The American Indian Quarterly 24.4 (2000) 645-648
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On March 24, 1999, in its nervously anticipated ruling in Minnesota v. Mille Lacs Band of Chippewa Indians, the United States Supreme Court, by a 5-4 decision, upheld the Ojibwe (Chippewa) Indians' 1837 treaty rights to hunt, fish, and gather on lands they had ceded to the U.S. in Minnesota and Wisconsin. The case was nervously anticipated because while the facts and the law strongly favored the Ojibwe, the Rehnquist Court in the last decade had been almost systematically rolling back legal rights and protections tribes finally began to secure under the Warren Court and, to a lesser extent, under Chief Justice Burger's leadership.
In areas such as the meaning and scope of tribal sovereignty, tribal-state relations, religious freedom, resource rights - water, hunting and fishing, extractable minerals - taxation and regulatory authority, and civil and criminal jurisdiction, Chief Justice Rehnquist and his cohorts have dramatically reduced Indian rights, while simultaneously strengthening states' rights vis-a-vis tribal governments.
Mille Lacs, therefore, was a powerful and important corrective. In the thrust and parry of federal Indian law and policy this case represented a crucial thrust. For Mille [End Page 645] Lacs reaffirmed the following points: 1) Indian treaty rights cannot be implicitly terminated; 2) the so-called canon of treaty construction - the principle that Indian treaties are to be interpreted liberally in favor of Indians, with any ambiguities in language being resolved in the Indians' favor - was alive and well; 3) states lack inherent power over Indian lands, rights, or resources absent express congressional consent; and 4) the Court was even willing to implicitly overrule a century old decision, (Ward v. Race Horse), that had upheld states' rights over Indian treaty rights by declaring that treaty rights were nothing more than "temporary and precarious privileges."
A logical question one might ask, given the generally conservative and anti-Indian tenor of the Rehnquist Court's Indian law decisions, is what explains this surprisingly liberal opinion affirming Indian treaty rights over states' rights? A large part of the answer lies in the outstanding preparation of the leadership of the Mille Lacs band, the solid legal work of their attorneys, and the "expert" written testimony offered by six non-Indian scholars trained in ethnohistory, anthropology, legal analysis, and linguistics hired by the Mille Lacs band to research key dimensions of the ethnohistorical record that were contested by the State of Minnesota.
These scholars addressed a number of important questions. They described how the Mille Lacs band historically used its territory and resources prior to, during, and after the treaty period. They explained the context of President Zachary Taylor's removal order of 1850. The scholars assessed the meaning of various treaties and agreements, congressional acts, and other pertinent laws and policies and how each of these affected the hunting, fishing, and gathering rights of the band. Finally, they analyzed the meaning of legal doctrines and pertinent treaty phrases from both an American and Ojibwe perspective.
This book, then, is a compilation of six historically rich reports which were used as "direct testimony" in the litigation between the band and Minnesota. James McClurken, one of the authors, compiled the reports. These include three major pieces titled the "primary testimony," written by Charles E. Cleland, Bruce M. White, and McClurken; and three shorter accounts listed as "supporting testimony" authored by Helen Tanner, Thomas Lund, and John D. Nichols. Marge Anderson, then chief executive of the Mille Lacs band, wrote a short forward and the book ends with a copy of Justice Sandra Day O'Connor's 1999 opinion, attached as an appendix.
This collection of outstanding historical reports raises a number of both exciting and...