Category Archives: Treaty rights

Telling the truth about the Minnesota Historical Society, in 1901

1862, Minnesota Historical Society, Minnesota's 150th, Treaty rights

It was a tense evening at the meeting of the executive council of the Minnesota Historical Society on November 11, 1901. An invited speaker had given a speech for the ostensible purpose of telling the ancient history of the state, but at the end of his speech had condemned the white settlers and the U.S. government for its treatment of Minnesota’s Native inhabitants and had prophesied disaster for the whites of Minnesota if they did not renounce such actions.

Despite these plain words, the speaker went home that night thinking that he had been too polite; he had failed to tell the whole truth. Writing in his diary he stated: “Several members of the Historical Society are related in various ways to the gigantic robberies which have been perpetrated against the Indians in the Northwest. Henry M. Rice and Henry H. Sibley, deceased, were extensively involved in shaping the policy of the government against Minnesota Indian tribes.” He had withheld these facts from his speech, giving only a mild and general condemnation of the treatment of Indian people, but had still received a negative response. As a result, he wrote, “I now pledge myself never again to suppress facts in history to satisfy the desires of thieves.”

While many in the audience that evening enjoyed the first part of the talk, others believed that the speaker had been too radical. The president of the society thanked the speaker for his remarks but asked him to revise and reconsider them before submitting them in writing to the society, which the speaker refused to do. At that point the society held its business meeting at which a number of wealthy and influential Minnesotans were voted life memberships in the institution.

Jacob V. Brower in 1904, from the collections of the Minnesota Historical Society.
Jacob V. Brower in 1904, from the collections of the Minnesota Historical Society.

The events of that evening in 1901 represent well the position of the Minnesota Historical Society in relation to controversial aspects of the state’s history. The role of the historical society in recording and recounting such events has often been contested. Though the institution is not a state agency, it has quasi-official status, one that it nurtures for its own perpetuation. As a result, the institution, whether it wants to or not, is viewed as presenting an official version of history, if not the whole truth. The problematic nature of the historical society’s precarious role is most evident when it comes to those topics perceived as “unpleasant,” where the truth does not cast a happy glow on the leaders of the state.

Given the polite nature of the 1901 newspaper articles which record the events it is hard to know how tense things were in the room that evening. However, based on the bare description of what happened, it is impossible to imagine such an evening occurring at a meeting of the executive council of the Minnesota Historical Society in the year 2011. Today the executive council is still a body composed of the rich and influential. And at least in the last twenty years during the tenure of the recently ex-director, annual meetings are routine, formalistic affairs with catered food, run with the precision of a Politburo gathering or a show trial. Controversy is never let in the door and if it gets in it is escorted out.

It may be that if the Minnesota Historical Society is ever to confront the controversies in Minnesota’s history, it will first have to confront the nature of its own organization as one begun to serve the interests of wealthy and influential whites, who sought to preserve history to celebrate and perpetuate their own points of view. In doing so the society must remember events such as the one in November 1901, when controversy came in the door and spoke.

It is important to know that the speaker that evening was Jacob V. Brower, a former legislator, an archaeologist, and a conservationist known for having fought for the creation in 1891 of Minnesota’s first state park, Itasca State Park. Brower was a friend of the historical society. Even after what occurred that night in 1901, Brower, with the help of his son, the legislator Ripley Brower, helped the society get a large appropriation from the state legislature. He saw plainly that while the institution of the society was flawed, the preservation of history was vital. But Brower was not a saint; he could be intemperate in the expression of his opinions; he sometimes dug into burial mounds. But his consistency in his view of history was admirable, especially in a time when corruption in government and business was often overlooked in writing history.

Brower had an unflagging interest in the burial mounds and other earthworks through which the ancient inhabitants of Minnesota had left their mark on the landscape of their homelands. But unlike others with an interest in such earthworks, Brower was convinced that these were placed where they were by the ancestors of the Dakota, not by some ancient people who later disappeared.

Having made that connection between ancient history and the contemporary world, Brower overcame the compartmentalization that plagues many historians and archaeologists. He could not and would not ignore the treatment accorded Minnesota’s Native people in the 19th century by colonization, settlement, and exile. And having taken that step Brower could not ignore that the Minnesota Historical Society and its rich and influential members were bound up inextricably in that very process.

In many ways November 11, 1901 was the last straw for Jacob Brower. He had just published, at his own expense, a book called Kathio, which recorded the history of Mille Lacs Lake, an ancient homeland of the Dakota people. While researching and writing the book, Brower had become aware of the treatment of the Mille Lacs Ojibwe, whose pinelands and reservation lands were in the process of being stolen by timber companies. Scandalized by what was occurring and the involvement of wealthy and influential Minnesotans, he began to view the history of the state in a different manner, connecting the events of 1900 at Mille Lacs with what had happened to the Dakota in 1862. Not all of these insights had been included in Kathio, but as a result of what occurred on the evening of November 11, 1901, Brower decided that he would no longer refrain from telling the truth, regardless of the consequences.

It is clear that Brower had not originally intended to speak plainly about the corruption in the treatment of the Native people in Minnesota. His remarks at the end of his speech were probably an afterthought, the expression of ideas that had been percolating with increasing intensity in his mind. At the same time those who came to the speech appear not to have expected what he said. Not used to hearing radical opinions, members of the historical society, who were joined that evening by many invited guests, had gathered to hear a “highly interesting and instructive paper on the earliest known history of the state of Minnesota.”

But the audience did not include just the rich and influential members of the society. Also present were two Indian leaders, Nishotah or the minister Charles T. Wright of the White Earth Reservation and Mozomoni, a leader on the Mille Lacs Reservation. They were both friends of Brower’s, men he had gotten to know while doing his research. Both men came from reservations under assault by timber companies allied with the most influential leaders in the state. With these leaders in the audience, along with members of the Historical Society who themselves or whose families were complicit in frauds against Indian people, how could Brower do anything else but tell the truth about what was happening?

Several St. Paul newspapers reported the events of the evening. The St. Paul Globe noted on November 12, 1901, under the headline “BROWER IS SEVERE,” that the audience seemed to enjoy the talk, but that some members recoiled at the remarks at the end. After speaking of the ancient settlement of the Dakotas, “the author condemned the white settlers and United States government in most severe terms for their treatment of the Indians, and in closing, prophesied that if the present policies were pursued some writers would some day not far distant be called upon to chronicle the downfall of the government because it had been so mercenary.”

Various members of the audience were upset that Brower, “in his sympathy for the Indians, had been led to too severe arraignment of the white settlers.”  General John B. Sanborn, president of the historical society, objected to the tone Brower had taken. The Globe reported Sanborn stating that he was “somewhat inclined to consider that Mr. Brower had been too radical in some of his expressions.” Sanborn moved a vote of thanks to Brower “suggesting that the author of the paper be requested to reconsider and possibly modify some of his remarks before the paper was made a record of the society.” Brower responded stating that his paper had been prepared at his own expense and was not a record of the society and that therefore he would not amend it. And then the Society moved on to its business meeting during which a number of wealthy and influential individuals were elected to life membership in the organization.

Sanborn did not get the last word. Brower’s books are now a valued part of the Minnesota Historical Society’s collections. Even more important are his journals, where one can read today Brower’s own eloquent words about the events of that evening in 1901. These words continue to have great relevance today.

Jacob V. Brower journal, November 11, 1901.

I tonight delivered “Kathio” as an address before the Minnesota Historical Society. I regret exceedingly that many historic facts were suppressed from that book, but several members of the Historical Society are related in various ways to the gigantic robberies which have been perpetrated against the Indians in the Northwest. Henry M. Rice and Henry H. Sibley, deceased, were extensively involved in shaping the policy of the government against Minnesota Indian tribes. The great Sioux outbreak of 1862 was precipitated as a result of the operations of thieves among all the bands who wore official garbs and spoke by authority; they acted nominally for the Government but principally for themselves. As a resume of the causes which precipitated the Sioux Outbreak of 1862 would be distasteful to the Minnesota Historical Society of that event in “Kathio.”

Even with all those and many other facts suppressed the Society received coldly and with indifference the few references I have made to the manner in which the Indians have been cheated, wronged, and defrauded by the people of the United States.

Even the gigantic fraud perpetrated by Dwight M. Sabin, a United States Senator, against the Mille Lac Indians at Kathio, remains unmentioned by me today. But I now pledge myself never again to suppress facts in history to satisfy the desires of thieves. Sabin stole all the Indian pine at Mille Lac and W. D. Washburn was a party to the secret arrangement, but finally got left by Sabin’s sharp trickery.

All that is left out of “Kathio” Henry M. Rice went to Mille Lac and uttered gross deceptions to the Ojibway people and by fraud secured their signatures to the convention of October 5th, 1889, and today those poor people as a consequence are starving and in abject want, 963 of them.

All that history lays on my table–suppressed from “Kathio.” I curse such proceedings and I am ashamed of my own book which suppresses the facts to satisfy the demands of a society which stands ready to approve the manner of undoing the Indian tribes.

The John B. Sanborn who objected to my reference to the manner of cheating the Indians, is the same John B. Sanborn who married a niece of Henry M. Rice–and also–charged the Sisseton band a fee of $50,000.00 for services as an attorny; at least so reported, and I suppressed that fact. He collect[ed] the fee by Act of Congress.

Nothwithstanding all these suppresed facts the members of the Minnesota Historical Society turn a deaf ear to my appeal for justice to the Indian[s] of Kathio.

December 9, 1901

[An account prompted by another meeting of the executive council of the historical society in which several speakers, including General John B. Sanborn, were to speak on Indian history in Minnesota.]

The secretary [Warren Upham] and other members of the Minnesota Historical Society have gotten up an attempted demonstration against my statement of facts contained in my printed address delivered to the Society Nov. 11, 1901, entitled Kathio. They will find it hard to suppress or circumvent, or obliterate questions of historical fact contained in a printed book. The meeting to justify all acts against the Indians was a complete failure. Neither of the speakers announced were present at the meeting. A short paper written by Judge Flandrau was read. He cracked a few jokes and described a few old Indians and wound up by saying that the Indian had been as well treated as he in any way deserved. Flandrau was one of the men who contributed to the causes which brought on the Sioux Outbreak of 1862.

Is the National Park Service racist?

Bdote: A Public EIS, Reclaiming Mini Sota Makoce, Treaty rights

When a National Park Service spokesperson in the Mississippi National River and Recreation Area in St. Paul compared the interest of Dakota people in the historic and culturally important Coldwater Spring, located in Hennepin County, Minnesota, to that of “Wiccans, New Agers, more-traditional religious people,” and said that Native people like all these other groups had “latched onto” Coldwater Spring as a sacred place, was that racist?

The question of whether the statement was racist and whether that reflects any overt racism on the part of the National Park Service, is perhaps less important than the fact that it was biased and that the bias was entirely representative of the position taken by the National Park Service about the cultural and historical connection of Dakota people to this spring and to other springs in the region of the Dakota homelands in Minnesota.

The historic marker, which commemorated white settlement and the military history at Coldwater Spring, in 2009. Since this photograph was taken, the marker has been removed.

In an article published in St. Paul’s Pioneer Press, concerning efforts by the Park Service to obtain federal funding to remove structures near Coldwater Spring, John Anfinson, a “Park Service historian” with the Mississippi National River and Recreation Area was quoted as follows:

“It will be available to everyone,” Anfinson said of the spring and the spring setting. “It will be protected. A number of people latched onto it as a sacred place. Wiccans, New Agers, more-traditional religious people, American Indians. It is a magnet for all kinds of people looking for spiritual meaning. It is the oldest feature of Fort Snelling and one of the longest used.”

This statement is consistent with the approach taken by the Park Service about Coldwater Spring. The Park Service has stated on many occasions that the statements of Dakota people that the spring had an important place in Dakota history and culture are suspect and must be supported by documentation produced by European-American historical documents in order to be accepted by the Park Service. The Park Service has often expressed the opinion that Dakota people “latched onto” Coldwater for political purposes, and that the spring has no cultural or historical importance to the Dakota. The agency has also asserted that the main importance of Coldwater Spring was as a part of the military history of Fort Snelling. The Park Service has refused to acknowledge any connection of Dakota people to Coldwater Spring, which is located on federal land, which was first built upon by the U.S. military following a treaty with Dakota people in 1805.

All of this has been subject to discussion on MinnesotaHistory.net for several years now. What remains to be seen is at what point the Park Service will disavow the biased statements made by John Anfinson on this question. At some point the Park Service will have to do that, because the importance of the spring to  Dakota people is one of the most significant aspects of the property, one that the Park Service has already announced that it will feature in the interpretation it plans to give to the property.

Furthermore, under law, the Park Service is not allowed to equate the beliefs of Dakota and other Native people with those of Wiccans. According to the statement attributed to John Anfinson, the Park Service also would like it to be known that it will protect Coldwater Spring for all American citizens, not just for Dakota people. No special consideration will be given for Dakota or other Native people. What is not mentioned is that federal law does require that special consideration be given to Native people in relation to cultural and historic properties such as Coldwater Spring. In particular, regardless of its refusal to accept what Dakota people say about Coldwater Spring, the Park Service must make special provision for any Dakota group that finds the spring to be sacred. There is no requirement that the agency to do anything similar for Wiccans, New Agers, and more-traditional religious people. So Anfinson’s statement including Native people along with these other groups does appear to be an intentional slight.

Racist,  simply biased, or innocent of any biased intention? I’m interested in other opinions. Let me know what you think.

Racist comments at KQRS

Minnesota history, Other stuff, Treaty rights

Here’s an email from Martha Fast Horse who has a Sunday morning radio show on KQRS radio in the Twin Cities, concerning continuing problems with the famous Shock Jock Tom Barnard who calls KQRS his home.

KQRS  apologized and said they would makes changes, but that was a lie…

Tom Barnard and his crew have been harassing me on-air since I began recording my radio show at KQRS 2 1/2 years ago. Two weeks ago I sent Tom a letter and cc’d the president and program manager asking him to stop the racist, highly inappropriate, vulgar, and offensive remarks effective immediately. There was communication, I gave it a chance, and nothing has changed. Tom is a bully of the airwaves! And even if I lose my radio show, I can no longer remain silent while they continue to perpetrate their hate mongering, racist practices against people of color and myself.

Two weeks ago what prompted me to bring this issue forward was Tom saying, “I am tired of these indigenous people claiming to have rights to the land, There was a war and you got your ass handed to you, so shut the hell up!” Waziyatawin and I talked about it on the radio show that will air on Sunday morning 6/6/10.

I called the studio and informed them that I would be coming to there on Monday to address the issue with Marc Kalman the president. His assistant said she is shocked and surprised that I would even say and do such a thing, and she would get back to me about a time on Monday. I will keep you posted… With the racist history at KQRS, I am surprised why anyone at KQ would be shocked and surprised. It is completely beyond me.

Who decided Coldwater Spring is not a Dakota traditional cultural site? New information from a FOIA request

Bdote: A Public EIS, Reclaiming Mini Sota Makoce, Treaty rights

The local Twin Cities office of the National Park Service, known as MNRRA, the National Mississippi River and Recreation Area, has provided clarification on who it was within the agency who made the decision almost four years ago to reject the findings of a government consultant–which stated in an Ethnographic Study, that Coldwater Spring at the Bureau of Mines Twin Cities Campus property near Fort Snelling in Hennepin County, Minnesota, is a place of traditional cultural importance for Dakota people.

According to a document–a “White Paper”–from MNRRA recently released by the Park Service under a FOIA, or Freedom of Information Act request made by MinnesotaHistory.net,

For the Draft EIS, MNRRA’s Cultural Resources Specialist, Dr. John Anfinson, evaluated Coldwater Spring’s eligibility for the National Register as a TCP under 36 CFR part 63 and under National Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties. He found that Coldwater Spring did not meet the National Register criteria or the guidelines of Bulletin 38. MNRRA presented this initial finding in the Draft EIS.

Prior statements from MNRRA in 2006 asserted that the decision was the result of “agency internal review” within the Park Service. Commenting on this at that time, I wrote:

In other words, the Park Service wished to make clear that The Agency—meaning anyone from the Park Service Director Fran Mainella, Regional Director Ernest Quintana in Omaha, some park superintendent in Hawaii, or one or two local staff in Minnesota including, possibly, Superintendent JoAnn Kyral, Project Manager Kim Berns, historian John Anfinson, cultural anthropologist Michael J. Evans, or even MNRRA’s Singing Ranger Charlie McGuire—had decided that Coldwater Spring does not meet the criteria as a traditional cultural property for Dakota people. The Park Service wanted everyone to know this but was unwilling to provide reasons, and use of the term “internal review” suggests that the Park Service would claim an exemption from the Freedom of Information Act to anyone who requesting documentation of the process. [Note: Most of these links from 2006 appear not to work any more.]

The last part of this statement was based on the fact that the Park Service had used an exemption to other requests for information based on assertion that release of certain information would jeopardize its decision-making concerning the disposition of the Coldwater/Bureau of Mines Twins Cities Campus property. By January 2010 when MinnesotaHistory.net did submit a FOIA request for this information, the decision about the disposition of the Coldwater site had finally been made, so there was no basis to refuse to release the information. This new document, released along with other documents in response to a Freedom of Information Act (FOIA) request from MinnesotaHistory.net, states that the internal review was done by Anfinson himself, involving no one else in the agency.

The first page of the White Paper created by the Mississippi National River and Recreation Area to respond to a FOIA request for information about its decision in 2006 to reject Coldwater Spring as a Dakota traditional cultural site. Ned White photo.

Usually when people submit FOIA requests for information from government agencies they are warned that the agency is only required to release existing documents, not to create documents when they do not exist. In this case MNRRA was asked to provide documentation of the internal review described in the Coldwater/ Bureau of Mines Twin Cities Campus draft EIS prior to the release of the impact statement in August 2006. In response, MNRRA stated that there was very little documentation on how the decision was reached,  so MNRRA had to create a document to explain the review process for what turns out to have been the Anfinson decision. The result is the document included below in its entirety.

There is a lot to say about the information and the reasoning shown in the document. One can easily dispute some of the statements recorded in the document as fact. Furthermore, it should be noted that the document provides little support for the decision Anfinson made, except to say that he made the decision. Based on the criticism Anfinson himself sought to apply to what Dakota people said about Coldwater Spring as a traditional cultural place–that it was not well documented–one could easily question the legitimacy of the Anfinson decision. All of this and the information provided in other documents the Park Service released under the FOIA request will be discussed in the days ahead. In the meantime, here’s what MNRRA says about how it decided to ignore its own consultant and to reject the beliefs of Dakota people about Coldwater Spring.

White Paper
MNRRA Section 106 Review Process for the Bureau of Mines Project
Traditional Cultural Property Evaluation

There is little documentation concerning the Mississippi National River and Recreation Area’s (MNRRA) determination that Coldwater Spring did not qualify as a Traditional Cultural Property (TCP), under the requirements of the National Register of Historic Places, prior to August 18, 2006. The reason for this has to do with the relationship between the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (section 106) processes. The final determination on the TCP status was open until MNRRA sent out the final MOA for signature on January 20, 2010. And, MNRRA is still willing to consider the designation.

For the Bureau of Mines (BOM) project, the cultural) resources review, including the Traditional Cultural Property (TCP) evaluation, has fallen primarily under the section 106 review process. For the purposes of the BOM Environmental Impact Statement (EIS), MNRRA decided to conduct the section 106 process parallel to the EIS process, although the studies and consultation undertaken for the section 106 process informed the Draft EIS and Final EIS.

The Advisory Council on Historic Preservations’ (Advisory Council) regulations, 36 CFR 800.8(4) “Approval of the undertaking,” states that “…if the agency official has found, during the preparation of an EA or EIS that effects of an undertaking on historic properties are adverse, the agency official shall develop measures in the EA, DEIS, or EIS to avoid, minimize, or mitigate such effects in accordance with paragraph (c)(1)(v) of this section. The agency official’s responsibilities under section 106 and the procedures in this subpart shall then be satisfied when either:

(i) A binding commitment to such proposed measures is incorporated in:

(A) The ROD, if such measures were proposed in a DEIS or EIS; or

(B) An MOA drafted in compliance with Sec. 800.6(c); or

(ii) The Council has commented under Sec. 800.7 and received the agency’s response to such comments.”

MNRRA is complying with this provision of the Advisory Council’s regulations, as a Memorandum of Agreement (MOA) has been Written in compliance with section 800.6(c).

Under section 800.4, identification of Historic Properties, a Federal Agency is to “Seek information, as appropriate, from consuming parties, and other individual and organizations likely to have knowledge of, or concerns with, historic properties in the area, and identify issues relating to the undertaking’s potential effects on historic properties.” And, specifically, a Federal Agency is to seek information from American Indian Tribes regarding sites “which may be of religious and cultural significance to them and may be eligible for the National Register.” MNRRA did both.

MNRRA consulted with those American Indian communities that had shown in an interest in Coldwater Spring and with the Minnesota State Historic Preservation office (SHPO). The American Indian communities consulted included the: Lower Sioux Indian Community, Prairie Island Indian Community, Shakopee Mdewakanton Sioux Community, Upper Sioux Community, Sisseton-Wahpeton Sioux Tribe and the White Earth Band of the Chippewa. MNRRA also included the Mendota Mdewakanton Dakota Community, which is not a federally-recognized Tribe. MNRRA would subsequently consult with 10 Dakota tribes.

To more fully understand the American Indian history associated with Coldwater Spring, MNRRA contracted with Summit Envirosotutions, inc., and Two Pines Resource Group, LLC to complete an ethnographic study of the BOM property. (See The Cultural Meaning of Coldwater Spring: Final Ethnographic Resources Study of the Former U.S. BOM.) The contractors submitted their final) report in June 2006, and the Draft EIS was released on August 18, 2006.

Section 800.4(c) states that once a Federat Agency has gathered the information concerning historic properties, the agency “shall apply the National Register criteria (CFR part 63) to properties identified within the area of potential) effects” in consultation with the SHPO and any Indian Tribe that attaches religious and cultural significance to identified properties. The Federal Agency has to conduct the evaluation as guided by the Secretary’s Standards and Guidelines for Evaluation. MNRRA complied with section 800.4(c) after receiving the final ethnographic report in June 2006.

For the Draft EIS, MNRRA’s Cultural Resources Specialist, Dr. John Anfinson, evaluated Coldwater Spring’s eligibility for the National Register as a TCP under 36 CFR part 63 and under National Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional! Cultural Properties. He found that Coldwater Spring did not meet the National Register criteria or the guidelines of Bulletin 38. MNRRA presented this initial finding in the Draft EIS. The TCP review process under Section 800.4, however, was just beginning. MNRRA’s position stated in the Draft EIS was simply an initial finding and open for discussion.

TCP Review Process after August 18, 2006

MNRRA staff (Kim Berns, Steve Johnson, and John Anfinson) met with SHPO staff (Britta Bioomberg, Dennis Gimmestad, Susan Roth and Dave Mather) on August 29, 2006, to discuss a!) the cultural resources issues regarding BOM property, including MNRRA’s position on the TCP evaluation. At this meeting, the SHPO stated that it wanted to wait until the Department of Interior (DOI) selected a preferred alternative before negotiating a Memorandum of Agreement, as. there were too many variables in the draft EIS to consider in a Programmatic Agreement. (See attached meeting notes dated August 29, 2006).

On October 4, 2006, MNRRA sent letters to the SHPO and the Tribes who had participated in the Ethnographic Study detailing MNRRA’s position on the TCP determination. Per 800.4(c) MNRRA asked the Tribes’ their comments and for additional! information concerning Coldwater Spring as a TCP. At this point, MNRRA had not made a final decision concerning the TCP. No Tribe nor the SHPO has replied to this letter or the analysis provided by MNRRA. (See the attached October 4, 2006, letters to Tribes and the SHPO).

On December 23, 2008, MNRRA notified the Minnesota SHPO that the DOI had selected a preferred alternative, reviewed the potential impacts to cultural) resources and requested the SHPO’s comments on the undertaking. Then on January 22, 2009, MNRRA announced an open house meeting for Monday February 23, 2009, through letters to the SHPO, Tribal governments, interest groups and individuals on its mailing list. The meeting’s purpose was to collect public comment on reuse and restoration of the BOM property under the preferred alternative and to specifically gather input on the potential impacts to historic resources on the BOM property.

On January 23, 2009, the SHPO sent a letter concurring with MNRRA that removing the buildings would constitute an adverse effect on the BOM Historic District and supported continued coordination between agencies as demolition work and landscape treatment for the property became more defined. The SHPO also asked MNRRA to “re-review” the TCP issue.

On February 11, 2009, MNRRA wrote to 10 Dakota Tribes letting them know they should have received one letter on December 3, 2008, announcing the preferred alternative and another on January 22, 2009, inviting them to the open house scheduled for February 23. Superintendent Paul Labovitz stated that “My staff and I are available to discuss with you any concerns you may have regarding the preferred alternative, the site’s restoration, and the site’s future use and management.” In its announcement about the February 23, 2009, open house, MNRRA specifically stated that historic preservation was one of the key topics for the meeting (see the January 22, 2009, announcement and related handouts attached). The 10 Dakota Tribes were: Lower Sioux Indian Community, Prairie Isiand Indian Community, Shakopee Mdewakanton Sioux Community, Upper Sioux Community, Sisseton-Wahpeton Sioux Tribe, Fort Peck Assiniboine and Sioux, Flandreau Santee Sioux Tribe, Spirit Lake Dakotah Nation, Crow Creek Sioux Tribe, and the Santee Sioux Tribe of Nebraska.

At the February 23 public meeting, Cultural Resources Specialist Dr. John Anfinson answered questions and explained section 106 compliance to those who talked to him. He emphasized the need to develop a MOA and asked for what input on how what to address in it. Individuals, organizations, and Tribes were also asked to submit written and oral comments directly related to the section 106 process and development of the MOA. MNRRA took those comments related to the MOA and considered them in its drafting of the MOA.

MNRRA notified the Advisory Council of the preferred alternative and the alternative’s potential impacts to cultural resources per Sec. 800.6(a)(1) of the Advisory Council’s regulations on February 26, 2009. MNRRA requested Advisory Council participation to resolve those adverse effects. MNRRA noted its position on the TCP determination. The Advisory Council did not respond. Therefore, MNRRA has proceeded per section 800(b)(1) of the regulations, which provides for proceeding without Advisory Council involvement. MNRRA also contacted the Keeper of the National Register Office on February 27, 2009, and specifically asked for advice on the TCP issue. The National Register did not reply.

On April 28, 2009, MNRRA sent the Draft MOA and supporting documentation to the SHPO and requested their comments. The SHPO replied on June 1, 2009, and suggested that MNRRA develop a detailed protection plan for Coldwater Spring and Reservoir in developing the plan, the SHPO asked MNRRA to “take into account the importance of the area as ascribed by various groups (as documented in the WHEREAS clauses).” The SHPO also stated that there was “The need for additional consideration of the Traditional Cultural Property evaluation of the spring and NPS’s review of that study…” and asked that this be part of the discussion concerning treatment of the spring. MNRRA put protection provisions for the spring in the MOA and agreed to conduct more conversations with the consulting parties concerning the spring’s significance and treatment as the restoration process begins.

On May 11 and 12, 2009, MNRRA sent the Draft MOA to all the Tribes and other consulting parties to the section 106 process and requested their comments on the document. MNRRA also offered to meet with the Tribes to walk through the document. MNRRA followed up with phone calls to each Tribe to reiterate its willingness to meet with them. No Tribes replied or sent comments on the MOA or raised concerns about the process. Up to this point, MNRRA was stilt open to changing its position on the TCP status for this section 106 review, if a community advocating for the TCP had come forward with the information we sought and had pushed for such a designation.

The Final MOA is currently circuiting for signature by the consulting parties to the MOA.

At every point in this consultation process, MNRRA has been ready to meet with American Indian Tribes to discuss the TCP issue. At any point during the consultation process, the Tribes or communities, as defined by Bulletin 38, that believed a Coldwater Spring was eligible for the National Register as a TCP could have asked to discuss the TCP issue. None did.

Treaty rights in Minnesota under the 1855 Ojibwe treaty

Minnesota history, Treaty rights

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.