The Anishinaabe claim treaty right to hunt, fish, and gather on the lands they ceded to the U.S. government, including all the lands that Line 3 crosses.

Technically, these are called usufructuary rights. “Usufruct is the right to use and benefit from a property, while the ownership of which belongs to another person,” according to Cornell Law School’s Legal Information Institute. “The person who enjoys the usufruct is called the usufructuary. The usufructuary shall maintain the property as a responsible owner and shall not cause damage to or diminution of the property, except where the property is subject to natural depletion over time.”

The 1854 Treaty Authority offers this definition of “usufructuary rights”: They “are the legally-retained rights of the tribes to continue to sustain themselves by harvesting natural resources on treaty-ceded lands in northeastern Minnesota.”

The treaties of 1837 and 1854 explicitly guarantee those usufructuary rights. The Treaty of 1855 is silent on them. The 1855 Treaty Authority says since those rights weren’t explicitly revoked, those rights are retained.

Anishinaabe Nations Red Lake, White Earth and Mille Lacs in particular, argued that the construction and operation of the Line 3 tar sands pipeline violated their treaty rights, an issue that state agencies dismissed.

Sources:

https://www.law.cornell.edu/wex/usufruct

https://www.1854treatyauthority.org/images/ToHuntandFish.updated2020.pdf

The Reserved Rights Doctrine often is included in the Canons of Treaty Construction in Federal Indian Law, first established in the U.S. Supreme Court case United States v. Winans (1905). The case was a dispute over the Treaty of 1859 between the United States and the Yakima Indians.

The decision begins: “This Court will construe a treaty with Indians as they understood it and as justice and reason demand.

“The right of taking fish at all usual and accustomed places in common with the citizens of the Territory of Washington and the right of erecting temporary buildings for curing them, reserved to the Yakima Indians in the Treaty of 1859, was not a grant of right to the Indians, but a reservation by the Indians of rights already possessed and not granted away by them. …”

States “cannot disregard the right,” it said.

The Dawes Act of 1887 is among the most destructive pieces of legislation for Native Americans that Congress ever passed. It’s also referred to as the General Allotment Act.

“Federal Indian policy during the period from 1870 to 1900 marked a departure from earlier policies that were dominated by removal, treaties, reservations, and war,” the U.S. government archives say. “The new policy focused specifically on breaking up reservations and tribal lands by granting land allotments to individual Native Americans and encouraging them to take up agriculture.”

“It was reasoned that if a person adopted “White” clothing and ways, and was responsible for their own farm, they would gradually drop their “Indian-ness” and be assimilated into White American culture.”

Later laws imposed allotment in specific situations.

For instance, on Jan. 14, 1889, Congress approved “An act for the relief and civilization of the Chippewa Indians in the State of Minnesota.” Not surprisingly, that’s a euphemism. The act did not provide relief. Quite the opposite, it forced assimilation and stole Native lands.

The law is commonly referred to as the Nelson Act, named after Minnesota Congressman Knute Nelson, its primary mover. He would go on to become a Minnesota Governor and U.S. Senator. Though most people probably don’t know it, Nelson holds a place of honor at the Minnesota State Capitol; his statue is on the front steps overlooking the Capitol mall.

According to an article on the Leech Lake Band of Ojibwe website:

“Congress passes the Dawes Act in 1887, which, combined with the Nelson Act two years later, allots 80 acres of non pine land, within the boundaries of the reservation, to each tribal family. The remainder of the non-allotted Indian lands were then opened up and sold or granted to timber companies, railroads and settlers. With the passage of the Nelson Act, loggers were able to move onto the land, and within a couple of years clear cutting was in full progress.

“It should be noted, that with the passage of the Nelson Act, the state of Minnesota now claimed that tribal members were now subject to state hunting and fishing laws. No longer could tribal members hunt, fish, or gather on the Leech Lake Reservation as promised by the numerous treaties they had previously negotiated.

“Another unforeseen problem was, allotments were to be held in trust for twenty five (25) years, upon which, Indians were then given a fee patent. As a result, most Indians lost their allotments through tax forfeitures, sales and/or fraud.”

There is a distinction between the concept of Tribal Sovereignty and Indigenous Sovereignty. The Indigenous Environmental Network, headquartered in Bemidji, MN published an article called “What is: Indigenous Sovereignty and Tribal Sovereignty” which is a helpful tool for understanding this distinction.

Tribal Sovereignty:

From the IEN article, ““Tribal Sovereignty” refers to the legal recognition in the United States of America law of the inherent sovereignty of American Indian Nations. The law applied to American Indians by the US government is called Federal Indian Law. Although undermined by various Acts, legal decisions, and policies, it still stands to this day.”

Treaties are signed between Sovereign Nations. The State of Minnesota would never sign a Treaty with France. Although many attempts have been made through genocidal tactics by the US Government to limit and control this relationship between entities, the Indigenous peoples of Turtle Island (what we call North America) are Sovereign legal entities, even under the laws of the United States.

Indigenous Sovereignty

From the IEN article: “Indigenous Sovereignty” is what is referred to as a term of art. It is distinguishable from Tribal Sovereignty in that it is not a nation-state recognition of inherent sovereignty under nation-state dominion.  Rather, it arises from Indigenous Traditional Knowledge, belonging to each Indigenous nation, tribe, first nation, community, etc. It consists of spiritual ways, culture, language, social and legal systems, political structures, and inherent relationships with lands, waters and all upon them.  Indigenous sovereignty exists regardless of what the nation-state does or does not do.  It continues as long as the People that are a part of it continue.”

Source: https://www.ienearth.org/what-is-indigenous-sovereignty-and-tribal-sovereignty