Justice Sandra Day O’Connor wrote in her 1999 opinion upholding hunting and fishing rights in the case of Minnesota v. Mille Lacs: “We interpret Indian treaties to give effect to the terms as the Indians themselves would have understood them.” She said that to interpret the meaning of specific treaty provisions, one had to look “beyond the written words to the larger context” that framed the treaty—the history of the negotiations and the “practical construction adopted by the parties.”
Stories and articles have recently appeared in Minnesota newspapers and other media about assertions of hunting and fishing rights under the 1855 Ojibwe treaty, which covers a large chunk of northern Minnesota. Since I was an expert witness for the Mille Lacs Band of Ojibwe in 1994 in their treaty case involving the Treaty of 1837, I have been asked by several reporters to comment about the issues raised by several Ojibwe groups about the Treaty of 1855. I have talked with some of these reporters, but I do not plan to tell them my opinion about the meaning of the 1855 treaty for hunting and fishing rights in the area covered by that treaty.
Normally it is a terrible idea for anyone who gives expert historical testimony in treaty cases to talk to reporters about their opinions of those treaties. My full opinion on any treaty does not consist of any single casual remark I might make about it (or, for that matter, a single piece on a blog I might write about it). No matter how carefully you might state your opinions about an issue when speaking to a reporter you never can be sure how much of it or in what form it is going to be reported. In an article by Dennis Anderson in the Star Tribune last week, I am quoted saying something about the difference between the Mille Lacs case and the current discussion of 1855 treaty rights. Reading this article I can see a little ambiguity in how my opinions were reported. I am not faulting Dennis Anderson for this, because it is really inevitable when an article only includes a few of the things you’ve told the person who wrote it. But since Anderson’s article is on the public record I need to clarify a point about what I told him. Here’s how I was quoted:
“They [the bands] are making a different kind of argument here, and it’s more challenging,” said Bruce White, a St. Paul historical anthropologist who was among the Mille Lacs band’s expert witnesses in their successful U.S. Supreme Court petition.
“In the Mille Lacs case, the 1855 treaty came up because there was no explicit termination of hunting, fishing and gathering rights in it. That meant the rights still existed. I’m not saying [the Leech Lake and White Earth treaty case] is impossible. But it’s challenging.”
The point I was making here was that the 1855 treaty included no specific termination of the treaty rights reserved in the 1837 treaty. Since the 1855 treaty did not explicitly terminate them, that meant that the 1837 rights were not affected by the 1855 treaty. That was essentially how the U.S. Supreme Court ruled on the issue in 1999. As Justice O’Connor put it: “An analysis of the history, purpose, and negotiations of this [1855] Treaty leads us to conclude that the Mille Lacs Band did not relinquish their 1837 treaty rights in the 1855 Treaty.”
But what about other hunting and fishing rights, in the area ceded under the 1855 treaty? That is a question that was not settled by the 1999 Supreme Court decision. When I spoke to Dennis Anderson I did not say anything about the hunting and fishing rights in the area of the 1855 treaty under that same treaty, except to say that it could be a more challenging case to mount than the Mille Lacs case for a number of reasons. But it certainly is a case that could be made. It depends, in part, on what research into the history of the treaty would show.
To really know about the issue of treaty rights under the 1855 treaty, about the rights that were preserved in the treaty territory (which borders, but is not the same area as the 1837 area) you or I would have to study the issue in great detail, compiling all the available information about the historical context of the treaty and the understanding of the Indian people who signed it. There are a lot of common features among treaties, but there is no substitute for studying the context of each individual treaty.
The main point though, remains, and it is the reason that I spoke to Dennis Anderson and may speak to other reporters: It is important to understand that Indian treaties are the law of the land. They are not old forgotten documents. They are an enduring legacy for all of us, not just Indian people. They must be interpreted in the light of the understanding of the Indian people who signed them, and within the full historical context of their signing.
For more on this you can read an article of mine which is coming out in a new book in a couple of weeks. The article is called “The Myth of the “Forgotten” Treaty: Traditions about the St. Peters Treaty of 1837″ and it will appear in The State We’re In: Reflections on Minnesota History, edited by Annette Atkins and Deborah L. Miller, to be published by the Minnesota Historical Society Press (Publication date: June 1, 2010, $24.95). It is a collection of papers from a conference in 2008 that marked the 150th anniversary of Minnesota. Treaties are an important legacy of Minnesota’s history. That’s the bottom line.
I agree that it is very important to think about the context of the treaties and the Ojibwe understanding of what was going on.
I must first state that the Ojibwe treaty of 1855 is not in my direct area of expertise, but I am aware of the historical context of the Territorial situation.
I think that we need to understand the white context: Alexander Ramsey had just survived a federal inquiry into the aftermath of the Dakota 1851 treaties and had been able to rise above the problems associated with both it and the rumors of financial mismanagement, although he lost the governorship of the territory to a Democrat appointee, Willis A. Gorman who was determined to run an upright State. The Winnebago, who had been uprooted from Iowa 1849 to the west side of the Mississippi at Long Prairie were slated to leave south again for BlueEarth but their associated Indian Agency politicians/hacks and the Ojibwe cession that had allowed them to come in the first place, plus Winnebago internal strife were one backdrop for the Ojibwe treaty. In fact, participants of the two Winnebago relocations who had profited from it were signers of the 1855 Ojibwe treaty. There was still talk in Washington and within the Agency as to where Minnesota and Wisconsin Indians were going to finally be relocated; the potential permanency of the reservations resulting from various treaties of the 1840s and 1850s was still dubious. Land speculation was rampant and the successor to Minnesota Territory was to very likely be a pair of east-west states running from the Wisconsin border to the Missouri River. It’s hard to think about all this but that was indeed the context of the treaty.
It must also be understood that the 1855 treaty negotiation event was in the wake of the disastrous 1850 annuity payment at Sandy Lake which is now labeled as an act of genocide by many Ojibwe.
The federal government had a lot of reasons to make as vague a treaty as possible. On the Ojibwe side, there was a lack of unanimity as to how to proceed. Logging operations had literally invaded Ojibwe lands and the old fur trade alliances with whites were in disarray as opportunistic new “Indian traders” replaced long-established trading and familial relationships with whites. The number of unexplained fires in the vicinity of the village of Crow Wing where the agency and the traders were located are an indicator that the whites themselves were factionalized. Who could the Ojibwe trust to advise them? What was on their minds as they signed in 1855?
I am doing a lot of reading about Minnesota from 1820s to 1850s and have studied eyewitness accounts of treaty and annuity payment events, especially those affecting the St. Croix area. One thing that has puzzled me has been the presence of apparently non-involved bands at a treaty signing event. For example, in 1842, Hole-in-the-Day arrived at La Pointe with great pomp to participate in the treaty that affected Lake Superior lands and he was apparently treated by the other bands as though his presence was appropriate. Why?
I think this goes to Ojibwe politics. Hole in the Day, Flatmouth, and other war chiefs and their descendants who currently lived in the northwestern areas held a particular place in the greater Ojibwe story–they had been in the vanguard that had wrested northern and central Wisconsin and northern and central Minnesota from the Dakota. Their reputation as the triumphant warriors was being honored not only by ceremonial involvement at major events but also by broker status, at least in the minds of themselves and by at least some of the more eastern Ojibwe whose events they attended. Additionally, they had the reputation of the most severe militancy of all the Ojibwe against the Dakota in the historic period in which the whites were witnesses. In a sense, they were continuing to hold the Ojibwe lands safe for all Ojibwe.
It was the bands that were later referred to by government as “Chippewa of the Mississippi” that set the tone at the 1837 treaty negotiation, much to the detriment of the St. Croix and central Wisconsin bands, if I read the testimony in Ronald Satz’s _Chippewa Treaty Rights: The Reserved Rights of Wisconsin’s Chippewa Indians_ correctly. These defacto brokers arrived early and ovewhelmed the prefatory activities at the treaty event. Afterward there was protest by the affected bands to the President, saying that things were unfairly conducted and that the treaty was not actually what had been discussed with the affected bands. I almost think that their presence was an afterthought in the minds of whites who knew little about the people and geography of the actual treaty land. The self-important and assertive non-involved had stolen the show.
In the case of the 1855 treaty (and other Ojibwe treaties), I would assume that if one were looking at things from the view of the Ojibwe of the time, the Leech Lake and Gull Lake and other leaders’ presence would imply that although the foregoing treaties were supposedly about local bands, there was an implicit recognition on the part of the Ojibwe that the western bands could enjoy grandfathered rights on account of the actions of their fathers and grandfathers in driving out the Dakota from treaty-affected areas farther east.
If I am correct, in the minds of later Ojibwe from areas unaffected by the official boundaries of the 1837 treaty, the 1837 treaty provisions would carry through to all the communities which had a historical background as people who lived and spoke as Ojibwe formerly of the Sault and other eastern lands who had worked their way west. It must be remembered that Ojibwe communities were not ruled by their chiefs, they were held together in looser alliances, primarily based upon family connections and military history and mutual aid. Out of respect for those whose deeds and lineage were considered to be honored, Ojibwe of Wisconsin and Minnesota and probably the Upper Peninsula of Michigan considered themselves to be part of a greater but somewhat amorphous whole with a collective history. The individual bands had a “land chief” and a military chief, according to non-governmental whites whose papers I am reading, but it was often the war chief that the whites recognized and included in their dealings. Subsequent geographic governmental labels to describe groups of Ojibwe were an invention of the whites, useful for those who were less aware of the Ojibwe story and culture (or who chose to ignore them) and which recognized only a portion of the actual leadership of the Ojibwe communities. From the point of view of the Ojibwe people, there was more to the story and they lived according to their own version of the leadership and geographic relationships.
This is not to say that they were all in agreement. Conflicts were inevitable and the later creation of White Earth reservation is in itself a story of internal Ojibwe conflicts.
I think that a most interesting factor in the unity or disunity of the larger Ojibwe community was the willingness or unwillingness to take up arms against the Dakota. The Ojibwe used taunting and scorn and gossip as a method of social control, and there were likely some undercurrents between the bands as to what degree members of any subgroup deserved the label of brave warrior. As proximity to whites increased — and to white missionaries who continually argued that the blood feud was a terrible and wrong thing — the unity of the Ojibwe people became even more complex. The chiefs of the western bands may have felt that they were the true defenders and that the eastern and central groups were somewhat undeserving. That’s my hypothesis, but I can’t prove it. It does explain why they were so aggressively present at negotiations time. It is also noted in some materials that these northwestern living leaders were themselves manipulable, vain, and self-important at the expanse of the people who were most directly affected by the treaties.
I do know that the Pokegama band on the Snake River, after a Dakota attack in 1841, dispersed to join the other bands (except for a small non-militant convert group that remained in the St. Croix area). They were part of a larger, albeit loosely organized, people and their friends and relative took them in.
Previously, in 1839 when the Dakota sorely hurt the Mille Lacs band and the northern Minnesota bands in a devastating pair of attacks, the pacific Pokegama band had become more militant but did not actually become a provocateur group as the northwesterly groups did. They mostly feared a future attack on themselves (a fear which was all too prescient). In just a few years, the diaspora of the Pokegama band was almost complete and their people were to be found anywhere from La Pointe to Leech Lake, with a large contingent at Mille Lacs.
Here’s my point….So–did their treaty rights travel with them after they realigned geographically? They had legitimately signed the 1837 treaty through their leaders but by 1855, the government refused to acknowledge a Pokegama band–I read it in the treaty itself. Did their rights transfer to the bands they joined after their disaspora? Were all the 1837 signers actually a larger group and whether or not living in the affected areas for that treaty, were they always covered by those treaty provisions in their place of living? Think about it.