Equal Rights, Unequal share: Implementing Judicial Allocation to Indian and non-Indian Fisheries in Northern Wisconsin

 

George R. Spangler*

and

Tsegaye Nega**

 

Introduction

In court-mediated conflicts over natural resources, implementation of the law or ensuing policies is not a mechanical translation of goals into routine procedures. In this class of judicial decisions the management provisions accepted by the court require nothing less than intensive discourse and cooperation between the parties. This is particularly true of natural resource issues where the disputed "property" often cannot be precisely quantified, and the parties to the judgement may reflect a political power differential.  In such cases, judicial decisions are subject to transformation during their implementation.  Here the implementation of law is largely identical with the process of policy development, implementation, and outcome in a broad spectrum of social issues. [1]   Among the factors that transform policies during implementation are the interests and strategies of social actors, institutional characteristics, availability of resources, reporting mechanisms within the bureaucracies, and the power differential between parties. The result is that implementation emerges out of the struggles and negotiations that continually take place between the actors involved.

 

We examine how a 50:50 judicial allocation of fishery resources to Wisconsin Indian bands and the State of Wisconsin was transformed into a realized 6:94 allocation, respectively, during implementation. We first outline the history of the litigation between Lac Courte Orielles Band of Lake Superior Indians et al. and the State of Wisconsin in the United States District Court for the Western District of Wisconsin (hereafter, Lac Courte Oreilles et al. vs State of Wisconsin, or, LCO).  This phase of the trial illustrates how resolution of the original conflict, i.e. the continuing right of Indians to hunt, fish, and gather was further confounded by a judicial interpretation of the original treaties, and by the insertion of modern concerns not explicit in the original treaty negotiations. We then describe the regulation used to translate the court's decision into allocating fishery resources to Indian and non-Indian interests.  Next, we show how and why the implementation of the regulation has maintained the unequal sharing of the fishery resources despite the courts' allocation of 50 percent of harvestable Walleye to Indians throughout the ceded territory of Wisconsin. We conclude by pointing out some of the salient points of the case that are useful in understanding and resolving conflicts over natural resources.

 

Origins of the conflict

In March 8, 1974, Frederick and Michael Tribble, members of the Lac Courte Oreilles (LCO) Band of Chippewa Indians, notified WDNR wardens of their intent to spear fish off the reservation.  They subsequently cut a hole in the ice of Chief Lake and were arrested for spear-fishing in ceded territory in Sawyer County, near Hayward, Wisconsin. [2]   There followed the Voigt case, Lac Courte Oreilles Band of Chippewa Indians v. Voigt in which the Lac Courte Oreille Band sought relief from interference by the State of Wisconsin in the Band's right in hunting, fishing and gathering of food (primarily wild rice and maple sap) in territories ceded to the U.S. government in the treaties of 1836, 1837, 1842, and 1854 (figure 1). [3]

 

The Declaratory Phase

The declaratory phase was concerned mainly in resolving three interrelated questions that address the meaning, scope, and extent of the 1837, 1842, and 1854 treaties that underlie the LCO case.  These were: (1) how has the LCO band continued to use its hunting, fishing, trapping, and gathering rights following the 1837 and 1842 treaties? (2) Were these rights extinguished by the removal order of 1850? [4] , and if not, (3) did the 1854 treaty 'extinguish or release' these rights? [5]

The LCO case was first argued before Federal District Court Judge James Doyle in 1978 who ruled in favor of the state by arguing that the Treaty of 1854 had extinguished the hunting, fishing and gathering rights on the ceded territories, apart from reservation lands.  Judge Doyle's fundamental reason for this ruling is based on the link he established between occupancy and the exercise of usufructuary rights.  According to the Judge, because the Treaty of 1854 provided permanent homes (reservations) for the LCO band, it withdrew any conditional right to establish such homes on non-reservation lands in the ceded territory.  If the right to establish homes on the whole of the territory was lost, Judge Doyle reasoned, the right to hunt and fish thereon was similarly relinquished.

 

This decision was reversed in 1983 by a three-judge panel of the U. S. Court of Appeals for the Seventh Circuit. [6]   The appellate court's rationale for reversing Judge Doyle's ruling is based on two canons of construction pertinent to Indian law. [7]   These are: (1) Indian treaties must be construed as the Indians would have understood them, not according to the technical meaning of the treaties' words to lawyers, and (2) ambiguous words and phrases in Indian treaties should be resolved in favor of the Indians.  The Supreme Court reasoned that each of the treaties (i.e., the treaties of 1837, 1842, and 1854), include both a cession of land and a reservation of usufructuary rights on the ceded land by those Indians relinquishing their territory, and that the Lac Courte Oreilles band had ceded its territory pursuant to the two earlier treaties in which its reservations of usufructuary rights were explicit.  Accordingly, the absence of an explicit reservation of usufructuary rights in the 1854 treaty by the Lac Courte Oreilles band suggests that they believed their right to use ceded land for traditional pursuits to be secure and unaffected by the 1854 treaty. The Seventh Circuit subsequently affirmed that these rights would be applicable to public land throughout the ceded territories, even though some portion of those lands may have passed through private ownership in the interim. [8]  After the Supreme Court refused to hear an appeal of the Court of Appeals ruling, five other Wisconsin Chippewa Bands joined the LCO case. [9]

 

Judge Doyle concluded this phase of the case in 1987 by affirming that: 1) the Chippewa retained the rights to harvest nearly all varieties of fish, animal and plant resources in the ceded territories to an extent that would provide a modest standard of living, 2) such harvest was to be free of state restrictions except for those both reasonable and necessary to conserve the resources, 3) the Chippewa could employ any means of harvest used at the time of treaty negotiation or developed since, 4) harvested products could be traded or sold to non-Indians using modern methods of distribution, and 5) arrangements must be made for exercise of usufructuary rights on private lands if public lands were insufficient to support a modest living. [10] With this ruling, the declaratory phase affirmed Indian treaty rights.  But it also introduced two new elements (our italics, preceding) that required explicit judicial consideration of how the resources would be managed in the future.  As we shall see, it is precisely the introduction of these new elements that transformed the court's intended 50:50 allocation into the 6:94 realization.  We now examine the regulatory phase of the case wherein these two new elements were given precise meaning. 

 

The Regulatory Phase of the Judgment

Judge Doyle died in June 1987, and was succeeded in the case by Judge Barbara Crabb who reaffirmed that the State of Wisconsin could regulate off-reservation harvest only in the interests of conservation, public safety and public health.  Further, such regulations must be the least restrictive available and must not discriminate against the Chippewa. [11] She further noted that effective tribal self-regulation would preclude state regulation.  The ambiguity resulting from the earlier judgment specifying the Chippewa's entitlement to "a modest living" required further definition.  In proceedings in the spring of 1988, Plaintiff's attorneys argued that a reasonable standard might be provided by the "zero savings level of income" reported regionally in the statistics compiled by the U. S. Bureau of the Census.  Review of census tables revealed that, in the northern counties of Wisconsin, this amounted to an annual income of about $21,000 per family.  This figure was subsequently adopted by the court which proceeded to determine how much the harvestable resources of the ceded territories were worth, given an opportunity to harvest them all.

 

Fish and wildlife biologists were called to testify as to the quantities of fur, fish and game available throughout the ceded territories as harvestable commodities.  By equating the value of waterfowl and grouse to the retail value of poultry, venison and bear meat to the prices of beef and pork, and walleye and sunfish to retail prices for freshwater fish, it soon became apparent that the sum total of harvestable foodstuffs would not nearly approach an amount necessary to provide even the poorest living for the population of some 14,000 registered members of Indian bands in northern Wisconsin.  In their final efforts to ward off the inevitable, defense attorneys began to argue for inflation of the values by adding in things such as black bear gall bladders, said to be worth $250 an ounce on the Asian aphrodisiac market. The upshot of this phase of the trial was the logical conclusion that the Chippewa were entitled by treaty to all of the harvestable fish and game in the ceded territories. [12]   The state immediately petitioned the court for an allocation of 50 percent of the resources to each of the parties, citing the Boldt Decision in the Pacific Northwest. [13]   Judge Crabb denied the motion noting that the Stevens Treaties governing the northwestern cessions contained specific language to the effect that Indians and non-Indians should "...share equally in..." utilization of the fishery resources.  In responding to the state motion, Judge Crabb said "I can find no such language in these treaties." [14]  

 

Before her final judgment in the case Judge Crabb ultimately withdrew from her earlier contention about "sharing resources" on the grounds that "The standard of a modest living does not provide a practical way to determine the plaintiffs' share of the harvest potential of the ceded territory." [15]   Consequently, Judge Crabb ruled that "All of the harvestable natural resources to which plaintiffs retain a usufructuary right are declared to be apportioned equally between the plaintiffs and all other persons,..."  Moreover, the Judge also enjoined the state "...from interfering in the regulation of plaintiffs' off-reservation usufructuary right to harvest walleye and muskellunge within the ceded territory in Wisconsin,... except insofar as plaintiffs have agreed to such regulation by stipulation.  Regulation of plaintiffs' off-reservation usufructuary rights to harvest walleye and muskellunge ... is reserved to plaintiffs on the condition that they enact and keep in force a management plan that provides for the regulation of their members in accordance with biologically sound principles necessary for the conservation of the species being harvested,..." 

 

We conclude our discussion of the judgment by noting that the court reaffirmed the treaty-guaranteed rights to hunt, fish, and gather, but in so doing, the court introduced two new elements, the concept of "modest standard of living" and "conservation," that profoundly changed the nature of these rights. Moreover, the inability to deal directly with these concepts required a further alteration, the 50:50 allocation, in the basic entitlement protected by the treaties.

 

Let us now examine how the court's 50:50 allocation of the fishery resource and the coupling of harvest regulation with scientific principles transformed the way fishery resources are managed in the ceded territories, resulting in a realized 6:94 allocation. 

 

Rules for implementing the court's decision

Between the Voigt Decision in 1983 and the final judgement of the Crabb court in 1991, the Wisconsin Chippewa and Wisconsin Department of Natural Resources (WDNR) had entered into more than three dozen interim agreements enabling access to some of the resources while the details overall were being addressed in the litigation.  These agreements provided valuable experience for assessing the status of stocks and regulating the tribal fishery.

Early in the court proceedings, both parties agreed to a maximum allowable exploitation rate of 35 percent of the adult stock of walleye.  This figure had been the management specification in the WDNR's managment plan since at least 1974, and it remains the target figure throughout Wisconsin's walleye fishery today. [16]   Judging compliance with this guideline requires both an estimate of the fish available and an estimate of the harvest.  The former is accomplished either by "knowing" the capacity of the lake for walleye production, based upon a regression model that relates size of lake to walleye population number, or, by explicit population estimates. [17]

Harvest is estimated as the combined results of the tribal fishery (most importantly, spring spearing) and recreational (non-Indian) fishing, especially during the open-water season.  Completely monitored individual daily permit quotas regulate tribal fishing and the catch is fully enumerated when landed. [18]   Sport fishing generally begins two to three weeks after the spring tribal (spear) fishery, and it is regulated by indirect methods, including season length, minimum fish length limits and individual daily bag limits. The impact of sport fishing is estimated through creel surveys on selected walleye lakes from the ceded territories, and through comparison with standardized creel surveys on selected lakes that have been monitored since 1980.

To reduce total angling mortality in those lakes designated for tribal fishing, the WDNR established a response rule (Table 1) intended to reduce the daily bag limit in proportion to the harvest intent declared by the Indians (see below). [19]   As presented to the court, this rule would have the added promise of further diminishing the daily bag limit as confidence waned in the reliability of the population estimates.  Population estimates are assumed to decrease in management reliability (relevance to the fished population) as the time increases between when the estimate was made and when the fishing would occur. [20]   Thus, in Table 1, "reliability" of the population estimates decreases from left to right, with "current year" estimates assumed to be the most reliable. 

 

 

Table 1.  Modifications in daily bag limits in response to tribal harvest [21]

Estimation of allowable tribal harvest proceeds in stages. Following adoption of one of the population estimation procedures defined above, the estimate is multiplied by a "safety factor" thought to be necessary because tribal fishers will be using efficient gear (gillnets or spears). [22] The resulting number is then multiplied by the 35 percent maximum allowable exploitation rate to arrive at a "safe harvest level."  Fishery managers have to know in advance what the likely tribal harvest will be if they are to set daily bag limits at levels that will prevent an "overfishing" event.  Thus, tribal authorities are required to state their harvest intentions by March 15 each year.  These declarations have voluntarily been set at about 60 percent of the safe harvest level because the Indians perceive that the WDNR would have to reduce the anglers' daily bag limit to zero if the Indians declare an intent to take over 68% of the safe harvest level. [23]

Simulating the outcome of the court's decision

Imagine a hypothetical "Lake A" and calculate the Safe Harvest Level given a "current year population estimate," i.e. the best possible management information for establishing appropriate levels of harvest.  If the lake has (estimated) populations of 2000 adult walleye and 200 adult muskellunge, note that a safety factor based on the 95% lower confidence limit would further diminish the available fish to 75% and 60% of the original numbers, respectively.  Acceptable maximum exploitation rates of 35% for walleye and 27% for muskellunge result in "safe harvest levels" of 525 walleye and 32 muskellunge (Table 2).  The extent to which the Indian quota is diminished under these rules is apparent in the simulation presented in Table 2.

 

Table 2. Lake A, safe harvest level [24]

	Current population estimate	Lower limit (Safety factor) 95% C.L:	Exploitation rate	Safe harvest level
(A)          x          (B)            x         (C)        =      (D) Walleye                 2000                     75%                     35%             525 i.e..                   2000 x 75%    =        1,500        1500 x 35%       =    525
Muskellunge              200                   60%                    27%               32 i.e..                              200 x 60%  =  120             120x 27%       =     32

 

Imagine now that the Indians declare an intent to take only 60% of their allowable harvest.  This further reduces the permissible numbers to 315 walleye and 19 muskellunge.  If all of these fish were actually taken in the spear fishery, the maximum exploitation rate would be 16 percent for Indian harvest of walleye and 9.5 percent for muskellunge under the most optimistic conditions defining the tribal harvest. [25]   In actuality, lake conditions cannot be relied upon to be perfectly favorable for night-time spear fishing, so the total harvest will be something less than the permitted (licensed) harvest in any given year's fishing.  Over the period 1989-1997, the proportion of the Indian quota actually harvested (far right column of Table 3) has ranged from 37 to 73 percent, averaging about 60 percent. [26] Continuing the simulation in light of a decade of empirical experience then would dictate that our 315 walleye have now diminished to fewer than 200 fish, i.e. less than 10 percent of the fishable stock of adult fish.

 

This little simulation suggests that, unless fishing conditions are virtually ideal throughout the ceded territories in a given season, and, unless tribal declarations of intent to fish exceed the 60 percent figure typical of the past, tribal fishers will have no reasonable expectation of realizing a catch of anywhere near the court's declared allocation of half of the allowable harvest of fish.

Empirical experience has shown (Figure 2) that, indeed, tribal spearers have harvested less than 60 percent of their quota, on average, during the recent past.  To put these numbers in perspective relative to the non-Indian harvest, the number of walleye speared from 1989-1997 has averaged 24,293 fish.  Angler exploitation rates throughout the ceded territory are only poorly known, but it is estimated that angler catch averaged 910,000 walleye per year from 1980-1989, increasing to 1,200,000 annually from 1990-1994. [27]   In trial testimony in 1988, statistics presented by the plaintiffs clearly showed that Indian harvest amounted to only 6 percent of the total catch of walleye in the ceded territories, whereas recreational fishers were responsible for 94 percent of the walleye harvested.  Little has changed in the relative magnitude of these statistics since Judge Crabb's final judgment.

 

Why does this inequality persist in contradiction of the court's stated intent?  To understand this result, we have to examine the very rules that were agreed upon in attempting to provide a "scientifically sound" basis for management.  Careful examination of the response rule for limiting daily bag limits (Table 1) shows that it serves neither the interests of the parties (equal allocation) nor protection of the fishery under conditions of uncertainty. It fails to protect the fishery because it relaxes rather than tightening bag limit restrictions on the sport fishery. For example, if the Indians declare an intent to take 60% of the "safe harvest level" on a particular lake, the WDNR would be obligated to set a 1-fish bag limit if the population estimate for that lake was made in the current year, but they could allow a more generous 2-fish limit if the estimates were made 1 or more years earlier or by regression methods (Table 1). Similarly, if the Indians declare an interest of 20%, the daily bag could be set at 4 fish for old (less reliable) estimates, but would have to be reduced to 2 fish per day if the estimates are the best available. Application of the response rule in accordance with the values in Table 1 would provide no incentive for the management agencies to increase the certainty of their population estimates as this would lead to the necessity of more restrictive regulation of the angling fishery.  It is now clear that implementation of the response rule undermines the intent of the rule itself.

 

More importantly, the very adoption of the response rule, undermines the court's intent to achieve equality in allocation between Indian and non-Indian fisheries.  This is because the decision rule requires the Indians to make a public declaration of the proportion of their entitlement that they wish to take in any given year.  If the Indians insist upon their full entitlement, it is clear that the daily bag limit (for non-Indians) will have to be severely restricted. This places them in the position of being seen by the larger society as responsible for a more restrictive fishery.  Knowing this, the Indians voluntarily limit their declaration to a substantial degree in the interests of maintaining civil harmony.

 

The implications of judicial allocation on the management of fishery resources

The court's decision to equally allocate the fishery resource and its stipulation to link harvest regulation with scientific principles of conservation and management has several implications for how fishery resources are managed in the ceded territories of Wisconsin.  We will mention two.  First, it created a de facto co-management of the resource involving not only the state and tribal resource agencies, but also entrained support for fishery management from federal agencies.  The emergence of this co-management and the support it garnered from federal agencies is intimately bound up with the court's decision.  Throughout the trial the state insisted on being seen as having the ultimate authority in management matters and therefore entitled to enact measures appropriate to conserve the resources.  The plaintiffs, on the other hand, insisted that because their usufructuary rights are an agreement entered with the federal government, the state does not have authority to regulate Indian harvest.  What led to the de facto creation of co-management is the court's focus on resolving this dispute by concentrating on what is involved in the development and implementation of conservation measures.  The court argued that any conservation measure that the state may develop and implement is based on biologically sound principles.  Biologically sound principles, however, are not the monopoly of the state.  Accordingly, the court ruled that as long as the Indians have a clear management plan and that the plan is based on scientific principles, the state does not have authority to regulate Indian harvest.  What both parties need to do, according to the court's decision, is to develop and adhere to mutually accepted principles, goals and facts relating to the walleye and muskellunge resources.  In other words, co-management. 

 

The allocation of fifty percent of the fishery resources to Indians and the need to manage the fishery on scientific principles required the development of more complete information on the status of the fishery and the impact of angling and spearing.  However, Wisconsin's abundant lakes and the labor-intensive task of assessing the status of the fishery resource in each of these lakes proved to be too great for any one agency to carry out the workload.  The result was the establishment of a Joint Assessment Steering Committee involving the disputants, lead tribal agency on technical fishery matters and two federal agencies. [28]   The committee received a $300,000 federal appropriation. [29]   The state of Wisconsin started a five year plan to monitor fish populations and angler harvest the cost of which is $1,200,000 a year (ibid).    

 

The second consequence of the court decision on the management of the fish resource has to do with the dramatic increase in the scope and intensity of fishery assessment in the ceded territories.  Since the beginning of ceded territory spearing in 1985, the numbers of population estimates conducted by the tribal and state agencies have increased substantially (fig. 3). According to U.S.D.I. (1995), between 1985 and 1990 alone, 177 (83%) of walleye speared lakes have had at least one adult population estimate.   

 

Figure  3.  Number of adult walleye population estimates conducted in ceded territory lakes by Great Lakes Indian Fishery and Wildlife Commission (GLIFWC) and Wisconsin Department of Natural Resources (WDNR).  Source: U.S. Department of the Interior, Bureau of Indian Affairs, 1995.

 

Likewise, the biological parameters that are informing management decisions have shown a qualitative improvement. The regulation of spear fishing is so strict that each fish speared is counted and measured. [30]   The resulting database on the size, age, and sex ratios of the fish during the spearing season not only helped assess the exact impact of tribal spearing on the fishery, it also provided the necessary data for a far greater understanding of the fishery resources in Wisconsin than has ever been available to resource managers in the past.  Moreover, the complexity and high degree of control exercised to regulate the fishery in Wisconsin has no parallel in freshwater fishery management elsewhere in the United States.

Conclusion

 

The overall result of this litigation has been that the onus rests with the Indians to declare their intent to harvest as a prelude to establishing harvest rules over the entire fishery in any given year.  This maintains the perception of the broader society that the Indian community is responsible for any additional restrictions that may be placed on the non-Indian fishery, thus perpetuating the conflict rather than putting it finally to rest. 

 

This case shows that conflicts over natural resources are always contingent upon heterogeneous factors. The emergence, development and resolution of this conflict could only have been understood by the simultaneous consideration of both the legal and biological dimensions of the case. Had supremacy been given exclusively to the law, we would have anticipated a realization of the 50:50 allocation.  Had biological principles alone been considered, we would have understood neither allocation between competing user groups, nor the nature of the management of the Wisconsin fishery. Nor would we have achieved our current, far greater, understanding of the fishery resources in Wisconsin than has been possible for resource managers in the past.

 

Our analysis also shows that implementation of either the law or ensuing policies is not a mechanical translation of goals or objectives but is born out of the struggles and negotiations that continually take place among the parties involved.  Thus, despite the court's decision to allocate fifty percent of the fishery to Indian interests, a long established set of social, scientific, economic, and institutional arrangements served to maintain the social inequality between Indian and non-Indian interests.  This again points out the difficulty of reducing the analysis of court-mediated resolutions to any single dimension.  Examining the implementation of the court's decision, as we have done, shows how actors involved in implementing the court's decision re-organize the objectives of judicial decision, thereby re-defining the law.

 

Finally, if conflicts over natural resources are contingent upon heterogeneous factors and if the outcome of conflict is born out of the struggles and negotiations among the actors involved, as we contend, it follows that the development of conflicts and the consequences of resolving them should be treated as emergent phenomena.  Such a conception may allow a more sophisticated analysis of natural resource conflicts and may eventually transform the very way we think about conflicts in a broad range of environmental controversies.