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The Ojibwe have every right to oppose copper-nickel mining in northern Minnesota

They ought to be able to exercise their rights without hazing, intimidation, and retaliation from elected officials. We’ve had enough of that.

Twin Metals offices in Ely.
Twin Metals offices in Ely. The company hopes to build an underground mine primarily for copper and nickel, but also to collect cobalt, palladium and platinum.
Courtesy of Twin Metals Minnesota

There is really nothing new under the sun. Calls for the boycott of Ojibwe businesses because of their resistance to copper nickel sulfide mining in northern Minnesota is just another episode in a long tradition.

The history of the United States is littered with examples of stealing land from Native Americans, or cheating them out of it and then failing to even bother to observe the promises made to them in over 200 treaties with Native Americans where they ceded land to an ever-expanding and rapacious U.S. government. The Pequot Massacre in 1637, where the pious Pilgrims killed some 500 Indians, kicked off a three-year war to take the Pequots’ land that set the stage for events ever since.

The Dakota War, or Little Crow’s War, here in Minnesota is a prominent example of the malign neglect of treaty obligations to Native Americans. Leading up to the war in 1862, late and missing annuity payments, due in exchange for the vast tracts of land ceded by the Dakota, caused privation and hunger among the Indians, and it sparked the war. As we know, after the war, President Lincoln ordered the hanging of 38 Dakota braves in Mankato and banished the Dakota from Minnesota and abolished their reservations. Little Crow escaped to Canada, but drifted back to Minnesota – as many Dakota did – where he was ultimately shot by a settler for the bounty, like a gopher. The internment of Dakota people – noncombatants – at Fort Snelling and the act of banishment, just as an aside, were acts of collective punishment, now prohibited under international law; remember, the Dakota were and are a sovereign nation.

More recently, violence was threatened against members of the Mille Lacs Band of Ojibwe by local whites for the Band’s exercise of fishing rights on the lake named after them, and the DNR was taking enforcement actions against the Mille Lacs Band for fishing that the Band maintained it was entitled to do. It sued the state, and in a 1999 Supreme Court decision, the court ruled that the Band did possess usufructuary rights under treaty to hunt, fish, and gather on ceded lands. But they had to go to the Supreme Court to prove it.

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And in the news just this week, Gov. Tim Walz and Attorney General Keith Ellison reversed the DNR and State’s position – amazingly – and said that the Mille Lac Band’s 67,000 acre reservation on the south side of the lake does, in fact, exist. The question is before a federal court (well, and a state court, too), with the Indians, as always, having to go to court to assert their treaty rights and protect what is theirs.

Mille Lacs county officials, of course, retreated to the fainting couch, and laughably complained about what “might be lost,” including the south end of Lake Mille Lacs. According to the U.S. Department of the Interior and now state officials, it wasn’t theirs to lose in the first place. But given the attitude toward Native Americans since the days of the Pequot Massacre, you can see how they might think that way.

Steve Timmer
Steve Timmer
Which brings us to the real subject of this commentary: sulfide mining and Ojibwe opposition to it.

In recent days, former Minnesota Senate Minority Leader and big-time sulfide mining supporter Tom Bakk canceled a political fundraiser at Fortune Bay Resort and Casino, owned by the Bois Forte Band, because the Minnesota Chippewa Tribe supports the prohibition of sulfide mining in the Superior National Forest near the Boundary Waters Canoe Area Wilderness. The tribe is concerned about the effects of that mining on tribal lands and treaty rights in ceded land. If you read the Timberjay story at the above link or this story in the Hibbing Daily Tribune, you’ll see that Ely’s mayor, Chuck Novak, jumped on the bandwagon and is urging a wider boycott of Ojibwe businesses.

This boycott is different in degree but not essentially in kind from the examples cited above. Take from the Indians and then punish them if they complain.

You should be troubled by the efforts of state and local politicians to suppress legitimate political expression. I am. But I hope you see the pattern.

This isn’t the first case of “Indians? What Indians?” even just in the consideration of copper nickel sulfide mining in northern Minnesota.

In 2013, the Minnesota Pollution Control Agency canceled a study that would have almost certainly fingered at least some of the culprits responsible for making the St. Louis River, which runs through the Fond du Lac reservation, so mercury polluted that you can’t eat the fish, and would have found that a sulfide mine probably wasn’t the smartest thing to add to the watershed. The Fond du Lac Band was one of the cooperating agencies in the canceled study, known as a Total Maxiumum Daily Load study.

In 2015, the Department of Natural Resources ignored a water model prepared by the Great Lakes Indian Fish and Wildlife Commission that showed that acid runoff from the proposed PolyMet mine would not only pollute the St. Louis River watershed, but also the Rainy River watershed in the Boundary Waters. The DNR’s Steve Colvin admitted that the GLIFWC water model was a serious piece of work, but the DNR ignored it anyway. That’s one of the issues involved in the litigation against the PCA’s water permit that is currently  before the Minnesota Court of Appeals on appeal from the grant of the permit. (The DNR was a sponsoring agency for PolyMet’s environmental impact statement; the PCA was not.)

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It’s the same DNR, perhaps not coincidentally, that had to be dragged before the Supreme Court before it would recognize Ojibwe treaty rights on Lake Mille Lacs.

Federally recognized Indian tribes are considered equivalent to states for several purposes under the Clean Water Act.

The Fond du Lac Band also complained to the Corps of Engineers (also a sponsor of the PolyMet EIS) about the wetlands destruction that the Corps’ permit for the PolyMet mine would involve. Again, it was, “Indians? What Indians?” That permit is now in federal court in two separate suits, one brought by the Fond du Lac Band.

There is a separate treaty, concluded in 1854 on Madeline Island, which secured the same usufructuary rights to the Lake Superior Chippewa as exist for the Mille Lacs Band on Lake Mille Lacs. Based on the remarks and actions of Tom Bakk, Chuck Novak, and of our regulatory agencies, you wouldn’t necessarily know that. But now you do.

The Minnesota Chippewa Tribe has treaty rights and First Amendment rights and is absolutely entitled to exercise these rights in protecting hunting, fishing, and gathering on both ceded and unceded lands. Don’t let Tom Bakk and Chuck Novak tell you otherwise. The Indians ought to be able to exercise these rights without hazing, intimidation, and retaliation from elected officials. We’ve had enough of that.

Steve Timmer is retired after practicing law in the Twin Cities for over 40 years. His Twitter handle is @stevetimmer.

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