In 1826, the U.S. government negotiated a treaty at Fond du Lac (Minnesota) with the Anishinaabeg north of the 1825 demarcation line. The 1826 treaty was largely a census treaty in which various bands of the Anishinaabeg were identified. Land was not ceded. However, the treaty included a mining provision:
The Chippewa tribe grant to the government of the United States the right to search for, and carry away, any metals or minerals from any part of their country. But this grant is not to affect the title of the land, nor the existing jurisdiction over it.
At first glance it may questionable why the government included this particular and troubling provision. Yet we know from historical documents that invading powers were well aware of minerals and metals, especially copper, in the Anishinaabe-gichigami (Lake Superior) region. In the mid-1600s, the French were engaged in copper exploration. In their relations with the French, we know the Anishinaabeg were extremely guarded regarding the locations of copper deposits. This wasn't due to superstitious fear; rather it had to do with the idea of providing information to invaders that would be used to exploit a valuable, sacred resource. (See - " Miskwaabikokewin: The New Fur Trade," July Archives.)
In federal Indian law, treaties are understood in the way tribes understand them - especially in regard to ambiguous treaty provisions. In addition, under U.S. v. Winyans (1905), "the treaty was not a grant of rights to the Indians, but a grant of right from them." Article 3 of the 1826 treaty was therefore a grant by the Anishinaabeg to the government for exploration and gathering rights.
But were the Anishinaabeg leaders fully aware of the scope of the extent of copper deposits? Did Anishinaabeg leaders assume this grant of rights was limited to specific, known areas like Michigan, where copper had been documented nearly 150 years earlier?
How did Anishinaabeg leaders interpret the rights they were granting? How did they interpret the meaning of retaining their land title and jurisdiction over it?
Another question is did Article 3 grant exclusive rights to the government? The language of Article 3 doesn't indicate or specifically spell out exclusive rights. Did Anishinaabeg leaders know they were granting exclusive rights? Probably not since exclusive rights are not in Article 3 nor are they implied.
For some reason, the treaty of 1826 is often overlooked - especially Article 3. Yet this particular treaty is front and center of the mining issues we face today. Is it too much of a reach to consider suing states, or the government, for breaching a right that was granted to them? Doesn't this breach represent trespass? These are questions that tribes need to consider in protecting our homelands from the ecocide that encroaches upon us.
Mii sa go