Article VI of the U.S. Constitution states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
– Article VI Clause II, U.S. Constitution
In signing treaties with sovereign nations of Turtle Island, the nascent U.S. government gained authoritative traction with existing governments of Europe – particularly Great Britain – to validate itself as an independent sovereign nation.
This validation is the basis for all industrial trade. This industrial trade is the means by which few families have become obscenely wealthy in commerce based on extractive industries of mineral ore, timber, and land acquisition for ranching and industrial agriculture. All this has been accomplished at the expense of First Peoples’ ways of life, and the integral ecologies upon which all life depends. The violations are unconstitutional, sacrilegious and genocidal. They continue.
Treaty-making with sovereign Indigenous nations on this continent was discontinued late in the nineteenth century yet treaties with other nations have continued to be negotiated into current times. The U.S. has a history of shirking treaty responsibilities, though they are constitutionally the supreme law of the land.
From protecting Salmon, Manoomin, Buffalo, hunting & fishing rights in general – sustenance and the right to live – to the Nuclear Non-proliferation Treaty, Paris Climate Accord Treaty, and others. Treaty enforcement is one avenue through which We the People can defend and protect our shared, planetary rights to life – human and more.
The Fire Light Treaty Case centers on the responsibility of the U.S. Government to be accountable to the terms of the treaties it signed with the Anishinaabe, and all Indigenous Nations during the colonization of Turtle Island. The non-Native defendants in this case will face jury trial as treaty partners to the Anishinaabe demanding their government honor the treaties.
It is important for anyone learning about this case, and anyone willing to examine the history of the United States to understand what these Treaties are, what they mean, and how they are continually broken by actions at State & Federal levels of the US Government.
Broad Concepts & Understandings
Treaties are agreements between sovereign Nations. The Library of Congress defines “Treaty” as follows: “Domestically, treaties to which the United States is a party are equivalent in status to Federal legislation, forming part of what the Constitution calls “the supreme Law of the Land.” However, the word treaty does not have the same meaning in the United States and in international law. Under international law, a “treaty” is any legally binding agreement between nations. In the United States, the word treaty is reserved for an agreement that is made “by and with the Advice and Consent of the Senate” (Article II, Section 2, Clause 2 of the Constitution). International agreements not submitted to the Senate are known as “executive agreements” in the United States, but they are considered treaties and therefore binding under international law.”
From the U.S. Department of the Interior’s Bureau of Indian Affairs:
“The federal Indian trust responsibility is a legal obligation under which the United States “has charged itself with moral obligations of the highest responsibility and trust” toward Indian tribes (Seminole Nation v. United States, 1942). This obligation was first discussed by Chief Justice John Marshall in Cherokee Nation v. Georgia (1831). Over the years, the trust doctrine has been at the center of numerous other Supreme Court cases, thus making it one of the most important principles in federal Indian law.
The federal Indian trust responsibility is also a legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal law with respect to American Indian and Alaska Native tribes and villages. In several cases discussing the trust responsibility, the Supreme Court has used language suggesting that it entails legal duties, moral obligations, and the fulfillment of understandings and expectations that have arisen over the entire course of the relationship between the United States and the federally recognized tribes.”
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.
Over 200 years of decisions made by federal & appellate courts in the United States have resulted in three principles that govern how Treaties should be interpreted by the court system. These canons are outlined below as they are described in the recent Bureau of Indian Affairs Memorandum of Understanding titled, “Best Practices For Identifying And Protecting Tribal Treaty Rights, Reserved Rights, And Other Similar Rights In Federal Regulatory Actions And Federal Decision-Making”
(1) treaty language must be construed as the Indians would have understood it at the time of treaty negotiation;
(2) doubtful or ambiguous expressions in a treaty should generally be resolved in favor of the Tribes; and
(3) treaty provisions should be interpreted in light of the surrounding circumstances and history.
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.
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.
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.”
Ojibwe/Dakota Treaties in what we now call “Minnesota”
It’s difficult to consider a history of “Minnesota” in the context of the Treaties signed between the U.S. Government and the Anishinaabe, because many of these agreements pre-date the establishment of Minnesota as a State. Further, the Anishinaabe lived across a wide swath of territory which would have spanned much of what we now call Minnesota, Wisconsin, Michigan, Canada and the Dakotas.
That said, the Why Treaties Matter website is an excellent place to learn about treaties involving Native Nations in what is now called Minnesota. The “Why Treaties Matter” exhibit is also permanently displayed on the third floor of the Minnesota State Capitol and has a traveling exhibit.
A Short History of Indian Law in the Supreme Court
This article authored by Matthew M. Fletcher and published by the American Bar Association in 2014 provides a brief history of the controversial history of Federal Indian Law in the United States: A Short History of Indian Law in the Supreme Court.
Organizations in Minnesota Focused on Treaties & Treaty-Reserved Rights
Below are a handful of 501c3 & grassroots groups from around what we now call the “Minnesota” and/or the broader “Midwest” that are actively engaged in work around treaties, treaty-reserved rights, Indigenous Sovereignty. Note: We are listing these organizations below in alphabetical order. An organization’s inclusion on this list does not indicate an affiliation with the defendants in this case. It merely reflects our hope that others will be encouraged to get involved and support the continuation of this important work!
1854 Treaty Authority (Website)
1855 Treaty Authority (Website)
The Great Lakes Indian Fish & Wildlife Commission (Website)
Honor the Earth (Website)
Indigenous Environmental Network (Website)
MN350’s Treaty Rights Working Group (Website)
Minnesota Indian Affairs Council (Website)
R.I.S.E. Coalition (Facebook Page)
Rights of Mississippi (Facebook Group)
If you know of an organization missing from this list, please reach out by submitting this form