Treaty of Washington • The Treaties of 1863 and 1864 • Off-Reservation Hunting, Fishing, and Gathering in the Post-Treaty Era • Statement of General Conclusions The Regional Context of the Removal Order of 1850, Bruce M. White ..................... 141 • White Population Growth in the Minnesota Region • Political Leadership in Minnesota Territory v CONTENTS • Pressure for Removal • Implementing the Removal Order • Tragedy at Sandy Lake • Removal Efforts in 1851 • Suspension of the Removal • The Watrous Investigation • The Pleasure of the President • Remnants of the Removal • Beyond the Removal Policy • Mille Lacs Treaty Rights at the End of the Removal Period • Summary and Conclusions • Why Call It the Removal Order of 1850? • Were the Mille Lacs Ojibwe Subject to the Removal Order of 1850? • How Many Ojibwe Were Actually Removed? The 1837 Treaty of St. Peters Preserving the Rights of the Mille Lacs Ojibwa to Hunt, Fish, and Gather: The Effect of Treaties and Agreements since 1855, James McClurken ............................................................................................... 329 • Mille Lacs and the Treaty of 1855 • Treaties of 1863 and 1864 • Implementation of the 1863 and 1864 Treaties • The Nelson Allotment Act, 1889 • Congressional Acts and the Mille Lacs Reservation Section 3 SUPPORTING TESTIMONY The Mille Lacs Band and the Treaty of 1855, Helen Tanner ............................................. 463 The 1837 and 1855 Chippewa Treaties in the Context of Early American Wildlife Law; Thomas Lund ................................................................................................... 486 The Translation of Key Phrases in the Treaties of 1837 and 1855,John D. Nichols ...... 514 APPENDIX Minnesota, et aI., Petitioners v: Mille Lacs Band of Chippewa Indians et al.; No. 97-1337 Opinion of the Supreme Court, Sandra Day O'Connor ............................. 525 Index ........................................................................................................................................ 547 vi Foreword THE SIX REPORTS COLLECTED IN THIS VOLUME HAVE THEIR ORIGIN IN A LAWSUIT FILED by the Mille Lacs Band of Ojibwe Indians. The Band sued the State of Minnesota to stop it from interfering with hunting, fishing and gathering rights that were guaranteed in an 1837 Treaty between Ojibwe Bands and the United States. In that treaty. the Ojibwe ceded nearly 14 million acres to the United States. Article 5 of the treaty contains this promise: The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the President of the United States. This guarantee was essential to the Ojibwe who sold their lands to the United States 160 years ago, and it remains critical to our cultural survival and well-being as we ap proach the 21st century. In 1983, the Federal Court of Appeals for the Seventh Circuit ruled that these rights had never been revoked. The case was brought by the Lac Courte Oreilles Band, which is located in Wisconsin, against Wisconsin officials. Because of the central cultural im portance of hunting, fishing and gathering to Ojibwe people, the decision was of enor mous importance to us. Mille Lacs Band members recall the day when State officials made arrests and issued citations to stop traditional net fishing activities in Mille Lacs Lake as the day ·the treaty was closed: and many have been unable to pursue the seasonal round of hunting and gathering because of the enforcement of State laws that elevate ·sport above all other values. The Lac Courte OreWes decision held the promise of reviving tra ditions that had been suppressed by State intolerance, restoring pride in our culture, and providing a livelihood for our people. Our hopes were soon dashed in Minnesota. The State of Minnesota would not recog nize the Lac Courte OreWes decision because the Seventh Circuit does not have jurisdic- vii FOREWORD tion over Minnesota. We tried to negotiate, but were given no choice but to file suit in Minnesota to vindicate our rights. We did so on August 13, 1990. In interpreting Indian treaties, the courts consider the historical circumstances, the intentions of the parties, and the implementation of the treaties. We faced a difficult task in conveying our side of the story to the court: the treaty itself, and virtually all of the historical records pertaining to it, were written by non-Indians. These documents help describe the historical circumstances as non-Indians perceived them, and offer insight into non-Indian intentions, but by themselves offer little insight into Ojibwe understand ing of the treaties or surrounding circumstances. We turned to ethnohistorians to present a more balanced view; one which would give voice to the Ojibwe in describing historical events. We were fortunate to obtain the ser vices of Professor Charles Cleland, Dr. James McClurken, and Dr. Helen Tanner in this endeavor. Professor Cleland has devoted his academic career to studying the history and the culture of the Native people of the Great Lakes region, including their treaty rela tions with the United States Government. We asked him to research the circumstances leading to and following the 1837 Ojibwe treaty. His report provides a sensitive account of Ojibwe culture, the seasonal round of hunting, fishing and gathering pursued by our ancestors, and our struggle to maintain our culture and way of life during the treaty era. He takes the historical narrative through an 1855 treaty. in which the Mille Lacs Band received a Reservation on the shores of Mille Lacs Lake as its permanent home. Dr. McClurken, an anthropologist and ethnohistorian, carefully researched and ana lyzed the history of the Mille Lacs Band from 1855 through the early twentieth century. His report documents the overwhelming importance of hunting, fishing, and gathering to the Mille Lacs Ojibwe, culturally as well as economically; throughout this period. He also provides an account of the unrelenting efforts to force us from our Reservation by those who sought access to its valuable stands of white pine, and our steadfast efforts to retain our homeland. Our refusal to remove-despite decades of fraudulent land trans actions and attempts to literally burn us out of our dwellings-earned us the name the MNon-Removal Band of Mille Lacs Ojibwe: Dr. Tanner, who we think of as the dean of Great Lakes Indian history; provides unique insight into the 1855 Ojibwe treaty. and the Ojibwe leaders who were involved in the negotiation of that treaty. Her report allows us to see Indian people as individuals, with unique personalities, interests, and objectives. In addition to these scholars, we were extremely fortunate to have the services of Professor John Nichols, who is one of the world's pre-eminent academic experts on the Ojibwe language. Professor Nichols has been studying Ojibwe for over twenty-five years, including in particular the Ojibwe dialect spoken at Mille Lacs. His report explains the difficult communication problems that confronted treaty negotiators in the nineteenth century; and describes how English legal jargon would have been translated into Ojibwe and understood by Ojibwe people. We also asked a renowned legal historian, Professor Thomas Lund, to explain the significance of the English legal terms in the treaties to non-Indians, given the very different legal landscape of the early nineteenth century. viii Marge Anderson Some of the key historical events were shrouded in time. Most prominent among these was a scandalous effort in 1850 to remove the Wisconsin Ojibwe to Minnesota, where Territorial officials hoped to profit from their annuity payments and reap the benefit of patronage positions associated with Indian agencies. Hundreds of Ojibwe died resisting this unlawful scheme. With the help of principled government officials, local citizens and missionaries, the Ojibwe succeeded in defeating this removal effort, and later received reservations as their permanent homes on the lands they had traditionally occupied. The story is remarkable in its own right, being one of the few in which Indian people re sisted a concerted effort to remove them. However. our interest was not purely academic. Because the State of Minnesota claimed that the order for removal terminated our hunt ing and fishing rights, we asked a Minnesota historian, Dr. Bruce White, to do original research to tell the full story of the issuance-and abandonment-of the 1850 removal order. His carefully researched, detailed account is the most exhaustive study of the re moval order to date. Each of these scholars prepared written reports which were used as their· direct tes timony· in the trial of our case, and it is those reports that are reprinted here. We had hoped that it would not be necessary to sue the State of Minnesota at all, and after filing suit sought diligently to settle the case. However, whatever the ultimate outcome of the case, we believe these reports will have lasting value wholly apart from the litigation which gave rise to them. Together, they present an important part of our history and that of other Ojibwe people in Minnesota and Wisconsin in the nineteenth century; they pro vide insight into the relationship between Americans on the frontier and the Native peoples who had long occupied those lands, and they capture much of the political and legal landscape of the times. We appreciate the hard work of each of the authors, and commend their reports to you as a foundation for further research. MARGE ANDERSON Chief Executive, Mille Lacs Band of Ojibwe Indians ix