Treaty Rights (L30)
Dr. Anton Treuer
Bemidji State University
Tradition Spearfishing
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Torchlight
Bark canoe
Wooden spear
Waaswaagan (Lac du
Flambeau)
Culture of Harvest
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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
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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
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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/