A few blocks southeast of the US Supreme Court building in the heart of the nation's capital, a long wisp of white smoke snakes upward to the sky.
City folks who see or smell the smoke might fear the beginnings of a house fire or someone illegally burning leaves. But to the handful of native Americans who have tended this sacred fire around the clock for the past four days, the smoke symbolizes the ascension of their prayers to the Creator.
The essence of the prayers is the hope that a majority of Supreme Court justices uphold the terms of an 1837 treaty granting them the right to hunt, fish, and gather wild rice in the forests of a region now known as Minnesota.
Today, the justices will hear arguments from both sides in a case that could mark the beginning of the end for special hunting and fishing rights of Indian tribes across the United States.
Or if enough justices agree, the case could stand as a significant reaffirmation that Indian treaties are entitled to full protection of the US Constitution.
Hot topic of debate
This is an extremely hot topic in the Land of Ten Thousand Lakes. Landowners, sportsmen, and state officials in Minnesota argue the Ojibwe (also known as the Chippewa) lost their treaty rights long ago and any attempt to recognize those rights today is an infringement of state sovereignty.
The Ojibwe and their supporters counter the US government should honor its promises - even promises made 161 years ago.
"I think it was Justice Black who said great nations, like great men, keep their word. That is what this is all about," says Jim Schlender, executive director of the Great Lakes Indian Fish and Wildlife Commission, a cooperative of Ojibwe bands based in Lac Du Flambeau, Wis.
Minnesota officials say the real issue is whether a state government has the power to regulate its natural resources and to enforce hunting and fishing regulations equally among all state residents.
"The state feels that, whatever the rules are, they will apply across the board," says Scott Strand, the Minnesota attorney general's deputy counsel.
Under the treaty, the Ojibwe are permitted to catch walleye, a prized gamefish, with speers and nets, and to hunt deer by using bright lights at night to stun them. Such methods are barred by state law and considered unsporting by recreational hunters and fishermen.
The Ojibwe agree, but for a different reason. They say there is never anything sporting about killing fish and game. To them it is a sacred sacrifice mandated by man's place in the universe. Deer, fish, and wild rice are here to help people live, not to provide a form of recreation, the Ojibwe say.
So far Minnesota has lost its battle at both district and appellate court levels. But it remains unclear which way the high court will go on the issue. Analysts say the justices, in recent years, have not been particularly friendly to native Americans in cases before the court. Lawyers who specialize in such cases worry the court may attempt to rewrite a century of precedent concerning off-reservation hunting and fishing rights.
Lawyers for Minnesota argue that earlier judges in the case twisted the wording of treaties beyond their meaning to ensure victory for the Ojibwe. They suggest the judges wanted to achieve justice for the Ojibwe. Such well-intentioned efforts, they say, have no place in a court of law.
"There may be some basis for the lower courts' concerns that the federal government did not treat the Indians fairly in making the 1837 Treaty," the state says in its brief. "But this Court has rejected the notion that perceived injustice in the negotiation of Indian treaties should be corrected by judicially recrafting the treaty provisions."
The Ojibwe and their supporters say judges have upheld both the letter and spirit of the treaty. But, they add, the treaty itself was unfair from the beginning.
"The tribes got a lousy deal," says John Dossett, general counsel for the National Congress of American Indians. "They gave up millions of acres of land in return for almost nothing and now they are attempting to keep the almost nothing, and the state is trying to take that away too."
A long history
For hundreds of years, the Ojibwe fished the lakes and hunted the forests of what is today northern Michigan, Wisconsin, and Minnesota.
But in 1837, with European settlers moving ever westward, the federal government negotiated a treaty in which the Ojibwe traded 13 million acres of prime forest land in exchange for a promise that future generations would be permitted to hunt, fish, and gather wild rice on their former lands in accord with their way of life. The treaty guaranteed that privilege "during the pleasure of the President of the United States."
Opponents say the treaty rights were abrogated in 1850 when President Zachary Taylor issued an executive order ending the treaty. In addition, they cite an 1855 treaty ending all Indian treaty rights. Lastly, they argue any remaining treaty rights would have been rendered void after Minnesota became a state in 1858. Under the "equal footing" doctrine, new states joining the Union do so with the same sovereign rights of all other states.
The Ojibwe and their supporters counter that President Taylor's 1850 order was never enforced and was soon abandoned. They say the 1855 treaty dealt only with land ownership, not with hunting and fishing rights. And lastly, they say such hunting and fishing rights do not terminate automatically when a US territory becomes a state.
It is this last part of the case that has tribes across the nation concerned. A Supreme Court decision declaring a state's rights superior to prior negotiated treaties between tribes and the US government would jeopardize native American fishing industries in the Great Lakes, the Pacific Northwest, and the Colorado River, and would sharply curtail the efforts of many Indians to preserve their traditional way of life through hunting and fishing.