An Agate Original
On Nancy Schuldt’s desk is a large monthly calendar whose squares are bordered by a curling floral design evocative of traditional Ojibwe beadwork. She uses colored pencils to fill in the leaves and flowers with bright green, red, and blue. Schuldt is Water Protection Coordinator for the Fond du Lac Band of Lake Superior Chippewa, whose reservation is bordered on the north and east by the St. Louis River, the largest U.S. tributary to Lake Superior.
“This is our homeland, it’s our place on the planet,” Schuldt said. “So what happens in the St. Louis River watershed is paramount to Fond du Lac.”
Looking for ways to express the tribe’s dependence on its land base, the Fond du Lac band in 2015 commissioned a study of the “ecosystem services” provided by the St. Louis River. These include fresh water, flood reduction, carbon storage, opportunities for healthy exercise, and a sense of place, among other values. The goal was to create “an inventory of where these various natural and cultural resources are,” Schuldt said, “and then for any project that comes down the road—a pipeline or a mine or something else that is a major disruption to the tribe’s ability to exercise treaty rights—we can at least begin to quantify the resources. We felt if we could cite quantifiable values, they’ll have to take it more seriously; it’s harder to ignore,” she said. The study comes after years of trying to get state and federal resource managers to pay more attention to tribal values and knowledge.
Informing the PolyMet decision
Schuldt has spent half of her 20 years with the band watchdogging the state and federal governments as they have considered approval of the proposed PolyMet copper-nickel mine on a 30-square-mile site upstream, near the headwaters of the St. Louis River.
She shares information with scientists from the Grand Portage Band and the Bois Fort Band in northeastern Minnesota, and the Great Lakes Indian Fish and Wildlife Commission (GLIFWC), representing eleven bands in Minnesota, Wisconsin, and Michigan. From the beginning they have called for better modeling of hydrologic data and a more detailed analysis of potential impacts on wetlands. Instead, Schuldt said, the draft Environmental Impact Statement (EIS) for the PolyMet project, published in 2009 by the Minnesota Department of Natural Resources and the U.S. Army Corps of Engineers, relied on decades-old data and a faulty model. The tribes’ position was affirmed when the federal Environmental Protection Agency rejected that document, citing “inadequate” analysis of the site’s hydrogeology and “unacceptable” impacts to aquatic resources and wetlands.
The tribes also thought the EIS should include a comprehensive analysis of the cumulative effects of mining on the region’s resources. “PolyMet may be the first copper-nickel mine in the state but it’s not coming into virgin territory; it’s coming into an area that’s already been mined for more than a hundred years,” Schuldt said, citing impacts from taconite mines that include disrupted natural ecosystems, polluted water bodies, and destroyed wetlands. She said the agencies that conducted the PolyMet environmental review and those now writing permits have consistently downplayed the issue of mining’s cumulative degradation of resources in the region.
They seem to have downplayed tribal input as well. When that first draft EIS was published in 2009, tribal concerns were presented as footnotes. “Tribal leadership was not happy about being relegated to footnotes,” Schuldt recalled. In a later version, published in 2015, analysis by tribal groups was presented in a single chapter and appendix. To Schuldt and other tribal participants, it would have been more appropriate to present their analysis alongside the analysis presented by the Army Corps and the DNR.
In another effort to build its influence, the band is working with the United States Geological Survey (USGS) on a groundwater model of the headwaters of the St. Louis River watershed. This project is designed to update the older model that the band criticized in the PolyMet process. Both the DNR and the Minnesota Pollution Control Agency (MPCA) are participating in the effort. “At the end of that process we should all have a common understanding of what is the state of groundwater flow in this area, so we’re not arguing about it when the next project comes up for review,” Schuldt said.
The state and the U.S. Army Corps of Engineers are currently reviewing nearly 30 permit applications for the planned PolyMet mine.
The sulfide standard and wild rice
Schuldt and other tribal officials are also concerned about the impact of existing iron ore mining on one of the most important resources for native people, wild rice or manomin. The Minnesota Pollution Control Agency is revising a state standard for how much sulfate is allowed in wild rice waters. The rule has been on the books since the 1970s but it had not been enforced until tribal and environmental groups began pressuring the MPCA to apply it, mainly to mining companies and municipal sewage treatment plants. After six years of study, the agency is proposing to set protective levels separately for each wild rice water based on sediment characteristics.
Schuldt and other tribal representatives are unanimous in rejecting the new approach. In testimony to an administrative law judge conducting a hearing on the MPCA’s proposal, Margaret Watkins, Water Quality Specialist for the Grand Portage Band of Chippewa, said the rule is “scientifically indefensible: it will not protect wild rice.” She charged that the agency’s current list of lakes and rivers where the rule would apply only includes roughly half of the actual wild rice waters in the state, suggesting that many other waters were once full of wild rice but may have been degraded in recent years. Grand Portage has its own water quality standards, and Watkins emphatically told the hearing officer that the tribe does not want the state trying to enforce its proposed new standard in reservation waters.
Shannon Lotthammer, Director of the Environmental Analysis and Outcomes Division at the MPCA, is shepherding the agency’s proposed new approach through the rulemaking process. She said the existing standard is “not incorrect, but it is very imprecise.” The agency’s plan “better reflects the mechanism of toxicity and the natural environmental variability that results in individual wild rice waters reacting differently to elevated sulfate,” Lotthammer said. Regarding the list of waters to be protected, Lotthammer said, “The presence of one wild rice plant, or a handful of plants, is not sufficient to establish that the wild rice water would draw human harvesting or provide sufficient food for wildlife,” the two elements in the agency’s definition of the beneficial use that requires protection. And she said that tribes can request that any waters wholly within reservation boundaries not be included in the state’s plan.
The Fond du Lac band also has its own sulfate limit. Under the Clean Water Act, the bands and the states are required to review their water quality standards periodically. Fond du Lac is doing so now, in a parallel process to the state’s. Schuldt said the band will likely keep its current sulfate standard; it can also add narrative language designed to strengthen protections further. It will submit those plans to the EPA on the same timeline that the state is following. The public comment period for the MPCA’s proposed rule ends November 22; final rulemaking would follow. The EPA will review the standards proposed by both the state and the band; it is difficult to see how the federal agency could approve both.
Tribes are exploring the idea of asking the federal government to promulgate a regional standard for sulfate in wild rice waters. Bands in Minnesota, Wisconsin, and Michigan are working to establish standard monitoring procedures, “so we can begin to build the information base across the region for tribal resources that is really lacking at the state level,” Schuldt said.
Fond du Lac is also working with the Minnesota Department of Health to create a Health Impact Assessment (HIA), analyzing the likely effects on tribal health of new, and possibly reduced, state standards for sulfate and wild rice. The band has invited other state agencies to participate in that study.
Court rulings and tribal-state agreements require consultation and co-management of natural resources in the lands the Ojibwe ceded to the federal government in the nineteenth century. Tribal and state scientists often cooperate on research projects, including a multi-year study of challenges facing northeastern Minnesota’s moose population. Seth Moore helps with that research. As Manager of Natural Resources and Environmental Protection on the Grand Portage reservation, Moore said joint research projects usually work well. “Typically, at a peer-to-peer level we get along fine,” he said. But above that level, there is too often an erosion of trust. “Somewhere between moose researchers and policy makers seems to be where we run into troubles,” Moore said.
One example: In 2013 the state DNR decided to call a halt to moose hunting, although the tribal and state research did not identify hunting as a threat to Minnesota’s moose population. DNR Commissioner Tom Landwehr called the chairmen of the Grand Portage band and the Bois Forte band a week before announcing the decision publicly.
The two bands have agreed to observe the state’s big game seasons on the land they ceded to the federal government in an 1854 treaty, in consideration of compensation paid to them by the state. So the decision to close the state season meant tribal members could not hunt moose on the ceded lands. But Seth Moore considered the phone calls and follow-up letters to be insufficient consultation.
“This is an area where we should have been consulted prior to the season closure. We weren’t; they informed us of their decision,” Moore said. He said true consultation would include “early and frequent dialogue, equal weighting of tribal and state scientific findings, recognition of co-management responsibilities by all parties, and consensus decision-making. Essentially, if the state chose to close their hunt, and the tribes chose not, then absent consensus, each should pursue their rights to hunt or not, independently,” Moore said.
Officially, the Minnesota DNR, along with other state agencies, is committed to consultation with tribal entities. Bob Meier, the DNR’s policy and government relations director, described state-tribal relations as “the best they’ve ever been,” and likely to get even better. On the moose hunt issue, he said DNR staff did consult with band personnel in individual meetings and phone calls. “They expressed concerns about the cultural significance of the moose harvest and how important it is to them, and we tried to work through those issues with them,” Meier said. “This year we had conversations with the band chairmen about their desires for a limited hunt and I think we ended up at 8 or 9 bulls under a research permit, giving them an opportunity for some cultural harvest.”
For Seth Moore in Grand Portage, the small numbers of moose taken for subsistence by band members should not be a matter for negotiation.
Moore is in charge of the natural resources on the 65 square miles of the Grand Portage Reservation. A much larger agency implements the hunting, fishing and gathering activities of the Grand Portage and Bois Forte bands on the ceded territory, the 5.5 million acres of Minnesota’s arrowhead region. The 1854 Treaty Authority has its headquarters in an office park near the Duluth airport, but most of the staff are usually in the field conducting research, enforcing harvest rules, or training youngsters in traditional harvest practices. In a conference room brightened by a colorful arrowhead-shaped wooden plaque representing the agency’s logo, Executive Director Sonny Myers reflects on progress in tribal-state relations. Myers, who is an enrolled member of the Grand Portage Band, learned about traditional hunting, fishing and gathering from his older brother.
“During my 20-year career I’ve seen [state officials’ attitudes] go from ‘Why are you at the table?’ to ‘We want you to be at the table: we need your input, your expertise, your knowledge, and we acknowledge your treaty rights.’ It’s been good progress,” Myers said.
That progress is based in state policy mandating consultation with tribes, begun by Governor Jesse Ventura and strengthened by Governor Mark Dayton, who added required training for state agency personnel. Tadd Johnson, an enrolled member of the Bois Forte Band, has helped design and conduct that training. A soft-spoken man with a long and varied career in tribal law, Johnson is chair of the Department of American Indian Studies at the University of Minnesota Duluth and director of UMD’s graduate program on Tribal Administration and Governance. He said the required training is typically an eye-opener for participants.
“What we hear from state employees is, ‘I didn’t know this, I didn’t know state laws didn’t apply on reservations, I didn’t know why when we got to the reservation we had to stop spraying pesticides and go talk to the tribe to find out if they wanted them.’ There are a lot of things that folks didn’t know,” Johnson said.
He agreed with Sonny Myers that the state has gotten better at consulting with tribes. “The last great holdouts for tribal consultation are the counties,” he said. “Sometimes the consultation business works, sometimes it doesn’t. But it’s better to be sitting at the table talking than not.”
Tribal officials were at the table when the Minnesota Department of Commerce conducted an environmental review of Enbridge Energy’s plan to replace and reroute its Line 3 oil pipeline across northern Minnesota. Fond du Lac’s Nancy Schuldt and others who participated in the state review of the project were stunned and pleased when the Commerce Department came out with a negative finding. The report said the project would have a “disproportionate and adverse effect on tribal resources and tribal members.”
“I’ve never seen a statement like that in an EIS in Minnesota before,” said Schuldt. She was equally impressed with the Commerce Department’s assessment that the “high socioeconomic costs outweigh the minimal benefits to Minnesota.”
Now the Minnesota Chippewa Tribe is doing its own environmental review of the project. It’s called a Tribal Cumulative Impact Assessment, and it asserts that “Indigenous people have a different way of understanding the world and humanity’s role in creation.” It says in general, western regulators don’t understand traditional ecological knowledge, leading them to approve projects that “continue the legacy of colonization and genocide experienced by Indigenous Peoples.” It suggests the document can serve as a “primer” for Minnesota regulators.
That tribal review follows in the footsteps of public hearings organized in 2015 by the White Earth Nation and the Mille Lacs Band to strengthen their input on Enbridge’s proposed Sandpiper pipeline, which the company cancelled in 2016 after a series of delays.
All these efforts are examples of what UMD’s Tadd Johnson sees as Indian country “clearing its throat.” It started, he explained, with the Indian Self-Determination and Education Assistance Act of 1975. “Tribes have been building capacity, taking things under their own roof, demanding things of the federal government, state governments, universities.”
In Johnson’s view, federal, state and local government officials should learn how to consult better with tribes, “because the reservations are not going to move, the Indians are going to be here in 200, 300 years. And they look at issues from the point of view of seven generations; they’re constantly taking a look at the bigger view of things.”
The tribes have another tool at their disposal: lawsuits. Since the 1970s, court decisions have affirmed treaty rights, often interpreting them broadly. A federal court directed the state of Washington to remove hundreds of culverts that were blocking salmon migration and thus depriving several tribes of their reserved fishing rights. The state is appealing the decision to the U.S. Supreme Court, saying it could be used to “demand the removal of dams and attack a host of other practices that affect fish habitat, from farming to logging to construction.”
The Treaty Authority’s Sonny Myers thinks about the ultimate implications of the Ojibwes’ reserved rights. “Our goal is to protect and preserve and enhance the trust resources,” Myers said, “What good is a right to the fish if we can’t eat the fish because the mercury levels are too high, or what good is a right to wild rice if it’s not there? The right was reserved to subsist off the land but if we can’t subsist because a resource is gone, or too contaminated, it seems to me that should be tied into the right,” Myers said.
Lawsuits are expensive and uncertain. So far, tribal officials have preferred to keep working with the state by providing input on environmental reviews, serving on advisory boards, conducting joint research projects, measuring the value of resources, and performing their own environmental reviews. They have a lot of practice at exercising patience.
Thanks to photographer Ivy Vainio for her evocative image of the St. Louis River on a misty winter day. You can see more of Ivy’s work at Perfect Duluth Day.