Sarah Bagley
April 14, 2008
In the 1950s and 60s, many treaties related to the Chippewas and other reservation Indians were attacked and put up for abrogation; Indians in turn used the federal court system to protect the rights reserved to them by these theatened treaties. After taking several cases to the United States Supreme Court, a set of four judicial 'canons', or standards of interpreting Indian treaties, were solidified. They recognize the position that Native Americans held at the time of treaty negotiations and are as follows:
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 the Indians would have understood them at the time they were negotiated; and
4) treaty rights legally enforceable against the United States should not be extinguished by mere implication, but rather explicit action must be taken and 'clear and plain' language used to abrogate them.
It was being recognized by the United States Supreme Court that at the time that many of these treaties were written, the negotiators of the treaties and the Indians might have had very different interpretations of the effects of the treaties. It has also been recognized that, in the past, when matters involving treaty rights have been raised in court, rulings have traditionally been biased against the Indians. The Lyndon B. Johnson administration opened up several programs to aid the Indians, including the Office of Economic Opportunity and Wisconsin Judicare. However, at the same time that many of these programs were arising, there was a surge in Indian militancy as well as Indian pride. The legal system gave this newfound movement of action and pride the ability to fight for grievances. A famous case involving hunting, fishing, and gathering rights was La Courte Oreilles Band of Chippewa Indians versus Voigt. Voigt was DNR Secretary and was filed against by the LCO Band for interfering with hunting and fishing rights after two members of the LCO Band were arrested for spear fishing off reservation lands. While the Federal District Court ruled against the Chippewas in 1978, it was appealed by the LCO to the US Court of Appeals. The Voigt decision was overturned and it was stated that the usufructuary rights possessed by the Chippewas were not negated by the 1850 removal order. Governor of Wisconsin Anthony Earl also called for cooperation between state government and the eleven 'federally recognized' tribal governments in Wisconsin. Judge Doyle from the Voigt decision case issued three stages of court proceedings and, on February 18th, 1987, (called "doomsday for Wisconsin by treaty rights opponents) it was stated that the Chippewas bands could harvest nearly all varieties of wildlife necessary to "maintain a modest living." Tommy Thompson, an anti-treaty activist, ran against Earl and stated he would appeal Doyle's rulings. However, Judge Doyle died in 1987 and was replaced by Judge Crabb; Crabb ruled that there was not an upper limit for Chippewas during their resource harvesting (August 1987). She also established a “safe harvest” calculation methodology to ensure that the Indians could maintain a modest living without protest. Shockingly, she ruled that the Chippewa Indians could not sue the State of Wisconsin for grievances because states have “sovereign immunity” from lawsuits from tribal governments. She also rent on to say that county and state governments could impose regulations on wood harvesting of the Chippewa as well as boating safety regulations. She gave a “Final Judgment” clarifying her judgments and neither the Chippewa bands nor Attorney General James E. Doyle, Jr. appealed.
Date created: June, 2002
Last modified: April, 2008
Copyright ©2003, 2004, 2005, 2006, 2007, 2008
George R. Spangler