Treaty Rights Recognition & Affirmation
The eleven member tribes of the Great Lakes Indian Fish and Wildlife Commission (GLIFWC or Commission) each entered into one or more treaties with the United States in the 1800s. In treaties signed in 1836, 1837, 1842, and 1854, the tribes reserved hunting, fishing and gathering rights in the areas (land and water) ceded to the United States. It must be emphasized that these ceded territory rights were not given or granted by the United States, but were reserved by the tribes for themselves.
The exercise of these rights was and continues to be fundamental to the tribes’ culture and way of life, and explains their insistence on explicitly reserving them in the treaties. The tribes share a traditional and continuing reliance upon fish, wildlife and plants to meet religious, ceremonial, medicinal, subsistence and economic needs. Therefore, to maintain this lifeway and meet these needs, the tribes reserved the rights to hunt, fish and gather in the ceded territories. In proper perspective, this reservation of sovereign rights is part of the Ojibwe’s ongoing struggle to preserve a culture—a way of life and a set of deeply held values—that is best understood in terms of the tribes’ relationship to Aki (earth) and the circle of the seasons.
Although the tribes themselves never doubted the continued existence and viability of these rights, other governments did. GLIFWC member tribes’ efforts to gain recognition and re-affirmation of their treaty reserved rights have been the subject of numerous court cases over the past 40 years. Courts, including the United States Supreme Court in its 1999 Minnesota v. Mille Lacs ruling, have consistently recognized and upheld these rights.
Although the language of particular treaties may vary, there are common principles that courts use when they interpret treaty provisions. These general rules are called canons; they derive from contract law and recognize that there are instances in which parties to a contract are not equal, as might be the case where the language of the contract is not spoken by one of the parties, or where the drafters of the contract have the ability to slant the language to their advantage. The canons of treaty construction are that: i) ambiguous expressions must be resolved in favor of the Indian parties concerned, ii) Indian treaties must be interpreted as the Indian themselves would have understood them, and iii) Indian treaties must be liberally construed in favor of the Indians. The courts that upheld the treaty rights of GLIFWC’s member tribes used these canons, as well as historical records and information from treaty times, to discern the tribes’ understanding of the treaties. They found that the tribes intended to preserve and continue to practice their traditional lifeways using ceded territory resources.
Not all aspects of treaty rights affirmation and implementation have been the subject of contentious court proceedings. Often the parties are able to agree on at least some aspects of rights affirmation and/or implementation. Where litigation is already underway, the parties often enter into stipulations that resolve certain issues; for example, in the Lac Courte Oreilles v. Voigt litigation, the parties were able to agree on many issues, and ultimately entered into 11 stipulations that memorialize those agreements. Trials were held on the remaining more contentious issues. In the U.S. v. Michigan case that involved inland portions of the 1836 ceded territory, the parties were able to resolve all of the relevant issues and no trials were held. The federal court found that the agreements made by the parties, were a “fair and equitable resolution of the Parties’ respective claims” and ordered that the proposed Consent Decree become the court’s judgement in the case.
In some cases, litigation has been avoided altogether in favor of intergovernmental agreements that acknowledge and implement ceded territory, treaty reserved rights. For example, ten of GLIFWC’s member tribes are signatories to a Memorandum of Understanding with the U.S. Forest Service that governs the tribes’ gathering rights on four National Forests within the ceded territory.
In other instances, there are statutes in place that affirm and reinforce the tribes’ treaty rights in a modern day context. These are not generally the products of litigation, but represent a need and/or desire to acknowledge and harmonize the exercise of one sovereign’s prerogatives and authorities with those of another sovereign. For example, 2007 Wisconsin Act 27 is premised on the tribes’ sovereign authority to regulate themselves in the exercise of their ceded territory rights. This law recognizes the law enforcement capabilities of GLIFWC’s conservation enforcement personnel and extends many of the same statutory safeguards and protections to GLIFWC officers that are afforded to other law enforcement officers in the state.
Treaty Rights Implementation—The Nature and Scope of the Rights
The existence of the tribes’ sovereignty and authority over its treaty rights exercise carries responsibilities. Tribes have managed ceded territory resources and harvest for hundreds of years. In more recent times, where these rights have been recognized and affirmed by other governments (whether by litigation, agreement or statute), tribes continue to assume the responsibility to implement their rights in a way that provides opportunities for tribal members, that assures the continued quantity and quality of natural resources, and that respects and coordinates the exercise of sovereignty and management by other governments that exercise concurrent authority in the ceded territories.
The treaties represent a reservation of rights by each tribe individually, but also by all the signatory tribes collectively. Each tribe continues to authorize and regulate its members in the exercise of their ceded territory rights; however, the rights are also shared intertribally. This means that tribes regularly must address issues related to intertribal resource allocation, coordination of harvest and natural resource management. In some areas, GLIFWC member tribes have entered into specific agreements that contain binding co-management mechanisms. These agreements obligate the tribes to coordinate harvest declarations and make joint management decisions. This often involves discussions of intertribal resource allocation, as is also the case where individual tribes assert a right to exclusive management of, or harvest within certain areas of the shared ceded territory. When asked, courts have been reluctant to interfere in these intertribal allocation issues, and have left them to be decided by the tribes themselves.
In addressing how tribes can preempt state regulation of their ceded territory rights, courts have said that the tribes must be able to effectively regulate themselves and protect legitimate state conservation, health and safety interests. This necessarily involves another aspect of co-management—communication and coordination with non-tribal governments that exercise management authority within the ceded territory.
The requirement that tribes have in place effective self-regulation has a variety of implications in a shared rights context. Tribes must, individually as well as collectively, 1) undertake effective management programs and adopt and enforce regulations consistent with the standards above (ie. reasonable and necessary for conservation, public health and public safety), 2) remain within the tribal allocation of resources, and 3) engage in intertribal co-management to accomplish effective self-regulation.
GLIFWC is an example of an organization, created by its member tribes, to help fulfill the self-regulatory requirements listed above. GLIFWC was formed in 1984 through the merger of two already existing entities—the Voigt Intertribal Task Force and the Great Lakes Indian Fisheries Commission. GLIFWC is governed by a Board of Commissioners that sets policy; a Voigt Intertribal Task Force that focuses on issues in the 1837 and inland portion of the 1842 ceded territory; and a Great Lakes Indian Fisheries Committee, whose focus is Lake Superior.
GLIFWC’s existence is based upon the sovereignty of each of its member tribes and it is an agency of delegated authority from those tribes. It is structured to facilitate intertribal consensus on issues of common concern regarding off-reservation treaty rights. It exercises delegated authority and provides expertise in areas of biology, conservation law enforcement, and the development of tribal ordinances which can then be adopted by its member tribes. It has now been in existence for more than 25 years, helping to secure the full and successful exercise of treaty rights that provides for the needs of tribal members, as well as helping to protect and enhance the natural resources and habitats of the ceded territory.
Ojibwe Treaty Rights Video