LCO Conservation Releases Education on Treaties in Observance of Treaty Day
In observance of Treaty Day, the Lac Courte Oreilles Conservation Department will be closed on Monday, January 25, 2021.
The first U.S. treaty the Wisconsin Ojibwe signed was in 1825 at Prairie du Chien, Wisconsin, involving the Ojibwe and other Great Lakes and Midwestern tribes. Some of these tribes fought wars amongst themselves, and the United States wanted to end their disputes by establishing boundaries between the tribes. In particular, the Ojibwe and the Santee Dakota (also called the Santee Sioux) had fought for possession of northern Wisconsin and Minnesota for over a century, and thus a boundary line was established between them. The Prairie du Chien Treaty was reinforced the next year when federal officials visited Fond du Lac, Minnesota, to affirm the boundaries with Ojibwe chiefs who were not at the Prairie du Chien council. A final treaty council was held between the Ojibwe, Menominee, and Ho-Chunk at Lake Butte des Morts in Wisconsin in 1827 to establish boundaries between those tribes. The treaty provided the three tribes $15,682 in goods and $3,000 to establish schools.
None of the tribes present at the Prairie du Chien or Buttes des Morts treaty councils ceded any lands to the United States. Nor did the boundary treaties curb intertribal warfare, which actually intensified after the treaties. However, the boundaries agreed to in these treaties formed the basis for later land cession treaties. The establishment of boundaries between tribes was necessary for the United States to later acquire land from each of them.
Land Cession Treaties
The 1842 treaty was negotiated at La Pointe on Madeline Island in northern Wisconsin, ceding the last of their lands in northern Wisconsin and part of Michigan's Upper Peninsula to the United States with compensation greater than that in the 1837 treaty. Each year for 25 years, the Ojibwe would receive $12,500 in cash, $10,500 in goods, $2,000 in food and tobacco, $2,000 for the support of two government blacksmiths, $1,000 to support farmers and teach them agricultural skills, $1,200 to support two government carpenters, and $2,000 to support schools. Additionally, $5,000 was placed in an agricultural fund for the tribe, and $75,000 was allotted to pay their debts with traders. A final treaty stipulation stated that they would reserve their right to hunt, fish, and gather on the lands they ceded to the United States until they left the area.
The United States had originally planned to remove all Ojibwe from northern Wisconsin and was also determined to purchase remaining Ojibwe homelands in Minnesota and, to be binding, all Ojibwe bands in Upper Michigan, Wisconsin, and Minnesota had to agree. The Ojibwe refused to sell the land until the United States guaranteed that the Ojibwe could remain on their current homelands and continue to use lands already ceded to the United States. Federal commissioners sent to make the treaties agreed and established four reservations for the Wisconsin Ojibwe.
Additionally, the United States agreed to an additional 20-year annuity of $5,000 in cash, $8,000 in goods, $3,000 in farming equipment, carpenters' tools, and cattle, and $3,000 to support schools. The United States also agreed to give the young men of the tribe a one-time gift of rifles, traps, ammunition, and clothing. The blacksmith shops promised under the previous two treaties were also to be continued for an additional 20 years.
State Ignores Rights
The provisions reserving the rights of the Wisconsin Ojibwe to hunt and fish on lands they had ceded in the 1837 and 1842 treaties went virtually ignored by the state of Wisconsin during the 19th and 20th centuries. The state even tried to regulate fishing on the Ojibwe reservations. In 1901, John Blackbird, an Ojibwe, was arrested for netting fish on the Bad River Reservation. Later, a federal court ruled that the state of Wisconsin did not have the right to regulate hunting and fishing on Ojibwe reservations, and Blackbird was released. The court decision did not address hunting and fishing rights within territories ceded in the 1837 and 1842 treaties or off Ojibwe reservations.
The Wisconsin Supreme Court ignored the federal court's finding in 1908 when ruling another case involving an Ojibwe fisherman, stating that Wisconsin's admission to the U.S. in 1848 effectively abrogated -- or ended -- Ojibwe off-reservation hunting and fishing rights. In addition, the court ruled that the state could also regulate hunting and fishing rights on Ojibwe reservations. This decision was modified slightly in 1933 when the Wisconsin Supreme Court ruled that the state of Wisconsin could only regulate hunting and fishing on privately owned reservation lands.
Early Efforts to Regain
With the passage of the Dawes Act in 1887, the United States Congress attempted to assimilate Indians into their concept of Western living by dividing up the reservations so each family could own their own farm land in fee simple, a legal term for owning land outright, rather than communally. The northern Wisconsin land occupied by the Ojibwe was too poor to support agriculture, so many sold their plots to lumber companies. Thus, large portions of land which had been granted to individual tribal members ended up in non-Indian hands. This in effect made these lands -- and those owned individually by Indians -- subject to the Wisconsin Supreme Court's 1933 ruling on state-regulated hunting and fishing laws.
One of the earliest adovocates for Ojibwe hunting and fishing rights was Thomas L. St. Germaine, a lawyer and member of the Lac du Flambeau Ojibwe band. He argued the 1933 case before the Wisconsin Supreme Court, but failed to exempt the Ojibwe from state hunting and fishing regulations on privately held reservation lands or to regain off-reservation rights on their ceded lands.
However, things soon began to change. In 1934, the United States Congress passed the Indian Reorganization Act (IRA), which ended several longstanding policies aimed at destroying Indian culture. Lands were no longer patented in fee simple to individual Indians, and reservation lands sold to non-Indians could now be bought back by tribes. More importantly, the IRA encouraged tribes to form their own governments, providing them a tool to reassert their sovereign powers.
By the 1960s, a new wave of cultural resurgence began among Indian tribes in the United States. The legal system became an avenue to accomplish their goals. New understandings began to emerge in the legal community as well, and certain important court decisions upheld the rights reserved in Indian treaties. A major decision for the Wisconsin Ojibwe came in 1972, when the Wisconsin Supreme Court ruled that the Bad River and Red Cliff Ojibwe bands had a right to fish in Lake Superior without state regulation. The State could only take "reasonable and necessary" measures to insure that the lake's fish population was not depleted. Another important decision came in federal court in 1978 after two members of the Lac Court Oreilles Ojibwe band were arrested in 1974 for spearfishing off of their reservations. The Lac Court Oreilles band took the case to the federal district court in Madison, but Judge James Doyle ruled against the Ojibwe by arguing that the 1854 treaty, which established their reservations, effectively ended their off-reservation hunting and fishing rights.
Federal Courts Reaffirm
The Lac Court Oreilles band appealed the ruling to the U.S. Court of Appeals for the Seventh Circuit in Chicago. This federal court overturned Judge Doyle's ruling in an important case called Lac Court Oreilles Band of Chippewa Indians v. Lester P. Voigt, et al. The three-judge panel rendered its ruling, called the Voigt Decision or more commonly, LCO I, in 1983, stating that the 1854 treaty did not end Ojibwe rights to hunt and fish on the territory they ceded. The state of Wisconsin, in turn, attempted to appeal this ruling to the United States Supreme Court, but the Supreme Court's refusal to hear the case upheld the Voight decision.
The Seventh Circuit Court then instructed Judge Doyle to change his decision in the case and determine how Wisconsin could regulate Ojibwe off-reservation hunting and fishing. The state then tried to stop the Ojibwe from hunting and fishing on private lands within their ceded territory, but the Seventh Circuit Court returned with a ruling in 1985 (called LCO II) affirming Ojibwe rights to hunt and fish anywhere within their ceded territories, even on privately owned land. Afterward, Doyle established a three-phase plan to determine the following:
the nature and extent of Ojibwe treaty rights. the permissible extent to which Wisconsin could regulate Ojibwe treaty rights. the damages the tribe was entitled to for Wisconsin's infringement of their treaty rights.
Shortly before his death in 1987, Judge Doyle completed the first phase. His 1987 ruling (called LCO III) stated that the Ojibwe could hunt, fish, and gather using any method they wished in the ceded territory at a level that would provide a "modest living" off the land. In turn, the state could impose restrictions to preserve certain resources and species and preserve safety.
Doyle's successor, Judge Barbara Crabb, then undertook the second phase of the decision (called LCO IV). Crabb's 1987 decision ruled that the state could regulate Ojibwe activities in the interests of conservation and safety, but could not impede them from taking what was legally theirs. In her next ruling in 1988 (LCO V), Crabb determined that the Ojibwe could not earn a "modest living" even if they harvested all the resources on the ceded land, so she suggested a plan to limit the fish taken from the lakes annually. This was issued as a separate decision in 1989 (LCO VI). Crabb established the "safe harvest level": the number of fish that could be taken without depleting the population. By the decision rendered in LCO III, the Ojibwe were entitled to take the entire safe harvest of fish.
Regulation of Resources Harvested
In her next decision, (LCO VII), Crabb ruled in 1990 that the Ojibwe were entitled to take 50 percent of the permissible deer harvest on the ceded territory, although the state could ban hunting in the summer and after sundown for safety reasons. Her decision in LCO VII ended phase two of the negotiations, and she began assessing damages Wisconsin owed to the Ojibwe for infringing on their treaty rights. Her 1990 ruling (LCO VIII) stunned the Ojibwe and other treaty-rights advocates when she determined that the Eleventh Amendment to the Constitution protected states against lawsuits pursued by Indian tribes. Another blow came in 1991 when, in a separate decision, Crabb stated that harvest of timber resources was not a "usual and customary" activity for the Wisconsin Ojibwe, and thus they were not allowed to harvest trees for timber. The Ojibwe were allowed, however, to gather miscellaneous forest products such as maple sap, birchbark, and firewood without regulation. That year, Wisconsin declared that it would no longer attempt to appeal the 1983 Voigt Decision; it remains in effect.
During the 1980s and early 1990s, there was huge outcry among some non-Indians in northern Wisconsin over the issue of Ojibwe treaty rights. Many mistakenly believed that the federal courts "gave" the Ojibwe their special rights, which were actually "retained" rights: rights the Ojibwe originally possessed and reserved during treaty negotiations. Others disliked the traditional Ojibwe method of spearfishing for muskellunge and walleye. The Ojibwe and other concerned people have attempted to diffuse these tensions in a variety of ways. Although the law allows them to take all of the safe harvest of fish and half of the safe harvest of deer, they take significantly less and leave more than enough fish and deer for sportsmen. The Great Lakes Indian Fish and Wildlife Commission regulates the harvest of treaty resources in cooperation with the State of Wisconsin to ensure conservation. Indeed, the bag limits for fish and deer have not changed dramatically for non-Indians in northern Wisconsin, and Tribal spearfishing and hunting have not negatively affected tourism. Moreover, the six Ojibwe bands in Wisconsin all run their own fish hatcheries, and stock more fish in the lakes than they take out annually.