Treaty Rights (L30)

Dr. Anton TreuerBemidji State University

Tradition Spearfishing

• Torchlight• Bark canoe• Wooden spear• Waaswaagan (Lac du

Flambeau)

Culture of Harvest

• Tobacco offering• Feast after harvest• Sustainable harvest• Use everything taken,

all species taken

Modern Spearfishing

• Battery powered lights• Metal boats, metal

spears• Still a sacred harvest,

used for food rather than sport

Treaty Rights in the Law

• Constitution: “treaties are the supreme law of the land”

• Constitution: “only Congress shall regulate trade and manage affairs with the several states and various Indian tribes”

• Treaties RETAIN rights to hunt, fish, gather on lands ceded: usufructary right

Brownston, MI, Treaty, 1808

• Article 4: “It is agreed that the said Indian nations shall retain the privilege of hunting and fishing on the lands given and ceded as above, so long as the same shall remain the property of the United States.”

Saginaw, MI, Treaty, 1819

• Article 5: “The stipulation contained in the treaty of Greeneville, relative to the right of the Indians to hunt upon the land ceded… shall apply to this treaty.”

Sault Ste. Marie, MI, Treaty, 1820

• Article 3: “The United States will secure to the Indians a perpetual right of fishing at the falls of St. Mary’s, and also a place of encampment on the tract hereby ceded.”

Prairie du Chien, WI, Treaty, 1829

• Article 7: “The right to hunt on the lands hereby ceded, so long as the same shall remain the property of the United States, is hereby secured to the nations who are party to this treaty.”

Grand Rapids, MI, Treaty, 1833

• Article 3: “All the Indians residing on said reservations… shall not be disturbed in their possession, nor in hunting upon the lands as heretofore.”

La Pointe, WI, Treaty, 1842

• Article 2: “The Indians stipulate for the right of hunting on the ceded territory, with the other usual privileges of occupancy… until otherwise ordered by Congress.”

St. Peters, MN, Treaty, 1837

• Article 5: “The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guaranteed to the Indians...”

Indian Use Rights Denied

• In spite of legal right to fish, hunt, and gather on ceded land, Indians were arrested, tried, convicted, and fined or imprisoned for trespass and poaching when they exercised their rights

• Law said one thing, enforcers did another• More white settlement, less treaty rights – a

change in practice, but not the law• By early 1900s, almost no off-rez harvest

Fred Tribble, 1974

• Read treaties, saw the conflict between law and practice

• Called DNR (Lac Courte Oreilles, WI), speared off rez, fined, challenged citation in court

• 1983 Tribble won his case

Court Cases

• LCO v. Wisconsin (Voight decision, Tribble case), 1983: RETAINED rights could be exercised with new limits

• Doyle decision, 1987: traditional or modern technology, environmental restraints

• Crabb decision, 1987: Indians can take 100% of allowable catch (35% of adult fish)

• Crabb decision, 1990: Indian can take 50% of allowable catch

Indian Harvest Begins Again 1985

• 85% male fish (sport fishing mainly female fish)• No harvest on private land• Always a sustainable harvest, less than 10% of

court-stipulated allowance, sport fishermen took 90% of allowable catch

• Havest limited to 117 of 861 lakes in region• Every fish harvested counted, gender recorded• Restocking program

Economics

• Unemployment at Flambeau 50%• Unemployment 5% for surrounding

communities

WDNR & Big Misunderstanding• 41 “watched lakes” with new bag limits (2

instead of 5 walleye) due to overharvest from sport fishing in 1970s and early 1980s

• WDNR reduced limits on only 2 of the watched lakes because of fear that reducing bag limits would harm tourism

• WDNR reduced bag limits on all lakes where Indians speared fish and posted that it was because of Chippewa harvest

• Appeared that Indians were harming fish population - scapegoat

Negative Reactions

• Sport fishermen mad at Indians• Resort owners mad at Indians• Indians mad at WDNR• Huge protests & big misunderstandings

Treaty Rights Protesters

Racialized Threats

Protest Signs

• “The Only Good Injun is a Dead Injun”• “Our Timber is for Timber Wolves not Timber

Niggers”• “Save a Walleye, Spear an Indian”• “Save Two Walleye, Spear a Pregnant Squaw”• Stop Treaty Abuse (STA) markets treaty beer

with logo “hate in a can”

Political Reaction

• Wisconsin Governor Tommy Thompson agrees to meet with STA and other hate groups, but refuses to meet elected tribal leaders, even stating “I believe spearing is wrong, regardless of what treaties, negotiations, or federal courts may say.”

• Congressmen Sensenbrenner and Obey introduce treaty abrogation bills to Congress (defeated)

• Attempted buy-out of treaty rights voted down by tribal members

Mille Lacs

• Tribe agreed to lease most of their rights to the state

• Protest over tribal harvest caused political defeat of the buyout

• Tribe appealed all the way to the U.S. Supreme Court and won unfettered right to the entire region

Call to Action

• Stop violence• Start education• Understand and own the past• Treaties are the supreme law of the land• Supreme Court Justice Hugo Black, “Great

nations, like great men, must keep their word.”

Felix Cohen

• “Like the miner’s canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.”

Free Information & Curriculum on Treaty Rights

• http://www.glifwc.org/