Minnesota 1837 Treaty Rights

MINNESOTA 1837 TREATY RIGHTS BASIC ISSUES AND FACTS

When ceded territory treaty rights are first implemented, people often have many questions about their nature and the harvest that will take place. Below are basic facts about treaty rights, the 1837 Treaty litigation, and implementation plans.

Treaty Rights were reserved by the Bands, not given to them.

In the Treaty of 1837, the Chippewa Bands ceded the land to the United States but kept the right to hunt, fish and gather that they, as nations, always had. The United States did not give these rights to the Bands.

The 1837 Treaty rights are jointly held by eight Chippewa Bands

Each of these Bands signed the 1837 Treaty: the Mille Lacs and Fond du Lac Bands in Minnesota, and the Bad River, Lac Courte Oreilles, Lac du Flambeau, Red Cliff, St. Croix, and Sokaogon (Mole Lake) Bands in Wisconsin.

The Federal Court has upheld the continuing existence of these rights and has recognized the Bands' self-regulatory system.

The 1837 Treaty litigation was divided into two phases. Phase I determined the nature and extent of the treaty rights. In 1994, the U.S. District Court in Minnesota ruled in Phase I that:

  1. the treaty rights continue to exist today;
  2. except for commercial timber, the Bands can sell the natural resources that they harvest;
  3. both traditional and modern harvest methods can be used;
  4. the Bands may self-regulate under their own conservation codes that are enforceable into the Bands' courts; and
  5. state regulations can be imposed on treaty harvest only as reasonable and necessary for conservation, public safety or public health.

Phase II of the 1837 Treaty litigation addressed regulatory and allocation issues. In January 1997, the District Court completed its handling of the case and issued a final judgment in Phase II. In its ruling the Court:

  1. approved the Bands' proposed Minnesota 1837 Ceded Territory Conservation Code and accompanying fish and wildlife management plans;
  2. ordered the State of Minnesota not to take any action that would interfere with the exercise of these rights;
  3. refused to allocate natural resources between treaty and non-treaty harvests until it can be demonstrated that either the Bands or the State are being deprived of their "fair share" of the resources;
  4. held that State harvestable surplus determinations are reviewable by the Court;
  5. ruled that the Bands may fish throughout Mille Lacs Lake;
  6. ruled that, at this time, the only private land open to treaty hunting is land enrolled in the Minnesota tree growth tax program; and
  7. retained continuing jurisdiction over the case so that any unresolved disputes in the future could be addressed by the court.

The District Court's Judgment will be appealed.

The State, the counties, and the landowners involved in the case are asking the U.S. Court of Appeals 8th Circuit to overturn the District Court's final judgment. In addition, the State asked the District Court to suspend its judgment until late May 1997, and the counties and landowners asked the Court to suspend the judgment while the case is on appeal. The court denied these requests. Thus, the District Court judgment stands, and the Bands may proceed with exercising their rights.

The Bands may begin to exercise the rights as soon as they adopt regulations that comply with the Court's rulings.

Unless the Court's final judgment is suspended, treaty harvest may begin once the Bands adopt ceded territory codes that comply with the regulations approved by the Court.

The Bands have voluntarily placed conservative limits on their harvests of walleye and deer for the first five years.

The Bands' fisheries management plan limits the harvest of walleye in Mille Lacs Lake well below 50% of the average annual angling walleye harvest. In 1997, they have imposed a 40,000 pound ceiling. This may increase incrementally each year up to 100,000 pounds in 2001.

The Bands and State have agreed that the average annual harvest level for Mille Lacs Lake walleye is 450,000 pounds. The Bands' wildlife management plan limits antlerless deer harvest to 900 per year. This represents less than 10% of the average annual state antlerless deer harvest in the ceded territory.

The Bands' Fish and Wildlife Management Plans provide for a gradual implementation of the rights.

By incorporating conservative management measures for an initial five-year period, including the restrictive walleye and deer quotas, the Plans allow for the orderly development of treaty harvests and, if necessary, provide the State with ample opportunity to adjust non-treaty harvests while accumulating new information on the status of the resources. This will ensure resource protection during an initial phase-in period and allow new information about the status of the resources to be collected.

Even without taking into account Band harvest, adjustments to the State-licensed sport fishery will be necessary in Mille Lacs Lake to keep harvest within acceptable levels.

For example, in 1997 the State estimates a 320,000 pound walleye harvestable surplus for Mille Lacs Lake. Without even taking into account what the Band harvest of walleyes might be, the State must take steps to reduce this year's estimated 430,000 pound angler walleye harvest by about 110,000 pounds just to stay within the 1997 harvestable surplus.

All fish taken by open-water spearing and gill netting will be counted via on-site monitoring.

Special open-water spearing permits are required, and permits may not be issued unless the designated boat landings will be monitored. Similarly, special gill netting permits are required and permits may not be issued unless a monitor is available either at the designated boat landing or at the location of the net lift. All fish taken by open-water spearing and netting must be counted. Sex and weight data also will be compiled.

The Minnesota DNR must be notified in advance of open-water spearing and gill netting.

The Bands must notify the Minnesota DNR no later than noon of the bodies of water which the Bands have designated for open-water spearing that night and must "promptly" notify the DNR of the location of any gill netting.

Gill netting permits may be issued for Mille Lacs Lake, other lakes over 1000 acres in size, and eight other lakes.

The other lakes are Shakopee, Ogechie, Whitefish, Grindstone, Eleven, Pine, Razor, and South Stanchfield lakes. Spring netting is limited to Mille Lacs Lake. All other lakes are only open to summer, fall, and winter netting.

Gill netting will be strictly regulated by specified length and mesh size requirements and by closures when a quota has been taken.

Regulations agreed upon by the Bands and the State provide particular mesh sizes for various times of the year. Also, the length of gillnet that may be set will be determined by the amount of quota remaining or by other agreed-upon formulas. When the quota for any species of fish has been taken, whether by spearing or by netting, gill netting in that water body must cease for the remainder of the season.

The Bands' regulations may be enforced by GLIFWC, Band, and Minnesota DNR wardens.

The Bands have authorized the Great Lakes Indian Fish and Wildlife Commission (GLIFWC), Band, and DNR wardens to enforce their ceded territory codes. Ceded territory enforcement of the codes is being coordinated by GLIFWC, which developed an enforcement plan to ensure that sufficient wardens will be on-duty during spearing and netting activities. The Bands' regulations will be enforced into Band courts.

Joint Band/State technical committees will be the primary cooperative management bodies.

These committees are comprised of Band and State representatives. Their primary purpose is to facilitate free and open communication regarding resource management in the ceded territory. They will be responsible for trying to reach agreement on resource issues, making harvestable surplus determinations, coordinating resource surveys and research, reviewing proposed changes in regulations, and attempting to resolve any disputes before mediation is invoked.

Treaty harvest in Wisconsin has not harmed the resources and presently takes place without the threat of violence or protest.

Since the mid-1980s, when the Voigt decision reaffirmed the 1837 and 1842 treaty rights in Wisconsin, treaty harvest has been undertaken without harm to the resources, under strict regulations. Wisconsin ceded territory regulations are basically the same as the Bands' regulations for Minnesota, including the strict on-site fish counts and other monitoring for open-water spearing and netting. The types of anti-treaty violence and protests that took place in the initial years are no longer experienced, and the treaty harvest takes place peacefully.

Treaty harvest has not hurt property values or tourism in Wisconsin.

Studies have shown that:

  1. lakefront property values in the most heavily-speared Wisconsin counties have increased considerably since 1983, the year of the Voigt decision, and
  2. tourism has increased substantially in Wisconsin since the reaffirmation of the treaty rights.

Great Lakes Indian Fish & Wildlife Commission
Public Information Office
PO Box 9
Odanah, WI 54861
(715) 682-4472 or 682-6619

Please feel free to contact GLIFWC for further information on treaty rights and resource management issues, including the 'Masinaigan' newspaper.

For a GLIFWC history of 1837 Chippewa Treaty rights in both Minnesota and Wisconsin, see http://conbio.rice.edu/nae/docs/chippewa.html.

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