Tribal rights take giant step forward

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A sign along Minnesota Highway 169 marks the borders of the Mille Lacs Indian Reservation. (Photo courtesy of Mille Lacs Ojibwe.)

By Lee Egerstrom

Minnesota sovereign tribes’ rights took giant leaps forward during March with court decisions and local government actions, but following patterns of the last century and longer, these advances remain under legal challenge.

“We won,” is how Mille Lacs Band of Ojibwe Chief Executive Melanie Benjamin summed up an early March federal court ruling that said the boundaries of the Mille Lacs Reservation, established by treaty in 1855, still exist.

The ruling restores Mille Lacs Band’s claim to the original 61,000 acres of land around the south end of Mille Lacs Lake that was identified in that early treaty.

Around the same time Federal Judge Susan Richard Nelson issued her 93-page ruling for Mille Lacs Band, the West Lakeland Township board voted unanimously to not appeal the Interior Department’s Bureau of Indian Affairs (BIA) decision that helps Prairie Island Indian Community develop land for housing in a suburban area east of St. Paul.

The BIA had announced it will support Prairie Island by placing the 112 acres of the tribe’s purchased land in West Lakeland Township, in suburban Washington County, under federal trust protection. This expansion of tribally owned land for housing and commercial development is to help Prairie Island residents distance themselves from the nuclear power plant and storage of nuclear wastes (spent rods) that are adjacent to their home reservation base near Red Wing.

Both the Ojibwe and Mdewakanton Dakota communities’ rights and land spaces have been constantly under threat since original treaties were signed.  Responses from nontribal members to the latest developments were predictable.

Mille Lacs County officials have said they will appeal Judge Nelson’s ruling. Three West Lakeland Township residents have already filed notice they are appealing the BIA’s decision to include the Prairie Island land purchase into federal trust designation.

How long either of these challenges may take to be resolved was not immediately known. The Mille Lacs Messenger newspaper, however, noted the Mille Lacs County appeal to the Eight Circuit Court could take up to a year, and you can add another year and a half to that if it goes to the U.S., Supreme Court.

But for both the Mille Lacs and Prairie Island entities, the successes marked in the first week of March have been a long time coming.

The Mille Lacs situation 
The Mille Lacs Band and Mille Lacs County have had jurisdictional disputes for much of its history. The Band held its ground sometimes with, and sometimes without, support from the federal government partner in treaty obligations.

Closer to home, the Band has often had to fight against local, non-tribal government bodies such as Mille Lacs County and usually against the state of Minnesota.
The latter has been changing.

Just as federal recognition of sovereign rights changed during the Obama administration, Minnesota state recognition of those rights have had a profound reversal in the last two years. Attorney General Keith Ellison totally turned the tables and backed the Mille Lacs Band in the boundaries dispute. His position was supported by Gov. Tim Walz and Lt. Gov. Peggy Flanagan.

Online websites cited at the end of this article show how the tribe and county view the court ruling and what it may mean for non-tribal member property owners within the reservation boundaries. In some published accounts, there may be little change except for local taxation powers and, going forward, how the tribe and area municipalities and the county might cooperate of issues of shared concerns such as policing.

Sore spots involve portions of townships on the south edges of Mille Lacs Lake (Isle Harbor, South Harbor and Kathio townships), plus three islands in the lake. These areas were all part of the 1855 treaty but the county and, often, the state has cited subsequent treaties and laws that tried to whittle away the reservation boundaries.

Unless overturned by higher courts, U.S. District Judge Susan Richard Nelson may have settled this source of confusion. In her March 4 ruling, she wrote the treaty promised a “permanent home” for the Mille Lacs Band.

She added, “Over the course of more than 160 years, Congress has never clearly expressed an intention to disestablish or diminish the Mille Lacs Reservation.”

Therefore, she said, “The court therefore affirms what the Band has maintained for the better part of two centuries – the Mille Lacs Reservation’s boundaries remain as they were under Article 2 of the Treaty of 1855.”

In a Facebook statement cited by local media, Chief Executive Benjamin offered an olive branch to area nontribal residents. In it, she said:
“It is our sincere hope that this decision will allow us to move beyond the need to fight with Mille Lacs County over our very existence; instead, we invite the county – and all of our local governments – to come alongside us and join with us in the fight for a better future for all our communities for generations to come.”

Prairie Island in West Lakeland Township 
The whittling away of tribal land efforts at Mille Lacs have a parallel at Prairie Island Indian Community, with potentially dangerous consequences.

Tribal members who are descendants of the Mdewakanton Band of Eastern Dakota have lived along the Mississippi River and its waterways for centuries. They lost most of their southern Minnesota land after the Treaty of Traverse des Sioux in 1851, but their remaining reservation of a mere 534 acres at Red Wing and Welch was federally recognized in 1934. That didn’t last long.

In 1938, the U.S. Army Corps of Engineers built Lock and Dam 3 on the down river side of their reservation. That backed up water over burial mounts and created a floodplain reducing livable reservation space to 300 acres.

Then came 1973. Local utility company Northern States Power Co. – now Excel Energy Inc. – built and began operating Prairie Island Nuclear Power Plant just 600 yards from Prairie Island homes.

Seasonal floods, nuclear power plant meltdowns and similar problems elsewhere have Prairie Island and nearby nontribal area residents ill at ease. That has grown over the past two decades when Excel and almost all nuclear power plant operators found resistance from local communities over where they might store spent fuels from generating electricity.

Federal regulators have tried to secure locations inside Western mountains to store these nuclear wastes that take thousands of years to effectively dissolve. Not surprising, Western states, local communities and Western tribal nations have shared “not in my backyard” stances in opposing storage.

That leaves nuclear fuel wastes stored at Prairie Island until some future storage place is secured. It also means, tribal and environmental critics point out, the dangerous wastes remain vulnerable to floods or other disasters that are a threat to them and area communities.

These are reasons Prairie Island Indian Community leaders have sought to expand land holdings for residential and commercial development outside the small boundaries spelled out in the 1934 treaty. In addition, there are descendants of the tribe who want to “come home,” but there will need to more space, housing, and safety for them to do it.

For more information: The Mille Lacs Band has a FAQ page online at https://millelacsband.com/home/faq.

The Band also posted U.S. Judge Susan Richard Nelson’s complete March 4 federal court order online at https://millelacsband.com/media/pages/home/d68949293b-1648473572/313-memorandum-opinion-and-order-re-sj-motions.pdf.

A Prairie Island Indian Community position paper on the adjacent nuclear power plant, which leads to the purchase on land for development in Washington County,  is online at https://prairieisland.org/policy-positions/nuclear-positions.