Court Rulings

For an excellent summary of the legal issues involved in this case study go to the attachment field below and download the document prepared by Dr. George Spangler, a fisheries biologist at the University of Minnesota, titled JUDICIAL ALLOCATION OF FISHERY RESOUCES IN NORTHERN WISCONSIN.

Overview

In 1974 two members of the Lac Courte Oreilles Band notified the Wisconsin Department of Natural Resources that they intended to exercise their off-reservation rights to spearfish in the ceded territories. This lead to
Lac Courte Oreilles Band of Chippewa Indians v. Voigt. This case was initially argued in front of Judge James Doyle. In 1978 Judge Doyle ruled that the Treaty of 1854 extinguished the hunting, fishing, and gathering rights on the ceded territories.

This decision was reversed in 1983 by a panel of the US Court of Appeals for the Seventh Circuit who ruled that the usufructuary rights reserved in the Treaty of 1837 were not withdrawn by President Taylor's 1950 Removal Order because that order was invalid. They also ruled that the Treaty of 1854 did not extinguish those rights.

The 1983 decision used the canons of construction in its decision. The court confirmed that the Bands had reserved the rights to hunting, fishing, and use of forest products on their ceded lands. This is decision  on the idea that the US recognizes the treaties that it has signed and honors contracts made with entities that have the legal standing to negotiate with the government. In this sense there are no "special rights" involved. The court did not give the Wisconsin Ojibwe Bands the right to hunt and fish on their ceded lands, those rights were never given up in the first place. The court declared that the state of Wisconsin did not have the legal standing to impinge upon those rights since they were embodied in a treaty with the federal government (state governments do not have the right to make treaties!).

In 1987 Judge Doyle affirmed that the Bands retained the rights to harvest in the ceded territories to an extent that would provide "a modest standard of living", such harvest is not to be restricted by the state except for those actions that are  "reasonable and necessary to conserve the resources", the Tribal fishers could use any means of harvest (not just "traditional"), the harvest could be traded or sold, and harvesting could take place on lands that have been privatized.

The long process of working through the implementation of this ruling led to further rulings that finally ended when the state agreed to no longer challenge the rulings in court and devise a system of co-management. Today there are several Tribal resource management agencies involved in co-management of fisheries, wildlife and forestry products throughout the ceded territories.

 
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Dr. Cynthia Annett,
Oct 20, 2009, 11:36 AM