Opinion: Treaties support tribes in Wisconsin mining debacle

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."