NATIVE TREATY RIGHTS
“Supreme Law of the Land”
(U.S. Constitution
Article VI )
Prof. Zoltan Grossman
Native Geographies
(Geog/AIS 322)
Treaties for cessions
(Land transfers to U.S.)
• Cessions traded land for peace (prevented war)
• U.S. benefited from ceded lands & resources
• If abrogate treaties, give back land? Pay for resources?
Usufructuary (Use) Rights
• Tribes could not survive on reservation resources alone,
so treaties reserved use rights on ceded lands
-- Hunting, fishing, gathering
• Similar to use rights after selling private property
– Access to fruit tree, boat landings, road, etc.
• Some treaties further specified that services or payments
were to be provided to the tribe
– Unequal to land’s value
Treaty annuity payments to Ojibwe
LaPointe, Madeline Island, 1852
Treaties
Treaties are agreements
between sovereign nations.
371+ treaties signed by
U.S. & Native nations to
1871, implied recognition
of sovereignty.
Only federal government
can negotiate a treaty;
State laws cannot impinge
Reserved Rights Doctrine
Treaties removed rights.
They did not grant them.
Tribes sold land to U.S.
under conditions.
Rights to control ceded
lands taken away.
Tribes retained some rights
practiced for centuries.
Canons of Construction
Accounts of treaty talks, translations often ambiguous
Historical inquiry into context of culture & economy
Ambiguities must be resolved in favor of Indians.
Treaties must be interpreted and construed as Indians
would have understood them.
Violations of treaty rights
• Ward vs. Race Horse decision, 1896
– Statehood nullified treaties
• Hunting/fishing for sport rather than
food in early 1900s (T. Roosevelt)
• “Conservation” of resources
used to curtail tribal rights
• Treaty rights practiced in secret;
Confiscations, jail terms if caught
Washington “Fish-Ins,” 1960s
• Treaties of 1854-55
guaranteed fishing rights
• Returning vets asserted rights,
called “poachers”
• Attracted national support
for Puget Sound tribes
• Violent reaction from police,
local vigilantes
Boldt Decision, 1974
• WA tribes entitled to a share
of fish (50%) “in common”
• Can fish in “usual and
accustomed” places
• Tribes need a “modest”
standard of living
• Belloni decisions for
Columbia River tribes
Backlash to Boldt
• Backlash from sportfishermen,
commercial fishermen
• Steelhead/Salmon Protective Assoc.
and Wildlife Network (S/SPAWN)
• Joined reservation whites
opposing tribal jurisdiction
• Interstate Congress for Equal
Rights and Responsbilities
National Anti-Treaty Movement
• Spread from Northwest to Great Plains to Midwest
• Overlap with national “Wise Use” movement;
some contact with right-wing extremist groups (Ryser)
• Citizens Equal Rights Alliance (CERA) national
network strongly denies racism
www.citizensalliance.org
Definitions of Place
• SOCIAL
Defines place as belonging
to one ethnic or racial group
(“Law of the Blood”)
Flag of Bosnian Serbs (ethnic)
• TERRITORIAL
Defines place geographically
as home for all who live there
(“Law of the Soil”)
Flag of Bosnia (multiethnic state)
Geographies of Exclusion (Sibley)
• “Insiders” belong in the place
• “Outsiders” are transgressing
in the place
• “Insiders” set up boundaries,
rules to exclude outsiders
• Examples: Gypsies, Homeless,
Ethnic minorities, etc.
Indians as “Outsiders”
• Native Americans “belong”
in place (on reservation)
• Spearfishers transgressing
into non-Indian social space
• Whites “border towns”
zones of social exclusion
• Wisconsin chants:
“White Man’s Land,”
“Indians Go Home”
Anti-Treaty Movement:
“Equal Rights for Whites”
• Interpretation of civil rights
as individual rights
• Whites victims of
“Red Apartheid”
• Martin Luther King would
have opposed treaties?
Anti-Treaty Movement:
Access to natural resources
• Indians granted “special rights” to resources
• Tribes are pawns in
federal “land grab”
• Fish & game endangered
by “rape” of resources
• “Sport” is higher use of
resources than “harvest”
Anti-Treaty Movement: Economic dependency
• Indians opposed for being on welfare
– “Welfare Cadillac” message
• Indians have “free” housing,
education, medical care, cash
• Indians use tax $$, “don’t pay taxes”
• Indians opposed for getting off welfare
Pro-Treaty Movement
• Response to displays of
racism by anti-treaty groups
• Witnessing of anti-Indian
harassment and violence
• Public education on history,
culture, resources
• Build environmental and economic
common ground with non-Indians
Shared identities in conflict
• Both Native & non-Indian fishers
depend on resources for identity
• Both highly value outdoors
for cultural lifestyle
• Both relatively poor;
mom & pop businesses
closing for corporate chains
• Both independent rural people
often at odds with government
Wisconsin
Indian
Treaty
Lands,
1825
Natural
Resources
Copper
Fertile land
(1829-48)
Timber
Timber
Timber
(1837)
Land
Land
Lead
Lead
(1829)
Copper
(1842)
Land
Timber Treaties of 1837,
St. Peter (Mendota), Minn.
xxxx
Copper Treaty of 1842,
LaPointe, Wis.
1837 & 1842 treaties guaranteed
Ojibwe access to fish, game, rice, &
medicine plants in northern Wisconsin
Violations of Ojibwe treaties
1850-51: President Taylor
orders removal of Ojibwe;
results in “Death March” to
Sandy Lake, Minn.
1854: Treaty established
four reservations for the
Wisconsin Ojibwe
1908: State court decision
outlaws off-reservation
hunting and fishing by
Ojibwe; State cracks down
Voigt decision, 1983
1972: Gurnoe decision for Lake
Superior commercial fishing rights
1974: Tribble brothers at LCO
cited by DNR when they ice-fished
off the reservation to create a test case.
1983: Voigt decision reaffirmed
Ojibwe treaty rights in federal
circuit court ruling
Voigt decision clarified
1987: Judge Doyle permits
Ojibwe to use spearfishing
to provide “modest living.”
1987: Judge Crabb rules that
Ojibwe can regulate own
harvest (later adds fishing
must be part of “safe harvest”)
1989: Backlash to Voigt
was top state news story
Backlash to Voigt
1985 Equal Rights for Everyone
1987 Protect Americans’ Rights
and Resources (PARR) founded
1988 Stop Treaty Abuse (STA)
organizes nighttime boat landing
protests during 2-week Spring season;
markets “Treaty Beer”
1989 1,600 at Butternut Lake protest
1990 Arrests at Trout Lake, etc.
Treaty rights clashes (red crosses), 1987-92
Anti-Indian Harassment
Rocks and bottles
Boat blockades
Swamping boats
Sniper fire
Pipe bombs
Vehicle assaults
Death threats
Mob intimidation
Pro-Treaty Organizing
1987 Witnesses for Nonviolence
start monitoring violence, harassment
1988 HONOR organizes churches,
conducts education www.honoradvocacy.org
1989 U.S. Commission on Civil
Rights report on Wisconsin
Pouring
Treaty Beer
into a
Toilet bowl
1989 Midwest Treaty Network unites
small groups, trains 2000 witnesses
www.treatyland.com
Great Lakes Indian Fish and Wildlife
Commission (GLIFWC)
Lake Superior Ojibwe
natural resources agency
Regulates tribal harvests;
Counts fish at landings
Modeled on NWIFC
(Northwest Indian Fish
Commission) in WA
Compiles harvest reports,
Mazina’igan www.glifwc.org
Comparison of spearer & angler
walleye harvests
Tribes harvest 3% of walleye (10% of adult walleye)
Claims/Counterclaims
• Spearers destroying
tourist economy
• Record-high tourism;
adjusting to changes
• Spearers
wasting fish
• Spearers distributing
harvested fish
• Ojibwe lower
bag lmits
• DNR lowers
bag limits
Over 90% male during spawning
Tribal hatcheries
and restocking
Other harvesting rights
• PARR/STA opposition to
off-reservation hunting
• More deer killed by cars than
harvested by Ojibwe
• Judge Crabb ruled against
Ojibwe commercial timber rights
(economic viability)
Reservation Organizing
1988 Wa-Swa-Gon Treaty Association
formed at Lac du Flambeau
(“Lake of the Torch”)
Tom Maulson
1989 Thompson aide Klauser offers
$42 million payment for treaty “lease”
1989 Mole Lake and Lac du Flambeau
reject treaty lease in unexpected vote
Waswagoning
outdoor museum
1992-2000 Maulson chairman at LdF
International Support
Wa-Swa-Gon testimony
to UN in Geneva
Rallies at U.S. embassies in
Vienna, Oslo, Prague, London
Demonstration against Gov.
Thompson visit in Austria
Threat of economic boycott
if spearers hurt
International Support
“I appeal to you to assure that your
native Indians in this state can see
there are people who want to see
justice done for them. Become as
committed to racial justice here as
you are committed to racial justice in
South Africa.”
-- Anglican Archbishop
Desmond Tutu,
Madison, 1988
Racism at the Forefront
• 1991: Judge Crabb issues
injunction against
STA harassment
• WI mandates Indian
education in schools
• Anti-treaty crowds
dwindle to “hard core”
– Sand Lake harassment
of African American witness
New “Outsiders”
• STA brings in urban
followers, alienates
northerners, tourists
• Mining companies as
new “threat” to fish
• DNR as common
adversary of Indian,
non-Indian northerners
DNR planned to lower bag limits 1979
Poisoned Fish?
DNR advisories,
GLIFWC maps
on mercury unsafe
for kids and
pregnant women
Mille Lacs (Minnesota) case
• Same treaties (predate states,
transcend boundaries)
• Proper Economic Resource
Management (PERM) more
cautious than PARR/STA
• Mille Lacs won treaty case
in Supreme Court, 1999
(overturned Ward)
Menominee treaty case
• Went to court in 1995 for
off-reservation fishing, hunting
• Judge Crabb: Treaties did not
specify reserved rights
• Menominee: Canons of
Construction not followed.
Treaties can help clean Fox R.,
restore sturgeon runs, stop mines
http://www.menominee.com/treaty
“When America says something,
America means it, whether a treaty,
or an agreement, or a vow made on
marble steps. Great nations, like
great men, keep their word.”
-- President George Bush,
Inaugural address, 1989