Treaty Rights: This Land is Whose Land?

Grassroots Battle by the Gichigami: — Part 3

This is the third in a series of eight posts which together comprise an in-depth article concerning a proposed iron ore mine in the Penokee Hills of Northern Wisconsin and the widespread resistance to the project. Two installments of the article will be posted weekly.

 

One of those artesian wells Joan Elias mentioned sits on the homestead of Joe Rose and he is mighty proud of it. The outlet of the well is just a stone’s throw from the Lake Superior shore. He offered me a taste when I met him at his place. It was good. I filled my water bottle to the brim.

Rose is a Bad River tribal elder and was the director and associate professor of Native American Studies at Northland College, where he taught for nearly 40 years. (He still maintains an office at the college.) On April 1, 2014, about three months before my visit, he was elected to the Ashland County Board, running on an anti-mining platform. (He won 106-2 on the Bad River reservation.)

His homestead stretches along the Big Lake. Besides the well, there are several houses, cabins, outbuildings and a roundhouse. Inside the roundhouse, Rose shows me maps of the watershed and gives me pamphlets detailing the history of Ojibwe treaty rights. In native culture, the roundhouse is a place for ceremonial and spiritual activity. It is a sacred space. It was here that three Wisconsin state senators met with tribal elders one night and, as one later put it, “we sat for three hours and just listened to the elders and tribal leaders talk about Mother Earth.”

The property is often used as an outdoor laboratory for students from the college and a place for Bad River youth to camp and learn about nature and native traditions. Rose has been harvesting wild rice since he was nine years old.

“Wild rice is just an example of what would happen with a mining discharge,” he told me. “It would impact the whole food chain. I don’t think there’s any way they can control that during flood stage. There are about two dozen streams just north of the Penokee Ridge, most of them Outstanding Resource Water (ORW). Most of them support brook trout, which is an indicator species of a pristine, cold-water environment, and these streams all empty into several different rivers.”

Joe Rose, Tribal Elder

Joe Rose, Bad River Tribal Elder

Rose said the water quality where the Bad River flows into Lake Superior has already been negatively impacted, primarily through sedimentation. “I would fish there with my grandfather for lake trout when I was young,” he recalled. “We took a tin cup with. You didn’t have to take water along because the water was good to drink then.”

“A mining project of that size and nature is going to take a tremendous amount of water,” Rose pointed out.   Some people estimate it would have required from 1.5 million to three million gallons of water a day, plus massive quantities of energy, contributing  greenhouse gases and mercury to the atmosphere.

Rose mentioned that much of the land GTac intended to use for the mine infrastructure and for dumping waste was not private land but public land. Much of it the company was leasing from Iron County. The northern third of the state, he noted, was ceded territory, and the Penokee mine site fell well within the ceded territory. “We have treaty-reserved rights to hunt, fish and gather in the ceded territories in Wisconsin, Michigan and Minnesota. If those rights to hunt, fish and gather are interfered with by pollution, we have legal recourse.”

“It’s so unethical, immoral, unconscionable that the State would agree to this taconite mine in our ceded territory where we have these treaty rights,” Patty Loew asserted. “We should be at the table when any decisions about our resources to hunt, fish and gather are coming up, but we haven’t been.”

In a 2014 article in Lake Superior Magazine, Winona LaDuke detailed how her people dominated the Great Lakes with trade, agriculture and fishing for hundreds of years, with Madeline Island (Mooningwanekaaningminis) serving as the heart of their sprawling home. “French fur traders sought our favor and ultimately our culture, as the Voyageurs would marry into our fine Ojibwe families,” she wrote.

But, by the early to mid-1800s, the new nation’s lust for material wealth in the form of minerals and lumber led it to sign treaty after treaty with the Ojibwe people. “It was cheaper in money and lives for the fledgling U.S. nation to treaty for land than to fight wars,” LaDuke noted. An Indian agent at La Pointe on Madeline Island had supposedly calculated that the nations there had sold 11 million acres in the 1837 treaty for less than eight cents an acre. The 1842 copper treaty paid the Northwest Territory Chippewa seven cents an acre for 12 million acres. But this treaty also stipulated (Article VI) that “the Indians residing on the Mineral district shall be subject to removal therefrom at the pleasure of the President of the United States.”

Many of the treaties included a clause such as this one from the 1842 treaty: “Whereas the Indians have expressed a strong desire to have some provision made for their half breed relatives, therefore it is agreed that fifteen thousand (15,000) dollars shall be paid to said Indians, next year, as a present, to be disposed of as they, together with their agent, shall determine in council.”

Larry Nesper, a professor of Anthropology and American Indian Studies at UW-Madison has been researching the period between the 1854 and 1855 treaties and the year 1860, when a number of mining operations were chartered as corporations and obtained land via the treaties. The intent of the U.S. government at the time, Nesper says, was to “cut up the big, commonly-held tribal estates” and give responsibility for the land to individual heads of family “for purposes of integrating these people into this wonderful agricultural, lumbering and mineral economy that we have.”

George W. Manypenny, the Commissioner of Indian Affairs, wrote in his report to the Department of Interior in November, 1854 that “There are … a few small bands of the Chippewa of Lake Superior who still occupy their former locations on lands ceded by the treaties of 1837 and 1842. It has not, thus far, been found necessary or practicable to remove them. They are very unwilling to relinquish their present residencies, as are all the other bands of the same Indians; and it may be necessary to permit them all to remain, in order to acquire a cession of the large tract of country they still own east of the Mississippi, which, on account of its great mineral resources, it is an object of material importance to obtain.”

Three months later, in the treaty of 1855, Manypenny stipulated that not just Indians, (heads of family or single person over 21 years of age), but “mixed bloods” also “shall have granted to them, in fee, eighty acres of land, to include their respective improvements.”

“So, the provision of the treaty says, if you’re a mixed blood, and at the time they came up with a list of 278 of them, you could identify an 80-acre parcel of land and get a patent for that land,” Nesper told me.

“What would happen is that a number of businessmen would get to these mixed bloods, get power-of-attorney over them, and tell them ‘I’m going to pay you money down the road, but for right now what I want you to do is allow me to name a particular parcel of land for you.’ And the land happened to be in the Penokees, because those businessmen, trader types, were familiar with the recent geological surveys that were done in the late 1840s and the 1850s.”

Nesper explained to me that most of the so-called mixed bloods were probably bi-lingual, speaking French and Ojibwe, and the people who got the land parcels had French names. “So here’s a mixed blood family, they’ve been living within sight of Lake Superior for generations. Their orientation is toward the fur trade. The fur trade is on the decline, certainly on the wane by the 1850s … and the tribes are amenable to the treaties, in part because they can’t get the goods they want from the sale of furs anymore. They’ve got to sell something else, so selling land is what they’re doing.”

“Back to businessmen who are sitting these mixed bloods down, getting them to put their X on pieces of paper that basically capitalize or turn their treaty rights into something,” Nesper continued. “Ultimately it’s going to be $100, because that land is worth, at the time, according to the federal government, no less than $1.25 an acre. So all you have to do is put your X here and soon I’ll give you $100. As far as we know, that promise was lived up to. One hundred dollars in 1857 or 1858 is a lot of money.

“Some of these mixed bloods did, in fact, redeem their right to an 80-acre parcel of land … and in a sense were acquiescing to federal policy of the time, because the policy said to settle these people on private plots of land and let’s franchise them in this agricultural economy that we’re trying to build. Some mixed bloods wanted to do that, as far as we can tell. Others monetized their treaty right.

“What did the federal officials think was their responsibility towards these mixed bloods? That’s what I’m interested in.  And how is it that the federal officials effectively talked themselves out of their trust responsibility toward the mixed bloods? Because the mixed bloods were not citizens of the United States, they were subjects of the U.S.

“It’s in the federal government’s interest to protect Indian people from the rapacious business interests that could look at a treaty right and immediately see how much that was worth in terms of something else, its exchange value. So why didn’t it do that in 1854? Unless they just didn’t anticipate that this would happen,” said Nesper.

So, as Joe Rose had mentioned to me, much of the land that Iron County now chose to lease to GTac was public land that had been Bad River tribal allotments. “People were swindled out of those allotments at a very early time,” he said.

Indian people were considered incompetent to handle their own affairs, Rose added, so it was handled by the Bureau of Indian Affairs (BIA). When the lumber and mining companies began to covet the land, they issued Certificates of Competency to get hold of the land. “Most people did not speak the English language,” said Rose. “Even when I was a kid growing up on the reservation, there were people here who didn’t speak English yet, and the ones who did, it was only functional, not fluent. And for somebody to understand words like power-of-attorney, they wouldn’t know what the hell that was.”

In 1856, the Wisconsin and Lake Superior Mining and Smelting Company made the first serious attempt to exploit the iron ore deposits in the Penokees, and the La Pointe Iron Company followed in 1859. La Pointe still owns about a third of the iron-bearing minerals in the Penokee Range and had leased the land to GTac. La Pointe claims to be the oldest corporation in the state.

Nesper alleges that La Pointe was entirely capitalized with land purchased from mixed blood people. In the case of Wisconsin and Lake Superior Mining, Nesper says the company capitalized almost half its land from mixed blood people who were living near Prairie du Chien on the Mississippi. These people were actually part of a 500,000-acre mixed blood reservation that was established through an 1830 treaty with the Sioux. The Sioux gave certificates to the Ojibwe to redeem for 640-acre parcels in the Penokees. It was these certificates that the Wisconsin and Lake Superior Mining Company acquired for its mineral holdings. But the company and the planned settlements it started to develop were short-lived; they fizzled out with the financial panic of 1857.

“A treaty land cession is a dramatic moment for a landscape,” Nesper explains. “It transforms the legal status of the land overnight or in a very short period, and makes all kinds of things possible that never were possible before.

“We had 278 people entitled to 80-acre parcels of land, and within four years many of those parcels are in the possession of these newly created mining companies. So Gogebic Taconite has an option to lease from a company that came into existence capitalized by mixed bloods. I don’t know if that is actionable from a legal perspective, but I do find it interesting, to wonder how this was made possible, and wonder what sort of ethical light that sheds on an extractive undertaking.”

In 1887 came the Dawes or General Allotment Act, which took the remaining communal tribal lands of most of the Indian nations and divided them into 160-acre parcels, to be allotted to individual Indian families. Sponsored by U.S. Senator Henry Dawes, the act was considered a liberal reform to benefit the Indians. Dawes himself explained it best, stating: “They [the Indians] have got as far as they can go, because they own their land in common. There is no enterprise to make your home any better than that of your neighbor’s. There is no selfishness, which is at the bottom of civilization.”

In his book, In the Absence of the Sacred, Jerry Mander described how successful the “reforms” were, noting that Indians lost more than 60 percent of their tribal land base, as well as most of the individually held allotted lands, due to fraud by white buyers. Adding Indian lands leased to white economic interests, the estimated total loss of Indian land was about 90 percent.

“The Allotment Act may have been the greatest single blow to Indian sovereignty ever,” Mander wrote, “since it struck at the heart of the fundamental collectivism of Indian economic and political life.”

Not all Indian people were properly reformed, of course. Many flunked the class on “selfishness.” Patty Loew was apparently one of these. “We’re not capitalists,” she told me. “We’re a tribe, and there’s an obligation to the group. We’re an Indian nation that has this foundational principle of tribalism. It’s oppositional and contradictory to capitalism. That makes a lot of people nervous.”

Patty Loew at Kakagon Sloughs-0794

Patty Loew, UW Professor and member of Bad River Band

 

Loew said the Allotment Act came late to the Bad River reservation. Indian agents used it to arrange “really sweet deals” for the lumber companies. The money from timber sales was supposed to be deposited in interest-bearing accounts for the Indians. But instead the agent would deposit it in his own account and make no-interest loans to the Stearns Lumber Company.

“Upwards of $136 billion was lost or swindled from these individual Indian money accounts,” said Loew. “Stearns Lumber Company owned everything and Indian agents were in cahoots.” Justin Smith Stearns started the lumber company in Odanah in 1894, and went on to form a dozen more companies in Michigan, Kentucky, Florida and elsewhere. The Indian trust funds were mismanaged for 150 years, Loew said, but eventually her grandfather got Senator Robert (Fighting Bob) La Follette to come and hold hearings on the reservation and the Indian agent lost his job.

Fast forward to the turn of this past century. Large timber corporations like Georgia Pacific and Plum Creek still owned a generous portion of Wisconsin’s north woods, including land that had once belonged to the Bad River tribe, land lost through the allotment process. But some of these companies were looking to unload their holdings.

In 1997, The Nature Conservancy (TNC) purchased Caroline Lake and some surrounding land, about 1,000 acres in all, from Georgia Pacific for $575,000. Caroline is a tranquil and pristine lake situated south of the Penokee ridge. It is also the headwaters of the Bad River.

About five years later, TNC purchased an option on several large parcels within the reservation boundaries from the paper companies, and then transferred ownership to the Bad River tribe. (They also did the same with land in the sloughs.)

Loew recalls those days: “We literally took out a mortgage to buy the land. It was a world of hurt for us. We had to close the tribal newspaper; there were a whole lot of social service needs that went unmet. We’re one of the poorest tribes in the state, but people were willing to do that. I don’t think there was anyone opposed to it.”

cropped-caroline-lake-dam-at-bad-river.jpg

Caroline Lake and a beaver dam where the Bad River begins.

Matt Dalman, who works for TNC out of their office in Minocqua, characterized all these preservation efforts as “piecemeal.” About two-thirds of the watershed was still owned by mining interests. So TNC next called U.S. Steel and asked if they were interested in selling their land in the watershed. They also contacted owners of the LaPointe Iron Company, who told TNC “If U.S. Steel sells to you, that’s probably the way we’ll go.” At the time, LaPointe owned about 6,000 acres in Iron County and 9,000 in neighboring Ashland County.

“In the middle of our negotiations [with U.S. Steel],” Dalman recollected, “Russell Gordy came in and slapped on a non-compete agreement because he bought some ungodly amount of acres, like one point some million acres, of sub-surface rights and 300,000 acres of surface lands. And he bought it all at once.

“So U.S. Steel said, ‘Look, we can’t negotiate on this deal when we’ve got a one-stop shop. The guy wants the whole thing.’ So they end up selling it to Russell Gordy.” Next TNC approached Gordy, who said he would entertain a proposal, but then a Chinese firm entered the picture, saying they were interested in developing a mine. The Chinese took a couple years examining data from U.S. Steel’s core samples, and then they lost interest.

Another year or two passed, TNC didn’t get back in touch with Gordy, and then Chris Cline came along with his proposal to mine the Penokees.

Back in 2003, when TNC was negotiating with U.S. Steel to purchase a 16,000-acre conservation easement, it applied for funds from the Forest Legacy Program. Other conservation funds were to be used to help the U.S. Forest Service buy another 6,000 acres, which would have meant 22,000 acres along the Penokee Range reserved for recreation and timber production.

Congress created the Forest Legacy Program to identify and protect environmentally important private forest land threatened with conversion to non-forest uses. The state DNR works with USDA’s Forest Service to purchase conservation easements from willing sellers to keep land in forest. Congress actually appropriated $3,450,000 in the 2003 Fiscal Year for what was called the Bad River Headwaters project. This was before Russell Gordy stepped in.

Gordy, through his Texas corporation, RGGS Land and Minerals, owns nearly two-thirds of the mineral rights in the range today, and LaPointe Iron Company, based in Minnesota, owns most of the remainder.

A number of people I spoke with questioned why anyone would want to mine this part of the Penokees when one of the largest steel companies in the world had studied the land and then walked away from it. What did U.S. Steel know that Chris Cline and others either did not know or chose to ignore?

“Given what we know today, we have 112 years of iron resources available that don’t need to be explored,” noted Dalman. “So given that fact, there’s no reason anybody would peel the earth open for this sub-par, non-economic deposit.”

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Next: The Geology of the Penokees: What’s in those rocks anyway?

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One thought on “Treaty Rights: This Land is Whose Land?

  1. Dear Readers,

    I want to correct and clarify certain facts and issues addressed in my recent post regarding treaty rights and land ownership in the Bad River Watershed region. Amorin Mello brought these points to my attention. Mello conducted much of the research on mixed-blood tribal allotments, along with Bret Deutscher and UW Professor Larry Nesper.

    The major items which were erroneous or could have been misinterpreted by readers are:
    • It was the 1854 Treaty with the Chippewa, not the 1855 Treaty, which pertains to the Lake Superior Chippewa. (The copy of the 1854 Treaty that I consulted omitted the crucial article, for some reason.)
    • There are no tribal allotments associated with the Iron County Forest land that GTac had leased.
    • The Sioux mixed-blood allotments were obtained by land speculators; they were never in the possession of Bad River Ojibwe.
    • The Penokee mixed-blood allotments were handled by the General Land Office, not the Bureau of Indian Affairs.

    Also, in my brief synopsis of several hundred years of land ownership history, some readers may have inferred that there was a direct connection between the issue of the loss of mixed-blood allotments and other land ownership issues such as the Dawes Act, competency certificates, and the Stearns Lumber Company. I did not intend to create that impression.

    I thank Mr. Mello for clarifying these matters.

    Tom Boswell

    Like

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