For the Present Generation to the Seventh Generation
Lisa Fay, EIS Project Manager
MDNR Division of Ecological and Water Resources
Environmental Review Unit
500 Lafayette Road, Box 25
St. Paul, MN 55155-4025
Dear Lisa Fay:
Protect Our Manoomin was established in February 2011 by members of the Red Lake, Fond du Lac, White Earth, Leech Lake, Bois Forte, and Mille Lacs Bands of Ojibwe. We are a state-level non-profit with 1,468 supporters. Protect Our Manoomin is essentially an environmental community-based organization that focuses on sulfide-ore mining and its effects on manoomin (natural wild rice).
One of our primary concerns is the issue of the 1854 Treaty Area in which the Fond du Lac, Bois Forte, and Grand Portage Bands of Ojibwe have retained usufructuary rights as per 1839 and 1854 Treaties. Usufructuary rights were affirmed in the 1999 Supreme Court decision – Minnesota v. Mille Lacs Band of Chippewa Indians.
In June 2013, we submitted our concerns by issuing Report to U.N. Rapporteur – Nonferrous Mining on Anishinaabeg Ceded Lands under section Study on Extractive and Energy Industries in or near Indigenous Territories. Our report was reviewed and accepted by the U.N. Rapporteur.
Protect Our Manoomin’s main concerns in regard to the PolyMet SDEIS is the 1854 Treaty Area and, in particular, the Tribal Historic District, i.e., Mesabe Widjiu. Although Mesabe Widjiu is addressed in the SDEIS, we feel that the SDEIS is inadequate in addressing the issues; namely, reserved treaty rights and the health and well-being of the tribes involved.
184.108.40.206.2 Federal and Tribal Land Use Management
The Mine Site, Transportation and Utility Corridor, Plant Site, and non-federal lands are within the territory ceded by the 1854 Treaty between the U.S. Government and the Chippewa of Lake Superior. Hunting, fishing, gathering, and other traditional uses under the 1854 Treaty are exercised on public lands within this territory, and on private lands with the permission of the land owner.
220.127.116.11 Mine Site
The federal lands are a part of the territory ceded by the Chippewa of Lake Superior to the United States in 1854 (1854 Treaty Authority 2006). The Chippewa reserve rights to hunt, fish, and gather on public lands (and on private land with permission) in the 1854 Ceded Territory. Harvest levels and other activities are governed by either individual tribal entities (in the case of the Fond du Lac Band) or the 1854 General Codes and subsequent Amendments under the 1854 Treaty Authority (in the case of the Grand Portage and Bois Forte Bands [MDNR 2011r]).
Protect Our Manoomin Comment: As cited in the SDEIS, the 1854 Treaty Area is properly recognized, and the usufructuary rights, i.e., reserved treaty rights, to hunt, fish, and gather are noted. Also noted is the exercise of those rights on public lands, although those rights are excluded from private lands unless permission is granted.
In other words, tribal members can exercise their usufructuary rights outside the property lines of PolyMet, but can’t exercise those rights within PolyMet’s property lines.
However, as the SDEIS indicates, the effects of PolyMet’s mining operations will extend well beyond the operation sites, and affect both cultural and natural resources in the 1854 Treaty Area.
18.104.22.168 Cultural Resources
“Cultural resources” is a very general term that includes a wide range of resources. There is no legal or generally accepted definition of “cultural resources” within the federal government, but it is commonly used in connection with the identification of historic properties in compliance with Section 106 of the National Historic Preservation Act (NHPA). However, historic properties are only a subset of cultural resources, and are but one aspect of the “human environment” defined by the NEPA regulations.
Under NEPA, the human environment includes the natural and the physical (e.g., structures) environment, and the relationships of people to that environment. A NEPA review must address the cultural context in which the project effects would occur. Management policies, and guidance within federal and state agencies, seek to identify and consider all types of cultural resources and balance the need for development with the need to protect cultural resources.
Protect Our Manoomin Comment: Although cultural resources under NHPA are covered and assessed in the SDEIS , we feel that documentation and evaluation of traditional cultural properties is inadequate. We don’t feel that the NorthMet Project adequately balances development that will protect the 1854 Treaty Area.
As stated in the National Register Bulletin – Guidelines for Evaluating and Documenting Traditional Cultural Properties, I Introduction, What Are Traditional Cultural Properties: a location associated with the traditional beliefs of a Native American group about its origins, its cultural history, or the nature of the world; a location where Native American religious practitioners have historically gone, and are known or thought to go today, to perform ceremonial activities in accordance with traditional cultural roles of practice; and, a location where a community has traditionally carried out economic, artistic, or other cultural practices important in maintaining its historic identity.
The SDEIS also relies on the NorthMet Project Cultural Landscape Study, Final Report, 2012 (Electronic References, Disk 2, Zellie 2012) to define traditional cultural properties:
2.2 Cultural Landscape Definition
The identification of historic properties of spiritual and cultural significance to Indian tribes is embedded within a cultural landscape study and relies on information provided by that community. Definition of a cultural landscape can be interpreted differently across many disciplines including ethnography, geography, anthropology, and history. Cultural geographer Carl Sauer defined landscape as “ . . . an area made up of a distinct association of forms, both physical and cultural” (Sauer 1925:27). Tools for identification, evaluation, and protection of cultural landscapes are provided in a number of publications. The NPS offers the following definition of a cultural landscape:
· a geographic area, including both cultural and natural resources and the wildlife or domestic animals therein, associated with a historic event, activity, or person or exhibiting other cultural or aesthetic values (Cultural Resource Management Guidelines, NPS-28).
Protect Our Manoomin Comment: The cultural landscape in question is specifically Mesabe Widjiu or the Historic Tribal District. Under NHPA guidelines, this entire area is covered under Traditional Cultural Properties.
As cited by the tribal cooperating agencies and supporting intertribal agencies:
Tribal cooperating agencies consider a 216,300 acre area bounded by the St Louis River, Lake Superior, Lake Vermilion and the Beaver Bay to Vermilion Trail to be a Tribal Historic District . The proposed District encompasses complex trail systems, Indian villages, trading posts, encampments for fishing, hunting, wild rice harvest and processing, sugar bush, and other traditional subsistence practices.
Mesabe Widjiu or the Laurentian Divide is sacred to the Ojibwe and is part of the Bands’ oral history and cosmology explaining the origin of the hills and the separation of waters along the divide. (From: How Will Cultural Resources Be Affected By the NorthMet Mine?)
Cultural Resources and Natural Resources are inseparable. Hundreds of plants and dozens of animals are used by Ojibwe Bands for food, utilitarian, medicinal and ceremonial purposes and preserve connections to cultural identity through sharing and maintaining traditional knowledge and spiritual connections to the world. (From: How Will Cultural Resources Be Affected By the NorthMet Mine?)
The spiritual and cultural relevance of Mesabe Widjiu is expressed in interviews with Anishinaabe elders (Interview with Rose Berens and Interviews at the Vermilion PowWow, Tower, Minnesota, 2011, NorthMet Project Cultural Landscape Study):
The Giant Man Messabay (Missabe Widjiw)—the Laurentian Divide—stretches to Thunder Bay and there are many points of connection. We recognize the power of the area, which means Giant Man. The Giant Man walked across the land and his footsteps created the Laurentian Divide. When he reached Thunder Bay he laid down and went to sleep. We believe he will rise out of the water.
If there was no mine at PolyMet we would probably not be using the trail like 200 years ago, but I am certain it would be still walked at least once a year from Bois Forte to Grand Portage because it is our connection to relatives in Grand Portage. Because of modern times it would be a spiritual journey, not about transportation. Somebody from Grand Portage would say,“its time we walked that trail—I’ll meet you in the middle.” It wouldn’t be used for travel, but would be walked to keep the trail alive.
We pounded it into the earth and it is to us alive. It contains spirituality and memory of long ago that some of us have. Trails are a deep intricate part of nature and culture. If the mines were not there it would be used in a ceremonial way.
Rock outcrops are “high power” areas, especially east-facing. The east-facing outcrop in the NorthMet Project Area is not common and this type of feature could not go unnoticed; it would be used for spiritual purposes. It would be a spot to go for special occasions or ceremonies. Such a spot near rails would have been used by people who used trails. Visiting such a spot I would find a little protruding rock and leave some tobacco; instantly I would imagine people sitting there, using it for a vision quest. Fathers might take their sons to such a place to fast. (Rose Berens, Interview, Bois Forte Band)
Spirits travel along the Laurentian Divide. I saw a flash rise up over the [Laurentian Divide (Thunderbird Trail)]. A spiritual advisor told me that was a Thunderbird. When storms come, the thunder is the thunderbirds. Pipes come from thunderbirds. [One] must feed the thunderbirds [as one would feed any spirit]. (Bev Miller, Bois Forte Band)
The Thunderbird Trail [follows] the [Laurentian Divide] to Thunder Mountain and Thunder Bay.
Everything in the air is associated with the Thunder Spirit. We have “Underground Spirits.” We have the Laurentian Divide Spirit. When we build a canoe, the canoe has a spirit. We bring it to life [as we build it.] We bless it. We look at spirituality as we do respect. We pass on [to younger generations] what we have learned. We collect learning. (Henry Goodsky, Bois Forte Band)
The section on 3.2.12 Indian Trails notes:
The importance of the Laurentian Divide was described by Bois Forte elder Jim Gawboy. In an interview with Marybelle Isham he noted, “the Thunderbird Trail is hard to describe, it is a spiritual path which the Thunderbird uses, and only those who really want to see the Thunderbird regard it as a sacred place, and a place to leave offerings, and tobacco” (Latady and Isham 2011:3, 6.5.1). Becky Gawboy stated that her knowledge of the trail “was taught to her by elders from Grand Portage and Nett Lake. The story was that the Spiritual Power of all of us here comes through the Thunderbird. This is an important and powerful trail that has to be guarded and protected, because there are many gifts that Indian people, indeed all people, still need” (Latady and Isham 2011:4, 6.5.1).
A total of 7 Anishinaabe elders were interviewed and their information was used to develop the framework for Cultural Resources. There is no question the interviewees provided an accurate viewpoint of the Anishinaabe mindset in regard to land and cultural/natural resources. But we question of why the interviews with Fond du Lac elders and Grand Portage elders were excluded from the SDEIS. Surely those interviews provide viewpoints that are pertinent to Cultural Resources, and strengthen the Anishinaabe connection to the 1854 Treaty Area and Mesabe Widjiu.
5.2.9 Cultural Resources
However, the Mesabe Widjiu…would be adversely affected by the NorthMet Project Proposed Action.
22.214.171.124 Affected Cultural Resources
This section describes the environmental consequences of the NorthMet Project Proposed Action on historic properties within the APE. As outlined in Section 4.2.9, the federal Co-lead Agencies, the Bands, and the SHPO agree that the Mesabe Widjiu [is] eligible for inclusion in the NRHP.
Protect Our Manoomin Comment: By its own admission, the SDEIS states in several sections (the two above are examples) that Mesabe Widjiu is essentially an NRHP that will be affected by PolyMet mining operations. The question is why is this project moving ahead considering the many mitigating factors associated with mining operations?
Although the Bois Forte elders were speaking about the whole of Mesabe Widjiu, the Cultural Landscape Study, NorthMet Project, Final Report conveniently breaks it down to five geographical locations.
8.0 MAJOR DIFFERENCES OF OPINION
8.3 MAJOR DIFFERENCES OF OPINION
Specific Major Difference of Opinion Area
Loss of “High Biodiversity Significance Values” sites:
Fond du Lac, GLIFWC, and Grand Portage believe that native plant communities identified by the Minnesota Biological Survey will be impacted by the proposed mine site and related transportation and utility corridor without appropriate mitigation for their landscape-scale and ecosystem values. There are two MBS sites of high biodiversity significance (18.8 acres) located within the transportation and utility corridor, including the 100 mile swamp and the upper Partridge River. They state that forty-one percent of the mine site consists of imperiled/vulnerable communities, but there is no proposed mitigation. Fond du Lac and Grand Portage’s opinion is that there will be a net loss to the federal estate of these MBS communities that would not be compensated with equivalent MBS land exchange parcels gained through the USFS land exchange.
Protect Our Manoomin Comment: Protect Our Manoomin concurs with the tribal position regarding the impact on native plant communities.
The relationship and significance of plants is summed up by Marybelle Isham (Cultural Landscape Study, NorthMet Project, Final Report): “To reiterate the results of the interviews and heartfelt information I received from the people about the area around Hoyt Lakes, there are rivers with wild rice and woods where medicinal plants grow. Unfortunately there is not an exact location where any particular Band member collected flowers, plants, roots or bark, as only the person making the medicine knew the whereabouts of the plant needed. The area still supports cranberries, blueberries and trees with barks that was (and still is) used for illness. In addition, the pristine waters, fish, and natural habitat for fur bearing animals and birds will be affected by the mine. Our thoughts are on the generations to come and the generation that is here now.”
Becky Gawboy, of Tower, observed that “traditional plants grow everywhere, some only in certain soils, and weather conditions, roots, bark, and even flowers are still used medicinally for illnesses” (Latady and Isham 2011:4, Appendix Section 6.5.1).
Basil Johnston points outs,: "Each valley or any other earth form - a meadow, a bay, a grove, a hill - possesses a mood which reflects the state of being of that place. Whatever the mood, happy, peaceful, turbulent, or melancholy, it is the tone of the soul-spirit." (Ojibway Heritage)
Specific Major Difference of Opinion Area
Wild rice standard regulatory applicability determinations and areas of production:
Grand Portage, Fond du Lac, GLIFWC, and The 1854 Treaty Authority disagree with the MPCA’s draft staff recommendations about the applicability determination of the wild rice 10 mg/L sulfate surface water standard to the NorthMet Project. These agencies do not agree with a seasonal application of the standard, or the reaches of waters determined as used for the production of wild rice, and compliance points for the sulfate standard, nor do they agree with basing a determination of a wild rice production water on the density of wild rice found growing there. The 1854 Treaty Authority states that it is arbitrary to define how much rice presence is required, especially given the lack of long-term monitoring data on a given water. Embarrass Lake is considered a water used for the production of wild rice under current MPCA draft staff recommendations; water quality is not meeting the wild rice water quality standard there and wild rice is also found further upstream in the Embarrass River because it is an existing use defined by the Clean Water Act. Grand Portage states that the wild rice sulfate standard for waters used in the production of wild rice applies in the Embarrass River. The 1854 Treaty Authority notes that research and evaluation of the standard are ongoing, and that application of the standard may change. All believe the State’s application of the wild rice standard is not in compliance with the Clean Water Act.
Protect Our Manoomin Comment: Protect Our Manoomin concurs with the tribal position regarding Minnesota Wild Rice/Sulfate Water Quality Standard and the impact of sulfates on wild rice.
As stated the SDEIS (126.96.36.199.3 Wild Rice) Presence of Wild Rice within the NorthMet Project Area, waters used for the production of wild rice (MPCA 2012b) include:
• Embarrass Lake,
• the northernmost tip of Wynne Lake (Embarrass River inlet),
• the segment of the Embarrass River from Sabin Lake to the Highway 135 bridge,
• the portion of Upper Partridge River from river mile approximately 22 just upstream of the railroad bridge near Allen Junction to the inlet to Colby Lake,
• the portion of Lower Partridge River from the outlet of Colby Lake to its confluence with the St. Louis River, and
• the portion of Second Creek from First Creek to the confluence with Partridge River.
According to the 1854 Authority, there are 367 wild rice waters in 1854 Ceded Territory. In St. Louis County, there are 137 rivers and lakes that produce manoomin, covering 9053 total acreage of manoomin.
“Wild rice is just something that was always there; you are fed it as a baby as one of your first foods; it is used not only as a food but as a medicine. Women want children to eat wild rice. The rice harvest is an important part of ceremonies and celebration.”
“It reminded them who they were.” (Rose Berens, Bois Forte Band, Zellie 2011, Appendix Section 6.5.1)
Specific Major Difference of Opinion Area
CEAA for Partridge and Embarrass Rivers:
Fond du Lac, Grand Portage, GLIFWC, and The 1854 Treaty Authority believe that limiting the cumulative effects analysis area (CEAA) for water resources to the Partridge and Embarrass River watersheds is too small. Rather, they contend the analysis should be expanded to include the St. Louis River. Impacts associated with United Taconite’s proposal for 1,200 acres of wetland destruction to build a new tailings basin should be considered. More broadly, they contend the project would add to the load of pollutants that are already causing an excursion from the water quality standards in the St. Louis River and would reduce tributary flows to the river. If true, then project-related impacts that may occur due to the project could be underestimated (due to modeling concerns), and would not stop before reaching the St. Louis River. This would mean that any added impact from the project to the St. Louis River would in turn impact Lake Superior, so this should be the scale to analyze cumulative effects. Appendix C provides additional information from these agencies on this major difference of opinion revealed in the development of the SDEIS.
Protect Our Manoomin Comment: Protect Our Manoomin concurs with the tribal position regarding the CEAA. We are greatly concerned about the impact on not only the 1854 Treaty Area, but the impact of Anishinaabeg-gichigami, the Great Sea of the Anishinaabe, also known as Lake Superior.
The SDEIS cites a number of toxic metals associated with mining operations (5.2.2 Water Resources) that include aluminum, arsenic, manganese among others. Mercury presents yet another critical problem. Maps indicate water flow and fractures and inferred fractures. Fugitive air particles are another avenue of concern. How will these toxins impact the waters, the air, plants, animals, fish, and human beings? What is to prevent the release of these toxins into Lake Superior? What kind of assurances do we have that our eco-systems, our environment will be protected 20 years from now, 200 years from now, 500 years from now? These are critical questions that need to be addressed.
188.8.131.52.1 Federal Tribal Trust Responsibility
The federal government has a unique legal relationship with the federally recognized Native American tribes, which has been set forth in the U.S. Constitution, treaties, statutes, court decisions, and EOs. This legal relationship is often referred to as the “Federal Trust Doctrine” or “Federal Tribal Trust Responsibility,” which is a body of law defining the relationship of federal government with federally recognized Native American tribes.
Beginning in the mid-19th century, the government of the United States made treaties with the Ojibwe that ceded areas of land in northern Minnesota to the federal government. In return, specific reservations were created for the tribes’ use and other considerations specified. The treaties also preserved the right of the Ojibwe bands to hunt, fish, and gather off the reservations within these ceded territories. The federal trust responsibility requires that federal agencies consider their actions with respect to tribal rights, particularly reserve rights, where they exist.
In 1854, the Chippewa of Lake Superior entered into a treaty (1854 Treaty of La Pointe or 1854 Treaty; Kappler 1904) with the United States whereby the Chippewa ceded to the United States ownership of their lands in northeastern Minnesota. These lands are generally known as the 1854 Ceded Territory. Article 11 of the 1854 Treaty provides, “...and such of them as reside in the territory hereby ceded, shall have the right to hunt and fish therein, until otherwise ordered by the President.” The Chippewa of Lake Superior who reside in the 1854 Ceded Territory are the Fond du Lac, Grand Portage, and Bois Forte Bands. The NorthMet Project area is within the 1854 Ceded Territory, and thus federal agencies must consult on a government-to-government basis with interested signatories to the 1854 Treaty to understand how the proposed federal actions may impinge on or abrogate treaty rights.
Protect Our Manoomin Comment: Protect Our Manoomin believes that there are a number of mitigating issues regarding reserved treaty rights that are impacted by the NorthMet Project. Reserved treaty rights are protected under the 1854 Treaty. Fond du Lac and Grand Portage have additional protections under the Environmental Protection Agency’s Treatment-As-State status.
Federal case law has also established precedents for reserved treaty rights. To wit:
U.S. v. Winyans – 1905: Winyans established the fact that treaties were not a grant of rights to Native but rather a grant of right from them.
Winters v. United States – 1908: Court Case involving Fort Belknap and establishment of reservation water rights from upstream industries.
Lac Courte Oreilles Band of Lake Superior Indians v. Voigt v. United States - 1983 (The Voigt Decision): Affirmation of the Usufructuary Rights of the signatories of the 1854 Treaty.
Minnesota v. Mille Lac Band of Chippewa Indians – 1999: Affirmation of Usufructuary Rights of Anishinaabeg signatories of the 1855 Treaty.
United States of America / Quinault Tribe of Indians et al., v. State of Washington – 1974 (Boldt Decision): Boldt ruled that Washington State virtually had no authority over tribal fishing; in fact, it was the tribes that ceded to non-Indian settlers the rights to fish -- not the other way around. The decision also would instate tribes as “co-managers" with the state over Washington's salmon fisheries resources. Boldt said the state and tribes should “co-manage” fishing resources off the reservations. Further readings of the case established that the state has an obligation to protect fish habitat, to ensure the tribes’ rights to fish in perpetuity. Bolt created a powerful legal incentive to protect the environment and include tribes in land-use decisions.
The importance of Bolt was that the tribes reserved the right to fish at "all usual and accustomed grounds and stations." The usual and accustomed grounds and stations were located off the reservation, i.e., on ceded lands where the tribes maintained reserved treaty rights per Treaty With The Quinaielt, Etc.,1855.
In sum, the 1854 Treaty Area and Mesabe Widjiu are subject to precedent federal Indian case law regarding reserved treaty rights.
Protect Our Manoomin Concluding Comment: Protect Our Manoomin feels that there are simply too many inadequate assurances that the 1854 Treaty Area and Mesabe Widjiu will be protecting from mitigating factors associated with the NorthMet Project. Our cultural, natural, and spiritual resources will be placed in harm’s way. We feel that the NorthMet SDEIS marginalizes treaty rights and, in particular, reserved treaty rights. And, in doing so, the ancestral connections that Ojibwe people have in relation to the land are on one hand recognized but on the other hand denied.
In Ojibwe culture, we are taught about the Four Orders of Life. The First Order is the Earth, the second are plants, the third are animals, and the last is human beings. The first three Orders can exist without human beings, but human beings cannot exist without the other three Orders. Henceforth, we have a duty and responsibility to maintain balance and harmony with the environment.
We also recognize that Nibi (water) is sacred and essential for the health and well-being of the Four Orders of Life. We close with the following quote from Bad River’s 2008 application for TAS status:
“In Ojibwe history, women are recognized as the caretakers of the water. It is the responsibility of the women in the Tribe to petition the Spirit for the health of Nibi on behalf of all living things; which not only includes the conventional mammal, fish, and plant life, but encompasses all living things considered to have a living spirit, such as a rock, or mineral. To pray, respect, and care for Nibi are the assurances needed for the Spirit to provide for the health and safety of all living things that partake and are sustained by the water; such as fish, wild rice, humans: all living things whether living in it, drinking it, traveling and working upon it, cleansing with it, or enjoying it. The responsibility of women as the caretakers of the water recognizes and honors the duality of women and water. If women are not cared for, human life is at risk; if water is not cared for, human life is at risk. As water is the life giving blood of our Mother the Earth; Women are those who carry the water which sustains human life during pregnancy, and ultimately brings forth human life during birthing. The lives of each are contingent upon their relationship with each other. How one cares for the other, is reflected in their health. A healthy population reflects a healthy water source. A sick water source reflects a sick and weak population. When human life is sick, the water will flush the sickness away. When the water is sick, it is the responsibility of the human to flush the sickness away.”
Protect Our Manoomin comments prepared and submitted by:
Robert DesJarlait, Director, Protect Our Manoomin