Supreme Law of the Land: Bob Shimek discusses the Old Crossing Treaty of 1863

Jul 8, 2020

There were three different types of treaties that were negotiated here in the U.S. There were peace treaties …there were a land cession treaties…and there were treaties that created reservations… it says in the Constitution of the United States that treaties are “the supreme law of the land”…Without these land cession treaties, much of what is now in Minnesota, North Dakota, Wisconsin, Michigan, as well as many other areas throughout the country, could not legally exist…

These treaties are living documents… If you're a citizen of the United States today, you are party to these treaties and …Treaties are the supreme law of the land…We all have some responsibilities to each other, whether we like them or not, to uphold our responsibilities to each other that are dictated under the terms of these treaties. Congress did not just pass them and forget about them. Tribes did not just sign them and forget about them. They are very much living documents that essentially codified a way of life for both the Anishinaabe, the Indian people, as well as giving the settlers, the colonists access to some land they wanted. – Bob Shimek

Bob Shimek is a long time treaty rights expert and advocate. He spoke with us on the morning show about the legality of treaties, the different kinds of treaties and the Old Crossing Treaty of 1863. 

It’s probably one of the greatest land heists in all of the history of North America in terms of the way it ended up… So in the fall of 1863, September and October, Indian Commissioner Alexander Ramsey and his assistants and two companies of dragoons met chiefs, headmen, and band members from Red Lake and Pembina bands at the Old Crossing on the Red Lake River…that spot is today commemorated and memorialized by a park itself west of Red Lake Falls…

So terms, conditions were negotiated at over a number of weeks during those two months and an agreement, a consensus was arrived at by both sides…one of the tricky parts of this whole treaty is when it talks about the land cession…it says, all rights, title and interest to the land described below, and then we give this great big land description, which constitutes about 11 million acres from northwestern Minnesota... would be transferred to the United States…

During those treaty negotiations, six different times, Alexander Ramsey made reference to and assured the Indians present at the negotiations that they would all be able to hunt fish and gather in their usual and various spots throughout the 11 million acres… we see this in the 1855 treaty, we see this in the 1854, the 1837 - these are all treaties that involve Minnesota Chippewa. Hunting, fishing, gathering was retained because had the United States denied them the right and the opportunity to feed themselves, there would have been tens of thousands of starving Indians…

When they touched pen to paper, both sides – the Ojibwe from Red Lake and Pembina Bands and the representatives from the United States of America – they affirmed certain things…what’s most important is what was not written in the treaty.  When you get into court with these kinds of issues, because these treaties are negotiated in the context of International Law… one of the court tests has been and continues to be, if something isn’t specifically enumerated as being sold, transferred, abolished, extinguished or otherwise encumbered, it is retained.  So, we retain the rights to hunt, fish and gather.  We retain the rights to live out there. We retain the rights to travel out there. None of that was written down in the treaty as being transferred to the United States. We did not transfer those rights to the United States.  These are rights reserved for us, by us…these were things our ancestors knew we were going to need into the future.  – Bob Shimek

Pembina and Red Lake band members celebrated this forethought and exercised their rights of off reservation fishing this past Monday at Maple Lake and at the location of the Old Crossing Treaty itself.   Through ceremony and fishing and addressing spirits and ancestors, attendees renewed the commitment the ancestors reserved for today’s Anishinaabe so many years ago.   

Why is this so important that we reaffirmed our commitment to a way of life that was codified in that very spot in the fall of 1863?… Our ancestors did what they thought was right in reserving and codifying a way of life for all future Anishinaabe.  So, when we went out and set those nets that day, we were re-affirming that original affirmation that took place at the Old Crossing in the fall of 1863.  We were reconnecting and renewing our efforts, making sure that we take care of the land, the water, the wildlife in a way that’s consistent to the values that our ancestors had when they reserved those things for us.  - Bob Shimek

Click on the full interview to learn how just one year after the Dakota Conflict, Pembina and Red Lake Band members negotiated perpetual use of essential natural resources for future generations.