Tribal Law & Treaty Rights: Who wants to go fishing?

May 2, 2014

Lake Superior

The Great Lakes Indian Fish and Wildlife Commission represents a group of Ojibwe tribes in Minnesota, Wisconsin, and Michigan to assist in the implementation and enforcement of tribal fishing and hunting treaty rights. Last month, Wisconsin tribes announced an intention to reserve significantly more walleye for spearing this year than in previous years
. Last month, the Fond du Lac tribe announced plans to exercise rights to spear walleyes on a number of smaller northeastern Minnesota lakes that had not been utilized in the past. The increased reservations are meant to offset reduced quotas on Minnesota’s Lake Mille Lacs, whose walleye numbers have sagged in recent years. A group of Mille Lacs lake residents actually filed suit against the Minnesota Department of Natural Resources in late April, alleging mismanagement of the lake walleye population. See Minnesota Case Number A14-0679 (Westlaw).  Critics of tribal hunting and fishing rights often argue that those rights are abused by native hunters and anglers who take more than their fair share, which leads to reduced quotas for non-tribal hunters and anglers, resulting in a negative effect on tourism.

News articles on tribal treaty rights hint to a tumultuous history. I went into the Native American topical materials (locate the link in the “Practice Areas” tab on the home page), and ran the following WestSearch query in Secondary Sources using MI, WI, MI and related federal as my jurisdictions:

TRIBAL TREATY RIGHTS HUNT FISH SPEAR

Jeffrey Robert Connolly’s, Northern Wisconsin Reacts to Court Interpretations of Indian Treaty Rights to Natural Resource, provides an overview of the various treaties that are at play today, sometimes controversially so. See, 11 Great Plains Nat. Resources J. 116 (2006):

The 1837 treaty (1837 WL 2392, 7 Stat. 536) granted the right of “hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded.” An 1842 treaty (1842 WL 3889, 7 Stat. 591) created similar rights for additional ceded territory, as did a subsequent treaty in 1854 (1854 WL 7312, 10 Stat. 1109)

The article also goes on to provide a summary of contentious litigation that occurred throughout the 1980s and 1990s in an effort by Wisconsin tribes to exercise treaty hunting and fishing rights on non-reservation lands. The Supreme Court, in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1998) finally addressed the questions and confirmed that rights under the treaties remained in existence despite subsequent removal orders and treaties.

Minnesotacites to all three of the treaties.  You can also retrieve them on the content page for Native American Law. Click on the link to “Native American Law Treaties” under “Tools & Resources” on the right hand side of the screen.