Embedded Files
The key issue in this case study is that the Bands were exercising reserved rights negotiated by their leaders and written into their treaties with the US government. These reserved rights were a guarantee of continual access to game, fisheries, and forestry products in their original territory as defined before the creation of reservations. This was agreed to by the US federal government. The land that was given over under the treaties is referred to as "ceded lands". The conflict highlighted in "Walleye Wars" focused on the rights of the different Bands to exercise their reserved rights on the ceded territories.
Prior to the treaty negotiations, the US government recognized the ownership of the land by the Bands and recognized that they possessed usufructuary rights to the land. That is, the Bands had property rights not only to the land, but had property rights with regards to hunting, fishing, and exploiting forest products off the land. These two sets of rights (land ownership and usufructuary rights) were separated in the negotiations and the usufructuary rights were retained by the Bands. An analogous situation is that it is common for property owners in the US to buy a piece of land but not own water rights or mineral rights. Another analogy is that owning property in Kansas is separated from access to exploit fish and game.
During the late 1800's and early 1900's reserved rights (especially those of the Ojibwe) were not consistently respected. Wisconsin refused to recognize the Ojibwe's rights to hunt and fish on the ceded territories and the federal government did not enforce the reserved rights. Things began to change during the 1960's when federal courts began to look at treaty rights in a more unbiased fashion and handed down a series of rulings that led to the recognition of reserved rights in the ceded territories in the mid-1980's.
An important framework that developed overtime through rulings by the US Supreme Court is sometimes referred to as the "canons of construction", or legal interpretations that sought to preserve rights negotiated in treaties between Tribes and the US federal government. At the time of treaty negotiation the US government supplied the interpreters, provided explanations of federal law, and so on, which gave them a big advantage over the Tribes; the Supreme Court recognized that this made the negotiations inherently unequal and disadvantaged the Tribes. Therefore they have stipulated that:
1. Treaties must be liberally construed to favor Indians.
2. Ambiguous expressions in treaties must be resolved in favor of the Indians.
3. Treaties must be construed as Indians would have understood them at the time they were negotiated.
4. Treaty rights legally enforceable against the US should not be extinguished by mere implication, but rather explicit action must be taken and clear and plain language used to abrogate them.
Court rulings leading to recognition of reserved rights
Treaties as published in Kappler's compilation are digitally posted on the Oklahoma State digital library website.
Indian Affairs: Laws and Treaties.
Vol. II (Treaties) in part. Compiled and edited by Charles J. Kappler.
Washington : Government Printing Office, 1904.
Bands: Lac du Flambeau, Fond du Lac, St. Croix River, Leech Lake, Mille Lac, Red Lake, Leech Lake, La Ponte, Gull Lake, Swan River, Sandy Lake, Snake River
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 guarantied to the Indians, during the pleasure of the President of the United States.
Bands: Lac du Flambeau, Crow wing River, Sandy Lake, Gull Lake, Red Ceder Lake, Po ke gom maw, Wisconsin River, Lake Bands, Fon du Lac, La Pointe, Onlonagan, Ance, Vieux Desert, Mille Lac, St. Croix, Snake River, Chippewa River, Lac Courtulle
ARTICLE 2.
The Indians stipulate for the right of hunting on the ceded territory, with the other usual privileges of occupancy, until required to remove by the President of the United States, and that the laws of the United States shall be continued in force, in respect to their trade and inter course with the whites, until otherwise ordered by Congress..
Bands: Lac du Flambeau, Bois Forte, Lac Court Oreille, La Pointe, Ontonago, Mississippi, L'Anse, Vieux De Sert, Grand Portage, Fond du Lac
ARTICLE 11.
All annuity payments to the Chippewas of Lake Superior, shall hereafter be made at L'Anse, La Pointe, Grand Portage, and on the St. Louis River; and the Indians shall not be required to remove from the homes hereby set apart for them. 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.
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