By Robert DesJarlait Introduction Today, there are several popular intertribal dances at the powwow, each with their own style of dance, style of outfit, and specific songs with each category. For men, the categories include Men’s Traditional, Grass Dance, and Fancy Dance; for women, Women’s Traditional, Jingle Dress, and Fancy Shawl. A new category of dance for men is the Chicken Dance. Many young people know very little about where these dances originated. For example, the Chicken Dance is usually attributed to the Crow. For the Crow, it was, and still is, a sacred dance. But in recent years, it has evolved into a popular intertribal dance category. The Bwaasiniimidin[1] (Grass Dance) has been around for many years. It is a pan-Indian dance category that is performed as contest and traditional powwows. Both the Men’s Traditional and Grass dance categories can trace their origins to a single source – the Omaha and Ponca Hethushka societies in the southern Plains. This short essay is an attempt to tell a history of Bwaasiniimidin and its dispersion among the Anishinaabeg. I’ve chosen to use the term - Bwaasiniimidin – as given by Michael A. Rynkiewich in his study, Chippewa Powwows. I War Dance and Warrior Traditions of the Anishinaabeg There are several origin stories for the Bwaasiniimidin. In one version, it is said that dancers would go out early in the morning and dance on the grass, creating a flattened area for the community powwow to be held later in the day. In another version, the yarn worn by grass dancers is said to represent grass swaying in the wind. These are stories shared by many tribes, including the Anishinaabeg. Powwow MC’s often recite the stories when introducing the grass dance category. But the origins of the Bwaasiniimidin go back to a time when there were significant changes occurring in tribal social structures. The changes in southern Plains warrior societies would affect similar warrior structures in northern tribes. A commonality shared among many North American warrior groups was the War Dance and Scalp Dance. Among the Anishinaabeg, war dances “were held every night from the time of the assembling of the warriors to their departure. At these dances the leading warriors related their deeds of valor, enacted former exploits, and sang their personal war songs.”[2] Upon their return, the warriors celebrated their victories in the scalp dance. The scalps “were presented to wives or mothers of men who had been killed by the enemy…the scalps were put in hoops set on poles.”[3] The women would dance with the scalp hoops in the scalp dance, although the warrior(s) who captured the scalp would dance with it to recount his exploit in a victory dance. Chippewa Scalp Dance, Paul Rindisbacher, 1826 Anishinaabeg warriors who displayed bravery and prowess in battle were honored with specific feathers and war badges, which, in turn, became a part of their regalia worn in war dances. Notched feathers indicated the killing and scalping of an enemy warrior; Unnotched feathers designated warriors who had scalped enemy warriors who had been killed by other warriors. Feathers were also awarded to warriors who had assisted in the scalping. Dots of rabbit fur indicated the number of bullets the warrior had in his gun at the time of the scalping.[4] Certain insignia were awarded to warriors who had touched the enemy. Skunk skins and fur were worn on arm badges or on the legs to indicate the manner of touching the enemy. Spiritual helpers protected Anishinaabeg warriors. These spiritual helpers were painted on their war drums, etched on war clubs, beaded, quillled or painted on their personal weaponry. Animals also provided protection for warriors. Weasels were worn on shirts because weasels were considered to be hunters and warriors. Kingfishers were worn around the neck because the kingfisher harassed stronger and larger birds than them, and when larger birds approached them, the kingfisher would rush out and meet them. If a kingfisher skin wasn’t available, one was made out of cloth and medicine was placed inside it. [5] Eagle feathers awarded to Anishinaabe Ogichidaag for war exploits, Bureau of American Ethnology Ogichidaa war badge, Bureau of American Ethnology Anishinaabe war club and warrior’s hand drum, Bureau of American Ethnology Ogichidaa war charm, Bureau of American Ethnology Ogichidaa war shirt with weasel skins, Bureau of American Ethnology Both the war dance and the scalp dance were non-secular dances – they weren’t social dances. However, changes began in the late 1840s and early 1850s that would bring the non-secular dances into the social dance. This new social dance complex – called the powwow – has its beginnings in the southern Plains. II The Hethushka The Anishinaabe warrior complex was not as highly structured as the Plains warrior societies. Anishinaabe war leaders were “distinguished for sound judgement and steadiness of purpose.”[6] The war leader had four men who assisted him; these men were called Oshkaabewisag. War ceremonies were performed on the four days preceding the departure of a war expedition. During these ceremonies, war dances were performed and war songs were sung. Plains warrior societies were structured along the lines of a military organization. Because warfare – with enemy tribes and the U.S. military – was a constant factor in the lives of Plains tribes, efficient warrior societies were developed to respond to threats to the tribe and villages. Plains warrior societies were highly organized with a hierarchy of officials who had specific roles and functions within the societies. Ceremonies were elaborate and complex. One of the distinguishing features of these societies were the four officers who wore crow belts – “feather bustles symbolizing crows flocking over a battlefield.”[7] The diminishment of warfare and the establishment of reservations ended the need for warrior societies. However, since warrior societies were such an integral part of Plains tribal life, the societies adapted to changes and developed into drum and dance societies. One of the most prominent and influential dance societies was the Hethushka of the Omaha and Ponca. “By the mid-1880s, the Hethushka developed as a secular version of the war dance…each [society had] their own songs, singers, and dancers. Hethushka dancers wore their warrior regalia, including roaches, scalps of opponents, and feather belts or bustles…as the dance became non-secularized, eagle feathers replaced crow feathers and braided sweetgrass replaced scalps.”[8] The dance spread throughout the Plains through barter and exchange. Various names were given to the dance – Hot Dance, Chicken Dance, Crow Dance. The most popular term was the War Dance. The regalia for war dancers not only included a bustle on the backside, but also small bustles were often worn on the arms. This would eventually develop into the Fancy Dance or Fancy Feather Dance. Among Oklahoma tribes, the dance developed into the Southern Straight Dance. The most distinguishing feature of Southern Straight dancers was the absence of the bustle. This was because the U.S. government mandated the dancers to turn in their bustles because the government believed the use of feathers from dead birds would spread disease. The bustles were put into piles and burned.[9] The dance spread northward to northern Plains tribes and Woodland tribes. “Even though the particular traits accepted by each tribe varied, each ceremonial association being organized differently, the theme of war as well as a particular type of drumming, singing, and dancing persisted as common traits.”[10] The Lakota/Dakota called it the Omaha Dance, in reference to its point of origin, or the Grass Dance, in reference to the braided sweetgrass that had replaced scalps. Northern Plains dancers who had adapted the dance incorporated their own warrior regalia. From the time of its inception among the northern Plains in the 1870s to the early 1900s, there were no particular regalia that distinguished northern Plains grass dancers. There is no clear, distinguishable point when the northern style grass dance separated into two specific dance styles. Judging from photographs, the best estimate is the separation occurred in the 1930s-1940s. The grass dance formally developed into a style dance in which the regalia emphasized the war shirt. The weasel skins formerly worn on war shirts were replaced with yarn; yarn was also used on the dancer’s leggings. Bustled grass dancers who maintain the wearing of eagle feather bustles were invariably referred to as War Dancers. By the 1960s, this term would be replaced with the dance style that it is known by today – Men’s Traditional Dance. Hidatsa grass dancers, Edward Goodbird, 1914 III Development of the Bwaasiniimidin among the Anishinaabe The dispersion of the Bwaasiniimidin among the Anishinaabe occurred at Red Lake in the 1860s. The dance was given the Red Lake Anishinaabe as a gift to establish peace between the Dakota and Ojibwe. Thereafter, powwows became an integral part of Red Lake life with annual powwows at the town of Red Lake and Obaashing (Ponemah). Red Lakers referred to the dance as the Sioux Dance, in reference to the tribe from whom they had obtained the dance. Upon the acceptance of the dance, the Red Lake band had the right to pass the dance to other Anishinaabe bands. Photographs from the early 1900s reveal that Ojibwe powwows incorporated older dance forms while integrating newer dance forms. There was an integration of the Woman's Dance (which would later develop into the Two-Step) and the Round Dance. These two dances were the original social dances of the Anishinaabeg. In general, men and women danced together at dance gatherings. Women danced in their ziibaaska`iganagoodayan (jingle dresses). Men, on the other hand, chose one of two different dance styles and the regalia associated with those styles. There was the War Dance regalia and dance associated with the Bwaasiniimidin, i.e., the "modern" form of the war dance. Other men chose to wear regalia associated with the Nandobaniishimowin. This was the traditional war dance complex that long preceded the Bwaasiniimidin. The regalia itself replaced the original medium of quillwork and incorporated the newly emerging medium of beads. Hence, men wore vests/yokes, leggings, aprons, and bandolier bags marked by Woodland floral motifs and designs. By the late 1920s-early 1930s, a more formal category developed - the men's grass dance with its attendant regalia that we associate the grass dance with today. War Dance at Obaashing, 1910, Minnesota Historical Society Scalp Dance at White Earth, 1910 Minnesota Historical Society Another dance in which both men and women participated in was the secular scalp dance. The dance was performed at Red Lake and White Earth powwows in the early 1900s. However, reservation authorities, under BIA policies, eventually banned the dance because of its association with war. Like their northern Plains neighbors, dancers wore bustled or non-bustle regalia. The wearing of bustles, or eagle feather belts, predates the incorporation of the Bwaasiniimidin in Anishinaabe dance culture. A drawing by George Catlin clearly depicts Anishinaabe warriors wearing feathered bustles. The drawing is from a dance exhibit performed by the Anishinaabe for the Queen of England in 1856, an event that Catlin arranged and attended. Ojibwe performing before Queen Victoria in London 1843, George Catlin The regalia of non-bustled Anishinaabe grass dancers were particularly distinguishable by the back breechcloth. These breechcloths were covered with chevron strips of various colors. Dancers also wore colored feather fluffs attached to their sleeves, chest, and their trousers. In addition, they wore two long beaded bands that hung over their shoulders and down the front of their shirts. This particular style of regalia became extremely popular among Red Lake dancers. Another important change in dancing in the 1930s and 1940s was the merging of the various styles of dance. Grass dancers, war dancers, and jingle dress danced together. To this extent, the powwow, as it was termed, became a new kind of social dance among the Anishinaabeg. The 1950s and early 1960s saw another significant change in grass dance regalia. This was the use of yarn. According to Louie Boyd, a renowned grass dancer, it is a fable that the yarn of a grass dancer’s outfit represents grass. “Grass dancers represent warriors. [Traditional] fringed war shirt and leggings form the basis of the grass dance outfit.”[11] The emergence of the contest powwow brought changes to the grass dance. Today, there are two categories for the grass dance – contemporary grass dance and old style grass dance. According to Boyd, “Old style is slow and delivered. You go through maybe twenty beats of the drum to deliver movement on each side. You move your shoulders first, and then bring the movement down to your foot. Then you repeat the movements with the other side of your body. In the new style grass dance, everything is fast…the main difference between old and new is simplicity and complexity. Old style is simple, slow controlled movement. New style is fast, with complex foot and hip movements.”[12] Two old style grass dancers: Louie Boyd (Leech Lake Anishinaabe) and Johnny Smith (Red Lake Anishinaabe - Photo by Joe Marcel Thunder) Conclusion “The grass dance represents continuity and change in the powwow.”[13] The continuity of the grass dance can be seen in its regalia. The old war shirts fringed with weasel skins that were worn by Anishinaabe warriors can be seen in the yarn of modern-day grass dancers. The regalia worn today connects us to our past. But there have also been changes. grass dance outfits – especially those of contest dancers – have become more colorful and elaborate. For some dancers, ribbons have replaced yarn. And the new style of grass dance that Louie Boyd talks about is much more different than the old style of dancing. Although the new style became popular in the 1990s and basically overtook the old style, the old style dancers continued to dance their slow and controlled movements. Their forbearance paid off. Today the old style grass dance is recognized as a separate category at contest powwows. And it is the old style that represents the spirit of Bwaasiniimidin The fables and misconceptions of the origins of the grass dance have diminished its history. But there are those Anishinaabe grass dancers, who are elders now, who remember its history and who help to remember that history. Through them, the grass dance provides us with a look into our past and helps to reaffirm our identities as Anishinaabe people. Works Cited:
© 2017, All Rights Reserved, Robert DesJarlait
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by Robert DesJarlait(Note - This article was originally published in 1999 on my website Ojibwe-Anishinaabe Biidaajimo. It was slightly edited and revised for publication on Anishinaabe Perspectives. Although 17 years have passed since its initial publication, very little has changed regarding the appropriation of Native spirituality. The Internet continues to be a platform for Memorex shamans and the false teachings that they expound on the unwary.) Cyberspace has become a breeding ground for the appropriation of Native American cultures and belief systems. Like faceless witchers, Memorex shamans and wannabes permeate cyberspace with an endless assault in the theft of Indian spirituality. In the quest for racial harmony, they have focused on the stereotype of the "noble red man" to give meaning to their lives. They claim to be Indian - not because they are Indian - but they are Indian by virtue of a connection to Indigenous spirit. In other words, to them being Indian is not because of a racial or cultural connection but rather a state of mind. Memorex shake and bake shamans are largely composed of individuals who are not Native American. They are not enrolled members of any tribe. Most often, they claim either Metis or Cherokee heritage as their tribal backgrounds. The Cherokee tribe is chosen since members can claim membership via Certified Degree of Indian Blood 2 cards (CDIB) based on lineal descent. Such a card does not make one an Native; it merely indicates that a person has an Native relative far down the descent line. Some individuals claim lineage to so-called "unrecognized" Cherokee bands. Because these bands are unrecognized and band/tribal rolls are non-existent or in disarray, these bands are often prey to those who wish to claim Native descendants. On the other hand, the Metis is not a tribe in the sense that the term implies. Historically, the Metis was a Canadian ethnic community entity composed of French, Ojibwe, and Cree with individuals mixed through intermarriage. Today, the term has been given a general application and is used by individuals who claim Native American ancestry in the United States. The best example of this is the so-called Southern Metis found in southern and eastern states. It is not unusual to find individuals who claim to be Choctaw Metis, Cherokee Metis, or Shawnee Metis. In reality, no such distinction exists since the Metis were, and are, specifically a Canadian ethnic group who continue to maintain a presence in Canada. Shake and bake shamans profess the "right" to practice and teach Native American customs and ceremonies. To a large extent, shake and bake shamans are akin to cult leaders. They develop a superficial philosophical base of Native American knowledge - usually centered on the Medicine Wheel - and support their livelihoods and egos by writing books and by staging, for a price, ceremonies and healing rituals like the Sun Dance and the sweat lodge. Many develop programs through which disciples ascend through degrees. The more successful shake and bake shamans have retreat centers that charge extravagant sums of money to attend. The world view of Memorex shamans often incorporates elements of mysticism, extra-terrestrials a la Von Daniken, Atlantis a la Cayce, Mayan pyramids, Hindu beliefs, Buddhism, paganism, Wiccan, and just about anything associated with esoteric belief systems. One of the familiar features of shake and bake shaman websites is the effort to generate income through books, videos, tapes, and herbal remedies. Brooke Medicine Eagle is one of the most well-known Memorex shamans. Medicine Eagle's website informs the viewer that she is a Native American wisdom teacher, ceremonial leader, and sacred ecologist. She not only offers books and herbs; she literally begs the reader for money. How odd since Medicine Eagle has made money for the books she has written at the expense of Native people. Yet, as she writes on her website, because of her devotion to "create a beautiful world for All Our Relations," Medicine Eagle asks for monetary donations - Contributor, $10 to $75; Supporter, $100 to $499; Sponsor, $500 to $999; Benefactor, $1000 to $9,999; and, Angel, above $10,000. Medicine Eagle's website states: "Her beauty way awakens physical and spiritual health, offers Native American music and chants, promotes ritual honoring Earth cycles, provides women's mystery teachings, and creates a sustainable, holy path for two-legged to walk. Her dedication is to bringing forward the ancient truths concerning how to live a fully human life in harmony with All Our Relations." Medicine Eagle is an articulate writer who justifies her appropriation of Indian traditions through words. She writes: "There a whole category of things that many people label as 'Indian,' that are simply the ways of the land, the truth of how the earth works. They may have been originally practiced by native peoples, but there can be no patent on those ways, because if we are going to have a world that is workable for human beings, and sustainable systems, we all need to learn and practice those Earth ways...I believe that the truly profound teachings of humanity go beyond race and any specific spiritual practice or philosophy." "I have a Celtic ancestry, too, and I know that the Irish and Scots were the 'Indians' of Europe...a shamanic practice can begin to emerge through this communication, no matter who you are, because when you start to drop back into your ancestors, as soon as you go beyond the human, you're immediately regressed into the mammalian, into coyote, bear, wolf, buffalo, and you're experiencing those energies that are now identified so strongly in people's minds as 'Indian.'" Robert Ghost Wolf (Robert Andrew Franzone - AKA Robert Wolfe, Bobby Wolfe, Robert Parry) has become a legend in his own mind. He picks up where Sun Bear left off and has taken shake and bake shamanism to its extremes. He claims to be of mixed heritage; Metis in his own words. Ghost Wolf is very articulate. Listen to his words: "If there is a definition for 'Indian,' it has to do with realizing self and owning our inter-relationship with the living world around us. It has to do with realizing your relationship to Great Spirit, and Mother Earth, and all the life forms that are part of her dreams. It has to do with being one with self, with accepting one's self, with empowering one's self...perhaps that is what we mean when we try to apply the term Indian to perception." This is what Ghost Wolf writes concerning the justifying of using and practicing Indian traditions and ceremonies: "We could never be Indian like the old ones we hear talked about in the legends. Not even many real Indians can do that. What we consider the old days are a time that is no longer on this plane. It is past; it is behind us...it is not a path of power to walk through this life with our heads turned backwards; we only trip over what is in front of us. We will never get where we are going. At best, we'll stay safe, stuck in the rut of going nowhere, accomplishing nothing, just going round and round on the merry-go-round...people insist on returning to a way of life that leads them from one dead end to another...most people prefer their addiction to ignorance...how many 'Indians' have I met who do not know the spiritual ways of their own people?...I have seen whole tribes that have lost the way, even their language." "Let us create a new terminology for the sake of identity - Neo-Indigenous People, a new and different form of indigenous people, those who are of the Earth, the Earth Keepers. No one people or race has the exclusive territorial rights over Sacred." Ghost Wolf's website offers memberships that allow members access to private areas on the site. Membership include Feather membership, limited one year membership, $100; Wing membership, full three year membership, $250; and, Eagle membership, lifetime membership, $500. Robert Ghost Wolf and Brooke Medicine Eagle epitomize the greed and egotism of New Age shamanism. They profess to possess Indian wisdom, yet, only for a price, will they dispense with their so-called wisdom. They have appropriated Indian traditions and ceremonies because "no one people or race has exclusive..rights" or "the teachings...go beyond race." They are the decadence that permeates cyberspace, and the real world, with a twisted brand of racism; a racism that denies Indian people today their rightful place with their own ceremonies and traditions. Ghost Wolf and Medicine Eagle have taken the genocide much further; they have sought to steal the heart and soul of Indian cultures. Cyberspace provides an opportunity for Memorex shaman and wannabes alike. One does not have to show a tribal ID or CDIB card. One can become something they are not because they cannot be seen. In cyberspace, it is easy to sit behind a computer, obtain a website, and offer knowledge and/or herbs for healing. And almost every single one of these sites will have posted somewhere the phrase of the wannabe - Mitakuye Oyasin (All My Relations). The sites will have impressive Native graphics. There will be a philosophical saying to greet the visitor. And if the visitor scrolls down, he/she will find that the real motivation of the website is appropriated wisdom in the shape of books, tapes and/or herbs that promise to heal the inner soul. Want to learn how to smudge? You can find it on the Internet. Need the sage to smudge with? You can buy it on the Internet. Got cancer? Then perhaps you need to smudge yourself with sage grown on Mt. Shasta. Buy a Taos drum and a Memorex shaman will sell you CDs so you can chant with the heavenly spirits. Need a spirit animal helper? Got just the tape for you for only $39.95. Want a ceremonial? No problem; only $300 for a sweat or a Ghost Dance and $500 for a Sun Dance - Visa and MasterCard accepted. In the Seven Fires Prophecies of my people, the Ojibwe-Anishinaabe, it is said that there will appear amongst us many false prophets. The false messages of these prophets will cause disruption and confusion. These false prophets will lead many astray. But, it is said, a time will come when people will turn to the elders, the old people, and they will ask in a respectful manner and they will learn. The elders, the old people, are there waiting and they want to teach. However, not all teachings are attainable to all people. Those who are Ojibwe-Anishinaabe can fully learn those ways. By knowing their clans, they can enter the Midewiwin Lodge and assume their rightful role in the Lodge. Those who of the Light-Skinned Race can only partially learn some of our ways. They can gain some knowledge and some wisdom. But the Lodge is closed and will always be closed to them. Because they do not know their clans. One can read books about clans; one can chant, in a fevered mind, a clan animal into existence. One can go to Ghost Wolf, Medicine Eagle or any one of the many false prophets and, for a price, attain a clan animal. But it is only a false clan animal. A false clan animal will not get you into the Lodge. What does it mean to be Native? You will never know. All the books, all the tapes, all the false prophets and Memorex shamans will never make you a Native. Being Native is not a state of mind. Being Native is the sum total existence of a race of people who have been here on Turtle Island for 40,000 years or more. It is like the old people say - we have always been here. Being Native is a collective tribal consciousness shared and passed on through the eons of time. Being Native is to know the genocide that has been, and continues to be, committed against us. We are the sons and daughters of our brothers and sisters who were murdered at Sand Creek, Washita River, Wounded Knee. The Trail of Tears is a trail that we, the people of Turtle Island, have all walked. We share these things in commonality because of the theft of our lands, because of forced assimilation, because of the racism and prejudice that was, and continues to be, directed against us. We are not "noble" nor "savage" - we are merely survivors. Being Native is much more than integrating Native belief systems into one's non-Native life. All the books, all the tapes, all the false prophets and Memorex shamans will never make you a Native. You can never know. In 1980, 5th Annual Meeting of the Tradition Elders Circle passed a resolution. In part, the resolution reads: “It has been brought to the attention of the Elders and their representatives in Council that various individuals are moving about this Great Turtle Island and across the great waters to foreign soil, purporting to be spiritual leaders. They carry pipes and other objects sacred to the Red Nations, the indigenous people of the western hemisphere. “These individuals are gathering non-Indian people as followers who believe they are receiving instructions of the original people. We, the Elders and our representatives sitting in Council, give warning to these non-Indian followers that it is our understanding this is not a proper process, that the authority to carry these sacred objects is given by the people, and the purpose and procedure is specific to time and the needs of the people.” In 1993, the Lakota Summit V, the Lakota, Dakota and Nakota Nations unanimously passed a Declaration of War Against Exploiters of Lakota Spirituality. The first point of the seven point resolution states: “1. We hereby and henceforth declare war against all persons who persist in exploiting, abusing, and misrepresenting the sacred traditions and spiritual practices of the Lakota, Dakota and Nakota people.” Both of these resolutions were passed before the proliferation of online Memorex shaman sites. In 1980, the Internet didn’t exist. The 1980 Elders Circle resolution doesn’t specifically mention New Age shamanism, but obviously the appropriation of ceremonies by non-Natives and unqualified Native practitioners was such a great concern at that time that the Elders Circle issued their resolution. The Internet was publically launched in 1991 but didn’t become generally available until 1993 when the first browsers were introduced. Thus, the Lakota Summit resolution, passed in 1993, wasn’t a response to online appropriation, although the resolution specifically mentions the “New Age Movement.” Indeed, both resolutions foreshadow the proliferation of online Memorex shaman sites that began in the mid-1990s and were rampant by 1999. The exploitation of our ceremonies and spiritual life continues unabated in cyberspace. It is to these ends that Indigenous people must remain vigilant and expose the frauds wherever they are found. © 1999, Robert DesJarlaitA History of the Bimoojiganan I They are sailing on the breeze My feathers ~ War Song by Odjib’we Niimi`idiwin (The Powwow). We are all familiar with it. We grow up with it, and we participate in it as dancers, singers or spectators. For many of us, it is one of the constants in our lives as Ojibwe-Anishinaabe people - from the time we enter the Land of the Living to the time we return homeward to the Spirit World. It connects us to our ancestors, for whom dance was the expression of their soul-spirits made visible and whose traditions teach us that dance extends beyond one's life to the Spirit World, where the jichaagwag (soul-spirits) of all our relatives are made visible by the shimmering lights of their auras as they dance in the northern night skies. Indeed, the stories of our elders tell us that our very creation as Ojibwe-Anishinaabe people is rooted in dance and song. The dance circle with dancers in regalia dancing to songs is ancient, and it is a commonality that we share with many other tribal nations, including indigenous people worldwide. Through dance and song we maintain a fundamental part of our connection to Ashkaakamigokwe (Mother Earth). Dance among the Ojibwe-Anishinaabe dates back to the time when the Ojibwe were a part of the Anishinaabe (Woodland) nation and lived on the shores of the Great Salt Waters (the Atlantic Ocean). Dance had always been a vital societal function in Anishinaabe society. Dance sustained and imbued the individual with identity and personal meaning. Anishinaabe dance heritage was an elemental one, one that reached back to the dawn of humankind when Anishinaaba (Original Man), who could not walk or crawl, took his first two steps with his right foot on Ashkaakamigokwe. This became the dance step used for Anishinaabe dance. There were a number of dances that Ojibwe villages engaged in. Dances included the Bear Dance, the Eagle Dance, and the Discovery Dance among others. The Beggar’s Dance and the Woman’s Dance (often referred to as the Squaw Dance) were social dances. Dances related to the Midewewin were held in the spring and fall. But the dance that received the most attention by ethnographers, explorers, writers was the war dance. War dancing was widespread among many tribes across Turtle Island, and there were similarities in war dancing. The Scalp/Victory Dance were part of the dance complex generally referred to as the War Dance. The origin and point of diffusion is unknown. Among the Ojibwe-Anishinaabe Ogichidaag (warriors), this old form of war dance was called Nandobaniishimowin. The name was derived from the term Nandobaniiwin, meaning warfare. Although the Ojibwe did not have warrior societies that paralleled the tightly structured Plains warrior societies, there was nevertheless a structure for activities related to warfare. “The Anishinaabe did not perceive war as a constant or even a long-term state, and as a result, permanent war leaders [Mayosewininiwag] were unnecessary…A mayosewinini had only limited authority, and his power was determined largely by the number of warriors who followed him for the duration of the crisis…Mayosewininiwag who consistently demonstrated combined military and spiritual power by wining battles and honors while incurring few or no casualties gained in influence.” Ojibwe “warrior societies had their own identifiable leaders, ceremonies, and prescribed rights for the group that cut across kin and village lines”. It was “restricted to the men who had won war honors.”1 The Ojibwe war dance complex consisted of several interconnected dances. Departure dances were held during the period when the war party was assembled and organized. Once on the war path, dances were held nightly until the area for engagement was reached. If the engagement was successful, the warriors composed songs of their deeds and valor they had achieved during the engagement. They would sing these songs and reenact their deeds through dance at the Victory/Scalp Dance that was held in their home village. Dancing by warriors was held regularly throughout the spring and summer as a part of village gatherings. The Striking-the-Pole Dance was a common feature at communal dances in which warriors struck a center pole and then sang and danced of their deeds in war. This particular dance was also performed for visiting government dignitaries and missionaries. William Warren described a nandobaniishimo in held in the early 1700s: “On occasions of this nature, the warriors work themselves by hard dancing, yelling, and various contortions of the body…” Actions and deeds on the battlefield were “boasted of in their triumphal dances and warlike festivities.” Ogichidaag gathered in the spring and summer “to engage in festivities and dances, during which the events and exploits of past years are sung and recited; and while they derive fresh courage and stimulus to renewed exertion, the young, who are listeners, learn to emulate their fathers and take their earliest lessons in the art of war.”2 Regarding the customs of the Ogichidaag, Warren wrote: “This customary procedure on the eve of the an attack or battle, being performed, the warriors grasped their medicine bags, and hurriedly adorned their faces and naked bodies with war paint, those that earned them planted the eagle plumes on their headdress, which denoted enemies they had slain or scalps taken and…charms of supposed invulnerability were attached to different portions of their headdress, armlets, or belts.”3 Odjib’we provided information on Ogichidaag customs, regalia, songs, and dances. Regarding the Victory Dance, Odjib’we said: “On returning, a victorious war party sent runners in advance to carry news of their approach, and preparations for a suitable reception were begun at once. Meantime, the warriors made their last camp before reaching home; here they rehearsed the songs concerning the victory and arrayed themselves in their finest apparel. As they approached the village…the women came out to meet them. One woman led the party, to whom were given the scalps taken by the warriors. Then the women led the procession, the scalp bearers in advance, waving the scalps and singing. After the party reached the village preparations for the victory dance were begun. The [scalp] poles were stuck in the ground beside the pile of food, and the feast was called ‘feasting the Sioux.’ In response this song [the Gift Song] the warriors rose and danced, singing of what they had done on the warpath. Gifts were distributed to all the people by members of the warrior’s clan. The next event was the victory dance, which often continued until daylight, by the light of torches and bonfires. At the conclusion of these dances, the scalps were carefully wrapped until the next dance. [T]hey were sent to another village, where similar dances were held.”4 In preparation for a visit by Washington officials, Johann Georg Kohl wrote: “According to traditional custom, the pipe of peace passed from tent to tent…among the warriors. When each had smoked, the procession started, and marched with drums beating, fluttering feather flags…through the village, to the open space before the old fort of North-West Company. Here they put up a wooden post, and close to it their war-flag, after which the dances, speeches, and songs began. A circle was formed of brown-skinned dancers, with the musicians and singers in the middle. To the music, the warriors hopped around in a circle, shaking the otter, fox, and beaver tails attached to their arms and heads. At times the singing and dancing was interrupted: with flying hair and skins a warrior walked into the circle, raised his tomahawk, and struck the post a smart blow, as a signal that he was going to describe his warrior deeds.”5 Henry Schoolcraft wrote: “This ceremony, together with what is called striking the post, was performed during our stay. The warriors, arrayed for war, danced in a circle to the music of their drum and rattles. After making a fixed number of revolutions, they stopped simultaneously and uttered a sharp war yell. A man then stepped out, and raising his club and striking a pole at the center, related a personal exploit in war. The dance was then resumed, and terminated in like manner by yells, when another warrior related his exploits. This was repeated as long as there were exploits to tell…”6 The diffusion of the Bwaanzhii-niimi`idiwin occurred at Miskwaagamiiwi-zaaga`igan, Red Lake, in the late 1850s after Red Lake and the Dakota made peace. “There they were; as far as I know, there was no Grass Dance [Bwaanzhii-niimi`idiwin] at that time [i.e., the peace negotiations]. The peace pipe was there, and they used it to make peace. Now the next year, or not too long after that, the [Red Lake] Indians returned the visit to the Dakotas, and everything went all right. Now comes the powwow. I don’t know the exact time, but it wasn’t far away, that the Sioux came again and gave the Chippewa the Grass Dance. It was one they could do all the time. Now, the Chippewa were told, ‘This dance is given to the Chippewa. You have the right to give this dance to any other group of people you wish, and they will have the privilege to pass it on to any group.’ The Chippewa were told if anything new comes in, they will get it.”7 Francis Densmore not only provided a timeline but also a detailed description of the bimoojiganan (bustles): “He was elaborately attired and as a badge of his office wore a garment received from the Sioux, called by them wami’hina’ka. The writer had seen a similar garment worn by Teton Sioux in their social dances and also by the Chippewa at Leech Lake, Minnesota, July 4, 1910, who said they received it many years ago from the Sioux. This garment consists of a piece of cloth about 18 inches wide and 40 inches long, on which feathers are closely sewed, being lightly fastened by the quills, so that they move with every motion of the wearer. The garment, which is attached to a belt, hangs behind the wearer, reaching to his ankles….It was stated that the ceremony [the Dog Feast] had been received from the Sioux and that the feather garments worn by the four leaders were given to the Chippewa by the Sioux about fifty years ago.”8 Densmore’s account places the bustle in Leech Lake in the early 1860s. The development of the Bwaanzhii-niimi’idiwin from 1860s to the turn of the nineteenth century marked a changeover period, in which the war dance made the transition from the traditional pre-Conquest period to the modern era, albeit with changes. The older form of war dance, Nandobaniishimowin, was replaced by a newer form of war dance, Bwaanzhii-niimi’idiwin. Bwaanzhii-niimi’idiwin was different in that Nandobaniishimowin, i.e., the old war dance, was essentially non-secular, while the Bwaanzhii-niimi’idiwin was secular. Under the old war dance complex, the warriors, their clans, and their village took part in the ceremonial aspects of the war dance. War dance activities were predicated on warfare. With the ending of conflicts with the Dakota, the old war dance diminished in form and meaning. Warfare was no longer an integral part of warrior life. The establishment of reservations, from the 1840s and onward, led to a further erosion of traditional life. The arrival of the Bwaanzhii-niimi’idiwin allowed for the continuation of certain aspects of the old war dance, albeit with changes. The primary change was that the war dance became a public dance that became a part of the dance complex we have today – Niimi’idiwin (the Powwow). The introduction of the Bwaanzhii-niimi’idiwin was a new element in the Ogichidaag dance complex. The Bwaanzhii-niimi`idiwin introduced large kettle and bass drums; this was a significant change from the use of hand drums. Also, Ogichidaag war regalia and adornments became codified as part of the new war dance, which also included adaptions from the Bwaanag (Dakota). Whether that included bustles is a matter of conjecture. There are indications that Ogichidaag had certain types of bustles before the arrival of the Bwaanzhii-niimi`idiwin. What has been referred to as early Woodland style bustles were composed of a trailer covered with predator feathers with or without two spike feathers. George Catlin painted Ojibwe dancers that depict Woodland type bustles. One painting, Four Dancers (1843-44), shows four Ojibwe dancers wearing bustles. A drawing, Ojibwa dancers performing before Queen Victoria (1843, engraved in 1848), depicts two Ojibwe dancers wearing bustles. The dates of the painting and drawing predate the diffusion of the Bwaanzhii-niimi’idiwin among the Ojibwe. In this regard, the dancers were wearing regalia associated with the older form of war dancing, Nandobaniishimowin. Although the Dakota brought the Bwaanzhii-niimi’idiwin to the Ojibwe, they were not the originators of the dance. Just as the Ojibwe referred to the tribe that they had received the dance from, the Dakota and Lakota also referred to the tribe from whom they had received the dance – the Omaha Wacipi or Grass Dance. Four Dancers, George Catlin, (1843-44) Ojibwa dancers performing before Queen Victoria in London, George Catlin, Drawing, 1843. Engraving, 1848. Boy Chief, Ojibbeway, George Catlin, 1845. Boy Chief was one of eleven Ojibwe who traveled to Paris with Catlin and danced before King Louis Philippe. Au-nim-muck-kwa-um, Tempest Bird, George Catlin, 1845. He traveled to Paris with the Ojibwe group. Say-say-gon, Hail Storm, George Catlin, 1845. He traveled to Paris with the Ojibwe group. Odjib'we, Frances Densmore's informant on ogichidaag customs, attired in his ogichidaag regalia; Photo by Francis Densmore, 1908 II A war bird Who looked upon me ~ War Song by Odjib’we The origin of Men’s Traditional Dance can be traced back to the Hethushka that developed among Omaha and Ponca warrior societies in the early 1820s. By the mid-1800s, the Hethushka dance developed as a non-secular version of the war dance. The Hethushka were basically drum and dance societies, each with their own songs, singers, and dancers. Hethushka dancers wore their warrior regalia, including roaches, scalps of opponents represented by braids of sweet grass, eagle bone whistles, and feather belts or bustles. Alice C. Fletcher wrote: “The Hae-thu-ska Society of the Omahas probably originated in that tribe, at least as to its present form. So ancient are these people, and during the centuries they have touched and been affected by so many other groups, that it would be unsafe to say that any particular society or any particular custom was exclusively developed and maintained by this or any one tribe. The guesses at the meaning of the name Hae-thu-ska are still only guesses, so that little if any clue can thus be gained as to the origin of the society “The society had its peculiar regalia. The members cut their hair close on each side of their head, and left a tuft a few inches wide, extending from the forehead to back of the crown, where it met the scalp-lock. No clothing was worn except the breech-cloth, and at the back a long bunch of grass was fastened in the belt. Each man painted in accordance with the directions given him when he passed through the ceremonies of receiving his honors at the Tent of War. The Leader, and other men distinguished for their skill and success in war, wore an ornament called Ka-hae, or crow. This was made of two sticks like arrow shafts, painted green, and feathered, like the stems of the fellowship pipes, with feathers of the buzzard; tufts of crow plumage and long pendants reaching nearly to the ground, made of crow feathers, completed this ornament, which was worn at the back fastened to the belt, the two shafts rising to the man’s shoulder blades. The men wearing the Ka-hae; painted the front of their bodies and their arms and legs with daubs of black; their faces and backs were completely covered with black paint, but on their backs, white spots were put on the black color. Comparatively few men attained sufficient eminence as warriors to wear the Ka-hae and paint themselves in this manner. The blackened face and dappled limbs and front were emblematic of the thunder clouds and their destructive power as they advance over the heavens, even as the warrior approaches his victim dealing his death-darts. The blackened back with its white spots indicated the dead body of the enemy, which the birds were busy pecking, leaving their droppings as they tore away the fast-decaying flesh. The crow was worn, as it was said to be the first to find a corpse, and later was joined by other birds of prey. The tuft of grass worn by all the members of the Hae-thu-ska bore a twofold signification: it represented the tail of the Me-ka-thu, or wolf, the animal closely allied to the warrior, and it also symbolized the scalp of the vanquished enemy.”9 “No clothing except the breechcloth was worn by the members and a long bunch of grass representing scalps the wearer had taken was fastened to the belt at the back. “Later, but how long ago it is now impossible to ascertain, the members entitled to wear the scalps, substituted therefor the bunch of long grass. In time this decoration became part of the Hethu’shka dress or regalia and as such was worn by all the members without regard to personal achievements. When the ‘dance’ became known to the Dakota tribes and the Winnebago, the significance of the bunch of long grass having been forgotten, they gave the name ‘Grass dance,’ or the ‘Omaha dance,’ the latter name in recognition of the tribe from which the ‘dance’ had been obtained."10 “The Yanktons, a branch of the Dakota group, were old friends of the Omahas; visits have been exchanged between the tribes for several generations. The Yanktons adopted the Hae-thu-ska, but did not call it by that name; they give it the descriptive title of ‘The Omaha Dance,’ or ‘The Grass Dance,’ the latter name referring to the tuft of grass worn at the belt. "Meanwhile, through the medium of the Dakotas the Hae-thu-ska, under the name of "The Omaha" or "Grass Dance," spread to other branches of the Sioux and also to the Winnebago Indians; the modified Omaha songs and some of the Dakota music were taken with the dance. "I have witnessed this dance among several branches of the Dakotas, as well as the Winnebagos and Omahas, and am familiar with the music of these tribes as well as that of the Pawnee, loway, and Otoe Hae-thu-ska songs. Between the Omaha, Ioway, Otoe, and Pawnee songs there seems to be a unity of conception and of purpose; the music carries the story, and belongs to the dramatic dance. The songs of the Dakota and Winnebago do not partake of this character. The society among these tribes has lost its old significance; the decorations have changed, and the meaning of some of the ancient symbols is forgotten; even the dancing does not reproduce the vivid picture of personal hazards in war. There are many signs of transplanting rather than of an indigenous growth in the dance as seen in these latter tribes. It is social rather than historical, and, while full of spirit, it does not rouse within the dancer or spectator ancestral pride, as it cannot fail to do among the Omahas, where the songs recall the ancient prowess of the people."11 Fletcher’s conclusion provides insight into the changes that were occurring as the Omaha Dance spread to other tribes. Initially, the Omaha Crow/Feather Belt consisted of a trailer covered with predator bird feathers and a bundle of bird plumage. However, by the late 1890s, some Lakota dancers began to elaborate the belt to include a bustle – a flat, round, feather bustle. These bustles were referred to as “messy” bustles. Some were made entirely of eagle feathers; others combined eagle, hawk, and feathers of other predatory birds. By the early 1900s, some dancers began wearing two bustles – one on the waist and one on the back. Overall, bustles became larger with feathers extending outward with fluffs on the tips. The style of bustle became a matter of personal choice with some dancers wearing smaller rosette bustles and others wearing extended bustles. There was also a change in dance styles that was reflected in the regalia that was worn. Dancers in northern tribes such as the Assiniboine, Mandan, Arikara, Hidasta, Blackfeet, among others, danced without bustles. The point of origin is unknown, but one of the identifying factors was the regalia. Of particular significance was the war shirt. With its beaded panels and long fringes of buckskin or ermines, the war shirt was emblematic of northern Plains warriors. Early photos show non-bustled dancers wearing their war shirts as part of their dance. In time, war shirts would be modified as regular shirts with beaded shoulder harnesses and ribbon or yarn fringes. The movements of grass were represented by the movements of the dancer. The Lakota referred to the dance as Peji Waci – the Grass Dance. There was, of course, a confusion of terminology. The Omaha Dance had also been called the Grass Dance in reference to the braids of sweet grass, representing scalps, worn by the dancers. The emergence of the Peji Waci eliminated the references to the Omaha style of dance as the Grass Dance. To distinguish between the two styles of dancing, Omaha style dancers, i.e. dancers with bustles, were more commonly referred to as war dancers. III In what Is my trust? My bird-skin charm Is my trust ~ War Song by Odjib’we Originally, the Bwaanzhii-niimi’idiwin was limited to warriors. The old Ogichidaag war dance complex, the Nandobaniishimowin, ceased to exist. The Nandobaniishimowin centered on warfare and the taking of scalps. With the ending of hostilities and changes in social life, there was no longer a means to achieve honor. The secularization of the war dance through the Bwaanzhii-niimi’idiwin allowed for ogichidaag to continue to telling their stories through dance, albeit in a public performance. And, like the old war dance complex, they continued to array themselves in their finest clothing. The codification of their regalia served an important function in tribal identity. European attire had effectuated changes in everyday appearance. Through the Bwaanzhii-niimi’idiwin, traditional attire became standardized and provided a connection to identity for both the dancer and spectator. By the early 1900s, many of the old warriors passed on and the protocols of the Bwaanzhii-niimi’idiwin changed. The war dance was no longer restricted to warriors. Many younger men began dancing. Men’s regalia underwent a renaissance with the adoption of ceremonial type clothing. Turbans, roaches, (or broad-brimmed, black felt hats), bandolier bags and beaded floral breechcloths became the norm. Wearing a bustle were a matter of personal choice. The type of bustle worn was the feather belt type – a small bustle with plumage composed of predatory bird feathers, usually eagle feathers. In the 1920s, changes in Plains dancing affected Ojibwe men’s dance. The Peji Waci spread into Anishinaabe Country and Ojibwe men began dancing the non-bustled grass dance. Their regalia included beaded panels shoulder and belts, chevron striped breechcloths, roaches, and attire featuring ribbon or yarn fringes. The bimoonjigan also underwent changes. One popular style of bustle, referred to as the Woodland style bustle, featured a small rosette of eagle feathers with an attached trailer. Other Ojibwe bustle styles reflected changes in the Plains bustle with long, extended feathers, tipped with white or colored fluffs and attached trailer. There is no clear demarcation date as to when Niimi’idiwin began. Niimi’idiwin can be defined as a community dance with both male and female dancers dancing in regalia that were specific to a dance style. In 1910, some women danced in calico dresses with ribbon hems, and others in dresses embroidered with floral designs, although a specific dance style wasn’t attributed to them. By the 1920s, the jingle dress emerged in Ojibwe communities. It was at this point that Niimi’idiwin, the powwow, with its war dancers, grass dancers, and jingle dress dancers, became firmly embedded Ojibwe communities. With the establishment of the powwow, some individuals became dancers (or singers) and others became spectators. Spectators were, of course, something new to community dance. The powwow itself was not responsible for this segmentation; rather it was the subjugation of tribal homelands through treaties and changes in the tribal social and political structure imposed by forces outside the community, that is, Euro-American oppression through church and government. The development of Native spectators resulted from boarding schools where Native children were prohibited from using their own language and expressing their tribal customs and beliefs. The powwow, however, provided an elemental connection between the dancer and the spectator. The individual's tribal collective consciousness deeply responded to the visual forms created through the movements of the dancer. Through the dancer, spectators remembered their ancestors, their clans, the traditions, and their histories. In this regard, the dancer danced for the individual who watched. By the 1960s, new dance styles developed in Niimi-idiwin that included women’s traditional, fancy shawl, and men’s fancy dance. These dances and regalia were associated with the advent of contest powwows and led to the dance categories used today. During this period, the term “war dancer” fell into disuse and a new term came to be used – Northern Traditional. The term “traditional” connected these dancers to long established customs that were rooted in the Omaha/Grass Dance and, in particular, as represented by the bustle. Niimi’idiwin has continued to evolve and incorporate new dance styles. The Woodland Dance has emerged in recent years as a competitive dance among the Ojibwe and other Great Lakes tribes. The dance appeared in approximately 2008-2009, with some attributing Wisconsin as the locale for the emergence. Woodland regalia include a feathered turban or roach and attire associated with ceremonial style clothing – breechcloths, vest, and leggings with woodland floral motifs. There is a specific manner of dance style and specific songs that go with this dance. Although the dance is relatively new, it has some roots in Ojibwe ceremonial dream dance drum societies. These ceremonial drum societies developed from the vision of Wanashkid’ikwe, Tailfeather Woman. Wanashkid’ikwe, who belonged to the Sisseton Wahpeton Oyate, survived a U.S. cavalry attack on her village. To avoid capture, she hid for four days and nights and during that time received a vision from the Creator. In accordance with her vision, she made the Bwaanidewe’igan (the Sioux Drum) and items to go with it including four eagle feather belts. As instructed, Wanashkid’ikwe gifted the Bwaanidewe’igan to the Ojibwe at Misi-zaaga`iganiing, Mille Lacs. From there, the Drum ceremony spread to other Ojibwe bands. According to one source, the four eagle feather belts were considered sacred and worn only for the ceremony associated with the Bwaanidewe’igan. These four belts were not allowed to be used at the Bwaanzhii-niimi’idiwin. The eagle feather belt men weren’t prohibited from dancing, but they danced without the belts. Although the Bwaanzhii-niimi’idiwin was a secular version of the war dance and the Bwaanidewe’igan was associated with peace and well-being, the belt men wore their feathers straight up to signify peace. They represent the four eagle feather belt men who danced without their belts. They are ogichidaag who dance a war dance with their upright feathers signifying the peace that ensues when hostilities end. Woodland dance is undoubtedly a reemergence of the old Anishinaabe war dance - the Nandobaniishimowin. As many photographs from the late 1800s and early 1900s attest, many dancers, attired in floral regalia, were still dancing the old woodland style. Others chose to wear bustles thereby incorporating the Sioux/Omaha dance style. Woodland dancers today come primarily from the ranks of Northern Men's Traditional, although Grass and Chicken dancers will often join in the competition. Yet the Woodland Dance style itself is specific and physically demanding. Another dance that has gained popularity among the Ojibwe is the Baaka`aakwenh-niimi – the Chicken Dance. The dance emerged on the contest powwow circuit in the mid-2000s. But the dance itself is old. Its origin is attributed to the Blackfoot among whom it began as a religious society called the Kiitokii (Prairie Chicken) Society. The dance, songs, and regalia were all considered as sacred. Because of its sacred nature, the Chicken Dance as a powwow category dance is not without controversy. The chicken dancer’s regalia feature a roach, breechcloth, round bells extending from the waist or knee, and a small rosette bustle with spikes and trailer. The dance style incorporates the mating dance of the prairie chicken. IV I make them dance Those brave men Every one of them ~ War Song by Odjib’we The powwow today is a comingling of regalia and dance styles that are rooted in a past of traditions and customs that have largely lost meaning. Songs once sacred are sung. Regalia once sacred is worn. Since the early 1960s, the contest powwow has effectuated many changes in the dance traditions and infrastructure of traditional powwows, i.e. community-based non-contest powwows. Pan-Indianism is a term long associated with the powwow. The powwow was, and is, still identified as the main representation of Pan-Indianism. This westernized term is used by ethnologists and historians to describe an aspect of contemporary Native America. The implication of this term is that Native Americans are becoming all the same, that tribes are losing their identities of who they are as a race. In their opinion, our dances and regalia have become so generalized, homogenized, and Pan-Indianized that one is no longer able to recognize differences. Their consensus is that tribal identity has become a homogenous generalization as shown by the similarity of dance regalia. In other words, we all look alike. But the powwow has never been about the Eurocentric notion of Pan-Indianism. As this history of the bustle shows, there has always been a transmission of transcultural customs. Precedents in dance existed before the exchange of certain customs. Dance traditions are something that has always been shared. With sharing comes knowledge. Dance traditions represent continuity through change, and change through continuity. Our raciality is not based on sameness but rather our diversity. And our dance traditions give credence to our diversity. The powwow today continues to exemplify the diversity that exists among us. The traditions – intercultural, intertribal, and supratribal – that form the powwow today enlighten us as to the commonality of who we are as Indigenous people. What this means is that we are all not the same, nor do we have to be. What is pertinent are our shared collective traditions that have formed the beauty of the powwow today. Mii sa go. Works Cited: 1 Ogimaag: Anishinaabe Leadership, 1760-1845, Miller, Cary, University of Nebraska Press, 2010. 2 History of the Ojibway Nation, Warren, William, Ross & Haines, Inc., 1974. 3 Ibid. 4 Chippewa Music, Densmore, Francis, Ross & Haines, Inc., 1973. 5 Kitchi-Gami: Life Among the Lake Superior Ojibway, Kohl, Johann Georg, Minnesota Historical Society Press, 1985. 6 Personal Memoir s (18 12-18 42), Henry, Schoolcraft, Lippincott, Grambo and Co., 1851. 7 Chippewa Powwows, Rynkiewich, Michael A., Anishinabe: 6 Studies of Modern Chippewa, University Presses of Florida, 1980. 8 Densmore, op.cit. 9 Hae-thu-ska Society of the Omaha Tribe, Fletcher, Alice C., The Journal of American Folklore, Vol.5, 1892. 10 The Omaha Tribe, Alice Fletcher and Francis La Flesche , Twenty-Seventh Annual Report of the Bureau of Ethnology, 1905-1906. 11 Fletcher, op.cit. © All Rights Reserved, Robert DesJarlait, 2015 Early Ojibwe Men's Dance in Photos Ojibwe Scalp Dance, 1910. One of the individuals wears a panel of eagle feathers over his backside. Scalp dances were sometimes performed for visiting dignitaries and at public dance gatherings. By then, scalp dances had lost their significance since conflicts had long ended. The scalp dance depicted in the photograph is considered the last scalp dance performed by the Ojibwe at White Earth. (We Choose to Remember: More Memories of the Red Lake Ojibwe People, 1991) Ojibwe men dancers, early 1900s. (From: To Walk The Red Road: Memories of the Red Lake Ojibwe People, 1989) Red Lake powwow, 1910. Typical regalia in this time period consisted of beaded breechcloths with asymmetrical floral designs, beaded floral calf leggings, breastplates or bone necklaces, deer-toe bandolier straps, and bells worn around the knees. (From: To Walk the Red Road: Memories of the Red Lake Ojibwe People, 1989) White Earth, 1910 Cass Lake, 1910 Red Lake powwow, 1933. Smaller rosette bustles with eagle feathers were favored by some dancers, although longer, expanded bustles, usually made from pheasant feathers and tipped in white fluffs, were favored by others. In photographs from this era, bustled dancers were identified as "War Dancers." (From: To Walk the Red Road: Memories of the Red Lake Ojibwe People, 1989) Red Lake grass dancers, 1949. By the late 1930s and 1940s, a newer, contemporary style developed from the Omaha/Dakota Dance. The new dance, i.e. the Grass Dance, was quickly incorporated into Ojibwe powwows. The non-bustled regalia featured beaded, harness bands, with abstracted Ojibwe designs or floral designs, tucked through beaded belts. Breechcloths featured wide, ribboned chevron stripes. Additional adornment included fringes made from ribbons or yarn. According to Kenny Scabby Robe: "The Ojibwe started to make the dance their own, and it became more contemporary and was more respected after they adopted it." (From: To Walk the Red Road: Memories of the Red Lake Ojibwe People, 1989) Red Lake powwow, 1949. The Crow Belt in Ledger Art from the 1870s Crow Belts The Omaha Dance / Grass Dance Lakota Omaha/Grass dancers. 1890s. Cheyenne Omaha/Grass dancers, 1891. Lakota Omaha/Grass dancers, 1890. Lakota Omaha/Grass dancers, 1890s Lakota "Messy" Grass Dance Bustle, late 1890s. Shoshone Omaha/Grass dancers, 1920. Lakota Omaha/Grass dancers, circa 1920-1925. This photo depicts the elaboration of bustles as Lakota dancers began to break away from Omaha Crow/Grass Belts to a more personal expression. One dancer is wearing two bustles - one on his waist and one on his back. Lakota war dancers, 1920. Contest dance at Pine Ridge, 1928. This photo reflects a shift in Omaha Dance regalia. Dancers are wearing two "messy" bustles - one at the waist and one on the back. Lakota Omaha/Grass dancer, Pine Ridge, 1928. Assiniboine and Gros Ventre grass dancers, 1916. In the late 1890s, early 1900s, there was a shift in the Omaha Grass Dance complex. A new dance evolved out of the Omaha Dance among northern Plains tribes including the Mandan, Arikara, Hidatsa, Assiniboine, Gros Ventre, Blackfeet to name a few. Although there are several points of origin, the Plains war shirt is often cited as an influencing factor in the regalia. The beaded panels and long buckskin and ermine fringes of Plains war shirts emerged as the beaded shoulder harnesses and ribbon or yarn fringes in the new grass dance. Grass dancers, 1913. This photo depicts the Grass Dance (as opposed to the Omaha Dance). Several dancers are wearing war shirts; two dancers are wearing regalia that would become the hallmarks of contemporary grass dancers - porcupine roaches and ribboned, chevron stripped breechcloths. Grass Dance, Browning Montana, early 1900s. Men's Northern Traditional - Anishinaabe Photos by Ivy Vainio Ray Cadette Ejay Smith Shane Mitchell Gordon K. Fineday Norman "Taj Mahal" Goggleye Robert DesJarlait © Photos, All Rights Reserved, Ivy Vainio, 2015 Baaka`aakwenh-niimi / Chicken Dance Miskwa DesJarlait. Miskwa DesJarlait Travis "Boom Boom" DeBungie. Dennis DeBungie © Photos, All Rights Reserved, Ivy Vainio Woodland Style Miskwa DesJarlait and Shane Mitchell. © Photo, All Rights Reserved, Michelle Bohlen Campbell Miskwa DesJarlait. Photographer unknown Pete Powless. © Photo, All Rights Reserved, Terri DesJarlait Shane Mitchell. © Photo, All Rights Reserved, Michelle Bohlen Campbell. Robert DesJarlait. © Photo, All Rights Reserved, Ivy Vainio Winners of 2015 Baraga Woodland Special - (l-r) 1st place, Pete Powless, 2nd place, Gerald White, 3rd place, Miskwa DesJarlait. © Photo, All Rights Reserved, Dennis Gilbert. Note - All material (with the exception of tutorial) are part of a work in progress - "Niimi'idiwin: A History of Ojibwe Dance," text by Robert DesJarlait, Except where noted, photos by Ivy Vainio. Bimoonjiganike (Making The Bustle) Introduction Photo by Ivy Vainio The bustle is the primary focal point in the regalia of Men's Northern Traditional dance. Bustles comes in all sizes - from the large, eagle-wing swing bustles to the smaller, round old style bustles. Each is unique and represents a dancer's identity in the dance circle. Although making a bustle may seem a complex and difficult task, the techniques for bustle making is basic. Bustle making is an art, yet it is an art that begins with a foundation that can be learned with patience, effort and basic knowledge. This visual tutorial provides you with the basic foundation you need to make a bustle. Although it is intended for constructing a round, rosette bustle, the basics that are presented will allow you, with experimentation, to make the kind of bustle you want. Above all else, be creative and experiment. Materials Needed: Foam board - 20" x 30" x 1/16" Craft plywood - 12" x 24" x 1/4" (or 1/8") Wood dowel rods - 1/4" size Drill Artificial sinew Bee's wax Needles Scissors Ruler Marker or pencil Awl Yarn, thread, or tape for wrapping feather shafts Pony beads Wire coat hanger Leather - to cut into strips and thong Glues: Contact cement - for adhering material - cloth, leather, or imitation leather - to bustle board. Also to secure dowel rods in feather shafts. Super Glue with applicator tip or Aleene's Clear Gel Tacky Glue to prevent fraying of tied yarn or thread ends. Step 1: Sorting the feathers. Sort the left feathers from the right feathers and match them according to length. To keep track, number them in pencil on the shaft. Step 2: Removing the quill tips. Remove the quill tips to open the feather shaft. Do not throw the tips in the trash. Set them aside (along with the filament). After the bustle is completed, take the tips and filament, place them outside, somewhere quiet, and offer them back to the eagle spirit with an offering of tobacco. Step 3: Removing quill filament. Remove the filament that is inside the quill using an awl. Place the filament with the cut tips to be disposed of properly later. Step 4: Making the spacer holes. Spacer holes are made on the sides of the shaft. These spacer holes were measured, marked with a marker, and made 1/4" from where the quills end on the shaft. First, heat the tip of a needle, then gently push the needle through the shaft; push the needle all the way through. Once a small hole is made, heat the tip of an awl; push the awl through to enlarge the spacer hole. Don't make the spacer holes too large as this could lead to the shaft bending and breaking. Close up of spacer hole. Step 5: Inserting the dowel rod. In this step, use 1/4" wood dowels. Measurement needs to be equal from line marked on shaft to the end of the preferred length. In this case, a line is marked 1/8" below the spacer hole. The preferred length for the shafts on this bustle is 2 1/2". Insert dowel into the shaft and slide it in as far as it will go. From the mark on the shaft, measure down to 2 1/2" and mark it. Remove dowel rod and cut it. Apply a small amount of contact cement to the cut rod and insert it back into the shaft. Note - Some of the larger feathers won't need dowels. They can be cut to the desired length. Smaller feathers will require dowels so that all the feathers will be of equal length. Also note that the length of the feathers is a personal choice. Depending on how you choose, feathers can be extended 5", 8", 10", 15". Whatever the extended length, all the feathers need to be an equal length. Step 6: Cutting the loops. Cut leather loops into equal lengths. These loops are cut to 2 1/2". Use an awl to punch holes near the ends of the loops. Step 7: Loop placement. Using a heated needle, make holes near the ends of the shaft. Use an heated awl to widen the holes. Holes need to be on the front of the shaft, not the sides. Thread one end of the leather loop and bring the thread through the shaft. Use a small drop of tacky glue to hold the loop to the shaft. Using one end of the sinew, wrap down loop/shaft, then wrap upward, and tie off the sinew. Add a small dot of super glue to the knot. Note - if the shaft cracks when making the holes, the sinew wrapping will hold it together. Feather arrangement with loops attached. Step 8: Wrapping the shaft. The shaft can be wrapped with yarn, colored sinew, colored tape, or thread. Depending on personal choice, the shaft can be wrapped in one color, two colors, or several colors. Apply a small amount of tacky glue and begin at the top. Begin the wrap 1/8" below the spacer hole. Leave a length of yarn for tying. Wrap down to the loop and then back up. Yarn ends. Gluing the yarn. Tie off the yard and add a spot of super glue to hold the knot securely and to prevent fraying. Completed wrapped feathers. Step 9: Stringing the spacers Usually pony beads are used for the spacers. Colors are personal choice. The number of beads you use determines the spread between the feathers. Use several beads for a wide, flat spread, and less beads for a tight, cone spread. Using less beads creates a cone shape for the feathers to stand up and out from the bustle board. In other words, more beads for a flat shape, and less beads for a cone shape. For this bustle, pony beads are used - four between the spacer holes. For strengthening the sinew, use two strings of sinew (i.e., 8 threads). Use bee's wax to hold the strings together as one string. Begin stringing the feathers at the feather at with the end feather at the bottom. Leave an extra length of string for tying once the feathers are strung. Use one length of sinew string for stringing and work the string through the holes on the shafts. Center spacers. On this bustle, the space between the center feathers (the top feathers) - one left, one right - are wide. To bring them closer together, only two spacer beads are used to separate them. This makes the spread between them more equal. Step 10: Loop lace. This step can be completed before or after tying off the spacer string. Step 11: Tying off the spacer string. When the string is through the last feather, add beads to the two loose ends. The two bottom feathers require more beads because of over lap of the two bottom feathers. In this case, eight beads were added - four yellow opaque and four purple glass. The tie off is where the fourth bead on each end meet. When tying off, the strings need to be pulled together tight. Check the spacer beads on the rosette and make sure there are no gaps or space. Make the tie off knot tight with at least two square knots to hold it. However, do not cut the string because adjustments may need to be made after the bustle feathers are on the bustle board. Note - Although it is outside the scope of this tutorial, you can make a swing bustle by reversing the stringing process. Instead of starting with the bottom feather, start with the top feather, work your way stringing the feathers. When you've completed the stringing, don't tie the ends together. Rather, beads can be added and then the string can be tied onto the spike feathers, or they can go through holes drilled below the spike holes and tied off in the back of the bustle board. Step 12: Foam back board. This is an optional step, but it provides an opportunity to see how the bustle will look on a bustle board. Foam board is cheap and comes in 20" x 30" x 3/16." Extra foam board will allow you to experiment until you get it right. Bustle and trailer mounted on foam board. Step 13: Making the spike wires. Black, plastic-coated hanger wire is cut and formed into a V shape. Bend the two ends at approximately 3 1/2." Slip the ends through two holes at the top of the board. On the backside, bend the two wires upward. Secure spike wire at the V point with sinew or thin wire. Slide the spike feathers on to the wires to preview. Note: The spike feathers are two matching primary feathers. Depending on one's preference, they can be adorned with smaller feathers and fluffies. The feather shafts are long and thick; with the end snipped off, they can easily slide over the spike wires. But the spike feathers, because of their exposure, are sometimes subjected to damage, especially breakage to the shaft. In the method used here, a clear rubber tube is used (available at hardware stores) for support. The shaft, with a dab of contact cement, is inserted into the tube. Yarn is then wrapped around the tube. Step 14: The bustle board. Most hardware stores carry craft plywood in size 12" x 24" x 1/4" (or 1/8"). For this bustle board, 1/4" plywood board is used. The bustle board varies in size, depending on one's preference. Some dancers prefer a bustle board that is just large enough to hold the bustle and the trailer isn't attached to the bustle board. The bustle board in this tutorial measures 7" x 9" x 1/4." It is intended to be worn with a 3" strap belt and a trailer. Fully drilled bustle board. Step 15: Bustle board wrap Bustle board can be painted or wrapped in cloth or leather. If cloth/leather is used, it can be glued down with contact cement on the backside. Use awl to punch through drilled holes, then re-drill the hole to clear out the material and allow easy access to slide loop lace, bustle spreader, etc. through. Back of bustle board with belt loops. Step 16: Circular wood bustle spreader Bustle spreaders come in a variety of shapes; many are usually beaded rosettes, mirrors, or painted wood. In this method, a piece of circular craft wood is used (available from craft stores). Two holes are drilled at the center and two small holes are drilled at two opposite edges. The thongs from the back of the rosette are drawn through the two center holes. The rosette is secured to the wood piece with a thread of sinew through the two, small holes on the opposite edges. Feather work is complete and ready to be strung on the bustle board. Step 17: String the feathers to the bustle board; string the bustle spreader through the center holes. Readjusting the spacers. It's not uncommon to readjust the spacers to get the look you want. For example, this bustle was still a bit flat. The bustle string was undone and, to achieve a better cone shape, three pony beads per spacer line was used (instead of four), two yellow opaque and one purple glass. The gap at the bottom feathers was too wide, so six pony beads (instead of eight) were used. The spacer string is then tied tight with two or three square knots and the excess string is cut. © Photos and Text, All Rights Reserved, Robert DesJarlait, 2015
Please note: The first portion of this essay was written by me, Robert DesJarlait. It recounts my own experiences with Larry Stillday. The second portion was written by Michael Meuers. It was originally published as "Taking Care of Mother Earth: Spiritual Leader's Parting Words Before Walking On." http://indiancountrytodaymedianetwork.com/2014/06/08/taking-care-mother-earth-spiritual-leaders-parting-words-walking-155203 I apologise for any inconvenience or misunderstanding this may have caused. My main intention was to provide a look at Larry's teachings - teachings that I was exposed to at several of Larry's presentations. With that said, Mr. Meuers should be rightfully credited with documenting Larry's teachings. I was first introduced to the teachings of Larry Stillday on March 23, 2007. My son, Miziway, and I attended Red Lake Healing Day. White Bison hosted the event and Larry was one of the moderators. In the wake of the tragedy of March 22, 2005, Red Lake Healing Day was a day to grieve our loss, and to find ways to strengthen our community. The event featured five mapmaking sessions that focused on youth, adult men, adult women, community leaders, and elders. The outcome of each mindmapping circle was presented to the entire conference.
What was important to the youth? To speak the Ojibwe language. To love each other and get along. To put an end to violence and youth suicide. To help the elders, respect them and care for them when they are sick. To stay clear of drugs and and alcohol. And to have fun: kick ball, basketball, football and the enjoyment that academic learning can bring. The men sought to be responsible to family and comfortable with change. The women, to be spiritually grounded in cultural childrearing. The leadership group valued shared leadership as clean and sober teachers. The Elder group emphasized values, morals, forgiveness, courage and spirituality. I was also introduced to the concepts of Wellbriety and the White Bison programs. In the following months, I undertook training and received certification in several White Bison programs including Fathers of Tradition, Families of Tradition, and The Medicine Wheel and 12 Steps for Men. The following year, June 2008, Miziway, my daughter, Makina, and I attended Larry’s Wellbriety Fest held at the powwow grounds in Ponemah. Because of my training as a White Bison facilitator, Larry asked me to do a presentation on my alcoholism and, more specifically, my addiction to marijuana. The most important part of the Wellbriety Fest was Larry’s teachings. Using Anishinaabe teachings, Larry provided a solid base for sobriety, healing, and balance. In addition, his wife, Val, gave me a copy of “Anishinaabe System of Care.” Many of the concepts in the book were from Larry’s teachings. I was told that the book was intended for Ponemah’s chemical dependency program; however, I was to consider it a draft since it had yet to be used in their programming. The book is an extremely valuable cultural resource that deeply focuses on Anishinaabe concepts, values and principals. One of the criticisms of White Bison is its perceived generalization of Native American traditions – a sort of pan-Indian program for sobriety. However, White Bison has always emphasized that its programs open to cultural interpretation that are specific to a tribal community's needs. As such, Larry went beyond the generalizations and taught a culturally specific path for sobriety intended for Anishinaabe people. Larry was a strong believer that the way to find one’s center precluded using alcohol and drugs. He once told me that you can’t find the center if you’re drinking, smoking pot, using pills. He acknowledged the difficulty and struggle of alcoholism and substance abuse among our families and communities. Yet, he never wavered in advocating for a life free of drugs and alcohol. Unfortunately, I didn't attend Larry’s teaching on April 10, 2014. However, I did find a transcript which is provided below. As a colon cancer survivor, my healing has included western conventions – i.e., surgery and monitoring. But my healing process also includes traditional systems of care. For this, I've depended on several teachers, and one of them is Larry. I’m grateful that I met this man and learned from him. On May 22, 2014, Larry passed into the Spirit World. Although he is gone from us physically, he remains a spiritual presence. His thoughts and ideas are with us from which we can learn a path of healing, balance, and harmony of the Four Aspects of Being. As Chi-Ma’iingan has said: “We are the ceremony…we are the ones we've been waiting for.” Taking Care of Mother Earth By Chi-Ma’iingan (Larry Stillday) Taking care of Mother Earth comes from the fact we were given the responsibility as caretaker of the earth. Since we are of the earth – to take care of Mother Earth – we do that by taking care of ourselves. It’s an interconnected, interdependent, interrelated system. Since we have become separated from the earth, we are separated within ourselves too. My how we have become detached from ourselves. We are spirits having a human experience, not humans trying to be spiritual. We are here to complete that human experience. Our culture and our language are still here because our land is still here. This is where the Creator put it, on our land. Our ancestors are waiting for us. Wellness Many of us have been brought up to believe that our health depends solely on the quality of healthcare we receive. The truth is we are responsible for our health, we are the ones who make lifestyle decisions that contribute to our well-being. The power is within us to create the wellness in our lives. Disconnected We have been taught – and continue to be influenced to think – in terms of pieces of ideas and concepts – rather than in integrated terms of ideas and concepts, which is more in line with our way of learning. Thinking this way has led us to look at our spiritual, emotional, physical and mental aspects of our being as if each aspect is completely separated rather than being interconnected with each other. State of Imbalance Thinking in this way has led us to think as if our bodies, organs and systems are separated from our thoughts, emotions, and spirit. This is a state of imbalance. State of Balance For us, health is more important than the absence of disease. It is a state of optimal well-being. This is a state of balance. The way we were given to think and learn, gives us that power, within ourselves, to create the wellness we need in our lives. That power is the power of choice. Optimal Well-Being For us, (tribal peoples) optimal well-being is a concept of health that goes beyond the curing of illness to one of achieving Mino Aayaawin – wellness. We are given everything we need; these instructions have not changed. Achieving wellness requires balancing the four aspects of our whole being; this holistic approach involves integrating all four aspects as an ongoing process. Giwinjigadawan o’wnowen gayganawendamoog – The four aspects of our being, starting in the east then clockwise: spirit, emotion, body, and mind, that we are to take care of, were given a name – Nitaawigi’iwewin maajiigi: the growth/development of being. We use the Circle to explain life, and use the ancient symbol of the Medicine Wheel to illustrate the cycle of life. To understand the cycle of life, we must first understand the teachings of the Medicine Wheel. Some think this is a religion, but it’s a symbol, a teaching tool. We use the Medicine Wheel symbol to represent a non-linear model of human development. Each direction on the wheel offers lessons and gifts that support the human developmental stages. The lesson is to remain balanced at the center of the wheel – while developing equally – the spiritual, emotional, physical and mental aspects of one’s being. To make circles, you have to be at the center. Our life consists of four aspects of existence. We have to seek balance, wholeness and fulfillment in our lives. We need to heal, develop, and integrate the four aspects of life within our lives. If anything is sacred, it is the human body. Hold yourself sacred. The four aspects of our being also have boundaries. Our personal boundaries protect us and give us a sense of who we are. They are not fixed. We change them with what we feel and who we are with. When our boundaries are intact we know we have feelings, thoughts and realities that are separate from others. Our boundaries tell us where we end, and where the other person begins. Spiritual Boundaries relate to our beliefs, experiences, and our relationship with our Creator. Emotional boundaries distinguish our emotions and responsibilities in relation to others. It draws an imaginary line or a force field that separates us from others. Physical boundaries: our physical space and privacy. Mental boundaries apply to our values, opinions, attitudes, and thoughts. Healthy boundaries give us self-respect, self-esteem, self-image, and self-worth. This empowers us to make good choices and take responsibility for ourselves, always keeping the self at the center of the Wheel. In the Four States of Being, we bring balance to our lives by honoring our spirit, heart, body, and mind. We develop a solid self-concept – by knowing ours and respecting others – boundaries. In the Four Aspects of Health; we are reminded that well-being is an ongoing endeavor, not a destination. The Four Aspects of Health – for spirit, heart, body and mind – must be kept in harmony and balance to obtain optimum health. The Spiritual Aspect This is our inner essence, the part of us that exists beyond time and space and connects us to the Universal Source and the Oneness of Life. Developing our awareness of our spiritual level gives us the experience of a feeling of belonging in the universe and gives us a deeper meaning and purpose. Our spiritual aspect provides the foundation for the development of the three other aspects. It develops our relationship with our selves, with our creativity, our life purpose, and our relationship with our Creator. The Emotional Aspect This gives us the ability to experience life on a deeper level. It gives us the ability to relate to one another, including the world, on a deeper level. It’s the part of us that seeks meaningful connections and contact with others. Developing our emotional aspect – and knowing/applying its boundaries – allows us to feel a wide range of human experience with our five senses and find fulfillment in our relationships with ourselves and others. This aspect is about our feelings, our range of emotions; from fear to anger, love to happiness and joy. Emotional well-being is not the absence of emotions, but our ability to understand and value our emotions, and to use them to move us forward toward positive directions. The Physical Aspect Our body is a vehicle we have been given so we can experience the world. It also includes our ability to survive and thrive in the material world. Developing our physical aspect involves learning to take care of our bodies and enjoying it. It also means developing skills to love comfortably and effectively in the material world. The Mental Aspect This is our intellect, our ability to think and reason; it also consists of our thoughts, attitudes, beliefs and our values. It can be our greatest gift or sometimes our greatest curse. It can cause us to have terrible confusion or bring us profound understanding. Developing our mental aspect allows us to think clearly, to be open-minded and to gather knowledge and wisdom through our life experiences from the world around us. All Four Aspects of Our Being Are Equally Important In order to feel whole and lead a satisfying life, we need to spend time and attention on understanding, developing and integrating each aforementioned aspect. All these aspects must work together to make us a whole person. What happens to one aspect affects all other aspects. Since all four aspects must work in harmony to achieve wellness, each aspect needs our attention and care to perform at its best. The spiritual you requires inner calmness, openness to creativity and trust with your inner knowing. The emotional you needs to give and receive forgiveness, love and compassion, needs to laugh and experience happiness. The physical you requires good nutrients, exercise, and adequate rest. The mental you needs self-supportive attitudes, positive thoughts and viewpoints, and a positive self-image. Health is defined as a balance among the Four Aspects of Being. Reaching a balance in life is an ongoing process. Manidookewin / Ceremony There is great value to aadizookaan – a sacred story, legend or myth. It helps us develop the aspects and is often used in manidookewin – ceremony. Manidookewin is about integrity, the balance of Spirit, Heart, Body and Mind. Ceremony is to celebrate the new phases of our lives. It also celebrates when we can’t figure the rest. Healing and ceremony push you in the direction of need. You heal yourself, not someone else. Sometimes we do things with manidookewin, but we are the ceremony. How is it they say? We are the ones we’ve been waiting for. Our well-being encompasses all of our parts, not just the physical body; however, taking care of our physical body is an important element in caring for our whole self. It is important to listen to our body because it tells us when it needs our attention. Pain is one indicator that it needs our attention. One of the easiest things we tend to forget is how everything within us is connected. We must continue to giving equal time to those four areas of our lives, because if one or more suffers from lack of attention, they will all suffer causing imbalance and disharmony. That’s your song – we are talking about rhythm. Happiness comes from the inside, not the outside. Manidoo Ogitigan The Creator's Garden includes all human persons, other-than-human persons, and all other things found in the particular place that have been given as a gift to a group of Anishinaabeg. This garden provides Anishinaabe people with all the things they need to survive. An Anishinaabe person is embedded within an environment that is both material and spiritual. Gimiinigoowizimin Gaaganawendang The English gloss is "Keeper of the Gifts." This gloss contains both the idea of the gifts given for the survival of the Anishinaabeg as well as the moral responsibility the people bear to the Creator. The way in which Anishinaabe people know that they are taking care of the Creator's garden is by being aware of the consequences of their actions on others. This requires establishing a relationship with other beings in the garden and being aware that mistreating them can lead to unwelcome incidences, such as illness or misfortune, in one's own life path. From teachings of the Iskatewizaagegan (Shoal Lake) Anishinaabe
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA MEMORANDUM OPINON AND ORDER REJECTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE UNITED STATES,Criminal No. 13-072 (JRT/LIB) Plaintiff, v. LARRY GOOD, Defendant Thomas Calhoun-Lopez, Assistant United States Attorney, UNITED STATES ATTORNEY’S OFFICE, 600 United States Courthouse, 300 South Fourth Street, Minneapolis, MN 55415, for plaintiff. Shannon R. Elkins, Assistant Federal Defender, OFFICE OF THE FEDERAL DEFENDER, 300 South Fourth Street, Suite 107, Minneapolis, MN 55415, for defendant. Defendant Larry Good was indicted for violating the Lacey Act by transporting and selling fish in violation of federal regulations. 16 U.S.C. § 3372(a). Good moves to dismiss the indictment on the grounds that, as a member of the Red Lake Band of Chippewa Indians (“Red Lake Band”), his right to fish on the Red Lake Reservation is protected by the 1837 Treaty with the Chippewa (“1837 Treaty”), 7 Stat. 536, July 29, 1837, such that this federal prosecution violates his treaty rights. United States Magistrate Judge Leo I. Brisbois issued a Report and Recommendation (“R&R”) recommending that the Court deny Good’s motion to dismiss. Good objected to the R&R and the Court will sustain the objection. The Court will dismiss Good’s indictment because the 1837 Treaty protects his right to fish on the reservation and Congress has not specifically abrogated that right.1 BACKGROUND I. CHIPPEWA TREATY RIGHTS Chippewa Indians occupied much of Minnesota and Wisconsin before European explorers and settlers arrived. William Watts Folwell, A History of Minnesota, Vol. I, 10, 133-34, 159 (1956). In the early 1800s, the United States sought to acquire native lands through cessation treaties, including much of eastern Minnesota and western Wisconsin in the 1837 Treaty. Id. at 159-60. The 1837 Treaty provided that the Chippewa Indians would cede these territories to the United States in exchange for cash and goods. See 1837 Treaty, 7 Stat. 536, arts. 1-2. The Treaty also provided that: The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the President of the United States. Id., art. 5. This “privilege” of hunting and fishing is generally referred to as a “usufructuary right – the right to make a modest living by hunting and gathering off the land.” United States v. Bresette, 761 F. Supp. 658, 660 (D. Minn. 1991). In 1863, the Red Lake Band of Chippewa Indians signed a treaty ceding land to the United States and reserving some lands for the Red Lake Band. United States v. Minnesota, 466 F. Supp. 1382, 1383-84 (D. Minn. 1979), aff’d sub nom. Red Lake Band _________________________________________________________________ 1 The Court addresses a similar treaty-based argument in United States v. Brown and United States v. Reyes, (Cr. Nos. 13-68, 13-70), in a separate memorandum opinion and order because the legal questions presented by those cases are not identical to that of this case. _________________________________________________________________ of Chippewa Indians v. Minnesota, 614 F.2d 1161 (8th Cir. 1980). The Red Lake Reservation is one of seven Chippewa reservations in the state of Minnesota. See Leech Lake Band of Chippewa Indians v. Herbst, 334 F. Supp. 1001, 1002-03 (D. Minn. 1971). Although courts have determined that the Red Lake Band does not retain usufructuary rights on the lands ceded to the United States in the 1863 and subsequent treaties, the parties do not dispute that members of the Red Lake Band retain usufructuary rights on the reservation. See United States v. Dion, 476 U.S. 734, 738 (1986) (“As a general rule, Indians enjoy exclusive treaty rights to hunt and fish on lands reserved to them, unless such rights were clearly relinquished by treaty or have been modified by Congress.”). Courts have consistently interpreted the 1837 and subsequent Chippewa treaties to preserve the 1837 Treaty’s hunting and fishing rights for Chippewa Indians on Chippewa reservations. In Herbst, the court held that these hunting and fishing rights on the Leech Lake Reservation were not extinguished by the Nelson Act of 1889, which permitted parcels from the reservation to be sold to white settlers. 334 F. Supp. at 1104-05; see also Cass Cnty., Minn. v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 106-08 (1998) (purpose of allotment acts such as Nelson Act was to “assimilate Indians into American society and to open reservation lands to ownership by non-Indians”). The court held that the treaty-based hunting and fishing rights gave the tribe exclusive jurisdiction over hunting and fishing on the reservation such that state fishing and gaming laws did not apply to members of the tribe on the reservation. Herbst, 334 F. Supp. at 1004-06. Similarly, the Supreme Court in Minnesota v. Mille Lacs Band of Chippewa Indians held that the 1837 Treaty protected the right of Chippewa Indians to hunt and fish on the Mille Lacs Reservation. 526 U.S. 172, 196-202 (1999). There the State claimed that language in the 1855 Treaty (which created the Leech Lake Reservation) stating that “‘Indians do further fully and entirely relinquish and convey to the United States, any and all right, title, and interest, of whatsoever nature the same may be, which they may now have in, and to any other lands in the Territory of Minnesota or elsewhere,’” terminated any usufructuary rights the Chippewa may have had. Mille Lacs Band, 526 U.S. at 195 (quoting 10 Stat. 1166). But the Supreme Court found otherwise, observing that the treaty is “devoid of any language expressly mentioning – much less abrogating – usufructuary rights.” Id. The Supreme Court also noted that the Senate chairman of the Committee on Indian Affairs at the time the 1855 Treaty was signed stated that the treaties would reserve to the Chippewa “those rights which are secured by former treaties,” and that statements by a Chief of one band party to the treaty emphasized that the purpose of the treaty was the transfer of land, suggesting that “the Chippewa did not understand the proposed Treaty to abrogate their usufructuary rights as guaranteed by other treaties.” Id. at 197-98 (internal quotations and citations omitted). The Minnesota Supreme Court has held similarly with regard to another Chippewa reservation: the White Earth Reservation. State v. Clark, 282 N.W.2d 902, 908-09 (Minn. 1979). The court found that Chippewa Indians on the White Earth Reservation retained usufructuary rights because it is clear from the record that hunting and fishing were an important part of the Chippewa’s lifestyle and that the need to pursue these activities was a significant consideration in motivating them to negotiate with the government during this period of time. Moreover, the record reflects that for a considerable period after 1867 the White Earth Indians relied, in large part, upon hunting and fishing for their basic sustenance. . . . [E]ven absent such a clear showing of the Indians' understanding, we believe that they have such rights because hunting and fishing are a basic incident of reservation status. Id. (citing Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968)). II. LACEY ACT The Lacey Act was initially passed in 1900 as one of the first federal wildlife protection laws, outlawing interstate sale or transport of birds or other animals killed illegally in their state of origin. Lacey Act, 16 U.S.C. §§ 3371 et seq.; S. Rep. 97-123, at 2 (1981), reprinted in 1981 U.S.C.C.A.N. 1748, 1749. Congress amended the Lacey Act in 1981 to strengthen the Act’s effectiveness as a wildlife law enforcement tool. Lacey Act Amendments of 1981, Pub. L. No. 97-79, 95 Stat. 1073. In particular, Congress added violations of tribal law to the possible grounds for violation of the Lacey Act: It is unlawful for any person . . . to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken or possessed in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law . . . . Id. § 3(a)(1) (codified at 16 U.S.C. § 3372(a)). The Senate Report explained the rationale for this addition: Because of the resource management responsibilities of Indian tribes, the legislation proposes that like the current Black Bass Act, the provisions of the [Lacey] Act apply to fish and wildlife taken in violation of Indian tribal law or regulations. S. Rep. 97-123 at 4, 1981 U.S.C.C.A.N. at 1751. The Government brings the Lacey Act charges here for alleged violations of federal regulations. III. INDICTMENT There is no dispute that Defendant Good is an enrolled member of the Red Lake Band. Good was indicted with violating the Lacey Act, 16 U.S.C. § 3372, by transporting and selling fish in violation of federal regulation. Specifically, Good is accused of taking fish from Red Lake for commercial purposes without the knowledge or approval of the Red Lake Fisheries Association in violation of 25 C.F.R. §§ 242.2 and 242.4. (Indictment, Apr. 9, 2013, Docket No. 1.) Section 242.2 provides: No person shall engage in commercial fishing in the waters of the Red Lakes on the Red Lake Indian Reservation in the State of Minnesota except the Red Lake Fisheries Association . . . and its members . . . . 25 C.F.R. § 242.2. Section 242.4 provides: (a) Enrolled members of the Red Lake Band of Chippewa Indians may take fish at any time . . . from waters of the Red Lakes on the Red Lake Indian Reservation for their own use and for sale to: (1) Other Indians on the reservation and (2) Licensed traders on the reservation for resale to Indians. (b) Fish may be taken for commercial purposes only by the Association through members of the Association in residence on the reservation during the fishing season which shall be May 15 to November 15 inclusive. All fish taken for such purposes shall be marketed through the Association. Id. § 242.4. Good moves to dismiss the indictment on the grounds that he cannot be prosecuted for fishing activities on the reservation because his right to fish on the reservation is protected by the 1837 Treaty. 2 (Mot. to Dismiss the Indictment, June 20, 2013, Docket No. 32.) The Magistrate Judge issued an R&R recommending that the motion to dismiss be denied. (R&R, Aug. 14, 2013, Docket No. 43.) Good objects to the R&R, arguing that the Magistrate Judge analyzed the potential treaty conflict improperly and incorrectly concluded that the prosecutions could proceed because Good is not exempt from the prohibitions of the Lacey Act. The Court now considers Good’s objections to the R&R on the issue of the potential treaty conflict and concludes that Good’s rights under the 1837 Treaty preclude federal prosecution under the Lacey Act because Congress has not specifically abrogated his rights under the Treaty. ANALYSIS I. STANDARD OF REVIEW Upon the filing of a report and recommendation by a magistrate judge, a party may “serve and file specific written objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2); accord D. Minn. LR 72.2(b)(1). “The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). II. MOTION TO DISMISS THE INDICTMENT Good objects to the recommendation of the Magistrate Judge that the Court deny his motion to dismiss the indictment. He argues that the Magistrate Judge’s R&R _________________________________________________________ 2 Good has also filed other motions at this time, including a motion to dismiss for selective prosecution and a motion to suppress certain statements. The Court does not reach these issues because it dismisses the indictment against Good based on his treaty rights. ________________________________________________________ erroneously framed the relevant question as whether the 1837 Treaty exempts him from the Lacey Act and thus came to the incorrect conclusion that his prosecution under the Lacey Act is not precluded by his Treaty rights. Good argues instead that the fishing rights under the 1837 Treaty insulate him from this federal prosecution under the Lacey Act. A. Method for Analyzing Potential Conflict Between Treaties and Statutes The dispute here begins with how the Court should approach the issue. The Government urges the Court to look first, and only, to the Lacey Act to conclude that the Lacey Act applies to Indians, including Good.3 This mirrors the approach employed by the Magistrate Judge in the R&R. The Magistrate Judge applied an analysis in which he first queried whether the Lacey Act applies to Indians. If so, he reasoned, the 1837 Treaty must specifically exempt Good from the Lacey Act, in order for Good to be free from this federal prosecution. Only then, after “a court determines that there is a treaty right that exempts Indians from the operation of a Federal statute of general applicability, [does] the court next ask[] whether that treaty right was abrogated by Congress.” (R&R ______________________________________________________ 3 At oral argument, counsel for the Government informed the Court that the response to Good’s objections to the R&R that the Government filed contained the wrong arguments – those pertaining to the defendants in United States v. Reyes, Cr. No. 13-70, and United States v. Brown, Cr. No. 13-68 – rather than the arguments it intended to make in response to Good’s objections. (See Resp. to Objections to the R&R, Sept. 20, 2013, Docket No. 52.) The Government advised the Court to look to a different defendant’s docket, United States v. Bellefy, Cr. No. 13-71, for the response pertaining to a defendant such as Good, whose Lacey Act indictment is based on federal regulations rather than on tribal law. (See, e.g., Cr. No. 13-71, Resp. to Objections to the R&R, Sept. 27, 2013, Docket Nos. 105, 106.) The Government has not sought to correct the mistake on this docket. Nevertheless, the Court will consider the Government’s arguments that pertain to the issues in this case presented on the Bellefy docket, in addition to those in the response actually filed on this docket that are relevant to the issues presented by this case. ______________________________________________________ at 10, 12.) The Government maintains that Good’s treaty rights have no effect upon the operation of the Lacey Act. (Resp. to Objections to the R&R at 2, Sept. 20, 2013, Docket No. 52 (“Treaty rights are not at play here.”).) In contrast, Good urges the Court to follow the approach adopted by the Supreme Court in cases presenting a potential conflict between a treaty and a statute. (Obj. to R&R at 6, Sept. 3, 2013, Docket No. 46 (citing United States v. Dion, 476 U.S. 734, 739 (1986).) This approach involves determining first the scope of the treaty’s protection – whether it protects the conduct at issue – and second whether Congress has specifically abrogated that protection. The Supreme Court has made clear that if there is a treaty right that protects the relevant conduct, the question is whether Congress has abrogated that right, not whether the right has specifically exempted the party to the treaty from an Act that would otherwise generally apply. See Dion, 476 U.S. at 737-40 (after determining that treaty rights included exclusive right to hunt and fish on the land, determined whether Congress specifically abrogated those rights); Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 689-90 (analyzing first the scope of protection under the treaty and second whether Congress specifically abrogated that protection), modified sub nom. Washington v. United States, 444 U.S. 816 (1979). The Court will follow the approach adopted by the United States Supreme Court in United State v. Dion: first considering the scope of the 1837 Treaty’s protection and then whether Congress has explicitly abrogated that protection. 4 This approach has been used widely by other courts analyzing potential conflicts between Indian treaty rights and federal criminal statutes. See, e.g., United States v. Gotchnik, 222 F.3d 506, 509 (8th Cir. 2000) (determining that defendants “clearly possess the right to hunt and fish in the ceded territory” under the Bands’ Treaty and that the right had not been abrogated, before considering whether the statute offended the treaty rights by prohibiting use of motorboats and motor vehicles in the area). ________________________________________________________________________ 4 Some formulations of this approach involve a third inquiry – whether the prohibition at issue, here, the Lacey Act or the regulations, is a nondiscriminatory conservation measure. See Puyallup Tribe v. Dep’t of Game of Wash., 391 U.S. 392, 398 (1968). Good argues that under this analysis, the regulations do not survive as valid, nondiscriminatory measures. (See Letter to District Judge, Oct. 23, 2013, Docket No. 54.) But that inquiry was necessary in Puyallup because the treaty rights at issue protected hunting and fishing “in common with” other citizens of the territory so “any ultimate findings on the conservation issue must also cover the issue of equal protection implicit in the phrase ‘in common with.’” Puyallup, 391 U.S. at 395, 403. Here, the treaty contains no language requiring the Chippewa to share their fishing rights “in common” with non-Indians. Rather, courts in this district have already held that the broad scope of the Chippewa’s fishing rights precludes state regulation of tribe members’ fishing and hunting. Herbst, 334 F. Supp. at 1006. Thus, the Court need not engage in this third inquiry because the treaty language does not contemplate that the Chippewa share their hunting and fishing rights with non-Indians. See United States v. Bresette, 761 F. Supp. 658, 664 (D. Minn. 1991) (rejecting government’s argument that “a statute of general applicability may limit Indian treaty rights under Puyallup even if it is not a clear abrogation of those rights as required under Dion” finding that “the court [in Puyallup] interpreted the Indians’ fishing rights to be in common with other groups,” and therefore determined that “the particular conservation measures did not exceed the Indians’ understanding of the treaty” (emphasis omitted)). Thus, in Puyallup, the Supreme Court determined that the treaty did not protect the Indians’ exclusive right to fish in the manner and mode that the state prohibited, so there was no need to consider abrogation, but only whether those state regulations were valid conservation measures that did not discriminate against Indians. Puyallup, 391 U.S. at 395-403. Here, the Court concludes that Defendants do have a treaty-protected right to the fishing underlying the indictment, but Congress has not abrogated that right. Thus, there is no need to analyze whether the Lacey Act or the regulations are valid nondiscriminatory conservation measures, because even if they were, they cannot be applied to Defendants in violation of their treaty rights. ___________________________________________________________________ Moreover, the Court has found no Supreme Court precedent, and the Government has presented none, endorsing an approach that looks for a treaty to exempt Indians from the application of federal law rather than for the federal statute to abrogate the treaty rights.5 Given that the 1837 Treaty pre-dates the Lacey Act (predating the present version of the Act by almost 150 years), it would make little sense for the Treaty to specifically and affirmatively exempt its beneficiaries from an Act passed many years ____________________________________________________________________ 5 The only precedent endorsing such an approach is based on a different treaty. See United States v. Sohappy, 770 F.2d 816 (9th Cir. 1985). There, the Ninth Circuit first determined that the relevant treaty, which granted hunting and fishing rights “in common with” other citizens of the territory, did not protect an exclusive right for the tribe to regulate hunting and fishing or for the defendant to engage in the prohibited conduct. Id. 818-20. The court then proceeded to consider whether Congress intended the Lacey Act to apply to Indians, concluding that it did, and that the treaty did not exempt Indians from the Lacey Act. Id. at 818-21. The Court is not persuaded that Sohappy provides precedent for inquiring into whether a treaty exempts the Chippewa from the Lacey Act, both because it addressed a different, less protective treaty right, and because it is counter to the Supreme Court’s directive in Dion that hunting and fishing treaty rights must be abrogated in order to not apply. To the extent the Eighth Circuit seems to have endorsed this approach in United States v. Stone, 112 F.3d 971, 973-74 (8th Cir. 1997), by citing Sohappy for the proposition that “federal laws of general applicability are applicable to the Indian unless there exists some treaty right which exempts the Indian from the operation of the particular statutes in question,” id. at 974 (internal citations omitted), its reference to Sohappy conflicts with Supreme Court precedent requiring courts to consider abrogation rather than exemption. See also United States v. Big Eagle, 881 F.2d 539, 540 n.1 (8th Cir. 1989) (referencing Sohappy to conclude that treaty did not protect Indian from prosecution for fishing on reservation of which he was not a member). Moreover, the origin of this line of dicta in Stone lies in the general applicability of federal criminal laws on reservations, see Stone, 112 F.3d at 974 (citing United States v. Burns, 529 F.2d 114, 116-17 (9th Cir. 1975)), where federal authority to enforce criminal laws that did not implicate treaty rights was unclear – not in the context of treaty-protected usufructuary rights. See Burns, 529 F.2d at 116-17 (“federal statutes of general applicability that make actions criminal wherever committed,” such as the crime of being a felon in possession of a firearm, apply to Indians on reservations unless a treaty states otherwise). In contrast, “areas traditionally left to tribal self-government, those most often the subject of treaties, have enjoyed an exception from the general rule that congressional enactments, in terms applying to all persons, includes Indians and their property interests.” United States v. White, 508 F.2d 453, 455 (8th Cir. 1974) (footnote omitted). _____________________________________________________________________ later. Cf. United States v. White, 508 F.2d 453, 456 (8th Cir. 1974) (“Generally, in the case of a conflict between an Act of Congress and a treaty, the one last in date must prevail. However, a treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed.” (citation omitted)). B. Treaty Conflict Analysis Within this framework for considering the potential conflict between the 1837 Treaty and the Lacey Act, the parties do not dispute that the 1837 Treaty fishing rights apply to Good’s activity on the Red Lake Reservation. Rather, they dispute whether those rights encompass the sale of fish and whether the Lacey Act applies to Good despite those rights. The Court therefore must first determine whether the Treaty’s protection encompasses Good’s conduct and second, if so, whether Congress has abrogated this protection. 1. Scope of the 1837 Treaty’s Protections In the first part of this analysis, the Court must determine whether the 1837 Treaty protects Good’s right to engage in the conduct underlying the indictment. Interpretation of Indian treaties is “guided by special rules of construction.” Gotchnik, 222 F.3d at 509. We are to “interpret Indian treaties to give effect to the terms as the Indians themselves would have understood them.” Mille Lacs Band, 526 U.S. at 196. Treaties are to be “interpreted liberally in favor of the Indians,” id. at 194 n.5, and any ambiguities are to be resolved in the Indians’ favor, Winters v. United States, 207 U.S. 564, 576-77 (1908). See also Cnty. of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 269 (1992); Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985); Bresette, 761 F. Supp. at 661 (“It is axiomatic that Indian treaty rights are to be afforded a broad construction and, indeed, are to be interpreted as the Indians understood them because the Indians were generally unlettered and the government had great power over the Indians with a corresponding responsibility toward them.” (emphasis in original)). As a general matter, “Indians enjoy exclusive treaty rights to hunt and fish on lands reserved to them, unless such rights were clearly relinquished by treaty or have been modified by Congress.” Dion, 476 U.S. at 738. These fishing rights are held individually by Good, as treaty rights can be asserted by individual tribe members. Id. at 738 n.4. Specifically, the Court is persuaded that the 1837 Treaty right encompasses sale of the fish, based on the understanding of the Chippewa at the time the treaty was signed. The 1837 Treaty was signed by the leaders of several bands of Chippewa Indians, along with representatives of the United States government after several days of negotiation that took place at Fort Snelling. Lawrence Taliaferro, Autobiography of Maj. Lawrence Taliaferro 214, in 6 Minnesota Historical Collections (1864). During the negotiations, Chippewa leaders expressed their desire to retain the right to hunt and fish on the ceded lands. Chippewa leader Hole in the Day stated: “My father, in all the country we sell you, we wish to hold on to that which gives us life – the streams and lakes where we fish, and the trees from which we make sugar.” Henry Dodge, Proceedings of a Council with the Chippewa Indians, 9 Iowa J. Hist. & Pol. 408, 424 (1911). Governor Henry Dodge of Wisconsin Territory, which in 1837 included all of the future State of Minnesota, later responded that “I will agree that you shall have the free use of the rivers and the privilege of hunting on the lands you are to sell, during the pleasure of your great father.” Id. at 427. Another Chippewa leader, Flat Mouth, a chief from Leech Lake, stated: Your children are willing to let you have their lands, but wish to reserve the privilege of making sugar from the trees, and getting their living from the lakes and rivers as they have heretofore done, and of remaining in the country. It is hard to give up the land. It will remain and cannot be destroyed, but you may cut down the trees, and others will grow up. You know we cannot live deprived of lakes and rivers. Id. at 428. Governor Dodge responded to this: “My friends, I have listened with great attention to your chiefs from Leech Lake. I will make known to your great father your request to be permitted to make sugar on the lands, and you will be allowed during his pleasure to hunt and fish on them.” Id. at 429. These statements strongly indicate that both the Chippewa and the representatives of the United States understood the Treaty to reserve to the Chippewa a broad right to fish as they had been accustomed – without material restriction. Notably, one chief stated that the Chippewa wished to reserve the privilege of “getting their living from the lakes and rivers as they have heretofore done.” Id. at 428. This is most reasonably understood to encompass the sale of fish, because in order to make a ‘living’ off of the lakes, Indians may have needed to sell or trade the yield. As the court held in Bresette, “the Chippewa were part of the national and international market economy at the time of the treaties.” 761 F. Supp. at 662 (citing Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 653 F. Supp. 1420, 1424 (W.D. Wis. 1987) (the Chippewa “harvested resources for their own immediate, personal use and for use as trade goods in commerce”)). The court in Bresette found that the Chippewa’s right to hunt and gather the feathers from birds encompassed a right to sell the feathers, finding that there was “ample evidence that the Chippewa understood that their hunting and gathering rights . . . encompassed the sale of their catch.” Id. at 662, 664-65 (treaty right precluded prosecution for sale of feathers under the Migratory Bird Treaty Act). 2. Congressional Abrogation The Court must next determine whether Congress has exercised its power to abrogate this treaty-protected right. See Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 594 (1977). Here, there are at least two congressional enactments that could be interpreted as having abrogated the 1837 Treaty’s protections: the Lacey Act and the statutes authorizing the federal regulations that serve as the basis of Good’s Lacey Act indictment. Courts should conclude that Congress has abrogated treaty rights only if Congress has clearly expressed its intent to do so, as “the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.” Menominee Tribe of Indians v. United States, 391 U.S. 404, 413 (1968) (internal quotation marks omitted); see also South Dakota v. Bourland, 508 U.S. 679, 687 (1993). Courts have been “extremely reluctant to find congressional abrogation of treaty rights” absent explicit statutory language, Washington, 443 U.S. at 690, as “Indian treaty rights are too fundamental to be easily cast aside,” Dion, 476 U.S. at 738-39. The Supreme Court in Dion acknowledged that courts have applied differing standards as to the degree of clarity and specificity with which Congress must abrogate a treaty, but clarified that “[w]hat is essential is clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.” Id. at 739-40. In making this determination, the plain text of the statute is preferred over other sources, but there is no per se rule against utilizing legislative history in determining whether Congress intended to abrogate the treaty. Id. at 739. a. Lacey Act The Government argues that the Lacey Act applies to Indians, and that because it applies to Indians, Congress has abrogated any treaty-based fishing right. As support, the Government cites United States v. Sohappy, which held that the Lacey Act could be enforced against Indians for fishing violations in the state of Washington despite treaty-based usufructuary rights, reasoning that “it is only reasonable to assume that Congress intended the Lacey Act to encompass everyone, including Indians.” United States v. Sohappy, 770 F.2d 816, 821 (9th Cir. 1985); see also United States v. Big Eagle, 881 F.2d 539, 540 n.1 (8th Cir. 1989) (“[T]he Lacey Act, by its terms and definitions, applies to Indian people.” (citing Sohappy, 770 F.2d at 820-22)). In Sohappy, the relevant treaty protected the right of Indians to hunt and fish at all “usual and accustomed places,” but “in common with citizens of the Territory.” 770 F.2d at 819 (quoting treaty language). The court’s reasoning relied on a determination that “the Indians do not have any treaty reserved right to exclusive jurisdiction over such fishing matters.” Id. at 820 (emphases omitted). Thus, the Lacey Act, applying generally to Indians, applied to the Indians in Sohappy because the treaty there did not protect an exclusive right to hunt and fish. Here, the 1837 Treaty contains no language requiring that the hunting and fishing rights be shared and has been interpreted as providing for exclusive tribal authority to regulate fishing and hunting. Herbst, 334 F. Supp. at 1006 (“Indians have the right to hunt and fish and gather wild rice on public lands and public waters of the Leech Lake Reservation free of Minnesota game and fish laws.”).6 Thus, the inquiry and analysis here is distinct from that of Sohappy: the question is whether Congress intended the Lacey Act to apply even to Indians who hold fishing rights that are exclusive and not shared in common with non-Indians. Certainly, the federal government has the authority to exercise jurisdiction to limit tribe members’ fishing and hunting, but in order to do so Congress must make explicit its intent to abrogate the treaty rights. Rosebud Sioux Tribe, 430 U.S. at 594. There is no indication in the text of the Lacey Act that Congress intended to abrogate individual Chippewa members’ fishing rights. Rather, the Lacey Act includes a specific disclaimer that: “[n]othing in this chapter shall be construed as . . . repealing, superseding, or modifying any right, privilege, or immunity granted, reserved, or established pursuant to treaty, statute, or executive order pertaining to any Indian tribe, band, or community.” 16 U.S.C. § 3378(c)(2). This plainly dispels any possibility that Congress intended to abrogate Good’s fishing rights under the 1837 Treaty. Cf. __________________________________________________________________ 6 The court in Herbst concluded, however, that the Leech Lake tribe did not have the exclusive jurisdiction to regulate fishing and hunting by non-Indians. 334 F. Supp. at 1006. This determination does not affect the analysis here, as Good is a member of a Chippewa tribe. _________________________________________________________________ Gotchnik, 222 F.3d at 509 (finding that the Boundary Waters Act did not abrogate treaty rights to hunt and fish in relevant territory where the Act stated “[n]othing in this Act shall affect the provisions of any treaty now applicable to lands and waters which are included in the mining protection and the wilderness” (internal quotation marks omitted)). The text of the Lacey Act includes another disclaimer that “[n]othing in this chapter shall be construed as . . . enlarging or diminishing the authority of any State or Indian tribe to regulate the activities of persons within Indian reservations.” 16 U.S.C. § 3378(c)(3). This further dispels any possibility that Congress intended to abrogate any rights under the Treaty. The legislative history also supports this conclusion. The Senate Report on the 1981 amendments to the Lacey Act – the amendments which added tribal law as a basis for violation under the Act – acknowledges the lack of clarity at the time about the extent to which tribes and states exercised concurrent or exclusive jurisdiction on tribal lands: Nothing in this Act shall be construed as enlarging or diminishing the authority of any state or Indian tribe to regulate the activities of persons within the Indian reservations. The Committee recognizes that there is a continuing controversy about the extent of state and tribal jurisdiction over resources within Indian reservations and regarding non-Indians on those reservations. Nothing in this Act is intended to preempt whatever jurisdiction individual states may have over resources within Indian Reservations under existing law, nor is it intended to alter or change the existing authority of Indian tribes over resources within their reservations. S. Rep. 97-123, 18, 1981 U.S.C.C.A.N. at 1765 (internal citations omitted). This suggests that Congress was aware that different Indian treaties provided various degrees of protection and exclusivity and that Congress did not intend to disrupt or alter those varying degrees of protection. Only two provisions of the Lacey Act offer any basis upon which to argue that Congress intended the Act to empower the federal government to limit Indian hunting and fishing on the Chippewa Reservations. First and most obviously, the prohibitions include violation of “Indian tribal law” as a basis for a violation under the Act. 16 U.S.C. § 3372(a)(1). Second, the enforcement section provides that “the Secretary may enter into such contracts, leases, cooperative agreements, or other transactions with any Federal or State agency, Indian tribe, public or private institution, or other person, as may be necessary to carry out the purposes of this chapter.” Id. § 3376(b). But these provisions do not indicate any intent by Congress that the Act’s prohibitions would apply to Indians holding exclusive treaty-based rights to hunt and fish. Rather, they are best interpreted as permitting and facilitating federal enforcement of tribal law violations in situations that would not offend treaty rights. For example, this could include federal enforcement of tribal law against non-Indians on Indian land. See, e.g., Herbst, 334 F. Supp. at 1006 (Leech Lake Indians hold “aboriginal fishing and hunting rights,” but not the “exclusive right to regulate hunting and fishing of Indian and non-Indian alike on the reservation”). This could also include federal enforcement (in conjunction with tribes or states) of the Lacey Act where fishing rights are held “in common” with non-Indians, as with the treaty rights in Sohappy. Nothing in the text or the legislative history suggests that the possibility of joint or concurrent enforcement in some cases indicates Congress’s specific intent to abrogate treaty rights in cases where those rights protect an exclusive right to hunting and fishing. These provisions are not rendered superfluous under the Court’s interpretation that the Lacey Act did not abrogate the 1837 Treaty rights and therefore does not permit federal prosecution for violations of tribal fishing law. Neither provision contains the kind of explicit recognition of the treaty rights and choice to abrogate them required by the Supreme Court. See Dion, 476 U.S. at 739-40. In light of the express disclaimers that the Lacey Act does not affect treaty rights and the legislative history’s acknowledgment of the uncertain state of tribal and state jurisdiction at the time, the best interpretation of the Lacey Act as a whole is that Congress intended all extant treaty rights to remain intact. Where treaty rights do not preclude concurrent regulation of fishing and hunting by tribe members on the reservation, the Lacey Act would provide for federal enforcement of tribal law, but not where a treaty protects exclusive hunting and fishing rights for its members, as with the Chippewa’s 1837 Treaty rights. b. Federal Regulations and Authorizing Statute In addition to the Lacey Act, there is another federal action here that could be interpreted as having abrogated Good’s rights under the 1837 Treaty. The Government argues that the federal regulations underlying Good’s Lacey Act indictment, 25 C.F.R. §§ 242.2, 242.4, are a valid restraint on Good’s fishing activities regardless of any treaty rights he may hold. Similarly, the Magistrate Judge recommended that the Court “need not reach the question of whether Defendant’s treaty right to fish was abrogated by the Lacey Act, because the Court finds that the Federal regulations governing fishing on Red Lake legitimately limit the scope of this right.” (R&R at 17.) This is contrary to the directives of the Supreme Court that treaty rights may be abrogated only by an explicit act of Congress. See Dion, 476 U.S. at 738. The Magistrate Judge relied on the Ninth Circuit’s decision in United States v. Eberhardt, 789 F.2d 1354 (9th Cir. 1986), to determine that Good’s treaty rights could be abrogated by federal regulations limiting on-reservation fishing. There the court considered a similar criminal prosecution: for violation of the Lacey Act based on federal regulations which had imposed a moratorium on commercial fishing on the Hoopa Valley Indian Reservation. See id. at 1356-57 (citing 25 C.F.R. § 250.8(e) (1985)). The defendants challenged their prosecution under the Lacey Act on the grounds that the Department of Interior lacked the authority to promulgate regulations limiting commercial fishing because such regulations violated their fishing rights under the federal statute that created the reservation. Id. at 1357-59. The Ninth Circuit rejected this argument, concluding that Congress authorized the Department to promulgate such regulations in 25 U.S.C. §§ 2, 9. Id. at 1359-60. Section 2 states that: The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs and of all matters arising out of Indian relations. 25 U.S.C. § 2. Section 9 states that: The President may prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs, and for the settlement of the accounts of Indian affairs. Id. § 9. The court concluded that these statutory provisions gave the Department the authority to promulgate the Indian fishing regulations and, as a result, rejected the appellees’ argument that “the regulations are invalid in the absence of specific legislation giving Interior authority to regulate Indian fishing” in light of their treaty rights. Eberhardt, 789 F.2d at 1359-60. The court claimed that it did not interpret the authorizing statute, 25 U.S.C. §§ 2, 9, as abrogating the treaty right. Id. at 1361 (“We need not consider regulations purporting to implement statutorily mandated abrogation of previous rights because this case does not involve a congressional statute modifying Indian rights.”). Instead, the court reasoned that because states could impose reasonable and necessary limitations on Indian fishing for the purposes of conservation and the Department’s authority was broader than that of a state, the validity of the Department’s regulation need not be held to the same standard and instead should be adjudged by the limitations on agency action in the Administrative Procedure Act, 5 U.S.C. §§ 500, et seq.; Eberhardt, 789 F.2d at 1361-62 (“Interior has a broader scope of authority to regulate Indian fishing than do the states” so “the district court erred in requiring Interior to justify the ban on commercial fishing by showing” the standard applied to a state regulation). The court reversed and remanded to the district court to determine whether the regulations were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” id. at 1362 (citing 5 U.S.C. § 706(2)(A)), and whether the Department utilized the procedures required by the Administrative Procedure Act, id. (citing 5 U.S.C. § 706(2)(D)). This analysis does not control here. Even if the Court were bound by the Ninth Circuit’s ruling, the court’s analysis in Eberhardt is contrary to the directive of the Supreme Court that treaty rights may be abrogated only by an act of Congress, see Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903) (“Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government.”), which the Supreme Court reiterated just a month after Eberhardt was issued in United States v. Dion. Dion, 476 U.S. at 738-39 (Indian treaty-based hunting and fishing rights are reserved “unless such rights were clearly relinquished by treaty or have been modified by Congress,” and Congress must make such an intent clear such that there is “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty”). Thus, the regulations themselves do not abrogate Good’s treaty rights because they are not an act of Congress. The question remains whether there is sufficient evidence in the statute that the regulations implement, 25 U.S.C. §§ 2, 9, indicating that Congress intended to abrogate the 1837 Treaty’s fishing protections. The Court concludes that there is not. The relevant sections of the statute are broad grants of general authority to the Secretary of the Interior and to the President to manage “Indian affairs” and relations. 25 U.S.C. §§ 2, 9. They contain no indication or language referring to treaty-based fishing rights that could amount to the kind of evidence that Congress considered the treaty rights and chose to abrogate them that the Supreme Court requires. See Dion, 476 U.S. at 739-40. They originate in acts passed in 1832 and 1834, 4 Stat. 546, 738, at a time in which policies of almost “total tribal self-government” prevailed. Organized Vill. of Kake v. Egan, 369 U.S. 60, 63 (1962). Since then, courts have repeatedly interpreted Indian treaty-based fishing rights to persist, including the 1837 Treaty rights at issue here. See Mille Lacs Band, 526 U.S. at 189-207; Herbst, 334 F. Supp. at 1002-03. Moreover, courts interpreting the sections have disputed whether they even provide authority for the Department of the Interior to promulgate regulations. Compare Egan, 369 U.S. at 63 (“[T]he Interior Department itself is of the opinion that the sole authority conferred by [Section 2] is that to implement specific laws, and by [Section 9] that over relations between the United States and the Indians – not a general power to make rules governing Indian conduct.”), with Washington, 443 U.S. at 691 (“The Indians’ fishing rights and responsibilities have instead been the subject of separate regulations promulgated by the Interior Department, under its general Indian powers.”). Thus, neither the text of the statute, interpretations of the statute, nor the circumstances of this specific treaty provide any support for concluding that 25 U.S.C. §§ 2 and 9 abrogated the 1837 Treaty rights. CONCLUSION The Court concludes that Good’s rights under the 1837 Treaty preclude his prosecution under the Lacey Act. The 1837 Treaty protects Good’s right to engage in the conduct underlying the indictment, which may be abrogated by only an act of Congress. Congress has not abrogated that right, either in the Lacey Act or in the statute authorizing the Department of Interior to promulgate the regulations. ORDER Based on the foregoing, and the records, files, and proceedings herein, the Court SUSTAINS defendant’s objections [Docket No. 46] and REJECTS the Report and Recommendation of the Magistrate Judge [Docket No. 43] as discussed in the memorandum opinion. Accordingly, IT IS HEREBY ORDERED that: 1. Defendant’s Motion to Dismiss the Indictment [Docket No. 32] is GRANTED. 2. Defendant’s Motion to Dismiss the Indictment Due to Selective Prosecution [Docket No. 30] is DENIED as moot. 3. Defendant’s Motion to Suppress [Docket No. 31] is DENIED as moot. DATED: November 25, 2013 ____________s/John R. Tunheim__________ at Minneapolis, Minnesota. s/John R. Tunheim JOHN R. TUNHEIM United States District Judge UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA Criminal No. 13-68 (JRT/LIB) UNITED STATES OF AMERICA, Plaintiff, v. (1) MICHAEL D. BROWN, Defendant. Criminal No. 13-70 (JRT/LIB) UNITED STATES OF AMERICA, MEMORANDUM OPINON AND ORDER REJECTING THE REPORTS AND RECOMMENDATIONS OF THE MAGISTRATE JUDGE Plaintiff, v. (1) JERRY A. REYES, a/k/a Otto Reyes, (2) MARC L. LYONS, (3) FREDERICK W. TIBBETTS, a/k/a Bud Tibbetts, Defendants. Thomas Calhoun-Lopez, Assistant United States Attorney, UNITED STATES ATTORNEY’S OFFICE, 600 United States Courthouse, 300 South Fourth Street, Minneapolis, MN 55415, for plaintiff. Andrew H. Mohring, Assistant Federal Defender, OFFICE OF THE FEDERAL DEFENDER, 300 South Fourth Street, Suite 107, Minneapolis, MN 55415, for defendants Michael D. Brown and Frederick W. Tibbetts. Steve L. Bergeson, TUTTLE BERGESON PETROS, P.A., 1275 Ramsey Street, Suite 600, Shakopee, MN 55379, for defendant Jerry A. Reyes. Paul C. Engh, PAUL ENGH LAW OFFICE, 220 South Sixth Street, Suite 1225, Minneapolis, MN 55402, for defendant Marc. L. Lyons. Defendants Michael Brown, Jerry Reyes, Marc Lyons, and Frederick Tibbetts were indicted for violating the Lacey Act by transporting and selling fish in violation of tribal law. 16 U.S.C. § 3372(a).1 Defendants move to dismiss their respective indictments on the grounds that, as members of the Leech Lake and White Earth bands of Chippewa Indians, their right to fish on the Leech Lake Reservation is protected by the 1837 Treaty with the Chippewa (“1837 Treaty”), 7 Stat. 536, July 29, 1837, such that this federal prosecution violates their treaty rights. United States Magistrate Judge Leo I. Brisbois issued a Report and Recommendation (“R&R”) in each case, recommending that the Court deny Defendants’ motions to dismiss. Defendants objected to the R&Rs, and ______________________________________________________________________ 1 The Court addresses Defendants’ motions to dismiss and treaty-based objections to the Reports and Recommendations in their respective cases in this consolidated memorandum opinion and order because the objections raise the same legal question: whether the indictments should be dismissed because prosecuting Defendants for the netting, sale, and transport of fish in violation of tribal law under the Lacey Act violates Defendants’ fishing rights under the 1837 Treaty with the Chippewas. The order will distinguish between the cases by noting docket items in United States v. Brown, Cr. No. 13-68, as “Brown Docket,” and docket items in United States v. Reyes, et al., Cr. No. 13-70, as “Reyes Docket” (the Reyes Docket includes docket items for defendants Reyes, Lyons, and Tibbetts). This order does not address the remaining defendants in these cases: defendant Alan Hemme, (Cr. No. 13-70(4)), and Michael Nei, (Cr. No. 13-68(2)), as those defendants did not raise a treaty argument. The Court addresses a similar treaty-based argument in United States v. Good, (Cr. No. 13-72), but addresses Good’s arguments in a separate memorandum opinion and order because the legal question presented by that case is not identical to that of these cases. ________________________________________________________________________ the Court will sustain the objections. The Court will dismiss Defendants’ indictments because the 1837 Treaty protects Defendants’ right to fish on the reservation and Congress has not specifically abrogated that right. BACKGROUND I. CHIPPEWA TREATY RIGHTS Chippewa Indians occupied much of Minnesota and Wisconsin before European explorers and settlers arrived. William Watts Folwell, A History of Minnesota, Vol. I, 10, 133-34, 159 (1956). In the early 1800s, the United States sought to acquire native lands through cessation treaties, including much of eastern Minnesota and western Wisconsin in the 1837 Treaty. Id. at 159-60. The 1837 Treaty provided that the Chippewa Indians would cede these territories to the United States in exchange for cash and goods. See 1837 Treaty, 7 Stat. 536, arts. 1-2. The Treaty also provided that: The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the President of the United States. Id., art. 5. This “privilege” of hunting and fishing is generally referred to as a “usufructuary right – the right to make a modest living by hunting and gathering off the land.” United States v. Bresette, 761 F. Supp. 658, 660 (D. Minn. 1991). A later treaty, signed in 1855, created the Leech Lake Reservation, which is one of seven Chippewa reservations in Minnesota. Treaty with the Chippewa, 1855 (“1855 Treaty”), 10 Stat. 1165, Feb. 22, 1855; Leech Lake Band of Chippewa Indians v. Herbst, 334 F. Supp. 1001, 1002-03 (D. Minn. 1971); see also Cass Cnty., Minn. v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 106 (1998). Courts have consistently interpreted the 1837 and subsequent Chippewa treaties to preserve the Chippewa’s hunting and fishing rights on the Leech Lake Reservation. In Herbst, the court held that these hunting and fishing rights were not extinguished by the Nelson Act of 1889, which permitted parcels from the reservation to be sold to white settlers. 334 F. Supp. at 1104-05; see also Cass Cnty., Minn., 524 U.S. at 106-08 (purpose of allotment acts such as Nelson Act was to “assimilate Indians into American society and to open reservation lands to ownership by non-Indians”). The court held that the treaty-based hunting and fishing rights gave the Leech Lake tribe exclusive jurisdiction over hunting and fishing on the reservation such that state fishing and gaming laws did not apply to members of the tribe on the reservation. Herbst, 334 F. Supp. at 1004-06.2 Similarly, the Supreme Court in Minnesota v. Mille Lacs Band of Chippewa Indians held that the 1837 Treaty protected the right of Chippewa Indians to hunt and fish on the Mille Lacs Reservation. 526 U.S. 172, 196-202 (1999). There the State claimed ________________________________________________________________ 2 The Minnesota Supreme Court has held similarly with regard to another Chippewa reservation: the White Earth Reservation. State v. Clark, 282 N.W.2d 902, 908-09 (Minn. 1979). There the court held that Chippewa Indians on the White Earth Reservation retained usufructuary rights because “it is clear from the record that hunting and fishing were an important part of the Chippewa’s lifestyle and that the need to pursue these activities was a significant consideration in motivating them to negotiate with the government during this period of time. Moreover, the record reflects that for a considerable period after 1867 the White Earth Indians relied, in large part, upon hunting and fishing for their basic sustenance” and “hunting and fishing are a basic incident of reservation status.” (footnote omitted) (citing Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968))). ____________________________________________________________________ that language in the 1855 Treaty (which created the Leech Lake Reservation) stating that “‘Indians do further fully and entirely relinquish and convey to the United States, any and all right, title, and interest, of whatsoever nature the same may be, which they may now have in, and to any other lands in the Territory of Minnesota or elsewhere,’” terminated any usufructuary rights the Chippewa may have had. Mille Lacs Band, 526 U.S. at 195 (quoting 10 Stat. 1166). But the Supreme Court found otherwise, observing that the treaty is “devoid of any language expressly mentioning – much less abrogating – usufructuary rights.” Id. The Supreme Court also noted that the Senate chairman of the Committee on Indian Affairs at the time the 1855 Treaty was signed stated that the treaties would reserve to the Chippewa “those rights which are secured by former treaties,” and that statements by a Chief of one band party to the treaty emphasized that the purpose of the treaty was the transfer of land, suggesting that “the Chippewa did not understand the proposed Treaty to abrogate their usufructuary rights as guaranteed by other treaties.” Id. at 197-98 (internal quotations and citations omitted). The Court is persuaded, and the parties do not dispute, that the usufructuary rights named in the 1837 Treaty apply to the Leech Lake Band on the Leech Lake Reservation. II. LACEY ACT The Lacey Act was initially passed in 1900 as one of the first federal wildlife protection laws, outlawing interstate sale or transport of birds or other animals killed illegally in their state of origin. Lacey Act, 16 U.S.C. §§ 3371 et seq.; S. Rep. 97-123, at 2 (1981), reprinted in 1981 U.S.C.C.A.N. 1748, 1749. Congress amended the Lacey Act in 1981 to strengthen the Act’s effectiveness as a wildlife law enforcement tool. Lacey Act Amendments of 1981, Pub. L. No. 97-79, 95 Stat. 1073. In particular, Congress added violations of tribal law to the possible grounds for violation of the Lacey Act: It is unlawful for any person . . . to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken or possessed in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law . . . . Id. § 3(a)(1) (codified at 16 U.S.C. § 3372(a)). The Senate Report explained the rationale for this addition: Because of the resource management responsibilities of Indian tribes, the legislation proposes that like the current Black Bass Act, the provisions of the [Lacey] Act apply to fish and wildlife taken in violation of Indian tribal law or regulations. S. Rep. 97-123 at 4, 1981 U.S.C.C.A.N. at 1751. The government brings the Lacey Act charges here for alleged violations of tribal law. III. INDICTMENTS Defendants Brown, Reyes, and Lyons are enrolled members of the Leech Lake Band of Chippewa Indians (“Leech Lake Band”) and Defendant Tibbetts is an enrolled member of the White Earth Band of Chippewa Indians. (Indictment, Apr. 9, 2013, Brown Docket No. 1; Indictment, Apr. 9, 2013, Reyes Docket No. 1.) Defendants were each charged with violating the Lacey Act, 16 U.S.C. § 3372, by transporting and selling fish in violation of tribal law. All Defendants are accused of taking fish by gill net from lakes within the boundaries of the Leech Lake Indian Reservation, for commercial purposes, in violation of the Conservation Code of the Leech Lake Band of Chippewa Indians (“Conservation Code”) sections 22.01(2) and 23.01. (Indictment, Brown Docket No. 1; Indictment, Reyes Docket No. 1.) Section 22.01 of the Conservation Code prohibits the taking of fish with gill nets except for personal uses. Conservation Code § 22.01(2). Section 23.01 of the Conservation Code prohibits the taking of fish for commercial purposes within the Leech Lake Reservation without a special permit. Conservation Code § 23.01. Defendants each move to dismiss their indictments on the grounds that they cannot be prosecuted for fishing activities on the reservation because their right to fish on the reservation is protected by the 1837 Treaty.3 (Mot. to Dismiss the Indictment, June 20, 2013, Brown Docket No. 59; Mot. to Dismiss the Indictment, June 20, 2013, Reyes Docket Nos. 106, 118, 119.) The Magistrate Judge issued R&Rs recommending that the motions to dismiss be denied. (R&R, Aug. 14, 2013, Brown Docket No. 71; R&R, Aug. 14, 2013, Reyes Docket Nos. 147, 148, 149.) Defendants object to the R&Rs, arguing that the Magistrate Judge analyzed the potential treaty conflict improperly and incorrectly concluded that the prosecutions could proceed because Defendants were not exempt from the prohibitions of the Lacey Act. The Court now considers Defendants’ objections to the R&Rs on the issue of the potential treaty conflict and concludes that Defendants’ rights under the 1837 Treaty preclude federal prosecution under the Lacey Act. ____________________________________________________________________ 3 Defendants have filed other motions, including motions to dismiss for selective prosecution and motions to suppress certain statements. The Court does not reach these issues because it dismisses the indictments based on Defendants’ treaty rights. _____________________________________________________________________ ANALYSIS I. STANDARD OF REVIEW Upon the filing of a report and recommendation by a magistrate judge, a party may “serve and file specific written objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2); accord D. Minn. LR 72.2(b)(1). “The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). II. MOTIONS TO DISMISS THE INDICTMENT Defendants object to the recommendation of the Magistrate Judge that the Court deny Defendants’ motions to dismiss their indictments. They argue that the R&Rs erroneously framed the relevant question as whether the 1837 Treaty exempts them from the Lacey Act and thus came to the incorrect conclusion that their prosecutions under the Lacey Act can proceed despite their Treaty rights. Defendants argue instead that the fishing rights under the 1837 Treaty insulate them from this federal prosecution under the Lacey Act because Congress has not specifically abrogated their rights provided in the 1837 Treaty. A. Method for Analyzing Potential Conflicts Between Treaties and Statutes The dispute here begins with how the Court should approach the issue. The Government urges the Court to look first, and only, to the Lacey Act to conclude that the Lacey Act applies to Indians, including these Defendants. This mirrors the approach employed by the Magistrate Judge. The Magistrate Judge applied an analysis in which he first queried whether the Lacey Act applies to Indians. After concluding that it did, the Magistrate Judge considered whether the Treaty specifically exempts Defendants from the Lacey Act, as, only then, after “a court determines that there is a treaty right that exempts Indians from the operation of a Federal statute of general applicability, [does] the court next ask[] whether that treaty right was abrogated by Congress.” (R&R at 4, 6, Brown Docket No. 71. 4) Under this approach, which focuses on whether the Treaty exempts defendants from the Lacey Act, the Government argues that the 1837 Treaty rights are not at issue and do not affect the application of the Lacey Act to Defendants. (See, e.g., Resp. to Objections to R&R at 2, Sept. 20, 2013, Docket No. 80. (“Treaty rights are not at play here.”)) In contrast, Defendants urge the Court to follow the approach adopted by the Supreme Court in cases presenting a potential conflict between a treaty and a statute. (See, e.g., Mem. in Supp. of Obj. to R&R at 2, 5-6, Sept. 3, 2013, Brown Docket No. 76 (citing United States v. Dion, 476 U.S. 734, 738 (1986).) This approach involves determining first the scope of the treaty’s protection – whether it protects the conduct at issue – and second whether Congress has specifically abrogated that protection. The Supreme Court has made clear that if there is a treaty right that protects the relevant conduct, the question is whether Congress has abrogated that right, not whether the right has specifically exempted the party to the treaty from an Act that would ____________________________________________________ 4 The R&Rs in each case on this issue are nearly identical. ____________________________________________________ otherwise generally apply. See Dion, 476 U.S. at 737-40 (after determining that treaty rights included an exclusive right to hunt and fish on the land, determined whether Congress specifically abrogated those rights); Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 689-90 (analyzing first the scope of protection under the treaty and second whether Congress specifically abrogated that protection), modified sub nom. Washington v. United States, 444 U.S. 816 (1979). The Court will follow the approach adopted by the United States Supreme Court in United State v. Dion: first considering the scope of the 1837 Treaty’s protection and then whether Congress has explicitly abrogated that protection.5 This approach has been ___________________________________________________________________ 5 Some formulations of this approach involve a third inquiry – whether the prohibition at issue, here, the Lacey Act, is a nondiscriminatory conservation measure. See Puyallup Tribe v. Dep’t of Game of Wash., 391 U.S. 392, 398 (1968). But that inquiry was necessary in Puyallup because the treaty rights at issue protected hunting and fishing “in common with” other citizens of the territory so “any ultimate findings on the conservation issue must also cover the issue of equal protection implicit in the phrase ‘in common with.’” Puyallup, 391 U.S. at 395, 403. Here, the treaty contains no language requiring the Chippewa to share their fishing rights “in common” with non-Indians. Rather, courts in this district have already held that the broad scope of the Chippewa’s fishing rights on the Leech Lake Reservation precludes state regulation of tribe members’ fishing and hunting. Herbst, 334 F. Supp. at 1006. Thus, the Court need not engage in this third inquiry because the treaty language does not contemplate that the Chippewa share their hunting and fishing rights with non-Indians. See United States v. Bresette, 761 F. Supp. 658, 664 (D. Minn. 1991) (rejecting government’s argument that “a statute of general applicability may limit Indian treaty rights under Puyallup even if it is not a clear abrogation of those rights as required under Dion” finding that “the court [in Puyallup] interpreted the Indians’ fishing rights to be in common with other groups,” and therefore determined that “the particular conservation measures did not exceed the Indians’ understanding of the treaty” (emphasis omitted)). In Puyallup, the Supreme Court determined that the treaty did not protect the Indians’ exclusive right to fish in the manner and mode that the state prohibited, so there was no need to consider abrogation, but only whether those state regulations were valid conservation measures that did not discriminate against Indians. Puyallup, 391 U.S. at 395-403. Here, the Court concludes that Defendants do have a treaty-protected right to the fishing underlying the indictment, but Congress has not abrogated that right. Thus, there is no need to analyze whether the Lacey Act is a valid nondiscriminatory conservation measure, because even if it were, it cannot be applied to Defendants in violation of their treaty rights. ____________________________________________________________ used widely by other courts analyzing potential conflicts between Indian treaty rights and federal criminal statutes. See, e.g., United States v. Gotchnik, 222 F.3d 506, 509 (8th Cir. 2000) (determining that defendants “clearly possess the right to hunt and fish in the ceded territory” under the Bands’ Treaty and that the right had not been abrogated, before considering whether the Boundary Waters Act offended the treaty rights by prohibiting use of motorboats and motor vehicles in the area). Moreover, the Court has found no Supreme Court precedent, and the Government has presented none, endorsing an approach that looks for a treaty to exempt Indians from the application of federal law rather than for the federal statute to abrogate the treaty rights.6 Given that the 1837 Treaty pre-dates the Lacey Act (predating the present ______________________________________________________ 6 The only precedent endorsing such an approach is based on a different treaty. See United States v. Sohappy, 770 F.2d 816 (9th Cir. 1985). There, the Ninth Circuit first determined that the relevant treaty, which granted hunting and fishing rights “in common with” other citizens of the territory, did not protect an exclusive right for the tribe to regulate hunting and fishing or for the defendant to engage in the prohibited conduct. Id. 818-20. The court then proceeded to consider whether Congress intended the Lacey Act to apply to Indians, concluding that it did, and that the treaty did not exempt Indians from the Lacey Act. Id. at 818-21. The Court is not persuaded that Sohappy provides precedent for inquiring into whether a treaty exempts the Chippewa from the Lacey Act, both because it addressed a different, less protective treaty right, and because it is inconsistent with the Supreme Court’s directive in Dion that hunting and fishing treaty rights must be abrogated in order to not apply. Although the Eighth Circuit may seem to have endorsed the exemption inquiry in United States v. Stone, 112 F.3d 971, 973-74 (8th Cir. 1997), by citing Sohappy for the proposition that “federal laws of general applicability are applicable to the Indian unless there exists some treaty right which exempts the Indian from the operation of the particular statutes in question,” id. at 974 (internal citations omitted), this reference to Sohappy is inconsistent with Supreme Court precedent requiring courts to consider abrogation rather than exemption. See also United States v. Big Eagle, 881 F.2d 539, 540 n.1 (8th Cir. 1989) (referencing Sohappy to conclude that treaty did not protect Indian from prosecution for fishing on reservation of which he was not a member). Moreover, the origin of this line of dicta in Stone lies in the general applicability of federal criminal laws on reservations, see Stone, 112 F.3d at 974 (citing United States v. Burns, version of the Act by almost 150 years), it would make little sense for the Treaty to specifically and affirmatively exempt its beneficiaries from the Act. Cf. United States v. White, 508 F.2d 453, 456 (8th Cir. 1974) (“Generally, in the case of a conflict between an Act of Congress and a treaty, the one last in date must prevail. However, a treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed.” (citation omitted)).529 F.2d 114, 116-17 (9th Cir. 1975)), where federal authority to enforce criminal laws that did not implicate treaty rights was unclear – not in the context of treaty-protected usufructuary rights. See Burns, 529 F.2d at 116-17 (“federal statutes of general applicability that make actions criminal wherever committed,” such as the crime of being a felon in possession of a firearm, apply to Indians on reservations unless a treaty states otherwise). In contrast, “areas traditionally left to tribal self-government, those most often the subject of treaties, have enjoyed an exception from the general rule that congressional enactments, in terms applying to all persons, includes Indians and their property interests.” United States v. White, 508 F.2d 453, 455 (8th Cir. 1974) (footnote omitted). ______________________________________________________________ B. Conflict Between the Lacey Act and the 1837 Treaty Within this framework for considering the potential conflict between the 1837 Treaty and the Lacey Act, the parties do not dispute that the 1837 Treaty fishing rights apply to Defendants’ activity on the Leech Lake Reservation. Rather, they dispute whether those rights encompass the netting and sale of fish and whether the Lacey Act applies to Defendants despite those rights. The Court therefore must first determine the scope of the 1837 Treaty’s protection – whether it encompasses the conduct at issue and whether it precludes federal enforcement of tribal law. Second, the Court must determine whether Congress intended to abrogate any of these protections in passing the Lacey Act. 1. Scope of the 1837 Treaty’s Protections In the first part of this analysis, the Court must determine whether the 1837 Treaty protects Defendants’ right to engage in the conduct underlying the indictments. Interpretation of Indian treaties is “guided by special rules of construction.” Gotchnik, 222 F.3d at 509. We are to “interpret Indian treaties to give effect to the terms as the Indians themselves would have understood them.” Mille Lacs Band, 526 U.S. at 196. Treaties are to be “interpreted liberally in favor of the Indians,” id. at 194 n.5, and any ambiguities are to be resolved in the Indians’ favor, Winters v. United States, 207 U.S. 564, 576-77 (1908). See also; Cnty. of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 269 (1992); Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985); Bresette, 761 F. Supp. at 661 (“It is axiomatic that Indian treaty rights are to be afforded a broad construction and, indeed, are to be interpreted as the Indians understood them because the Indians were generally unlettered and the government had great power over the Indians with a corresponding responsibility toward them.” (emphasis in original)). As a general matter, “Indians enjoy exclusive treaty rights to hunt and fish on lands reserved to them, unless such rights were clearly relinquished by treaty or have been modified by Congress.” Dion, 476 U.S. at 738. These fishing rights are held individually by Defendants, as treaty rights can be asserted by individual tribe members. Id. at 738 n.4. Specifically, the 1837 Treaty at issue here extends usufructuary rights to fishing on the Leech Lake Reservation to members of bands of Chippewa Indians. See Mille Lacs Band, 526 U.S. at 200; Herbst, 334 F. Supp. at 1003-04. But the scope and extent of these rights is not so clear: do they include the right to fish by any method (such as gill net) and the right to sell the yield? The Court is persuaded that the Treaty rights encompass both this method of catch and the sale of the fish, based on the understanding of the Chippewa at the time the Treaty was signed.The 1837 Treaty was signed by the leaders of several bands of Chippewa Indians, along with representatives of the United States government after several days of negotiation that took place at Fort Snelling. Lawrence Taliaferro, Autobiography of Maj. Lawrence Taliaferro 214, in 6 Minnesota Historical Collections (1864). During the negotiations, Chippewa leaders expressed their desire to retain the right to hunt and fish on the ceded lands. Chippewa leader Hole in the Day stated: “My father, in all the country we sell you, we wish to hold on to that which gives us life – the streams and lakes where we fish, and the trees from which we make sugar.” Henry Dodge, Proceedings of a Council with the Chippewa Indians, 9 Iowa J. Hist. & Pol. 408, 424 (1911). Governor Henry Dodge of Wisconsin Territory, which in 1837 included all of the future State of Minnesota, later responded that “I will agree that you shall have the free use of the rivers and the privilege of hunting on the lands you are to sell, during the pleasure of your great father.” Id. at 427. Another Chippewa leader, Flat Mouth, a chief from Leech Lake, stated: Your children are willing to let you have their lands, but wish to reserve the privilege of making sugar from the trees, and getting their living from the lakes and rivers as they have heretofore done, and of remaining in the country. It is hard to give up the land. It will remain and cannot be destroyed, but you may cut down the trees, and others will grow up. You know we cannot live deprived of lakes and rivers. Id. at 428. Governor Dodge responded to this: “My friends, I have listened with great attention to your chiefs from Leech Lake. I will make known to your great father your request to be permitted to make sugar on the lands, and you will be allowed during his pleasure to hunt and fish on them.” Id. at 429. These statements strongly indicate that both the Chippewa and the representatives of the United States understood the Treaty to reserve to the Chippewa a broad right to fish as they had been accustomed – without restriction. Notably, the Leech Lake Chief stated that the Chippewa wished to reserve the privilege of “getting their living from the lakes and rivers as they have heretofore done.” Id. at 428. This is most reasonably understood to encompass the sale of fish, as to make a ‘living’ off of the lakes, Indians may have needed to sell or trade the yield. As the court held in Bresette, “the Chippewa were part of the national and international market economy at the time of the treaties.” 761 F. Supp. at 662 (citing Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 653 F. Supp. 1420, 1424 (W.D. Wis. 1987) (the Chippewa “harvested resources for their own immediate, personal use and for use as trade goods in commerce”)). The court in Bresette found that the Chippewa’s right to hunt and gather the feathers from birds encompassed a right to sell the feathers, finding that there was “ample evidence that the Chippewa understood that their hunting and gathering rights . . . encompassed the sale of their catch.” Id. at 662, 664-65 (treaty right precluded prosecution for sale of feathers under the Migratory Bird Treaty Act). The negotiations and proceedings before the signing of the 1837 Treaty also indicate that the preservation of the Chippewa’s right to fish came with no restrictions on the manner or method of catching fish. Nothing in the proceedings or in the text of the 1837 Treaty suggests that the treaty-preserved privilege of fishing was so restricted. And this right should not be limited to those methods actually used by the Chippewa at the time the Treaty was signed – certainly innovations in method and tools would enable the Chippewa to (and become necessary for them to) ‘get[] their living from the lakes and rivers.’ Importantly, the 1837 Treaty contains no language limiting the right to the available methods at the time, it merely ensures that the privilege of fishing is “guarantied to the Indians.” 7 Stat. at 537. Although the Treaty protects this individual right to net and sell fish, it is not completely free from limit or restriction, as the tribe has the authority to regulate fishing. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335 (1983) (“[T]ribes have the power to manage the use of [their] territory and resources by both members and nonmembers.”); see also State v. Clark, 282 N.W.2d 902, 909 (Minn. 1979) (“We note that, even though we hold that the state is without jurisdiction to regulate defendants’ hunting and fishing activities within the White Earth Reservation, their activities will not go unregulated. Like the Leech Lake Band, the White Earth Indians have adopted a comprehensive conservation code to regulate Indian hunting and fishing within the reservation.”). Here, where the Treaty language broadly guarantees the privilege of fishing to the Chippewa, this means that the tribe may regulate hunting and fishing by tribe members on the reservation to the exclusion of other jurisdictions, such as the state. Herbst, 334 F. Supp. at 1006 (fishing rights on Leech Lake Reservation preclude application of state fishing regulations). Certainly, the federal government can impose restrictions on tribe members’ fishing on the reservation, Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 594 (1977), but it can do so only by making clear its intent to abrogate their treaty rights. See Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903) (“Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government.”); Menominee Tribe of Indians v. United States, 391 U.S. 404, 413 (1968). The Court turns next to whether Congress has in fact done so with the Lacey Act. 2. Congressional Abrogation Congress has the power to abrogate usufructuary treaty rights. Rosebud Sioux Tribe, 430 U.S. at 594. The Court must therefore determine whether Congress has exercised its power to abrogate the 1837 Treaty’s protections here such that the government may prosecute Defendants under the Lacey Act based on alleged violations of tribal law. The Government argues that the Lacey Act applies to Indians, and that because it applies to Indians, Congress has abrogated any treaty-based fishing right. As support, the Government cites United States v. Sohappy, which held that the Lacey Act could be enforced against Indians for fishing violations in the state of Washington despite treaty-based usufructuary rights, reasoning that “it is only reasonable to assume that Congress intended the Lacey Act to encompass everyone, including Indians.” United States v. Sohappy, 770 F.2d 816, 821 (9th Cir. 1985); see also United States v. Big Eagle, 881 F.2d 539, 540 n.1 (8th Cir. 1989) (“[T]he Lacey Act, by its terms and definitions, applies to Indian people.” (citing Sohappy, 770 F.2d at 820-22)). In Sohappy, the relevant treaty protected the right of Indians to hunt and fish at all “usual and accustomed places,” but “in common with citizens of the Territory.” 770 F.2d at 819 (quoting treaty language). The court’s reasoning relied on a determination that “the Indians do not have any treaty reserved right to exclusive jurisdiction over such fishing matters.” Id. at 820 (emphases omitted). Thus, the Lacey Act, applying generally to Indians, applied to the Indians in Sohappy because the treaty there did not protect an exclusive right to hunt and fish. Here, the 1837 Treaty contains no language requiring that the hunting and fishing rights be shared, and has been interpreted as precluding state regulation of hunting and fishing by tribe members on the reservation. Herbst, 334 F. Supp. at 1006 (“Indians have the right to hunt and fish and gather wild rice on public lands and public waters of the Leech Lake Reservation free of Minnesota game and fish laws.”).7 Thus, the inquiry and analysis here is distinct from that of Sohappy: the question is whether Congress intended the Lacey Act to apply even to Indians who hold fishing rights that are exclusive and not shared in common with non-Indians. Certainly, the federal government has the authority to exercise jurisdiction to limit tribe members’ _______________________________________________________ 7 The court in Herbst concluded, however, that the Leech Lake tribe did not have the exclusive jurisdiction to regulate fishing and hunting by non-Indians. 334 F. Supp. at 1006. This determination does not affect the analysis here, as Defendants are members of Chippewa tribes. ______________________________________________________ fishing and hunting, but in order to do so Congress would need to make explicit its intent to abrogate the treaty rights. Rosebud Sioux Tribe, 430 U.S. at 594. Courts should conclude that Congress has abrogated treaty rights only if Congress has clearly expressed its intent to do so, as “the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.” Menominee Tribe, 391 U.S. at 413 (internal quotation marks omitted); see also South Dakota v. Bourland, 508 U.S. 679, 687 (1993). Courts have been “extremely reluctant to find congressional abrogation of treaty rights” absent explicit statutory language, Washington, 443 U.S. at 690, as “Indian treaty rights are too fundamental to be easily cast aside,” Dion, 476 U.S. at 738-39. The Supreme Court in Dion acknowledged that courts have applied differing standards as to the degree of clarity and specificity with which Congress must abrogate a treaty, but clarified that “[w]hat is essential is clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.” Id. at 739-40. In making this determination, the plain text of the statute is preferred over other sources, but there is no per se rule against utilizing legislative history in determining whether Congress intended to abrogate the treaty. Id. at 739. There is no indication in the text of the Lacey Act that Congress intended to abrogate Chippewa fishing rights under the 1837 Treaty. Rather, the Lacey Act includes a specific disclaimer that: “[n]othing in this chapter shall be construed as . . . repealing, superseding, or modifying any right, privilege, or immunity granted, reserved, or established pursuant to treaty, statute, or executive order pertaining to any Indian tribe, band, or community.” 16 U.S.C. § 3378(c)(2). This plainly dispels any possibility that Congress intended to abrogate Defendants’ fishing rights under the 1837 Treaty. Cf. Gotchnik, 222 F.3d at 509 (finding that the Boundary Waters Act did not abrogate treaty rights to hunt and fish in relevant territory where the Act stated “[n]othing in this Act shall affect the provisions of any treaty now applicable to lands and waters which are included in the mining protection and the wilderness,” (internal quotation marks omitted)). The text of the Lacey Act includes another disclaimer that “[n]othing in this chapter shall be construed as . . . enlarging or diminishing the authority of any State or Indian tribe to regulate the activities of persons within Indian reservations.” 16 U.S.C. § 3378(c)(3). This specifically indicates that Congress did not intend to interfere with or abrogate the tribe’s authority over hunting and fishing on the reservation and further dispels any possibility that Congress intended to abrogate any rights under the Treaty. The legislative history also supports this conclusion. The Senate Report on the 1981 amendments to the Lacey Act – the amendments which added tribal law as a basis for violation under the Act – acknowledges the lack of clarity at the time about the extent to which tribes and states exercised concurrent or exclusive jurisdiction on tribal lands: Nothing in this Act shall be construed as enlarging or diminishing the authority of any state or Indian tribe to regulate the activities of persons within the Indian reservations. The Committee recognizes that there is a continuing controversy about the extent of state and tribal jurisdiction over resources within Indian reservations and regarding non-Indians on those reservations. Nothing in this Act is intended to preempt whatever jurisdiction individual states may have over resources within Indian Reservations under existing law, nor is it intended to alter or change the existing authority of Indian tribes over resources within their reservations.S. Rep. 97-123, 18, 1981 U.S.C.C.A.N. 1748, 1765 (internal citations omitted). This suggests that Congress was aware that different Indian treaties provided various degrees of protection and exclusivity and that Congress did not intend its inclusion of tribal law as a basis for violation to disrupt or alter those varying degrees of protection. Two provisions of the Lacey Act offer some basis upon which to argue that Congress intended the Act to empower the federal government to enforce tribal law limits on Indian hunting and fishing. First and most obviously, the prohibitions include violation of “Indian tribal law” as a basis for a violation under the Act. 16 U.S.C. § 3372(a)(1). Second, the enforcement section provides that “the Secretary may enter into such contracts, leases, cooperative agreements, or other transactions with any Federal or State agency, Indian tribe, public or private institution, or other person, as may be necessary to carry out the purposes of this chapter.” Id. § 3376(b). But these provisions do not indicate any intent by Congress that the Act’s prohibitions would apply to Indians holding exclusive treaty-based rights to hunt and fish or that Congress can enforce tribal law limits against such Indians. Rather, the provisions are best interpreted as permitting and facilitating federal enforcement of tribal law violations in situations that would not offend treaty rights. For example, this could include federal enforcement of tribal law against non-Indians on Indian land, over which tribes typically do not have exclusive jurisdiction. See, e.g., Herbst, 334 F. Supp. at 1006 (Leech Lake Indians hold “aboriginal fishing and hunting rights,” but not the “exclusive right to regulate hunting and fishing of Indian and non-Indian alike on the reservation”). This could also include federal enforcement (in conjunction with tribes or states) of the Lacey Act where fishing rights are held “in common” with non-Indians, as with the treaty rights in Sohappy. Nothing in the text or the legislative history suggests that the possibility of joint or concurrent enforcement in some cases indicates Congress’s specific intent to abrogate treaty rights in cases where a tribe’s fishing rights are exclusive, not shared. Thus, these provisions are not rendered superfluous under the Court’s interpretation that the Lacey Act did not abrogate the 1837 Treaty rights and therefore does not permit federal prosecution for violations of tribal fishing law. Neither provision contains the kind of explicit recognition of the treaty rights and choice to abrogate them required by Dion. See Dion, 476 U.S. at 739-40. In light of the express disclaimers that the Act does not affect treaty rights and the legislative history’s acknowledgment of the uncertain state of tribal and state jurisdiction at the time, the best interpretation of the Lacey Act as a whole is that Congress intended all extant treaty rights to remain intact. Where treaty rights do not preclude concurrent regulation of fishing and hunting by tribe members on the reservation, the Lacey Act would provide for federal enforcement of tribal law, but not where a treaty protects exclusive hunting and fishing rights for its members, as with the Chippewa’s 1837 Treaty rights. CONCLUSION The Court concludes that Defendants’ rights under the 1837 Treaty preclude their prosecution under the Lacey Act. The 1837 Treaty protects Defendants’ right to engage in the conduct underlying the indictment, unless limited by tribal law, and Congress has not abrogated that right. Although Congress could enable the federal government to enforce the Leech Lake Conservation Code through the Lacey Act, it has not explicitly stated its intent to do so. ORDER Based on the foregoing, and the records, files, and proceedings herein, the Court SUSTAINS Defendants’ objections [Cr. No. 13-68, Docket No. 75; Crim. No. 13-70, Docket Nos. 157, 158, 162] and REJECTS the Report and Recommendations of the Magistrate Judge [Crim. No. 13-68, No. 71; Crim. No. 13-70, Docket Nos. 147, 148, 149] in accordance with the above Memorandum Opinion. Accordingly, IT IS HEREBY ORDERED that: 1. Defendant Brown’s Motion to Dismiss the Indictment [Cr. No. 13-68, Docket No. 59] is GRANTED. 2. Defendant Brown’s Motion to Dismiss the Indictment Due to Selective Prosecution [Cr. No. 13-68, Docket No. 58] is DENIED as moot. 3. Defendant Brown’s Motion to Suppress July 23, 2011 Statements, Admissions, and Answer [Cr. No. 13-68, Docket No. 55] is DENIED as moot. 4. Defendant Brown’s Motion to Suppress Evidence Obtained as a Result of July 23, 2011 Search and Seizure [Cr. No. 13-68, Docket No. 57] is DENIED as moot. 5. Defendant Reyes’ Motion to Dismiss the Indictment [Cr. No. 13-70, Docket No. 118] is GRANTED. 6. Defendant Reyes’ Motion to Suppress Evidence Obtained as a Result of Search and Seizure [Cr. No. 13-70, Docket No. 93] is DENIED as moot. 7. Defendant Reyes’ Motion to Suppress Admissions or Confessions [Cr. No. 13-70, Docket No. 96] is DENIED as moot. 8. Defendant Reyes’ Motion for Extension of Time to File Objections to Report and Recommendation [Cr. No. 13-70, Docket No. 153] is GRANTED. 9. Defendant Lyon’s Motion to Dismiss the Indictment [Cr. No. 13-70, Docket No. 106] is GRANTED. 10. Defendant Lyon’s Motion to Strike Surplusage [Cr. No. 13-70, Docket No. 107] is DENIED as moot. 11. Defendant Lyon’s Motion to Suppress Statements [Cr. No. 13-70, Docket No. 114] is DENIED as moot. 12. Defendant Tibbetts’ Motion to Dismiss the Indictment [Cr. No. 13-70, Docket No. 119] is GRANTED. 13. Defendant Tibbetts’ Motion to Dismiss the Indictment Due to Selective Prosecution [Cr. No. 13-70, Docket No. 116] is DENIED as moot. 14. Defendant Tibbetts’ Motion to Suppress July 23, 2011 Statements, Admissions and Answers [Cr. No. 13-70, Docket No. 104] is DENIED as moot. DATED: November 25, 2013 at Minneapolis, Minnesota. s/John R. Tunheim JOHN R. TUNHEIM United States District Judge Although some ascribe the Dawes Allotment Act as the precursor for blood quantum, there is nothing in Dawes that remotely mentions blood quantum. Rather, blood quantum was established through Acts of 62nd Congress, 2nd Session, 1912, Chapter 388, Support of Schools: Provided further, That no part of this appropriation, or any other appropriation provided for herein, except appropriations made pursuant to treaties, shall be used to educate children of less than one-fourth Indian blood, whose parents are citizens of the United States and the State wherein they live and where there are adequate free school facilities provided and the facilities of the Indian schools are needed for pupils of more than one-fourth Indian blood. BIA Blood Quantum Chart © Robert DesJarlait, 2013
Note: This article originally appeared in The Circle, Volume 22, Issue 11, November 2001
By Robert DesJarlait "How much Indian are you?" In a list of fifteen questions to be used in interviewing Indian people, an Indian student had placed it as third on the list. Although a seemingly innocuous question, it underscores the racial qualifiers initiated through federal acts and policies that define American Indian identity. These federally imposed qualifiers have strongly influenced Indian Country's perceptions of racial acceptability within tribal communities. The result is a eugenic tribal pecking order that has deeply scarred and fragmented the Indian community. At the center of current controversy is lineal descent - a process that eliminates blood quantum requirements. Regina Parot, who is spearheading a petition to change to lineal descent in the Confederated Salish and Kootenai Tribe, says, "We know there will be controversy about this. It's worth it, because we want to put our families back together. We don't want them split because of blood degree, or because they weren't born on the reservation." Parot's opponents see enrollment changes as having far-reaching consequences in tribal culture and values. "This is expedient genocide," say Rhonda Friedlander, a Kootenai traditionalist. "We have descendants of our own who have a mixture of other Indian tribes who are excluded from enrollment, yet who are practicing our culture and traditions. It is my belief they are more deserving of enrollment because they are going to help us survive as an Indian culture." History Traditionally, tribes did not have blood quantum criteria for membership in a tribal community. Birth in the community was sufficient evidence for tribal membership. Other criteria was also used. For example, among the Ojibwe-Anishinaabe people, membership criteria included clan membership, namesake ceremony, recognition for an outstanding feat or achievement, and intermarriage. Through this criteria individuals who were non-Ojibwe or non-Indian were adopted into sovereign social structures. However, treaties began a process of the disfranchisement of a "peoplehood" that was an inherent aspect of tribal sovereignty. The 1825 Treaty with the Osage provided the schemata of a federal Indian policy in which a specific blood degree defined Indian identity, and initiated the concept of land allotment. Although the term "half-breed" was in common use before the Osage treaty, it is the first document that specifically delineates a racial separation in blood lineage. In what was to become a standard formula in the treaty-making process thereafter, Osage "half-breeds" were provided with one-hundred and sixty acre allotments within the tribal land base ceded through the treaty. These land allotments was referred to as "half-breed reservations" since the allotments were next to each other in the ceded lands. Despite the Osage treaty provisions, subsequent treaties with the Osage eliminated the establishment of a separate "half-breed reservation. " Once the government had effectively separated and divided the outer fringes of mixed-heritage people from the central core of tribal entities, treaty-making ended and new policies were initiated to further dissolve the notion of sovereign tribal nationalities. The main policy used to accomplish this was the General Allotment Act (the Dawes Act) of 1887. "The function of this piece of legislation was to expedite the process of lndian 'civilization' by unilaterally dissolving their collectively - that is, their nationally - held reservation land holdings," says M. Annette Jaimes. "Each Indian, one-half or more Indian blood, was entitled to receive title in fee, and all others were simply disenfranchised. " Those defined as "Indian" under the Dawes Act received a one-hundred and sixty acre allotment, and the "surplus" tribal land base was opened for non-Indian occupancy. Most important, tribal membership was no longer based on traditional criteria; rather, a federally imposed requirement of one-half blood degree became the determining factor in who was Indian. The "one-half rule" withstood the changes indoctrinated through the Indian Reorganization Act (IRA) of 1934. Although the IRA transformed tribal governments into modem tribal entities with the right to establish their own tribal constitutions and by-laws, the term "Indian" included all persons of one-half or more Indian blood. In the 1970s, congressional acts that focused on Indian education programs redefined blood quantum by lowering requirements to one-fourth degree. A number of tribes, in revising their tribal constitutions, adapted the one-fourth degree rule as criteria for tribal membership. Although the one-fourth degree rule was beneficial in that it covered a broader segment of tribal populations, it began a system of eugenics that led to racial disparage within tribal communities. Who is Indian? The confusion of who is Indian is exemplified in the B.I.A.’s FAQ's. "No single Federal or tribal criterion establishes a person's identity as an Indian. Government agencies use differing criteria to determine who is an Indian eligible to participate in their programs... to be eligible for BIA services, an Indian must (1) be a member of a Tribe recognized by the Federal Government; (2) be one-half or more Indian blood of tribes indigenous to the United States; (3) or must, for some purposes, be of one-fourth or more Indian ancestry." Thus, under certain federal programs, an Indian person of one- fourth blood quantum may be considered Indian and is entitled for certain benefits, yet under a different program that requires one-half blood quantum, the same person would not be considered Indian since they would be ineligible for that program's benefits. On the other hand, a member of a federally recognized tribe, regardless of whether they were 1/8th, 1/4th, or 1/2, could benefit from certain programs since they would all be considered Indian. However, the racial disparage deepens under the BIA's Certificate of Indian Blood (CDIB) guidelines. 13/32nd, 17/128th, 49/128th are not unusual fractions used to obtain CDIB cards. Although CDIB cards do not signify tribal membership, they do identify an individual of having Indian heritage based on lineal descent. Lineal descent is based on tribal rolls that were drawn up to determine eligibility for treaty annuities. Under CDIB guidelines, if an individual can trace their ancestry to a grandparent four times removed on a tribal roll, they can obtain a card that, in addition to recognition as an Indian, provides certain limited benefits such as Indian Health Services medical assistance. And in some cases, a CDIB card provides a stepping stone to full fledged membership in a federally recognized tribe provided that the individual meets blood quantum criteria. However, the politics of Indian identity have gone beyond CDIB guidelines and led to fierce factionalism in a number of federally recognized tribes facing constitutional issues of lineal descent. The case of the Lac Courte Orielles Band of Ojibwe In the late 1980s, some Lac Courte Orielles (LCO) band members began considering a possible amendment to their tribal constitution that would alter the standards for tribal membership. In 1988, LCO member Sandra Thomas was named chairperson of a committee to explore the issue. On November 5, 1991, the B.I.A. approved two of the petitions, one of which was lineal decendency - submitted by Thomas, and called an election. In 1992, LCO voters passed a constitutional amendment that changed the membership criteria from blood quantum to lineal descent. The amendment was carried by a margin of 542 to 105. The LCO Tribal Governing Board (TGB) at that time voted not to recognize the amendment. At the urging of TGB Chairman Gaiashkibos, the B.I.A. overturned the election. Sandra Thomas, her daughter Tina, Robert Sander Sr., and Mike Nalewaja filed suit in U.S. District Court. U.S. District Court Judge Barbara Crabb, believing that the tribal government was a party without whose presence the case could not go forward under the standards of Federal Rule of Civil Procedure 19, dismissed the action when the TBG refused to join the suit voluntarily and asserted its sovereign immunity to ward off involuntary joiner. The Seventh Circuit Court later reversed Crabb's decision. As a result, LCO members Sandra Thomas et al. proceeded with their lawsuit in U.S. District Court in 1996. Crabb once again presided. The plaintiffs argued that (1) federal defendants exceeded their statutory authority; (2) challenged the B.I.A.'s action as arbitrary and capricious; (3) federal defendants breached the general trust relationship between the United States and Indian people. In 1999, in a decision with implications for who may be a member of an American Indian tribe, Crabb upheld the plaintiffs -Thomas et al. - and ruled that the B.I.A. had acted improperly in the 1992 elections. Gaiashkibos issued a moratorium on admitting new members on the tribal roll. In a press statement, the TGB said, "First, Judge Crabb's decision is not final until all appeals are exhausted...It should be emphasized that, according to Chairman Gaiashkibos, any membership ordinance that is not approximately implemented could have devastating impact on the Tribe's economy." In a last ditch effort, the TGB filed a writ of certiorari with the V.S. Supreme Court. In the petition, the TGB cited that the V.S. District Court of Appeals "ignored the right of Tribe to the continuity of its constitutional government... and did not adequately consider the well-settled sovereign right of an Indian tribe to conduct its internal affairs." In October, 2000, the Court denied the petition. In July, 2001, a newly-installed TGB unanimously passed a resolution accepting lineal descent with full membership rights. The action is expected to expand current LCO membership by 50 percent. TGB vice-chairman, Mic Isham, says, "To me, the blood quantum is 'ethnic purity,' and no nation determines its membership on ethnic purity. That is what Hitler and Milosevich wanted." "We signed the treaties with the U.S. as government-to-government, not as a race," Isham says. Nevertheless, opposition continues despite the appeal victory. LCO Enrollment Committee member Iris Anderson says, "When you vote for lineal descendency, consider that we can be abolished. " Anderson cites three tribes who went to lineal descent and are now dissolved, "They have no federal funds and are in chaos. They no longer have a reservation." Eugene Begay, a well-known LCO traditionalist, favors lineal descent. Begay said the tribe needs to "do away with trying to define who is a member by how long they have lived here, or where they came from, or whether they have blue eyes and blond hair. In its place, let's bring back the old spirit of Anishinaabe living and being. It's running through our veins." The future of Indian identity The issue of blood quantum vs. lineal descent has become a fervent issue in regional and urban Indian communities. In 1996, Frank Dickenson ran for the Red Lake Tribal Chairman position on a platform of lowering blood quantum from 1/4 to 1/16. In 1999, the Lac du Flambeau tribal council considered changing the tribe's constitution on membership based on blood quantum from 1/4 to lineal descendency. Dickenson failed to make the primaries and Lac du Flambeau's consideration remained on the table. Last year, the Minnesota Indian Council on Elders (MICOE) took a different approach. MICOE passed a resolution asking tribal governments to take into consideration all blood when determining blood quantum for enrollment. The resolution states, "American Indian Elders have seen the blood quantum of our children and grandchildren decrease as a result of strict, nonsensical, non-Indian pedigree policies which do not recognize or take into account our recognition of the tribe or band they are enrolled in; whereas, American Indian Elders believe our children and grandchildren should have all their Indian blood recognized as Indian." Although the issue was addressed by elders, it was left to be resolved by individual tribes. At this point, tribes have failed to respond. On the federal level, the BIA has proposed changes in its CDIB guidelines. The new regulations state that blood degree will be calculated only from members of federally-recognized tribes. A number of tribal leaders have opposed the proposal. "The problem is that this is a shift in Indian self-determination," says Steve Quesenberry, director of litigation for California Indian legal services. "We see this new recognition process as incompatible with congressional acts. " "W.E.B. DuBois predicted that the twentieth century would be dominated by 'the problem of the color line,'" says Endaso-Giizhik, an Ojibwe-Anishinaabe cultural consultant from Red Lake, "For Native Americans, the twenty-first century will be dominated by the problem of the red color line." |
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