Treaty Rights

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 with the Ojibwe Bands
History of the Ojibwe