Protect Our Manoomin takes the position that current efforts to change wild rice rulemaking benefits extractive resource companies by narrowing the definition to exclude waters that are protected under treaty provisions. Attempts to change the current language of wild rice producing waters and changes to the Minnesota Wild Rice/Sulfate Water Quality Standard violate the terms that have been set forth through treaties and Federal Indian law.
The 1854 Treaty Authority cites approximately 340 wild rice producing waters. The 1855 ceded land has approximately 440 wild rice producing waters. Tribes within the 1854 ceded land include Fond du Lac. Bois Forte, and Grand Portage. Tribes within the 1855 ceded land include White Earth and Leech Lake.
At issue are the usufructuary rights under the 1837, 1854, and 1855 treaties. These off-reservation rights were not privileges granted by the U.S. government in treaty negotiations. Usufructuary rights were retained by tribal leaders for the health and well-being of the tribes.
Federal Indian case law has recognized the inherent usufructuary rights that have been maintained by tribes. In U.S. v. Winyans (1905): “In other words, the treaty was not a grant of rights to the Indians, but a grant of right from them…There was a right outside of those boundaries reserved 'in common with citizens of the territory.”
Three years later, Winters, et. al. v. United States (1908) was heard by the Supreme Court. The Winters Decision established reserved water rights in that [tribal] self-sufficiency was dependent on tribal water resources and those resources, located off the reservation, were protected to maintain tribal well-being and lifeway.
As emphasized in Wiyans, treaties are a grant of rights from the tribes to the government and their citizens. These rights include the ability to share the land, move freely about, conduct economic activity, and govern them in the manner they choose.
In regard to treaty rights and, in particular, usufructuary rights, changes to environmental protections that maintain tribal well-being must be adhered to. These usufructuary rights were affirmed in 1983 by Lac Courte Oreilles Band of Lake Superior Indians v. Voigt v. United States (The Voigt Decision), and in 1999 by the Supreme Court Decision - Minnesota v. Mille Lac Band of Chippewa Indians.
Therefore, it is Protect Our Manoomin’s position that proposed changes to Wild Rice Rulemaking applies to and includes all wild rice producing waters on tribal ceded lands since these waters are protected under the treaties of 1837, 1854, and 1855. Furthermore, it is our position that the Wild Rice/Sulfate Water Quality Standard of 10 mg/L must be maintained to ensure the health and well-being of the Ojibwe-Anishinaabe nations who have retained wild rice gathering rights via treaties and Federal Indian law.
Robert DesJarlait, Director, Protect Our Manoomin