Iron mine's fate may hinge on 19th century treaties Posted 07.11.13

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Tribes have the ability to assert their rights before the federal government. These rights carry special weight.

By Brian Pierson March 7, 2013

The Wisconsin Legislature has approved amendments to Wisconsin law intended to pave the way for Gogebic Taconite to mine iron ore in the Penokee Hills of Ashland County. Wisconsin's tribes have been outspoken in their opposition. The Bad River Chippewa, whose reservation lies directly in the path of any mine runoff, has been especially vocal.

The six Chippewa tribes have asserted that their treaties with the federal government give them special status and entitle their concerns to greater weight. They are right.

By the 1842 treaty at La Pointe, the Chippewa ceded to the United States approximately 12 million acres, including the Penokee Hills, receiving in return an amount that the Indian Claims Commission later called "unconscionable." A treaty, the Supreme Court observed in United States vs. Winans, is "not a grant of rights to the Indians, but a grant of right from them - a reservation of those not granted." In the 1842 treaty, the Chippewa reserved "usufructuary" rights in the territory they ceded, including the right to hunt, fish, trap, harvest wild rice and engage in other activities to make a living from the land.

The survival of the usufructuary rights reserved in the 1842 treaty was confirmed by the federal courts in the lengthy Voigt litigation. Pursuant to Article VI of the U.S. Constitution, federal laws and treaties are "supreme." The State of Wisconsin cannot legislatively undo them. As Federal District Judge Barbara Crabb stated in her 1991 final judgment, the state may regulate the exercise of the Chippewa's usufructuary rights "only in the interest of conservation and in the interest of public health and safety."

While the federal courts have yet to define either the precise contours of the state's narrow authority to regulate treaty rights, or the extent to which it may limit state-sponsored development activities, two points seem certain: First, the state cannot abrogate federally guaranteed tribal treaty rights in the name of economic development. Second, state legislation enacted to facilitate taconite mining does not fall into the category of "conservation" or "public health and safety" regulation.

The 1854 LaPointe treaty is also relevant. This treaty resulted in the establishment of seven reservations, including the Bad River reservation, sited on a tract of land the tribe had inhabited from time immemorial. In language simple, clear and unmistakable, Article 11 promises that "the Indians shall not be required to remove from the homes hereby set apart for them."

In Winters vs. United States, the Supreme Court affirmed that the federal government's guaranty of a reservation as a permanent home for an Indian tribe includes not only land but water resources "necessary for . . . the purposes for which the reservation was created." In the case of the Bad River Band, the reservation was created to provide tribal members with the rice beds, fisheries and other natural resources necessary for their survival. It continues to serve this essential purpose today.

For those who can be certain that, in the event of an environmental disaster, they will be well out of harm's way, it seems obvious that the potential economic benefits of mining far outweigh any environmental risks. If the proposed taconite mine contaminates the sloughs down river from the Penokee Hills, most state residents won't much care. Anglers will find other streams to fish. Hikers will find other hills to climb. If the contamination is bad enough, non-Indian residents living nearby will pick up and find a home elsewhere.

There is no escape from the consequences of mining-related pollution for the Bad River Chippewa. The roots that connect them to their lands are ancient, strong and deep. The reservation is the economic, social and cultural sanctuary where they hunt, fish, cultivate wild rice, harvest sugar and pass their traditions on to the next generation. Because, by federal law, the boundaries of the reservation also define the limits of their political jurisdiction, their very survival as a sovereign, self-governing aboriginal people depends on its viability as a homeland.

Wisconsin's new mining law attaches no importance to the treaties. When it considers the company's application to mine the Penokee Hills, the state Department of Natural Resources may conclude that it can ignore the resulting diminishment of Chippewa usufructuary rights and the potential adverse impacts on the waters of the Bad River reservation.

But the mine will also require the approval of the United States Army Corps of Engineers, and the tribe will have the right to sue in federal court to challenge any permit issued. In these federal forums, the solemn promises that the United States made to the tribe 1842 and 1854 will matter.

Brian Pierson leads the Indian Nations law team at Godfrey & Kahn, S.C. The Bad River band of Chippewa is a client of the firm.