Treaty rights under consideration as Lutsen Mountains aims to expand

Officials with the U.S. Forest Service say input from three Chippewa bands will play an important role in determining the possible expansion of Lutsen Mountains, a ski resort on the North Shore.

“People need to educate themselves on what is the 1854 Treaty and what is the basis of it, which is that protected right to utilize the land," said Tofte District Ranger Ellen Bogardus-Szymaniak.

In announcing an extension to the public comment period regarding the proposed expansion onto nearly 500 acres of public land within the 1854 Ceded Territory, the Forest Service said Oct. 21 it will revise the environmental impact statement “based on public input and consultation with tribes.”

The bands, in this instance, include Bois Forte, Grand Portage and Fond du Lac.

It’s standard for state and federal agencies to make note of consulting with tribes on issues ranging from water quality to development in Minnesota. What impact or value those discussions have varies from project to project, though recent decisions in Minnesota do not reflect the ‘we all have a seat at the table’ policy many government agencies claim to possess when it comes to engagement with Minnesota’s Indigenous communities.

Take, for example, action by the federal Environmental Protection Agency this month when it approved sweeping changes to Minnesota’s water quality rules.

The move from the EPA comes after the Minnesota Pollution Control Agency changed water quality standards protecting nearly every lake, river and stream statewide, including the Boundary Waters and Lake Superior. In justifying the switch, the MPCA described the changes as an improvement to old standards that were designed to protect the state’s water. The easiest way to describe the changes is that it eliminates a numeric system for tracking pollutants and relies instead on a ‘narrative summary.’ 

The rule changes were adamantly opposed by Minnesota tribes and environmental groups, including the Grand Portage Band of Lake Superior Chippewa and Water Legacy.

Paula Maccabee is the advocacy director for Water Legacy, a nonprofit organization in Minnesota that follows environmental issues statewide, including many in the WTIP listening area. 

In an interview Oct. 19 with WTIP, Maccabee said there needs to be ‘grassroots’ efforts to change laws, influence environmental issues and create change when it comes to protecting the woods and waters of Minnesota. The recent example of the MPCA and EPA changing the state’s water rules and regulations should concern everyone, she said.
 
“To say that this is pollution deregulation 101 I think is an understatement,” Maccabee said. “What the Minnesota Pollution Control Agency has done is put their own interests in not having conflict with corporate polluters, and put the interests of the corporate polluters far above those of clean water, nature or the communities, both plant and animal and human, that rely on having clean water.”

At a public hearing earlier this year regarding changes to the state’s water regulations, April McCormick, a member of the Grand Portage Tribal Council, said the new rules are “under protective” and only benefit large industries seeking to avoid regulation.

According to the 1854 Treaty Authority, “the United States recognizes its legal duty to honor the treaties it made with Indian nations. The Constitution declares treaties to be 'the supreme law of the land,' and as such they are not controlled by state law. Indian treaties have the same force and effect as federal statutes; therefore, a violation of an Indian treaty is a violation of federal law.”

In her recent interview with WTIP, Maccabee said the pollution and overall environmental regulatory process at the state and federal level is “broken.” Big business, corporations and the constant drive for economic growth tend to rule the land, Maccabee suggested. Within this realm, the concerns of citizens, including Minnesota tribes, occasionally are viewed as a formality and a part of the process as opposed to actually impacting the outcome, she said.

Within the frustrations expressed by environmentalists and Minnesota’s Indigenous communities, there are signs of what many aligned with their viewpoint would consider progress. In recent days, the federal Agriculture and Interior Departments reignited a study that could lead to a 20-year ban on mining upstream from the Boundary Waters Canoe Area Wilderness. The announcement from Oct. 20 was celebrated by some circles, though it left some politicians and corporations fuming, including elected Democrats representing northern Minnesota.

When it comes to the possible expansion of Lutsen Mountains, the Tofte District Ranger told WTIP that Forest Service staff “very much hear the frustration and what the bands want” concerning treaty rights and the intersection of the ski hill developing on public land.

“This is up to 500 acres that would have some permanent change to the landscape,” Bogardus-Szymaniak said, “and it would change the access to band members. So yeah, that’s a concern, and how do we go ahead and work through that, is there a way? If the answer is no, then there is a decision to be made. If the answer is yes, there’s a different decision to be made.”

Earlier this month, the U.S. Forest Service and officials from Superior National Forest hosted a virtual open house that could be one of the final steps toward a decision on whether or not to allow the Lutsen Mountains Ski Area to expand ski runs and operations onto nearly 500 acres of adjacent U.S. Forest Service lands, all of which sits on land in the 1854 Ceded Territory. With the extension of the public comment period, another town hall is scheduled for Tuesday, Nov. 16. Details of the upcoming town hall, including if it will be virtual or in-person or a hybrid version of both, remains in the planning stages. 

As the tribes continue to discuss the possible ski hill expansion with the Forest Service, local businesses in Cook County are mounting pressure on the federal agency to move forward with the project. In a letter dated Oct. 21, the Cook County Chamber Of Commerce Board submitted a missive to Superior National Forest Supervisor Connie Cummins. Jim Boyd, writing on behalf of the chamber board, advocates for the ski hill’s expansion. When making note of land on ceded territory, Boyd suggests it is “unreasonable” to stop the expansion project as proposed by Lutsen Mountains because of “a remote chance it might at some unidentified future date become a focus of Ojibwe gathering.”

In a comprehensive document explaining treaty rights in Minnesota’s 1854 Ceded Territory, it reads: “The treaty-reserved rights to harvest natural resources on the 1854 ceded lands are protected property rights under the United States Constitution. In this regard, the 1854 Treaty Authority plays a critical role in ensuring that the federal government, as a treaty signatory, upholds its treaty obligations, which includes an obligation to protect the natural resources on which the 1854 Treaty agreement is based.”

A public comment period on the proposed expansion runs through Dec. 9. As comments continue to stream in, ultimately it is Superior National Forest Supervisor Connie Cummins who will sign off on the document to approve or deny the special use permit from Lutsen Mountains that could allow the ski hill to expand.

Meanwhile, Forest Service officials told WTIP they will continue to consult with the Chippewa Tribe regarding the situation. Ultimately, only time will tell how much impact these discussions have on the outcome of the project.

“The 1854 Treaty was a treaty,” Bogardus-Szymaniak said, “and we need to abide by it.”

Listen to the audio below to hear the full interview with the Tofte District ranger from Oct. 22.

Below is an Oct. 19 interview with Paula Maccabee, the advocacy director for Water Legacy.