Although, both the Ojibwe and the Dakota signed treaties in 1837, the treaties were separate. The Treaty with the Chippewa, 1837, was signed on June 15 at St. Peter, Minnesota. The Treaty with the Sioux, 1837 was signed on June 15 at Washington D.C.
The intent of the treaties was the same, i.e., the acquisition of tribal lands through land cessation. However, the provisions differed. In the Ojibwe treaty, Minnesota Anishinaabe bands retained their usufructuary rights. Article 5 states:
“The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the President of the United States.”
Signatories for the treaty included all the Anishinaabe bands in Minnesota and Wisconsin. In 1999, Article 5 was the pivotal point for the Supreme Court decision affirming the usufructuary rights of the Mille Lacs Band of Ojibwe.
On the other hand, the Treaty with the Sioux did not include a provision for Dakota usufructuary rights. The main emphasis for the Dakota treaty was to remove the Dakota to the west side of the Mississippi River. This was part of Andrew Jackson’s removal policy of clearing eastern lands for white settlement.
The lands west of the Mississippi remained in Dakota hands until the land cessions of the Mendota Treaty of 1851 and the Treaty with the Sioux – Sisseton and Wahpeton (Traverse des Sioux Treaty), 1851. These two treaties opened up western Dakota lands to white settlement and land development. These lands included the area where the Mall of America is now located. However, like the 1837 Dakota treaty, usufructuary rights were not retained in the 1851 Dakota treaties.
It's important to point out that usufructuary rights are not a given in any treaty. Not all tribes retained usufructuary rights. Even in treaties in which those rights were and are retained, tribes have nevertheless had to affirm those rights through federal courts. Examples include the Minnesota v. Mille Lacs (1999), Lac Courte Orielles v. Voigt (1983), and several precedent cases in Washington State.
Had Dakota usufructuary rights been retained, they still wouldn’t apply to MOA land. Under federal Indian case law, usufructuary rights on ceded lands applies to public lands but not private lands. And, MOA is private land.
Although treaties aren’t applicable to MOA, the proposed round dance should be allowed without fear of arrest. MOA hosts a number of non-Native events throughout the year. And although the MOA mistakenly perceives the round dance as a form of protest, the round dance is a form of cultural celebration. As such, it should be allowed.
Treaty with the Sioux, 1837: