M(Q)ving JBey(Q)nd A:~rg1Ulmen1t Racism & Jr:~reatty Riglhltts Great Lakes Indian Fish & Wildlife Commission Public Information Office P.O. Box 9 Odanah, WI 54861 (715) 682-6619 Moving beyond argument Racism and treaty rights "Great nations like great men must keep their word. When America says something, America means it, whether a treaty or an agreement or a vow made on marble steps." (from the inaugural address of President George Bush) Introduction While President Bush has vowed to honor this nation's treaties and the U.S. Constitution declares treaties to be the "supreme law of the land," controversy has been waging over the abrogation of Indian treaty rights for years. This not only has occurred in Wisconsin, but in states throughout the nation where Indian treaty rights have been re­ affirmed through our federal courts. Unfortunately, the debate has frequently disintegrated into overt displays of racism with Indian people as the target. It is the concern of the Great Lakes Indian Fish and Wildlife Commission that individuals and organizations begin to recognize and confront racially­ motivated actions. It is our hope that the following booklet wi11 provide some basis for understanding both the treaty issues, the nature of racism and the impact of racism in and on our communities. The debate and beyond Excerpted from "Social Structure and The Chippewa Indians in Wisconsin have Cultural Pattern," The Nature of Prejudice been exercising their court-affirmed treaty rights by Gordon Allport to hunt, fish and gather on off-reservation ceded territories for six years. From the onset of their " •.. there are many economic, interna­ off-reservation harvest, protest has been heard tional, and ideological conflicts that rep­ and witnessed in many guises in Wisconsin. resent a genuine clash of interests. Most Protest has centered around claims of resource of the rivalries that result, however, take depletion, adverse economic impact and "un­ on a great amount of excess baggage. equal rights" for non-Indians. Prejudice, by clouding the issue, retards a Debate has raged on many levels through the realistic solution of the core conflict. .• years since the United States Supreme Court of Realistic conflict is like a note on an Appeals refused to hear the state of Wisconsin's organ. It sets all prejudices that are at­ appeal of the "Voigt Decision," which re-affi­ tuned to it into simultaneous vibration. rmed Chippewa treaty rights, in 1983 (see Ap­ The listener can scarcely distinguish the pendix I). That refusal signaled that the conclu­ pure note from the surrounding jangle." sions of the three judge panel of the United States 7th Circuit Court of Appeals, which recognized litical argument has centered on state involve­ the usufructuary rights of the Chippewa, would ment in enforcement at spearfishing landings, ne­ stand. Since that time issues have been debated gotiated settlement with the tribes, and or abroga­ in legitimate forums, including courts, political tion of treaties. Typically in the past six years, debate, and discussion among the general public Chippewa treaty rights have been a "hot potato" through meetings or the media. However, all too politically, with political figures caught between frequently, the argument on the issues has been upset and vocal anti-treaty constituents and the abandoned and protest has taken the form of court-affirmed rights of the Chippewa people. violence, hate, racial slurs and mob action. Some political leaders agree with anti-treaty activists and support a movement to abrogate (or Legal argument break) the treaties through an act of Congress, the Since the 1983 Voigt Decision much has had only course which can circumvent the court. An to be determined through further court hearings. abrogation bill (see page 3) was actually pro­ These court proceedings have been entitled phases posed by Rep. James Sen sen brenner in 1987 and of the Voigt trial and have defined the scope of the has been used as a tool to "encourage" tribes to rights and the regulation of each season. Tribal relent on the exercise of their legal rights. Other and state attorneys have met on numerous occa­ political leaders have pressed for negotiations sions in the court-room to argue the case, bringing and settlement between tribes and the state of expert testimony from both sides. While the state Wisconsin, while a few have supported the Chip­ has pushed to minimize the scope of the rights, pewa in the regulated exercise of their rights. the tribes' position has naturally been one to Some leaders have threatened to diminish tribal maximize the rights. Issues debated in court have programs unless tribes negotiate (see letter from included the kind of species which are harves­ congressional delegation on opposite page). table, the amount of given species, the degree of Debate has also regularly occurred between state regulation required, and allowable methods state and tribal leaders in terms of negotiating of harvest. Litigation is still on-going and repre­ "interim" harvests of deer, fish, and other species. sents one level of debate on treaty issues. More recently, some tribes have been negotiating with state officials over an agreement which may Political debate lease some of the retained rights. These debates Political argument is another level of debate have typically occurred over a negotiating table and occurs both on and off reservations. The role and involve the advice of resource management of the federal and state governments in implem­ experts from both tribes and state, tribal and state entation of treaty rights and negotiations has in­ political leaders, and attorneys who can aid in volved political leaders from various parties. Po- (continued on page 6) - 1 - (The following letter was sent to Wisconsin Chippewa Chairmen from the Wisconsin Delegation and is indicative of political pressure exerted on the tribes to diminish the exercise of their rights.) We are writing to express our deep concern regarding what we understand to be tribal inten­ tions to engage in a heavy harvest of walleye from up to 254 lakes in northern Wisconsin. We fully understand that courts have determined that the tribes have certain rights with regard to hunting and fishing in the ceded territory. but we are greatly concerned that the tribes exercise those rights in a manner that does not create a danger to the livelihood of anyone else. or unfairly impinge on the ability of others to also use the resource in a given area. The court has provided ample authority for the tribes to exercise their court-determined rights in a manner that would not in fact shut down lakes in the ceded territories to non-tribal fishing. We urge the tribes to be sensitive enough to exercise restraint sufficient to prevent individual lakes from being limited only to "catch and release" fishing for other people who also have a right to share the resource-especially when, as we understand it, many ofthe lakes would not even have walleye if it were not for state stocking programs financed by license revenue. It is our understand­ ing that some tribes appear to be exhibiting such restraint in their planning, but that others may not be. The tribes have a legal right to exercise rights defined for them by the courts. But. common decency and fairness require that those rights be exercised in a manner which does not eliminate the rights of others to share in the resource or threaten the livelihood of resort owners on individual lakes because of the refusal to share that resource on any given lake. Obviously. if the tribes choose. they can legally exercise these rights without exhibiting due sensitivity to the needs of other groups. But. the tribes will then have to appreciate that if they do engage in tribal activities that needlessly inflame the situation and needlessly abuse the rights of other groups to share in the resource, then members of the congressional delegation will certainly have to take into account the tribes' lack of cooperation and their lack of sensitivity in assessing tribal requests for federal grants and projects. It is important to all of Wisconsin that tribal members, non-tribal fishermen and government officials all approach this issue in a cooperative, balanced and restrained manner. The congressional delegation is committed to the proposition that all citizens must conduct themselves in a manner which does not cause undue hardship to other groups and parties. Common sense as well as common fairness dictates that. The delegation will be paying very close attention to which tribes demonstrate the sensitivity required in this situation and which tribes don"t. - 2- Sensenbrenner's abrogation bill H.R. 2058 IN THE HOUSE OF REPRESENTATIVES April 18, 1989 Mr. Sensenbrenner introduced the following bill; which was referred to the Committee on Interior and Insular Affairs A BILL To abrogate off-reservation, usufructuary rights of Indian tribes to hunt, fish, and gather in the State of Wisconsin. Be it enacted by the Senate and House of Representatives of the United States of American in Congress assembled, SECTION l, ABROGATION OF OFF -RESERVATION USUFRUCTUARY RIGHTS OF INDIAN TRIBES IN THE STATE OF WISCONSIN. Any off-reservation, usufructuary right to hunt, fish, and gather granted to any Indian tribe by any treaty, law, Executive order, or Federal court order which may be exercised in the State of Wisconsin is hereby abrogated. SECTION 2, DEFINITIONS. For the purposes of this Act- (1) the term "Indian tribe" means any tribe, band, nation, or other organized group or com­ munity of Indians which is recognized by the Federal Government as eligible for special programs and services provided to Indians because of their status as Indians; and (2) the term "reservation" means any lands held in trust by the Secretary of the Interior for the use and benefit of an Indian tribe.