Chippewa Treaty Rights: History and Management in Minnesota and Wisconsin
Excerpts from Great Lakes Indian Fish and Wildlife Commission.
1995. A Guide to Understanding Chippewa Treaty Rights: Minnesota
Edition. July. Odanah, WI.
[Original pagination indicated with slash marks, e.g.
/12/; photographs ommitted.]
Table of Contents
Treaty Rights in
Minnesota
And such of them as reside in the territory hereby ceded, shall have the
right to hunt and fish therein, until otherwise ordered by the President.
--
Article 11, 1854 Treaty
In order to retain treaty rights, a Band has to be a signatory to one of
the
cession treaties. In Minnesota off-reservation hunting, fishing and
gathering rights are held by the Fond du Lac, Grand Portage, and Bois
Forte Bands of Chippewa under the 1837 and 1854 Treaties and by the
Mille Lacs Band of Chippewa under the 1837 Treaty, which is in
litigation.
The current status of off-reservation rights and degree of
implementation
varies considerably from band to band; therefore, they are considered
separately in sections below.
The Non-Removable Mille
Lacs Band
... no tribe in the United States has suffered to a greater extent by reason
of
unfulfilled promises and agreements of the part of the United States
Government than the Mille Lacs band of Chippewa of Minnesota. --S.M.
Brosius, Washington Agent, Indian Rights Association, October 1901
From its traditional home on the shores of Lake Mille Lacs, the Mille
Lacs
Band of Chippewa Indians has maintained a long--and often tragic--
history of interaction with other nations: Winnebago, Sioux, French,
British, and American. The band's environment is unique. Lake Mille
Lacs
(named by French Voyageurs who thought it looked as big as a
"thousand lakes") is considered to be the best walleye habitat
in the world. Until a century ago, its adjacent lands were covered with
four-foot-diameter pine trees making a mantle so thick that a person
could
literally walk for miles on a sunny day and never see the sun.
In 1825, the Mille Lacs Band participated in a treaty that defined the
boundaries of the Great Chippewa Nation and the Great Sioux Nation. In
that treaty the United States recognized that the Chippewa owned vast
acres in what is now Minnesota, Wisconsin and Michigan. The Chippewa
land holdings were reduced significantly in 1837 when the United States
purchased some 12 million acres in what would later become the states
of
Minnesota and Wisconsin. The lands ceded by the Chippewa included
much of Mille Lacs Lake and the traditional hunting grounds and wild
rice
lakes of the Mille Lacs Band, lands that had been acquired by the Band
through centuries of conflict with the Sioux. Countless Chippewa and
Sioux members gave their lives in defense of these lands.
The United States desired these lands because of their valuable stands of
pine, not for non-Indian settlement. It made no request or provision in
1837 for the Band to abandon the homeland for which it paid so dearly.
Instead, the government agreed that the Chippewa could continue to
"hunt, fish, and gather" on these lands (the "ceded
territories")
indefinitely. /6/
The next fifteen years brought more treaties with the United States,
which
ceded additional Chippewa lands but continued explicitly to reserve
hunting, fishing and gathering rights. During this period, pressures by
non-
Indians led to demands for the removal of the Chippewa from their
ceded
lands. A disastrous effort at removal was orchestrated in 1850; Chippewa
residing on the south shore of Lake Superior were lured to the
Minnesota
Territory, left waiting at Sandy Lake as bitter winter weather
approached,
and then supplied with wholly inadequate and largely spoiled rations.
Hundreds died and the removal effort was abandoned in the face of
widespread protests from Indians and non-Indians alike.
In the 1850's new treaties were made. More Chippewa lands were ceded
and hunting, fishing and gathering rights were again reserved. In
those
treaties, however, small reservations were established where the Indian
people would supposedly be free from non-Indian intrusions and be
able
to resist pressures for removal to distant lands. The Mille Lacs
Reservation,
as outlined by the 1855 Treaty of "Peace and Friendship,"
comprised 61,000 acres of bordering lakeshore, and a portion of, Mille
Lacs
Lake. Located within the territories ceded in 1837, the Reservation was
intended to secure the Band's occupancy of its traditional lands in
perpetuity.
But the pine stands on the Reservation were too valuable for the early
"lumberbarons" to resist, and the pressures to oust the Band
continued. In the 1860's many Chippewa bands were persuaded to
"remove" to new reservations further north, most notably
White Earth. The Mille Lacs, however, adamantly refused, and became
known as the "non-removable" Mille Lacs Band. Because of
their assistance during the 1862 Sioux Uprising, the government
allowed
them to remain on that Reservation. This episode is described in an
account from the U.S. Government archives:
Those conversant with the history of the northwest will recall the great
Sioux outbreak of 1862, in which most of the Indians of Minnesota and
the Dakotas joined, or made demonstrations of unrest, and among the
latter
were the Chippewas of Minnesota. The Mille Lacs band of Chippewas,
however, would not join their brethren in these hostile demonstrations,
nor
did they take any part in the pillaging of the white settlers surrounding
their reservation, as was done by the Pillagers and other bands of the
Indians. During this trying period the Mille Lacs band sent runners to
notify isolated settlers and their families of the threatened danger, and
conducted them to places of safety. Nor did their loyalty to the white
men
stop there. They sent messengers to the hostile camps of Indians
engaged
in committing the outrages, and notified them that if any of the settlers
who had fallen into their hands were injured the (the Mille Lacs) would
join with the whites in the effort to protect life and property. This
action
on the part of the Mille Lacs discouraged the Chippewas engaged in the
outbreak, and the latter soon dispersed and returned to their separate
reservations.
In recognition of those valuable services--and the fact that the Mille
Lacs
Band refused to relinquish its Reservation--the government agreed that
[Article XII, Treaty of March 11, 1863]:
[O]wing to the heretofore good conduct of the Mille Lacs Indians, they
shall not be compelled to remove so long as they shall not in any way
interfere with or in any manner molest the persons or property of the
whites.
The lumbermen did not give up. From 1863 to 1884--until congress
intervened temporarily--they used every trick to lay claim to lands on
the
Reservation. In 1889 Congress passed the Nelson Act which again
brought government pressure on the Band to forfeit its land. The Act
cleared the way for powerful timbering interests to log off the mighty
pine
trees virtually for free. By the early 1900's the Mille Lacs Chippewa--
who
remained steadfast in their refusal to abandon their Reservation--had
been
reduced to a condition of grinding poverty. Timber companies and non-
Indian settlers claimed title to virtually every acre (save about 200) on
the
Reservation, and Band members were literally burned out of their
meager
dwellings and possessions.
Beginning in the 1910's, Congress began appropriating funds to acquire
lands for the Mille Lacs Band. From a slow and fitful start, the /7/
process
of rebuilding the Band's landholdings--both on and off its Reservation--
continues today. Moreover, in 1934, the Indian Re-Organization Act was
passed to promote Indian self-government and end the shameful
erosion of
the Indian land base nationwide. At Mille Lacs, elected tribal
governments
began the process of the Band's political reconstruction which, after
nearly
sixty years, has led to the establishment of a vibrant three-branch
(legislative, executive, and judicial) system of government and the re-
acquisition of two thousand acres of Reservation land.
As the Band's government strengthened it addressed problems relating
to
economic development, education, conservation and social problems.
However, the Band remained very poor, at times with unemployment as
high as 70%.
Economic development initiatives included a construction company, a
school which provided employment, an electronic assembly plant, and a
community center.
The 1991 opening of the Mille Lacs Grand Casino on the Reservation
signaled an economic upturn for the Band, providing almost full
employment as well as an independent source of income for the Band. A
second casino opened in the spring of 1992 in Hinckley, Minnesota,
further bolstering the tribal economy. Revenue from the casinos is
being
used to build new reservation's schools, improve education, health
facilities
and other programs necessary to provide a better quality of life for
Band
members. The casinos now employ over 2,000 people (two-thirds of
whom
are non-Band members) and have conferred substantial benefits on the
entire regional economy.
While the Mille Lacs Band welcomes an improved standard of living
following years of poverty and struggle, the reaffirmation of its treaty
rights remains a high priority for the Band. These rights are separate
from
economics and are part of a strong, traditional, spiritual value system
which
will not be relinquished by the Band at any cost.
Treaty rights are part of a cherished heritage which the Band has
steadfastly protected for over 150 years.
The Treaty Rights of the
Mille Lacs Band of Chippewa
The Mille Lacs Band is currently litigating Phase II of their 1837 Treaty
case in federal court.
The Mille Lacs' treaty right to hunt, fish and gather on ceded lands was
upheld by U.S. District Court Chief Judge Diana Murphy in her August
1994 decision. Significantly, Judge Murphy denied any immediate
appeal
of her decision until the completion of Phase II, which addresses issues
of
regulation and the scope of the right.
Before the Band filed suit in 1990, it approached the State to seek a
negotiated solution but the State refused to talk until the Band filed suit.
Parties in the case include: The Mille Lacs Band and the U.S. Department
of Justice vs. the State of Minnesota, nine counties, and the landowners.
Six Wisconsin Chippewa bands were also granted intervention on March
22, 1995. Although that decisions was challenged by defendant-
intervenors, /8/ including nine counties and individual landowners,
another
ruling from U.S. District Court, Minnesota District, Third Division,
affirmed
the intervention of the Wisconsin Chippewa bands.
Phase II of the litigation will determine the extent of the right and the
degree of state regulation, if any. Trial is scheduled to begin on
September
16, 1996.
Considerations in Phase II trial will involve how much of each species
can
be harvested; what methods can be used; which species can be
harvested;
and where treaty rights can be exercised.
While litigation is ongoing, the Mille Lacs Band plans to provide a
limited
exercise of rights for its members. Any exercise will be regulated by the
Band with both conservation and public safety measures in mind.
Basically, the Band seeks to maintain its own hunting, fishing and
gathering codes and exercise self-regulation throughout the 1837 ceded
territory, subject to reasonable provisions for resource conservation
and
public safety. (The Band does not claim rights on private lands not
otherwise open to public hunting and fishing, unless the landowner
consents.) The ceded territory, according to State estimates, includes
3,061,501 acres located in 11 counties.
The Mille Lac Band spent over two years working on a proposed out-of-
court settlement between the Band and the State. The agreement was
approved by the Band in a referendum vote, by the MN Department of
Natural Resources, and the Governor's Office. However, it was rejected
by
the state legislature in May 1993, an action which sent the parties back
to
the court room. /9/
The Mille Lacs Band's
Department of Natural Resources
The Mille Lacs Band has been actively involved in natural resource
conservation and management both on and off-reservation for a period
of
years. Following traditional ways, resource management decisions are
guided by the advice and information available through tribal elders.
Biological Services
With an holistic approach to resource management inherent in the
tradition, the Mille Lacs Band emphasizes the study of the entire
ecosystem and acquisition of an appropriate data base as fundamental to
planning and decision-making.
The Mille Lacs Band employs three aquatic research biologists, who with
four other full-time staff, maintain a water quality laboratory and have
been
involved in establishing a data base for the Band. Staffing is increased
on a
seasonal basis depending on the need for additional crew.
The Band's laboratory has been operating for four years on-
reservation,
but research, using the facilities of the Minnesota Chippewa Tribe, have
been ongoing for the past twelve years. Biological staff have been
testing
all lakes, streams and rivers on or bordering the reservation. Testing
determines a system's efficiency and isolates deficiencies as a basis for a
plan.
Water quality testing determines the nutrient loads in the system, the
extent of bacterial contamination, and particularly in relation to wild
rice
systems, the prevalent insect life and presence of phytoplankton and
zooplankton.
An extensive wetlands program has succeeded in delineating numbers
and
locations of wetlands on the reservation as well as setting water quality
standards. The Band is proposing to implement a permitting process,
following public hearings, in order to protect and improve water
quality in
on-reservation systems.
Fisheries assessments have been performed on 87 different lakes and
rivers. Some assessments on critical, off-reservation waterways have
also
been initiated.
To encourage more trained tribal members in the area of natural
resource
management, the Tribe has supported the establishment of a two-year
Natural Resource Management Training Program through three area
vocational schools. Graduates will hold a two-year degree as natural
resource technicians.
The maintenance of both treaty rights and the natural resource in
conjunction with the right of self-governance are high priorities for
the
Mille Lacs Band. For these reasons, the tribal government has supported
the growth and development of both conservation management and
enforcement capabilities for the reservation.
The band fully recognizes that resource use must be accompanied by
wise
management decisions and that the resource is shared with other user
groups. Consequently, tribal, state and federal managers need to
continue
to seek avenues of cooperation to guarantee a viable resource base for
the
future.
Enforcement
On-reservation conservation codes were established by the Band in 1979
for all seasons, including small game, migratory bird, fishing, big game
hunting, timber harvest and ricing.
The Band has in place a full set of ordinances regulating on and off-
reservation seasons, a licensing structure, registration stations and a
system
of tagging.
Conservation officers are all federally certified and post-board certified.
Currently, on officer enforces on-reservation codes and two enforce
off-
reservation seasons.
Conservation violations are cited into the Mille Lacs Band Tribal Court,
established in 1990 following the compact for self-governance with the
U.S. Department of Interior. The Court exercises jurisdiction in the areas
of
gaming and conservation.
The Band anticipates expansion of both enforcement and biological
services in order to meet the demands of expanded seasons. /10/
Off-Reservation Exercise of
Treaty Rights
Mille Lacs Band members already enjoy some limited exercise of off-
reservation treaty rights. An off-reservation season for migratory birds
has
been in place since 1989 through an agreement with the United States
Fish
and Wildlife Service (USFWS).
An expanded season, meeting the needs of Chippewa Bands with
reserved
rights, was established in the ceded territory following a series of
meetings
between staff of the Great Lakes Indian Fish and Wildlife Commission
(GLIFWC), representing eleven Chippewa bands, and the USFWS. A
hunting season for tribal members has also been established in the
Sherbourne Wildlife Refuge, a national refuge in Minnesota.
While the rights are federally recognized, the State has threatened to
impose state law on tribal members hunting off-reservation.
Approximately
100 Mille Lac Band members have also exercised their rights during the
spring spearfishing season in Wisconsin, where treaty rights were
affirmed
through the 1983 Voigt Decision.
Off-Reservation Natural
Resource Management
As a member of GLIFWC, the Mille Lacs Band has available the services
of
professional staff in all areas of resource management to assist with
critical
conservation management issues and enforcement.
To date, GLIFWC has assisted Mille Lacs by providing trained off-
reservation stations, assistance with tribal courts, and implementation
of an
off-reservation migratory bird season.
GLIFWC biologists involved in all areas of wildlife and fish management
are also available to assist when off-reservation treaty seasons are
established. A Great Lakes Indian Fish and Wildlife Commission satellite
office on the reservation provides the services of a fisheries biologist
who
has been working on developing a data base for the Band on the
fishery.
GLIFWC staff augment the tribal program, which will be studying the
resource base in the ceded territory, about one-tenth of Minnesota.
State/Tribal Agreement
In November 1988 three Chippewa Bands, Boise Forte, Grand Portage and
Fond du Lac, entered into a negotiated agreement with the State of
Minnesota. Fond du Lac remained in the agreement for one year, so
currently, only two Bands are in an agreement with the State.
The agreement was an out-of-court settlement of litigation begun in
1985
when the Grand Portage Band of Chippewas and two of its members filed
a civil action in the United States Direct Court, District of Minnesota,
Fourth Division. The suit was based on rights reserved in the 1854 Treaty
and the Treaty of 1866.
Under the agreement the bands agreed to forbear or limit the exercise
of
certain off-reservation rights in return for an annual payment from
the
State; however, this does not preclude all exercise of tribal off-
reservation
rights. Tribal off-reservation seasons for large game, trapping, as well
as
inland and commercial fishing in Lake Superior provide opportunity to
exercise off-reservation rights. The ceded territory encompasses /11/
five
million acres of land in northern Minnesota. Highlights of the 1988
agreement included:
- establishing the Grand Portage Zone as the only commercial fishing zone in Lake Superior to be fished by members of the three bands; a 27,000 lb. limit on lake trout taken under assessment netting contracts; and records on all fish taken from the zone. This zone is currently being fished by the Grand Portage Band only.
- all harvest on Lake Superior outside of the Grand Portage zone must be through angling, unless otherwise permitted under state law.
- in inland waters, no game fish can be taken for commercial purposes and harvest of non-game species for commercial purposes will be allowed only on designated lakes selected by the Bands following consultation with the Commissioner of the Minnesota Department of Natural Resources.
- prohibition of spearing fish except in accordance with state law.
- provisions governing off-reservation hunting and trapping address big game, trapping, moose harvest and commercialization.
- cross-deputization of tribal and state wardens.
- all exercise of the treaty rights by tribal members is governed by the ordinances established by the 1854 Code regulating the various shunting, fish and gathering seasons. Violations are referred to an intertribal court for prosecution. /12/
The 1854 Authority
The tribal councils of Bois Forte and Grand Portage currently compose the governing body of the 1854 Authority. A central office is maintained in Duluth, Minnesota.
In 1988, negotiations between the Boise Forte, Grand Portage and Fond du Lac Bands and the state of Minnesota resulted in the formation of the 1854 Authority. This organization is charged with the enforcement, regulation and maintenance of the exercise of treaty rights in the territory ceded by the Treaty of 1854 in north-eastern Minnesota. However, Fond du Lac is no longer a member.
Enforcement
Conservation officers must meet some very stringent requirements in
order
to be employed by the 1854 Authority. They must be able to be licensed
by the Peace Officers Standards and Training (P.O.S.T.) Board in the State
of Minnesota. This means they must meet all the same educational and
training requirements that all peace officers in the State of Minnesota
do.
They are required to pass a strict physical fitness test that is
administered
by 1854 Authority personnel, and they are required to maintain their
P.O.S.T. certification by attending classes that keep them up to date with
the latest developments in the law enforcement field. Currently the 1854
Authority has five officers on staff. All Authority conservation officers
are
empowered to enforce the code adopted by the member Bands upon band
members and they are cross-deputized by the State to enforce all State
conservation laws upon all non-band members within the ceded
territory.
All state conservation officers within the ceded territory are cross-
deputized by the 1854 Authority and are empowered to enforce the
adopted code upon band members.
All violations by Band members are brought into the Authority court
system to be dealt with. The Authority court system is similar to a circuit
court as it is held at various locations throughout the ceded territory.
Regulation
Hunting, fishing and gathering activities in the ceded territory are
regulated through the code adopted by the member bands. Tribal
members
of the Authority must obtain a photo identification card from the
administrative staff in order to exercise their rights in the ceded
territory.
All animals taken during season have to be registered at one of the
registration stations located at Nett Lake, Tower, Grand Portage, Clover
Valley or the Duluth office. Conservation officers stationed throughout
the
ceded territory also assist with the registration process.
In 1991 the 1854 Authority board expanded the moose and deer seasons
for tribal members by having a ten day moose hunt and adding two
weeks
to the deer season. Tribal members also have a higher daily bag limits
during all other seasons for subsistence purposes.
Maintenance
The day to day operation of the 1854 Authority is handled by the
administrative staff. Monthly meetings of the Authority board are held
to
keep abreast of current issues regarding the Authority.
Staff meetings with all organizations in the ceded territory are held on
an
as needed basis. Various subcommittees of the Authority meet quarterly
to
review policies and to update as needed.
The Authority is involved in other aspects of resource management also.
All information collected by the Authority pertaining to the tribal
harvest is
shared with state resource managers for use in natural resource
research
and future decision making.
Authority personnel are working cooperatively with other state and
federal agencies on a Circle of Flight project to reclaim an abandoned
gold
mine site for a wetland refuge in the ceded territory. All public
speaking
requests are handled by Authority staff and board members. /13/
Fond du Lac Off-Reservation
Resource Management
The Fond du Lac Band of Lake Superior Chippewa are engaged in
litigation with the State of Minnesota over the exercise of hunting,
fishing
and gathering rights reserved in the territories ceded by the Treaties of
1854 and 1837.
The Band has provided off-reservation harvest opportunities in the 1854
ceded territory since 1993 pursuant to a stipulation entered into
between
the State of Minnesota and the Band governing the continued exercise
of
rights as the litigation proceeds.
Fond du Lac's off-reservation codes are established by the Band's Ceded
Territory Committee. A similar committee for on-reservation seasons
recommends on-reservation codes. The codes become law once
recommended to and approved by the Fond du Lac Reservation Business
Committee (RBC).
Fond du Lac's on-reservation conservation enforcement has been in
place
since 1976. Two fully-trained conservation officers are on staff to
enforce
the Band's conservation codes that govern each season. Currently, one
officer is cross-deputized with the State of Minnesota and the other will
be
testing at the end of 1995.
Fond du Lac's Conservation Program manages off-reservation harvests.
The Conservation Program distributes codes and guidelines for the
seasons, issues necessary permits, and registers game taken during the
respective seasons. Off-reservation treaty seasons generally either
provide
for an extended season or larger bag limits.
A tribal member must carry a tribal identification card in order to
exercise
off-reservation rights and obtain any necessary permits from the
Conservation Department.
Fond du Lac also employs two conservation wardens for off-reservation
monitoring activities. These officers work closely both with the 1854
Authority conservation wardens and the state wardens. Violations are
cited into the Band's court for prosecution.
Several tribal programs implement Fond du Lac's natural resource
management projects, working both on and off reservation. These
programs include a Natural Resources Department, a
Conservation/Enforcement Department, a Multimedia Program for
environmental work, and a Forestry Program.
Fond du Lac employs a wildlife biologist, an inland fisheries biologist,
an
environmental biologist, and five technicians to implement their
natural
resource management programs. Great Lakes Indian Fish and Wildlife
Commission inland fisheries biologist and technician working in the
1854
Treaty area coordinate with the Band's professional staff.
The Natural Resource Program is involved in restoring sturgeon to the
upper St. Louis River. Biological staff use radio-tracking to observe
habitat and spawning habits of sturgeon. A sturgeon restoration project
is
also underway.
The Band has also been working on the reestablishment of wild rice
beds
on-reservation in the St. Louis River and are looking forward to an
Arrowhead Region wild rice reintroduction initiative. Water and air
quality
studies have also been a part of the Band's environmental research.
/14/
Treaty Rights in
Wisconsin
The Voigt Decision
... It is perfectly clear, however, that the Indians were vitally interested
in
protecting their right to take fish at usual and accustomed places,
whether
on or off the reservations, and that they were invited by the white
negotiators to rely and if fact did rely heavily on the good faith of the
United States to protect that right. --U.S. Supreme Court Opinion,
December 5, 1979
In 1991 six Chippewa Tribes in Wisconsin and the State of Wisconsin
decided not to appeal the many federal court rulings in the Voigt case.
This
concluded an era of litigation which spanned 16 years and hopefully
established a positive, cooperative tone for constructive state-tribal
relationships in the future.
The Voigt Decision is one of the most recent of many federal court
decisions reaffirming treaty rights, specifically the hunting, fishing
and
gathering rights of the Chippewa on ceded lands covering
approximately
one-third of northern Wisconsin. This 1983 Court of Appeals decision
upholding Chippewa treaty rights triggered considerable controversy,
protest and misunderstanding in northern Wisconsin.
The Voigt case in Wisconsin began in 1973 when the Lac Courte Oreilles
Band of Chippewa filed suit against the State of Wisconsin. The Tribe
claimed state laws interfered with tribal hunting, fishing and
gathering
activities guaranteed in the Treaties of 1837 and 1842.
In 1978, the Federal District Court granted summary judgment in favor
of
the State of Wisconsin and dismissed the action. It held that all rights
under the treaties had been revoked by the Treaty of 1854.
In 1983, the Seventh Circuit Court of Appeals reversed the District Court
ruling, holding that the rights reserved by the Treaties of 1837 and 1842
had not been revoked or terminated and continue to exist. The appellate
court returned the case to the District Court for further proceedings to
determine the scope of the treaty rights, the extent to which the State
may
regulate the exercise of those rights and what damages, if any, the
tribes
may recover as a result of the State's infringement of the treaty rights.
The
State of Wisconsin petitioned the United States Supreme Court to review
the Seventh Circuit Court's decision. However, the petition was denied.
After the decision of the Seventh Circuit Court of Appeals, the five other
Chippewa Bands located in Wisconsin joined in the lawsuit (Bad River,
Lac du Flambeau, Mole Lake, Red Cliff, and St. Croix) and the six plaintiff
tribes proceeded with the case in the District Court to determine the
nature
and scope of the rights and issues relating to regulation.
On August 21, 1987, Federal Judge Barbara Crabb reaffirmed the standard
principles enunciated in other treaty rights cases from throughout the
country. She held that the State may regulate in the interests of
conservation provided that such regulations are reasonable and
necessary
for the conservation of a species or resource, that they do not
discriminate
against Indians, and that they are the least restrictive alternative
available.
Judge Crabb also ruled that the State may impose such regulations as are
reasonable and /15/ necessary to protect public health and safety, a
ruling
not based on preceding decisions. However, she held that the tribes
possess the authority to regulate their members and that effective tribal
self-regulation precludes state regulation.
On May 9, 1990, Judge Crabb issued another decision resulting from the
deer subphase and from various other issues presented for her
resolution.
Consistent with her decision on walleye/muskellunge harvests, Judge
Crabb enjoined the enforcement of state law provided that the tribes
enact
a system of regulations consistent with her decision. The tribes have
done
so.
The most significant aspect of the May 9, 1990, deer decision is Judge
Crabb's ruling that the tribal allocation of treaty resources is a
maximum of
50% of the resource available for harvest.
Treaty Harvest in
Wisconsin
The Chippewa view hunting, fishing and gathering as traditional
subsistence activities which provide food as well as materials for
clothing,
religious use, or barter. This differs from the contemporary "sport
ethic" of most non-Indians today. The Indian, while abiding by
restrictions designed to protect the resource, will harvest as efficiently
as
possible in order to get necessities for the family; whereas the non-
Indian
generally views the activities as sport or recreation.
The Chippewa have a small number of fishermen in comparison to
numbers
of state-licensed sport anglers. This allows the Chippewa to more easily
maintain a tightly regulated season when harvesting efficiently. This is
also
true of hunting, trapping and other seasons.
The Chippewa harvest many different species of fish, plants and
wildlife
during off-reservation seasons. Some of these include: deer, furbearers,
small game, waterfowl, and wild rice. In Wisconsin the off-reservation
fishery includes a spring spearing season, hook and line season, and
netting as well as a commercial fishery in the Great Lakes.
All off-reservation seasons are monitored by biological staff and by
tribal
conservation wardens. Tribal off-reservation harvest is governed by
ordinances which set dates of the seasons, allowable gear, bag limits and
other restrictions important for conservation of the resource, public
safety,
and fulfillment of tribal needs.
In the case of spring spearing, each fish is counted and most are
measured
at landings on a nightly basis. /16/
Daily permits are issued in order to insure the Chippewa do not exceed
lake quotas.
In Wisconsin lake quotas are based on the safe level of harvest for each
lake. Tribal quotas have generally been set well below the safe harvest
level; thus, angling harvest has continued. Tribes declare their quotas
for
spearing by March 15 each year. Those declarations are based on
estimates
of tribal need.
It is important to remember that in relation to the state-licensed
harvests in
all three states, the Chippewa off-reservation harvests for popular sport
species are small.
Graphs below show some perspective of the Chippewa harvest in
Wisconsin.
Comparison of Sport and Tribal Walleye Harvest in Wisconsin
| 400,000 |
|
|
|
|
|
320,000 |
| 300,000 |
|
|
|
|
|
|
| 200,000 |
|
|
|
|
|
|
| 100,000 |
|
|
|
|
|
|
| 0 |
23,018 |
21,118 |
24,532 |
25,922 |
30,249 |
|
|
1991 |
1992 |
1993 |
1994 |
1995 |
Est.
Annual
Sport
Harvest |
|
Annual Tribal Harvest |
Comparison of Sport and Tribal Musky Harvest in Wisconsin
| 10,000 |
|
|
|
|
|
9,454 |
| 8,000 |
|
|
|
|
|
|
| 6,000 |
|
|
|
|
|
|
| 4,000 |
|
|
|
|
|
|
| 0 |
185 |
165 |
188 |
244 |
294 |
|
|
1991 |
1992 |
1993 |
1994 |
1995 |
Est.
Annual
Sport
Harvest |
|
Annual Tribal Harvest |
The Role of GLIFWC
Tribes fully recognize that the natural resources today are subjected to
many stresses and that, in order tomaintain a healthy natural resource
base,
all tribal seasons must be regulated and the resources conserved and
enhanced.
The Great Lakes Indian Fish and Wildlife Commission (GLIFWC) provides
biological and enforcement expertise as well as resource development,
planning, public education and legislative analysis. In order to
effectively
manage off-reservation resources and tribal seasons, a number of
Chippewa Bands formed an intertribal resource management agency
known as GLIFWC.
The Fond du Lac Band has been a member of GLIFWC since its inception
in 1984. The Mille Lacs Band joined in 1985.
Originally, in Wisconsin, the task of implementing off-reservation
rights
was given to the Voigt Intertribal Task Force (VITTF). The Task Force
formed in 1983 immediately after the Voigt Decision and consists of
representatives from each affected tribe, including Mille Lacs.
The Task Force decided to merge with the Great Lakes Indian Fisheries
Commission (composed of six treaty commercial fishing tribes) in order
to
share the biological, enforcement, and other expertise needed for
implementation of the inland treaty rights in Wisconsin.
Currently, the VITTF is one of three standing comittees for GLIFWC. The
Task Force is the principle liaison between member tribes and the
Commission. It makes recommendations as to off-reservation harvest
regulations, litigation, biological programs as well as enforcement in
relation to off-reservation treaty seasons.
The Commission serves eleven member Chippewa Bands in a three-state
area, including Michigan, Minnesota and Wisconsin. Formed in 1984,
following the Voigt Decision, the Commission assists tribes in
implementing
regulated and monitored fishing, hunting, and gathering seasons in the
ceded territory.
In addition to the Voigt Intertribal Task Force, the 1854 Committee, the
Lakes Committee, and the Executive Committee make recommendations
/17/ to the Commission in regard to Minnesota and Lake Superior treaty
rights.
The Commission serves the tribes through its five divisions, which
address
different aspects of implementing off-reservation rights for the
Chippewa.
The divisions are as follows:
Biological Services
The Biological Services Division is divided into four sections that handle
the specific areas of natural resource management. The staff of these
sections function as the primary source of management and research
expertise for those particular resources that impact GLIFWC member
tribes. In Minnesota, an inland fisheries biologist is stationed at the
Mille
Lacs reservation and a wildlife biologist and biological technician,
stationed in the Duluth area, serve the 1854 treaty area. On-reservation
work is restricted to cases which have a direct bearing on off-
reservation
management and occasional assistance to tribes on a non-extended
basis.
Inland Fisheries: The inland fisheries section is concerned with
the public waters within the territory ceded by the 1837 and 1842
treaties
(except Lake Superior) and the fish and aquatic animals living there.
Wildlife: The wildlife section is concerned with the public lands
and waters within the territory ceded by the 1837, 1842, and 1854
treaties
and the wildlife and wild plants in these territories.
Great Lakes Fisheries: The Great Lakes fisheries section is
concerned with all waters of the Great Lakes which are subject to treaty
fishing by members of a Commission member tribe, and tributaries
which
support anadromous runs.
Environment: The environmental section is concerned with the
health and integrity of ecosystems which sustain fish, wildlife, and wild
rice
in territories ceded by the Commission member tribes.
The activities of each section of the biological services department of
GLIFWC are broken down into six strategies:
Inventory/classification/monitoring; Harvest management;
Research/development; Enhancement; Technical assistance to tribes;
Liaison/communication.
Enforcement
GLIFWC has several certified conservation wardens stationed at the
Mille
Lacs reservation, and off-reservation enforcement in the 1854 treaty
area is
provided through the 1854 Authority, also an intertribal organization.
The
Enforcement Division is composed of 25 full-time and 25-30 part-time
temporary wardens. In Wisconsin ten GLIFWC wardens are cross-
deputized with the state for conservation enforcement.
The wardens monitor tribal hunting, fishing, and gathering activities
on off-
reservation ceded lands and waters. Stationed in the vicinity of the
reservations, their job is to enforce codes adopted by each tribal council
for off-reservation seasons and monitor and enforce codes set for the
tribal
commercial fishery in Michigan waters of Lake Superior. With the
exception of criminal cases, violations are cited into the appropriate
tribal
court system for prosecution.
Planning and
Development
Development and planning addresses the changing needs of member
tribes
in response to federal court rulings, increased emand for natural /18/
resources, and social misperceptions held by the non-Indian
community.
The provision of technical planning services helps GLIFWC and tribal
governments in areas such as: increased enforcement capabilities;
construction of fish hatcheries; expansion of public education on treaty
rights and tribal resource management; promotion of cooperative
resource
management; reseeding of wild rice beds; and improvement of Lake
Superior fisheries resource managmenet. This is done by looking at
particular needs and formulating plans or proposals which provide a
means
for meeting those needs.
Intergovernmental Affairs
This division assists member tribes in effectively exercising the
management and regulatory jurisdiction which the tribes have
reserved in
the treaties. Technical assistance is provided to the tribes, for instance,
in
the development of tribal regulations and tribal courts to adjudicate
violations of the tribal regulations. This dividison also assists in the
negotiation of state/tribal, federal/state/tribal, or intertribal
agreements
which allow for tribal harvests of off-reservation resources.
Public Information
The Public Information Division strives to promote understanding of
the
sometimes complex issues surrounding off-reservation rights and to
keep
tribal members and the general public informed on treaty issues.
Public ignorance in regard to treaty rights and tribal sovereignty,
coupled
with misinformation routinely presented by anti-Indian organizations
in
the area, make an active public information effort necessary.
The Commission's public information office produces written materials
as
well as videos which are designed to provide background on the treaties,
court decisions, and statistics relating to Chippewa off-reservation
harvests
as well as to counter popular misconceptions.
Public information publishes a free quarterly newspaper,
MASINAIGAN;
produces brochures, videos and booklets; maintains a speaker's bureau;
and travels with informational booths.
Cooperative Resource
Management
A positive development from the controversy which has surrounded
Chippewa treaty rights is the emergence of cooperative management.
Community and tribal leaders, tired of negativism and conflict, have
sought
and found common goals.
Several grassroots projects have been successful both in helping return
communities to peace and in positively addressing concerns regarding
the
fishery.
In Wisconsin, the Long Lake Chamber of Commerce established contact
with the St. Croix Tribe and a joint electrofishing project of Long Lake
emerged with volunteer crews from the community, the tribe and the
U.S.
Fish and Wildlife Service (USFWS). All worked together to obtain a
current walleye population assessment and to strip eggs from speared
walleye for hatching, rearing, and stocking.
Another grassroots project began when the Cable area Fish for the
Future
organization approached the Bad River and Red Cliff Bands with an idea
for cooperative fish rearing and stocking.
The result has been joint egg gathering from speared fish which are
fertilized and hatched in the tribal hatcheries. The fry are reared in
either
tribal or Cable area ponds and stocked in lakes speared by the tribes.
Other cooperative endeavors have furthered study and progress in a
variety of areas:
A highlight of cooperative endeavors was the funding of the University
of
Wisconsin--Superior Environmental Health Laboratory, which took the
active involvement and support of state political leaders, tribal leaders,
GLIFWC, the City of Superior, Douglas County, and University of
Wisconsin--Superior staff and administration.
Another highlight was the establishment of a joint fishery study and
the
report released in April 1991, entitled Casting Light Upon the
Waters. The report showed that the northern Wisconsin fishery
was
not being jeopardized by Chippewa spearfishing, but that stresses from
a
variety of user groups as well as environmental problems require
continued
monitoring and further study of the fishery.
A 1992 Accomplishment Report detailing the activities of the
Joint Assessment Steering Committee ws published. An annual
Congressional appropriation has helped fund ongoing fishery
management
activities, such as spring and fall electroshocking assessments.
A newly released report containing data from five years of study was
released spring of 1995, entitled Fishery Status Update. /20/
The Great Lakes Indian Fish and Wildlife Commission serves member tribes in Michigan, Wisconsin and Minnesota through education and resource management, particularly fisheries in the region. Two publications, A Guide to Understanding Chippewa Treaty Rights: Minnesota Edition, and A Guide to Understanding Chippewa Treaty Rights: Wisconsin Edition, provide extensive background and information on treaty rights and harvesting activities in the area (first copy of each is free; each copy thereafter is $1 each). Ask for their price sheet of educational, scientific and natural resource management materials.
P.O. Box 9
Odanah, WI 54861
Phone: (715) 682-4427
Fax: (715) 682-9294
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