Photo: Ceded territories, not including 1855 Treaty. Image: Colin Mustful

By Stephanie Hemphill, Agate Magazine via MinnPost - September 14, 2022

This article was originally published by Agate magazine.

In 2017 Minnesota Department of Transportation (MnDOT) workers dug up part of an ancestral graveyard of the Fond du Lac Band of Lake Superior Chippewa while working near Mission Creek in the far western end of Duluth. Headlines blared, work stopped, and the agency apologized to angry Band members. After three years of excavation and reconstruction, the cemetery has been rebuilt and a memorial is under construction.

That kind of “incredibly horrific event,” in the words of then-MnDOT Commissioner Charles Zelle, may be less like to occur in the future, as federal, state and local agencies learn to consult and cooperate with tribal nations.

Tribes have been asking for better relationships for years. In the mid-1800s, when the Anishinaabe living in Michigan, Wisconsin and Minnesota signed treaties with the federal government, ceding huge swaths of land they had shared for many generations, they kept the right to continue traditional harvests on the land they were giving up. And the resources they relied on were legion, from fish and wildlife to the roots, bark, sap, and wood of many species of trees, to wild rice, and forest plants for medicine. The land provided everything they needed.

But for the most part the states ignored those parts of the treaties, and for more than 100 years state and county officials routinely threw tribal harvesters in jail for violating state game laws, until ultimately the federal courts upheld their rights.

In the 1980s, and occasionally continuing today, Wisconsin protesters disrupted traditional spearfishing at various boat landings with racist taunts, rock-throwing, and other violence.

Bradley Harrington was a child, a member of the Mille Lacs Band of Ojibwe, when similar issues played out in Minnesota. “I went to public school, and I was told I was going to get speared, or wrapped up in a net and thrown into the lake,” he recalls. “Back then tribal members were doing it in secret because the state was arresting them.” Harrington’s parents didn’t spear or net but “usually a member of the family partook and brought food back to the family. “

Harrington grew up to become Commissioner of Natural Resources for the Mille Lacs band. More recently he’s been named Director of Tribal Relations for Minnesota’s Department of Natural Resources. In his two-plus years on the job, he has presided over a re-write of the agency’s tribal consultation policy, including input from both tribes and DNR staff.

“There’s always going to be concerns, differences in perspective no matter where you go and what the issues are,” he says, “but how are those things are worked through is what we’re striving to answer.” He takes a long view of progress, noting that “things have gotten amazingly better over the last 100 years.” He’s aware of the ebb and flow of U.S. policy toward native nations and says this is a time for positive input.

Ideally, that can include an exchange of knowledge. “There’s an openness to receiving traditional ecological knowledge,” Harrington says. “The question is how will it be worked in. Most traditional knowledge is proven by western science by now anyway, and it’s really exciting to see how some (Minnesota DNR) staff are extremely interested in the information itself and in how it can be worked into current procedures, and into the general knowledge of the people of the DNR,” Harrington says.

A big shift

It’s a slow but dramatic shift from federal policies that prevailed from the colonial period through the 1970s. Those policies constituted a deliberate effort to quash Indigenous culture and force native people into the mainstream American world. Under the Dawes Act of 1887 the federal government broke up reservations by “allotting” land parcels to individual tribal members, holding them in trust for a period of years. When the trust period ended, the land was subject to state and local taxes, which led to massive dispossession. Also, the government declared non-allotted lands to be “surplus,” which opened them to homesteaders, resulting in today’s checkerboard pattern on many reservations. Another policy of this era was the forced relocation of children to government and church-run boarding schools, where they were forbidden to speak their language or practice their culture.

In the 1970s President Nixon declared a new era in which “the Indian future is determined by Indian acts and Indian decisions.” But the reality of that goal has been slow to come. Indian gaming has provided the resources to improve education in Indian country, and attitudes among non-Indians are changing. Baby boomer retirements in state government are helping; sometimes they result in old ideas being retired as well. As Tadd Johnson puts it, “The old school is stepping down, the new generation is stepping in.” Johnson most recently made the news when he was appointed as the first Native American member of the University of Minnesota Board of Regents. A member of the Bois Fort Band of Chippewa, Johnson is an attorney and expert on tribal law.

“During my 35-year career working for the tribes, I’ve seen the Feds more firmly asserting their trust responsibility to the tribes, but I’ve also seen states coming in, starting in the last 10 years, to try to understand tribal sovereignty, and I hope eventually counties and municipalities get there as well,” Johnson says.

Laws passed in the 1990s and later require the federal government to consult with tribes when it plans any action that might affect them.

More recently, states have been moving in the same direction. In Minnesota, following several executive orders, Gov. Tim Walz signed a law in 2021 affirming tribal sovereignty, requiring state agencies to appoint tribal-state liaisons, and mandating tribal-state relations training for state leaders and employees. Tribal liaisons are employed in full-time positions with state and federal agencies.

Levi Brown is the Tribal Liaison at MnDOT. He says the episode at Mission Creek prompted his agency to “reassess how we did business and ensure that we took everything going forward in a whole different manner.” Brown and Johnson administer an education program for state workers, which has reached nearly 5,000 people. The training starts with history and includes Anishinaabe culture. “People need to understand the history to see the path going forward,” says Brown, a member of the Leech Lake Band of Ojibwe. He is proud of how MnDOT consults with tribes now.

“We realized we couldn’t just rely on top levels; we had to work with boots on the ground,” he says. He has trained so many workers at all levels that the agency has created what he calls a “true partnership” with tribes. The key is communicating early in a project, he says. “We do projects that are miles long, so we have to engage folks living in that corridor, not just the elected leaders.” The more comprehensive training pays off, he says. “Tribal roads staff are very comfortable calling their district office with a problem on a certain road. They don’t need to call me, which would take longer to get a response.”

Consultation occurs between the Commissioner of Transportation and elected tribal officials. But cooperation and coordination occur up and down the bureaucracy. Regular meetings enable technical and field staff to identify issues and find solutions; final decisions are taken at the Commissioner/tribal governing body level.

It hasn’t been easy

On natural resource issues, collaboration would seem to be a no-brainer, especially in the northern part of the state where tribal, county, state and federal land are all mixed together in a crazy quilt pattern. But historically the non-tribal governments have had enough trouble communicating with each other, let alone paying attention to the tribes.

Steven Olson was Forest Manager at the Fond du Lac Band from 1981 to 2018. A non-tribal member, Olson says during his time the Minnesota DNR was “not very responsive at all” to tribal concerns. Repeatedly, the state agency bowed to pressure from the timber industry and legislators, cutting more wood and younger trees than the tribes would have preferred, and relying on a computer program to determine which stands should be offered for harvest.

Olson says one particularly problematic development was when the Minnesota DNR removed final decision-making over timber sales from regional foresters, concentrating control in St. Paul.

“We would get timber sale notices, and if we had concerns about specific stands, they’d say it’s too late; it’s on the plan,” Olson says. More recently, the state agency has reversed that policy and now requires local foresters to review planned cuts before they’re implemented. “Now there’s a field tour once a year for tribal and state staff, which helps ground-truth the plans,” he says.

Olson points out some of the complexities in managing one species—birch—which is a key species for the bands. This iconic northern tree provides the raw materials for food storage, artwork, shelter, and canoes, without killing the tree.

“After a clearcut, if you want birch to grow, you have to encourage it,” says Olson. “Aspen roots shoot out and jump ahead of other regenerating trees. Birch does better if the soil is scarified (prepared) after harvest. Containers and artwork can be made from relatively young trees, 30 to 50 years old. But canoes and shelter require older trees, 50 to 100 years old. The DNR’s harvest age of 40 doesn’t allow for birch to reach that size. Also, not all trees have bark that is good enough for these uses, so a lot of trees are needed.”

Even at the federal level, where consultation has been the rule for several years, there are bumps in the road. Juan Martinez is the tribal liaison at the Superior National Forest. He came from New Mexico, where his family has Indigenous roots. Martinez has set up a schedule of monthly meetings to discuss with the tribes all the projects that the Forest is considering. “Instead of developing a project (such as a timber harvest or prescribed burn) and then asking what they think, we ask them before it goes anywhere,” he says. “It probably takes longer that way, but we hope that’s just while we figure out the kinks. It’s difficult just to find a block of time when all the key people are free at the same time,” he says. For bigger-picture issues, the forest and the tribes hope to hold quarterly meetings.

Martinez appreciates the depth of culture of native people. Federal agencies understand the importance of special objects or places, he says, but the native people want to go deeper and understand the context. “We see this mark—it could be a stone point, a pot or tool or mark on a tree or evidence of historical use—that makes this place special, but they question: why is it there? Was that person on a spiritual journey, were they hunting, moving from one camp to another, fighting an enemy or whatever? There’s more to it than the artifact or the spot, and learning that is interesting to me and to other U.S. Forest Service employees too.”

One of the challenges is meshing federal policy with tribal preferences. For example, the Superior Forest gets funding for controlled burns based on how many acres are treated. It takes extensive work to plan and conduct a burn: to arrange for personnel and equipment, and to plan for contingencies. “It costs a lot of money, so we’re always trying to maximize the acreage we burn,” Martinez says. “But from the tribal standpoint, they’re not looking at big acres but at how a smaller fire is going to affect a smaller piece of the landscape in a way they want. Together we’re trying to figure out how to meet both of those needs.”

Both entities are trying to blend their separate objectives. “They want their children to be able to practice those traditions that they were supposed to be able to keep under the treaties. As people learn some of that history, they want to be helpful and not a hindrance to the process, I do believe,” Martinez says.

Deep learning

There is a lot for non-tribal land managers to learn. Tribal members have traditionally used a huge variety of forest species for various purposes, including medicines, construction materials, habitat for hunted animals, etc. These diverse products come from diverse forests, and that diversity is a sacred value for Indigenous people. The right to harvest in ceded territory implies the need to protect and manage the land in ways that ensure that the resources continue to thrive. This perspective was urged on the U.S. Forest Service by the Leech Lake Band of Ojibwe in 2016.

“Our chair sent a letter to the head of the Forest Service saying the federal government is not using its trust authority to good effect,” says the band’s forester, Keith Karnes. “Leech Lake Band members are suffering because they aren’t able to pursue their retained rights; they’ve lost some of that ability due to overharvest,” the letter continued. The result was a Memorandum of Understanding between the tribe and the Chippewa National Forest staff that prioritized the idea of co-management.

“I look at a lot of this forest as being broken, through all these years of management, or lack of management,” says Karnes. “(Non-tribal agencies) have been focusing on early succession, favoring pine and aspen, but I’m a huge believer in balance: all aspects of the forest need attention.”

Karnes’ approach includes thinning forest lands repeatedly to eventually produce bigger, older trees. “If you thin early and aggressively, you’ll get those majestic behemoths that were here before settlement,” he says.

He believes the logging industry has too much influence over standard forestry decision-making.

“Harvesting trees for paper and oriented strand board plants can’t be the only goal, he says. “We’re looking for a paradigm shift, where you’ve got to have the logging industry but merely as a means to an end, not as the end in itself. Our end is ecologic restoration: we want to get the forest healthy for all its inhabitants.”

The timber industry in Minnesota generally wants to maximize production, usually resulting in large-scale cuts of relatively young trees. Some deer hunters and hunting groups find that to their liking.

Karnes embodies a broader view. He acknowledges that deer and some other wildlife thrive in young aspen forests, but “everything in life is about balance … older forests provide habitat for fishers, lynx, and eagles. Some say those gigantic white pines are not doing their job until the top dies, and the eagle can sit on the top and look at the world.”

Even rabbits get his attention. With climate change, snowshoe hares sometimes turn white before the snow comes, making them more visible to predators. “We did a project to create connections between lowland cedar areas so they can get around better,” he says. “They’re running corridors for rabbits. If we’d brought this up 15 or 20 years ago, we would have been shot down in a New York minute.”

Tribal forest managers find value in every forest dweller, in contrast to standard modern forestry.

“A typical logger goes into the woods and sees three scraggly, crooked birch trees, so the agency says get rid of them. Three wrinkled goofy weathered birch trees, like three old guys sitting on a bench. Do we get rid of them? Supposedly they’re not productive, but we see it differently. Scrub oak is also regarded as junk, but it holds its leaves in winter, offering cover for hunters; it creates mast which feeds a lot of wildlife.”

Karnes appreciates the changes he’s seeing at some non-tribal agencies. “I think when the U.S.  Forest Service hires new people these days, they’re told that working with Leech Lake is part of what you do. The receptiveness of newer people has been a very noticeable change. It’s refreshing.”

St. Louis County

Even some county governments in Minnesota seem ready to embrace the idea of consultation. As an example, St. Louis County, which manages 900,000 acres of land, is in the process of updating its consultation policy.

“The bands are not just another stakeholder using the forest; they’re sovereign nations,” says Jason Meyer, deputy director of the county’s Lands and Minerals Department. “And the 1854 treaty covers a large part of what we manage, so it seems like an obvious step to talk with them.”

Just over a year ago, Meyer asked the Fond du Lac Band to evaluate the consultation the county and the band had been achieving. He says the county wanted to be a good neighbor, but it had another motive as well: the Sustainable Forestry Initiative, the non-profit organization that certifies the county’s land, was revising its guidelines. To achieve certification, landowners must show they are conserving healthy wildlife, providing clean water, and maintaining recreational benefits, among other important values. SFI’s revised standards include a new emphasis on improving relations with Indigenous people.

“As we talked with the band, we heard we shouldn’t just be notifying them of our plans; we should consult with them in advance, in front of the project so they can comment on any ideas or concerns,” says Meyer. “It might include more of a formal review of any sensitive sites that might not be on the state’s data base. And it should be far enough in advance so we can consider their ideas and concerns before any work is done on the ground.” Learning this prompted the county to share its timber management plans so the band could see what’s coming down the line in the next few years rather than months.

The county has also talked with the 1854 Treaty Authority, an inter-tribal agency that manages the off-reservation hunting, fishing and gathering rights of the Bois Forte and Grand Portage Bands of Lake Superior Chippewa in the lands ceded under the Treaty of 1854. Essentially, this is most of Northeastern Minnesota.

“We wanted to increase our knowledge about what that means, what rights tribes have on land we manage,” says Meyer. “These conversations help us understand the unique ideas and concerns the tribes have, but also help tribes understand our programs, what statutes and policies we’re under, so it’s a two-way street, and it’s been pretty productive,” he says.

An unusual opportunity to consult occurred recently when three thousand acres of former Potlatch land on the northern stretches of the St. Louis River was offered to the county. Meyer asked the band for its reaction. “They were very supportive,” he says. “Under our policy, it’s open for public access, and that makes it easier for tribes to exercise their treaty rights.” In the conversation, Meyer learned that the band was monitoring a wolf pack in the area.

The wolf is a key part of the creation story of the Anishinaabe (Ojibwe) people, and the band wants to manage wolves in a way that’s both culturally appropriate and biologically sound. The study is designed to understand the biology and ecology of wolves using the Fond du Lac Reservation and neighboring lands.

“I made sure we maintained access for that study, and now they share their research with me,” Meyer says.

Talking helps the county and the tribe discover what they have in common. “Not degrading land is a basic objective for both of us,” Meyer says. “We find that we might be able to modify some of our plans to meet other objectives as well: maybe smaller patch sizes, maybe reserving a certain species like maple. How can we enhance our projects to meet things they value?”

Meyer acknowledges that everybody is busy, and it’s sometimes a challenge to take the time to consider other points of view. “But just by making sure we prioritize these consultations, we’ve accomplished a major thing. We’re making sure it’s enough of a priority that we’re able to incorporate it into our normal work,” he says.

Improved relations between tribal and other governments will allow all of Minnesota to benefit from the holistic culture of the Anishinaabe people. Their worldview includes a commitment to protect nature for seven generations ahead and appreciation of the fact that all of life—humans, animals, and our shared environment—are interconnected.

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