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Spear Fishing Treaty Rights

Demonstration of traditional spearfishing methods, 1990. Courtesy of Amoose.
Demonstration of traditional spearfishing methods, 1990. Courtesy of Amoose.

Background

Spear fishing is an ancient method of fishing that dates back thousands of years into the BCE, with spears being represented in early cave paintings and Egyptian Hieroglyphics. In 178 BCE, the ancient Greeks published major informational works on how to spearfish in the sea. Despite such ancient roots for the sport, spear fishing is generally illegal throughout much of the United States, as it is seen as an “unsporting” way of harvesting fish from rivers and lakes.

Throughout the Chippewa Valley, spear fishing has been conducted primarily by the Ojibwe, a Native American tribe that arrived in the area mostly by the end of the 17th century. Spear fishing was an important means of obtaining food for pre-contact Ojibwe, as they spear fished many large fish, such as Muskellunge, Walleye Pike, and Lake Sturgeon. The Ojibwe often spear fished by torchlight in the early morning/late night hours because fish were drawn to the canoes by the light.

In 1837, Ojibwes in Wisconsin and Minnesota ceded their eastern Minnesota and northwestern Wisconsin lands to the U.S. in exchange for payment and goods. However, Article 5 in the Treaty of 1837 with the Chippewa stated that, "the privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guaranteed to the Indians, during the pleasure of the President of the United States."

The Senate ratified this treaty, thus agreeing that the Ojibwe could continue to fish (including spearfish), hunt, and gather wild rice on U.S. lands that had once been Ojibwe lands.

Court Decisions

Ojibwes did continue to hunt, fish, and gather on ceded lands, but the State of Wisconsin began enforcing hunting and fishing regulations on all public lands, including spearfishing, in the late 19th century, essentially ignoring Article 5 from the Treaty of 1837. Even though the Treaty of 1837 allowed Ojibwe to continue hunting and fishing on former tribal lands, Wisconsin game wardens fined Ojibwes who hunted and fished off reservation lands in the off-season. Some Ojibwe continued to spearfish and hunt throughout the 20th century, but non-Indians and the state considered this activity illegal.

In 1974, Fred and Mike Tribble of the Lac Courte Oreilles tribe crossed their tribal reservation boundary on Chief Lake, and began spear fishing illegally through the ice, touching off a decade long court battle over the legality of hunting, fishing, and gathering off reservation. When game wardens knocked on the door of their shanty and made clear to them that they were to be arrested, both brothers presented the wardens with a copy of the 1837 treaty between the United States and the Ojibwe tribes of Minnesota and Wisconsin. The game wardens ignored the treaty and gave the brothers citations.

The brothers' case was taken up by attorneys for the Lac Courte Oreilles tribe, and in 1978, the case went to the courtroom of Federal District Court Judge James Doyle, father of Wisconsins 44th Governor Jim Doyle (2003-2010). Doyle’s decision was that the usufructuary rights (the right to use something that is not owned) listed in the Treaty of 1837 had been superseded by the 1850 removal order, and by the 1854 treaty establishing reservations in northern Wisconsin. Doyle’s decision was appealed immediately (though the case was not heard until 1983) to the United States 7th Court of Appeals, where the case became known as LCO vs. Voight. The appeals court, consisting of a panel of 3 judges, overturned Doyle’s earlier decision, stating instead that the usufructuary rights were not done away with in either the 1850 removal order, or in the later 1854 treaty, or in any time since the 1834 treaty. This ruling was appealed by Wisconsin Department of Justice under Governor Tommy Thompson, but the US Supreme Court refused to hear the appeal. The state of Wisconsin finally brought its attempts to appeal the ruling to a close in 1991.

Crowds at a boat landing in northern Wisconsin. Courtesy of Amoose.
Crowds at a boat landing in northern Wisconsin. Courtesy of Amoose.


Aftermath

After the 7th Court of Appeals ruled spear fishing legal for Wisconsin Ojibwe, there was an immediate backlash from citizens in Northern Wisconsin who felt that Ojibwes were being given special treatment and had an unfair advantage when it came to harvesting fish from the lakes. Many feared Ojibwe would overfish, leaving little or nothing for non-Indians and tourists. Heated and sometimes graphically violent protests occurred at boat landings where Ojibwe spearfished. Supporters of treaty rights also came to the boat landings. On a few occasions County Sheriffs and even Wisconsin State Troopers were brought in to prevent violence. Protesters organized a number of anti-treaty rights groups, including the more radical "Stop Treaty Rights Abuse- Wisconsin.” (STA) The STA described the act of spearfishing an act "...of economic terrorism..." and urged those concerned to join their ranks and to buy Treaty Beer, to help fund their fight. The STA and organizations like it slowly lost steam in the 1990s as public saw that Ojibwe spear fishing did not deplete the lakes or destroy the fishing and tourist livelihoods of non-Indians.

Great Lakes Fish and Wildlife Commission (GLFWC)

The formation the Great Lakes Indian Fish and Wildlife Commission (GLFWC) in the 1980s, an inter-tribal equivalent to the DNR, helped to improve relations and understanding between Ojibwe and non-Ojibwe. GLFWC was formed to implement treaty rights. One of its most important functions has been to regulate off-reservation harvests. GLFWC helps to maintain a healthy lake fish population by researching how many fish can be safely harvest from lakes in Northern Wisconsin each year. It establishes bag and minimum size limits and hires wardens to monitor fishing, hunting, and gathering practices. It also works to keep the public educated about off-reservation treaty rights through student and adult publications, videos, and public relations materials.

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More Information

Milwaukee Public Museum Spearfishing Article

Indians end Spearfishing to show Good Will- 1989 NY Times

15 Years Later

Wisconsin Historical Society online archive on Spearfishing