Many non-Native Midwesterners began to learn about tribal rights when they heard about ugly confrontations between protesters and tribal members spearing fish at Wisconsin boat landings in the 1980s. The spearers were exercising rights that they had always known were embedded in 19th century treaties with the U.S. government. Similar events were taking place on the West Coast, where members of 14 tribes were conducting “fish-ins” on the Puyallup River. Federal courts affirmed treaty rights in Washington state in 1974 and in Wisconsin in 1983. But we are still learning about what they might mean.
Frank Bibeau is a maverick attorney who is bubbling with ideas about how to embed Native America rights, and ultimately, native values into the mainstream of the American legal system. A member of the White Earth Nation living near Ball Club on the Leech Lake Reservation, Bibeau has studied the dozens of 19th century treaties between the Chippewa (Ojibwe, Anishinaabe) of the western Great Lakes and the U.S. government. And he has discovered some previously unrecognized tools that may prove useful in the fight for justice for his people.
I phoned Bibeau and asked him to share his perspectives with Agate. What follows is his introduction to his wide-ranging ideas, lightly edited for length and clarity.
“The 1825 treaty, signed at Prairie du Chien, created a boundary from Michigan to Turtle Lake in North Dakota. It essentially said the Chippewa would control hunting north of the boundary, roughly from Eau Claire in Wisconsin to about Fergus Falls in Minnesota, and the Lakota would be in charge south of the boundary. The next year—I call it a ratification session of the prior treaty—the Indians said we still retain title to the land and jurisdiction.
“Now, jurisdiction is not an old Indian word; it’s a word white people use with other white people. So that 1826 treaty recognized the title that the Chippewa held to all that land, because it had been to Congress twice, approved and proclaimed and ratified. So we had a federally recognized title before we even started releasing land in the 1837 and 1842 treaties. These are concepts that people haven’t understood until recently— I’d say the last 20 years.”
Specifically, the treaty says: “The Chippewa tribe grant to the government of the United States the right to search for, and carry away, any metals or minerals from any part of their country. But this grant is not to affect the title of the land, nor the existing jurisdiction over it.”
In the later land cession treaties, the tribal signers reserved the right for their people to hunt, fish, and gather wild rice and other resources in the lands they ceded to the U.S. government. Some bands have formed agencies to oversee off-reservation harvesting. One such agency is the Great Lakes Indian Fish and Wildlife Commission, formed in 1984. GLIFWC represents 11 Chippewa tribes in Minnesota, Wisconsin, and Michigan that reserved off-reservation harvest rights in four treaties signed between 1836 and 1854. GLIFWC provides expertise in natural resources, legal analysis, and conservation enforcement in support of its member tribes’ exercise of treaty rights. Four years later, two tribes that are not part of GLIFWC, the Grand Portage and Bois Forte Chippewa bands, formed the 1854 Treaty Authority to oversee harvests in lands they ceded in the 1854 treaty. Over the years various state agencies and the tribes have been learning how to work cooperatively to manage the resources of the region.
In 2010 Frank Bibeau began building an agency to open the way for cooperative management in the western part of Minnesota, on lands ceded in 1855.
“I tried to essentially create a model parallel to the 1854 Treaty Authority. We used the 1854 off-reservation conservation code. Wherever there was a ‘54’ we substituted it with ‘55.’ We put all these pieces together and said, ‘why can’t we just recognize the same thing over here?’ We just wanted the state to recognize our off-reservation code for Leech Lake and White Earth. We tried to create an entity that the ‘system’ can recognize.”
“We couldn’t get real cooperation from the state; we were trying to be civil disobedient and polite at the same time, because that’s how Indians are, but we couldn’t quite nudge them enough. We even had a protest ricing event at Hole in the Day Lake. Several tribal members went ricing without a state permit in August 2015.”
DNR officials offered the protesters a one-day educational ricing permit.
“We thought, ‘don’t they understand why we’re here and what we’re doing?’ We decided to come back the next day and that’s when a couple people got charged for ricing, and a couple people netting on Gull Lake got charged. But ultimately Crow Wing County dismissed the case against the White Earth tribal member because the district court judge seemed to think that someone at White Earth probably had some off-reservation treaty rights. They didn’t want to have an official opinion more than that, so the county attorney dismissed the charges.
“During the legislative session after that, legislators started asking the DNR questions: ‘How many licenses are you really selling to tribal folks?’ Maybe a couple hundred a year. ‘Then why are we charging license fee to tribal members?’ I believe they didn’t like seeing Indians protesting along Highway 371, exercising our rights, with the DNR there and so forth. So the legislature was ready to take the next step. But the DNR persuaded them not to actually say, ‘you don’t need a license,’ in the sense that you still have to follow all the other state laws associated with a license. ‘You just don’t have to PAY for a license.’”
In other words, legislators thought the revenue wasn’t enough to justify opening the Pandora’s box of tribal rights.
Currently, the DNR works with tribal resource agencies and recognizes tribal off-reservation rights. In the spring of 2023, the DNR sent a news release saying, “The Minnesota DNR recognizes tribal members’ rights to exercise their harvest rights to hunt and fish within the 1837 Ceded Territory and within reservation boundaries, free of state regulation.”
In about 2014, tribal members and leaders began preparing to fight Enbridge Energy’s proposed Sandpiper and Line 3 replacement pipelines. Enbridge cancelled the Sandpiper after what it described as “extensive and unprecedented delays.” Line 3 was built in 2020-2021 and runs from tar sands oil fields in Canada to Superior, Wisconsin.
“We needed some other legal mechanisms to fight these things, so we spent a couple of years trying to find a path, and that’s when I got linked up with Tom Linzey and Mari Margil at the Center for Democratic and Environmental Rights. We started working on rights of manoomin (wild rice). First the 1855 Treaty Authority adopted a Rights of Manoomin ordinance and then the White Earth Band did.”
Among other provisions, the ordinance stated that the Band and its members have the collective and individual right to enforce the law “in any appropriate court.”
“I thought it would be used against Enbridge, but the state of Minnesota gave that retroactive permit for five billion gallons of water that had been leaked off from the aquifer secretly by Enbridge, and the state didn’t consult with the tribes at all. That was a drought season, and manoomin requires abundant high-quality water. We were seeing rivers along Line 3 that were essentially dry bottoms with rice growing out of the mud. We couldn’t get our canoes in to harvest. Things were very bad for us, but the state wasn’t concerned.
“The DNR argued in federal court that the judge should tell the Indians that they can’t use their tribal law against us because we’re the state of Minnesota. The judge, Wilhelmina Wright, looked off the bench right down to the DNR attorney and said, ‘Can you point to any law that tells me I have the authority to tell those Indians they can’t do that?’ That was the biggest moment in my legal life.”
Many tribal people opposed the construction of Line 3. It crosses more than 200 water bodies in Minnesota, and it had been the source of spills and accidents since its original construction in the 1960s. These included the largest inland oil spill in the U.S., near Clearbrook, Minnesota, in 1991, when 1.7 million gallons of crude spilled into a tributary of the Mississippi River, and the 2007 deaths of two pipeline workers after a large fire erupted while they were repairing a leak in the pipeline.
During the two-year construction period, thousands of people protested along the route, led by Honor the Earth and other native groups. Hundreds were arrested. They were generally charged with various misdemeanors in state court.
“I filed motions to dismiss and transfer the cases to tribal court, and once it’s in tribal court, the charge is trespass. At that point the tribal judicial code recognized the rights of manoomin, the rights to protect manoomin, and the rights to travel and use and occupy the traditional lands and waters, which was a missing link for a legal defense of the rights of manoomin.”
These rights offered an effective defense against trespass charges. Bibeau estimates about 30 tribal members were charged; the tribal court dismissed charges against two groups of protesters—about six who used the rights of manoomin defense and another six who chose to pay fines.
“Under colonial law–laws brought here from other countries—manoomin is considered property, and defending property can be used as a defense against criminal charges. Our argument was, if wild rice is your property and it’s endangered, do you have a right to protect it? If it’s like your house or your car, do your friends and neighbors have the right to help you protect them? I was bending the law’s concepts to meet what was going on because the legislature was criminalizing the exercise of civil rights essentially under the state’s constitution. But our civil rights are under the U.S. constitution with the treaties, and you can criminalize whatever you want but you can’t criminalize our rights.”
“I have to do this because of my relationship with all of creation. Our covenant with nature and with our fellow creatures…”
Frank Bibeau
The cases of three prominent tribal leaders had not been transferred to tribal court but were heard in state district court. Winona LaDuke, Dawn Goodwin, and Tania Aubid faced Judge Leslie Metzen, who astonished many observers when she dismissed the charges with these words:
“In the last 20 years I have come to a broader understanding of what we, the now dominant culture, did to try to eradicate our indigenous neighbors. We moved them by force and power and violence off the land where they lived for thousands of years. To make peace, we signed treaties with them that promised many things they never received… to criminalize their behavior would be the crime.”
Since the completion of Line 3 in 2021, a group called Waadookawaad Amikwag, or “Those Who Help Beaver” has been monitoring the line with drones carrying thermal imaging cameras. They have detected at least four places where groundwater has been released to the surface. This happens because crews drove sheet-metal pilings into the ground to keep the trench dry during construction. The pilings broke the clay layer that was confining shallow aquifers, changing the natural groundwater flow. Enbridge has paid more than $11 million in fines for such leaks. Frank Bibeau is delighted that “people are coming up with other ways to fight, based on understanding what we can do with our treaty rights and how to try to assert them. I have to do this because of my relationship with all of creation. Our covenant with nature and with our fellow creatures: this is my obligation because I’ve figured out some things. I’ve been helpful opening the door and others are coming in to see what else they can do.”
Bibeau’s father was in the military and the family moved around a lot, from Germany where he was born to Idaho, Massachusetts and Washington D.C., but they often visited the home place. “My grandfather, who lived and died here in Itasca County, used to make sure my dad got wild rice wherever we were, wherever my dad was stationed. Dad would prepare it and explain about wild rice and tell a story about when he was ricing—because we’re all ricers. It’s just part of the continuity.”
Now he is thinking about how the rights of manoomin, or perhaps fish, can help in the fight against Line 5 in Michigan. Enbridge’s Line 5 runs from Superior, Wisconsin to Detroit, Toledo, and Sarnia, Ontario. Under the Straits of Mackinac, where Lake Michigan meets Lake Huron, two pipes lie on the lakebed. Recent concerns about gaps in the pipes’ coating and dents caused by anchor strikes have led to plans for a tunnel under the lakebed. But many climate activists and tribal leaders say the pipeline should be closed entirely, as a leak in this location could spread across the entire Great Lakes. Further, climate change demands that we stop burning oil sooner rather than later.
A treaty signed in 1842 says all the Indians share the unceded lands as “common property and home.” Those lands were ceded in later treaties, but Bibeau says the bands still have a joint relationship with the land. “That means we all have the right and responsibility to protect the whole territory, from Turtle Mountain, North Dakota to Michigan. We want other people who understand their rights to help us; we helped with spearing in the 1980s in Wisconsin. Several bands in Wisconsin supported our case to defend manoomin. They understood that I was helping strengthen their sovereignty as well. I don’t have time to mess with everything, but I understand we’ve been tricked into believing we don’t have the individual sovereign power as tribal members trying to make a modest living, to coexist and benefit for ourselves, from the resources that are available. A lot more will happen. You’ll see Indian tribes asserting sovereignty and protecting the environment in ways that we don’t yet understand.”
