Armed with its status as a sovereign nation and powerful treaties with the federal government, the Bad River Chippewa tribe has the legal muscle to do what Democratic opponents of an iron mine proposed for northern Wisconsin have so far been unable to do: halt or delay the project.
Those powers, say experts on Native American law, appear to have been both underestimated and misunderstood by proponents of the mine, including Republican legislators who have been criticized for failing to consult with tribal members as they work on a bill to streamline permitting for the mine.
"All of us are going to get an education in federal Indian law," said Larry Nesper, a UW-Madison scholar in Great Lakes Indian law and politics.
Nesper said Bad River and other Chippewa tribes have the power to challenge the proposed mine in federal court by invoking the federal treaties that protect their access to clean water and clean air.
Though they have not filed a legal challenge, tribal officials have consulted with the Bureau of Indian Affairs on whether the treaties may have already been violated by state legislators who didn't work with Bad River on the Assembly version of the bill.
After the Assembly approved that bill, Bad River Chairman Mike Wiggins, Jr. said the tribe would consider legal options to force the state to include the tribe in discussions related to the mine and possibly to stop construction of the mine itself if it is approved.
"We're here to appeal to reason," Wiggins told members of the Legislature's budget committee Friday. "But in order to protect ourselves we may have to look at some of these things."
The tribe has staunchly opposed the 4 ½-mile long open pit mine in the Penokee Range near its reservation. The mine would be built near the headwaters of the Bad River, which flows onto the reservation and nourishes the tribe's extensive rice beds.
Glenn Stoddard, a lawyer for the Bad River Chippewa, called the treaties a "trump card" in the fight against the mine.
"These treaties go back to pre-statehood," said Stoddard. "I think a lot of people in the Legislature look at these reservations as lines on a map. They don't understand that the reservations are created by treaty and give the tribes rights that are different and apart from the rest of the state. They're not like counties or towns."
Yet, aside from listening to tribal comments at public hearings, Assembly Republicans did little to bring the Bad River Chippewa into discussions about the bill, critics said.
State Sen. Neal Kedzie, R-Elkhorn, pledged to consult more closely with the Bad River as chairman of a special committee working on a Senate version of the bill. He met with tribal officials last week. But Kedzie's work came to an abrupt halt Wednesday when Majority Leader Scott Fitzgerald, R-Juneau disbanded the panel and backed the Assembly version of the legislation.
The bill could go to a vote before the Senate this week.
State Rep. Robert Jauch, D-Poplar, who served on Kedzie's now-defunct Senate Select Committee on Mining Jobs, accused the Assembly Republicans of arrogance for failing to involve the tribe.
"They have shown no respect for the tribal position, authority, or the history," Jauch said.
Mary Williams, R-Medford, who chaired the Assembly committee that helped write and conduct hearings on the mine permit bill, said Bad River officials were invited to testify at hearings on the legislation. Some Republican legislators also spoke with tribal officials outside of the hearings, she said, although the tribe wasn't directly involved in authoring the legislation.
"I'd be willing to bet that lots of people would have liked to have had seats at the table," Williams said. "It didn't happen. But that's in the past. I do understand how they feel."
Tom Maulson, tribal chairman for the Lac du Flambeau Chippewa, was deeply involved in the 1980s in the push to re-affirm off-reservation spearfishing and treaty rights. But he said the lessons of those difficult days — that the treaties are powerful, living documents — seem to have been lost.
"I just feel there is a total disregard for the tribal nations, for these sovereign nations," Maulson said. "We should be held at the same level as other nations."
How does that translate into legal powers that might be wielded by Bad River on the mine issue?
The tribes believe the protections in the treaties also extend to air and water quality, said Jim Zorn, executive administrator of the Great Lakes Indian Fish and Wildlife Commission.
Those protections, Zorn said, extend to all of the ceded territory — roughly the land in the northern third of the state on which tribes reserved the right to hunt, fish and gather. The mine would be built well within ceded territory in the Penokee Hills, meaning that if there is a chance it could damage air or water quality, it could be subject to legal challenges under the treaties.
"The tribes' view is, what good is the right to fish if you've destroyed the water?" Zorn said.
The tribes' legal standing is even more far reaching if a project outside the reservation is shown to have the potential to pollute water or air within the reservation boundaries, Stoddard said. Just as Wisconsin would be in violation of federal laws if it polluted waters in an adjacent state, federal treaties and the tribe's status as a sovereign nation could be invoked in court if the state allows pollution from the mine to flow into reservation waters, Zorn said.
Because the Bad River tribe is sovereign, it can also set its own water quality standards. That right was upheld in the 1980s when Wisconsin challenged tougher water standards set by the Mole Lake tribe. Treaty protections played an important role when Mole Lake fought a mine near its reservation proposed by Exxon Minerals in the late 1980s. Exxon eventually withdrew its application for a mining permit.
Stoddard, Zorn and other experts also said the tribe may be able to legally challenge the mine permitting bill now working its way through the state Legislature. Zorn said the treaties give the federal government a trust responsibility when it comes to the tribes and that, under such an arrangement, the federal government is obligated to look out for the tribe's best interests.
At the very least, Zorn said, the tribe should have been consulted because of the connection to natural resource issues in the ceded territory. Because Wisconsin is responsible for enforcing such federal laws as the Clean Air and Clean Water Act, he added, the state is also bound by the trust arrangement.
"When decisions are made, the state cannot and should not do it alone," said Zorn. "Their authority is subject to the treaties."
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