Indians, State Battle Over Rights
Tribes say treaties reserve right to hunt, fish; opponents say Chippewa gain special privileges. WISCONSIN
LAC DU FLAMBEAU, WIS. — THE tranquil beauty of the tall pines and sparkling lakes here offers few hints of an intense struggle underway in northern Wisconsin over Indian hunting and fishing rights. It is a 16-year legal fight marked by occasional violence and two political recall efforts. Local residents don't talk about it much; they want tourists to keep coming.
As most of Wisconsin's 13,000 Chippewa see it, they have waged a long, largely successful legal battle to win back off-reservation treaty rights denied them for much of the last 150 years. Opponents, who include property owners and fishermen, insist that the Chippewa are gaining special legal privileges. They say they want ``equal rights.''
Though there are signs of growing accommodation on both sides, the matter may not be settled unless the United States Supreme Court picks up the case or Congress takes up the larger issue of Indian treaty rights nationally.
It was Mike and Fred Tribble of the Lac Courtes Oreilles (LOC) band who first pushed the point on Chippewa treaty rights in March 1974. After taking a course in Indian law, they concluded that when the Chippewa ceded the bulk of their Wisconsin land to the federal government in the 1800s, the treaties reserved for them the right to hunt, fish, and gather on that land.
The Tribble brothers walked off the reservation onto nearby Chief Lake to ice-fish. Their arrest by wardens of the Wisconsin Department of Natural Resources led to a legal challenge by the Chippewa that is still triggering federal court rulings. Most rulings stem from a 1983 US Appeals Court decision, which held that treaty rights not specifically abrogated remain in force.
The most recent ruling, issued in May by US District Judge Barbara Crabb, calls for a 50-50 split between Chippewa and non-Indians of harvestable natural resources such as deer, fish, and timber. However, Wisconsin Attorney General Donald Hanaway now argues that logging is not one of the original treaty rights and has asked the judge to reconsider that issue. Some Chippewa and their supporters say the action is one of several signs that the state, which has been supporting the rulings, is trying harder - perhaps for political reasons - to play both sides.
Another sign of that shift, in the Chippewa view, is Mr. Hanaway's legal opinion issued last February that casino-style gambling is illegal anywhere in the state. Many reservations lean heavily on gambling for income and jobs. As recently as last fall, several tribes had negotiated pacts with the state that allowed casino games. Two Chippewa tribes are suing the state, contending it did not negotiate in good faith and has no authority to enforce gaming laws on reservations.
The last chapter in the court proceedings is expected to be a trial in March 1991 on the Chippewa request for more than $270 million in damages for treaty rights denied over the years.
The most controversial Chippewa activity in the eyes of critics is its newly confirmed right to spearfish, using eight-pronged forks and lighted miner's caps. Fish are speared while spawning along water shorelines, a practice allowed only to the Chippewa. Spearfishing attracts hundreds of protestors every spring to various northern Wisconsin boat docks. Indians say they have been the target of everything from verbal insults and rocks to gunfire.
Critics say spearfishing methods are unfair. ``The Indians should go back to birchbark canoes and torches,'' says a teenager skateboarding with two buddies in a Minocqua parking lot. ``You can't turn back the clock. The courts clearly say you can use modern methods,'' responds James Schlender, executive administrator of the Great Lakes Indian Fish and Wildlife Commission (GLIFWC). His group has been representing the Chippewa in recent harvest negotiations with the state in connection with the lawsuit.
It was support for such state dialogue with the tribes by Assemblyman James Holperin (D) of Eagle River, Wis., that made him the subject of a recall election effort this spring. The move was led by Stop Treaty Abuse-Wisconsin (STA), sharp critics of the Chippewa rulings. Mr. Holperin survived the election, but Dean Crist, founder of STA, which claims about 6,000 members, plans to run against Holperin in the fall.
Another recall effort on similar grounds against US Rep. David Obey (D), led by Protect America's Rights and Resources, failed to garner enough signatures on the petition.
Treaty-ights critics say it is not so much the practical impact of recent court rulings that troubles them but the idea that less than 1 percent of the state's population is given what they see as special privileges, such as a longer hunting season. Last year the Chippewa took 3,700 deer out of a state harvest of more than 150,000.
``The courts are leaning so far left that they're hitting their ears on the floor in putting additional language into these treaties - it does an extreme disservice to the non-Chippewa,'' says Robert Winn, a Stevens Point businessman who grew up near the Lac du Flambeau reservation and says he was originally pro-Indian. He acknowledges that he has done a 180-degree shift, resents what he says is a widespread tendency to label all critics as racist (``if anybody is using race, it's the Chippewa''), and sharply criticizes the state government's performance. ``Right now we're backed into a corner and we shouldn't be,'' he says.
Treaty expert David Wrone of the University of Wisconsin at Stevens Point says he encounters people with numerous misconceptions about treaty rights. ``One is that the treaties are old and therefore shouldn't be honored....Well, the Bible is old, and so is the Constitution,'' he says.
The GLIFWC's Mr. Schlender says the effect of the court rulings on the Chippewa since 1983 has been ``a rebirth of pride.''
State officials say that Wisconsin has been doing its best to reach an out-of-court settlement with the Chippewa. Last year it offered a $50 million economic- and development-aid package to the Lac du Flambeau and Mole Lake tribes in exchange for a 10-year moratorium on exercise of their treaty rights. Though tribal negotiators agreed, members said no in referendums.
Similarly, the state has persuaded some tribes to announce plans to take a lower quota of fish than the law allows so non-Indian fishermen can have a larger share.
The state has also encouraged tribal leaders to talk with town leaders nearby with an eye to compromise. In exchange for cutting back on its planned fish quota last spring, for instance, the Lac du Flambeau tribe asked for area help to encourage visitors to return to the reservations to buy gas and groceries and play bingo.
``We've been trying to meet people half way,'' says Lac du Flambeau tribal leader Mike Allen Sr.
``Everybody's got to find a way to live together,'' Holperin says.