until otherwise ordered by the President. ~ Treaty with the Chippewa, 1854
The establishment of the reservation system in Anishinaabe country led to a new word in the language - ishkonigan. Translated into English, the word means “reservation.” But in Anishinaabemowin, the word has more significant meaning. In Ojibwe, the word means “land that is diminished.” Because that is what our ogimaag miinawaa gichi-aya’aag saw – vast homelands diminished to mere parcels of land.
However, the tribes did maintain a wider degree of sovereignty by ensuring that their off-reservation treaty rights – hunting, fishing, and gathering – would be exercised in the lands they had ceded. But exercising those rights came at a price. The state of Minnesota, and Wisconsin, chose to ignore off-reservation treaty rights and subjected tribal members to state laws regarding hunting and fishing. Tribal members who tried to exercise their rights were arrested, their equipment confiscated, and they were fined.
The tribes fought back with lawsuits. In Wisconsin, the Voight Decision/LCO I (1983) recognized the off-reservation treaty rights of the Odaawaa-zaaga`igan (Lac Courte Orielles), Basaabikaang (Red Cliff), and Waaswaaganing-zaaga`igan (Lac du Flambeau) Ojibwe bands under the treaty of 1854.
In 1985, the Gichi-onigaming (Grand Portage), Zagaakwaandagowininiwag (Bois Forte), and Nagaajiwanaang (Fond du Lac) Ojibwe bands filed a lawsuit for recognition of their off-reservation treaty rights in the Ceded Territory of 1854. An agreement was reached in 1988, however Nagaajiwanaang dropped out of the settlement in 1989.
In 1992, Nagaajiwanaang sued the state claiming off-reservation treaty rights in ceded lands from the 1837 Treaty and 1854 Treaty. In 1996, federal court ruled that both claims were valid. Also in that year, the Nagaajiwanaang case was joined with the Miza-zaaga’iganing (Mille Lacs) case so both cases could be resolved regarding the 1837 Treaty.
In 1999, the Miza-zaaga’iganing Ojibwe took their case all the way to the Supreme Court who affirmed the off-reservation treaty rights of the Miza-zaaga’iganing and Nagaajiwanaang Ojibwe bands under the Treaty of 1837.
However, recognition of off-reservation treaty rights doesn’t eliminate the pressures of the chimookamaanag in their quest for land. In this case, the quest is for minerals and metals that are under the surface of the Ceded Territory of 1854.
In 2007, Rep. Oberstar introduced HR 4292 and Sen. Klobuchar and Sen. Coleman introduced S 3411 - Superior National Forest Land Adjustment Act of 2007-2008. This act would have required the sale of 6700 acres of Superior National to Polymet. Gov. Pawlenty was on board for the bill. This bill would have circumvented public environmental review, appeal, and agency protection. Fortunately, the bill didn't pass. However, it revealed the mindset of the state politicos in regard to non-ferrous mining.
Thereafter, Polymet had no choice but to go the required route - an Environmental Impact Study (EIS, also referred to as DEIS) . As part of the requirement, Polymet had to solicit comments by agencies impacted by Polymet’s proposed sulfide mine. These cooperating agencies included the Department of Natural Resources (DNR), the U.S. Army Corps of Engineers (USACE), the Minnesota Pollution Control Agency (MPCA), the Environmental Pollution Agency (EPA), the U.S. Forestry Service (USFS), and the Nagaajiwanaang, Gichi-onigaming, and Zagaakwaandagowininiwag Ojibwe bands (in conjuncture with the 1854 Treaty Authority and the Great Lake Indian Fish and Wildlife Commission). The tribes input was needed because the Ceded Territory would be affected by Polymet's sulfide mining operations.
The Tribal Response was submitted in July, 2009. The tribes didn’t simply rubberstamp gaawiin to all the points in Polymet’s EIS. Rather, they made precise and concise comments that expressed concern on the various points of the EIS and that more studies were greatly needed because of inadequacies in the EIS. One of the great concerns was the effect of sulfide mining on manoomin. Several tribal comments stressed the critical importance of maintaining the 10 mg/l wild rice standard.
Another critical aspect of Polymet's thrust to build their plant was, and is, the land swap. The land swap isn’t part of the EIS; it’s a separate but crucial issue, one that allows Polymet to move one more step ahead on their project.
Like something out of a Kafkaesque play, the land swap is plainly absurd. In February 2010, Polymet approached a state agency, the IRRRB (Iron Range Rehabilitation Resource Board), for a four million dollar loan. The problem for Polymet is their proposed plant was situated on federal forest land – namely Superior National Forest. Open pit strip mining is not allowed on federal forest land. To circumvent the problem, “Polymet wanted to buy a 5,272-acre Hay Lake parcel near Biwabik and a 32-acre McFarland Lake parcel in Cook County. The two sites would be among five totaling more than 6,700 acres that would become part of the Superior National Forest in exchange for federal property where PolyMet wanted to open its mine.”
The IRRRB approved the loan but there was a problem. According to Marc Fink, an attorney with the Center for Biological Diversity, "Minnesota law prohibits state agencies from providing any approvals, permits or loans for proposed projects that are still going through the environmental review process,"
As a result, a joint lawsuit was filed by the Center for Biological Diversity, Minnesota Center for Environmental Advocacy, Save Lake Superior Association, Friends of the Boundary Waters Wilderness and Indigenous Environmental Network.
In March 2002, the lawsuit was dropped. “A change in state law exempted Iron Range Resources (IRR - formerly IRRRB) from Minnesota’s environmental review requirements.” With the law changed, the lawsuit had no legs.
“The exemption of Iron Range Resources from the Minnesota Environmental Policy Act was offered as a floor amendment by Rep. Tom Rukavina, DFL-Virginia. No hearings were held on the exemption, there was no public notice, and the effect of the provision was not described fully before passage.” Governor Dayton signed the bill.
In April 2011, the IRR voted to approve the loan. The loan provides the IRR with a nice profit margin. “The IRR loan will be secured with a first-priority mortgage on the land. Additionally, the IRR also will receive warrants allowing it to purchase 400,000 common shares of PolyMet stock on the Toronto Stock Exchange at $2.50 per share.”
In the land swap, the tribes will gain nothing. Polymet has assured the tribes that they would receive more productive land to exercise their off-reservation treaty rights. But the question is – what do the tribes gain when have already have off-reservation treaty rights in the Ceded Territory of 1854?
The land swap still needs approval. But assume that the land swap goes through. Polymet buys land that they then exchange with Superior National Forest. What was formerly federal forest land becomes the property of Polymet. Superior National Forest acquires new forest land that then becomes federal forest land. The tribes don’t gain anything because they already have hunting, fishing, and gathering rights on the land that has been exchanged to Superior National. Hunting, fishing, and gathering rights aren’t exclusive to Superior National land. As the map indicates, the three tribes maintain off-reservation treaty rights over a vast area of land.
With the land swap, the tribes actually lose land to exercise their off-reservation treaty rights since those rights exclude private land – and this, of course, is what the land that Polymet has exchanged for will become - privately held land. So the land swap doesn’t maintain off-reservation treaty rights; rather it diminishes off-reservation treaty rights.
Some have asked – why haven’t the tribes publicly voiced stronger opposition to the land swap and the EIS. The tribes have in fact voiced their opinion – it can be found in the Tribal Response to the EIS. As for voicing a stronger stand, one source told me, “They are a cooperating agency with the Polymet EIS - they cannot take some actions now because of that. It puts them in a special group with some restrictions and some special access to data.”
However, the debate is being closely watched by the Nagaajiwanaang Ojibwe band, who fear that weaker standards could wipe out important natural stands of wild rice that provide food and medicine.
“It is sacred. It is a gift from the Creator. It is central to Ojibwe cultural identity. The cultural significance can’t be overstated,” said Nancy Schuldt, the band’s water projects coordinator.
According to Schuldt, the Polymet project would completely obliterate about 850 acres of wetlands.
Tom Howes, the Nagaajiwanaang, said he’s skeptical of assurances from mining supporters.
“I don’t trust them,” Howes said. “I think they’re just doing lip service. They know the tribes are in a position where they’re speaking up and they want to sound like they’re being good stewards.”
Karen Diver, the Nagaajiwanaang Chairwoman said if the project happens, it's the band's job to ensure Polymet upholds their promises.
But as we have learned from our past, chimookomaanag promises are empty promises. Three-hundred and seventy-one treaties were made from their land swaps in the 1800s – and all 371 treaties were broken. Only through lawsuits have we been able to retain our treaty rights – rights that were not granted by Congress, but inherent rights that were written into our treaties.
And, once again, they want to do a land swap that has no meaning whatsoever. Because nothing will be gained. Like the land swaps of the not too distant past, tribal land and off-reservation treaty rights will be diminished.
Mii sa go