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Aldo Leopold, founder of game management in North America, introduced his land ethic by noting..."When god-like Odysseus returned from the wars in Troy, he hanged all on one rope a dozen slave-girls of his household whom he suspected of misbehavior during his absence. This hanging involved no question of propriety. The girls were property. The disposal of property was then, as now, a matter of expediency, not of right and wrong."1
Treaty fisheries in Wisconsin are also a property right, derived from the principles of English common law and applicable to all citizens of this country. Just as land-holders in the U. S. today can transfer title of their property to others, and still reserve for themselves the water or mineral rights, the Chippewa of the last century reserved their rights to hunt, fish, and gather. In this point, the treaty of 1837 is unambiguous: "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..." Modern courts have also ruled that nothing in the treaties prohibits Indians from using advances in technology. So, Indians can fish from aluminum boats, using quartz-halogen lamps, just as non-Indians use monofilament line, spinning reels and depth sounders.
Acceptance of the tribal fishery by non-Indian society has been hindered not only by misunderstanding the property rights issue, but also by our belief in a number of well-entrenched myths about fish and wildlife management. Treaty rights opponents claim to be concerned about "conservation" of the stocks and that spearing spawning fish jeopardizes perpetuation of the species. What is the difference between killing a fish in July, nine months before it would have spawned, and killing it in April, two days before it would have spawned? We do not apply this taboo against fishing and hunting during the breeding season to salmon or steelhead ascending spawning streams, to deer or moose "in the rut," or to turkeys, where hunters use the reproductive behavior of the animals to enhance their chances of taking game. The critical factor to consider is how many animals will be taken by all methods combined. Conservation of the stocks depends upon keeping the total harvest, Indian and non-Indian, within safe limits.
Anti-treaty factions also complain that spearers "take the big females." Fishery statistics from the past five years show that the size distributions of the Indian and non-Indian catches are similar. Almost all walleye of trophy size are females. Do anti-treaty activists decry the angling harvest of trophy fish?
Since 1974, the Wisconsin Department of Natural Resources fish management plan has defined an "exploitation rate" of 35% of the adult stock as the maximum acceptable level of harvest for walleye. Under this rule, about two-thirds of the spawning walleye would be left alive each year to produce the next generation. The U. S. District Court for Western Wisconsin in 1989 mandated management procedures that would restrict Indian harvest to approximately 12% of the adult fish for lakes where biologists believe they have good estimates of the size of the fish stocks. Where populations are estimated with less certainty the court effectively restricted Indian harvests to levels ranging from 7% to 10%. The fishery is managed by issuing daily permits that clearly specify the maximum number of fish allowed. Every fish is counted and measured and spearers are required to land their catch at specific sites. The spear fishery is one of the most carefully managed fisheries in the country and it poses no threat to the walleye resource in Wisconsin!
The largest Wisconsin Indian harvest of walleye in recent times occurred in 1988 when 25,974 fish were taken by spearing. Contrast this with the non-Indian angling harvest of 672,303 fish. Attempts to manage the fishery by further restricting the Indian harvest would address less than 4% of the catch! The Wisconsin DNR acknowledged in court that exploitation rates in walleye lakes smaller than 500 acres exceeded the 35% guideline in the absence of spear-fishing. Which of these fisheries is in need of restraint, Indian, or non-Indian?
It is fair to question the ability of the State of Wisconsin to effectively regulate its fisheries. In early summer of 1988 the Wisconsin DNR advised the Natural Resources Board that two popular lakes, Trout Lake and Balsam Lake, were nearing the limits of exploitation. The Board reacted with an "emergency order" that was too little too late. The lakes were restricted to catch and release walleye fishing, effective after Labor Day weekend! Even then, large walleyes were not exempt from the restriction. Anglers were allowed each day to keep one fish in excess of 28 inches! Just last week, the Governor announced that bag limits would not be reduced to fewer than three fish per day during the 1990 season. Can this protect the resource when over 85% of successful fishermen take three or fewer walleye?
One positive result of public concern about tribal fisheries has been intensification of management activities on Wisconsin's walleye lakes. Efforts to assess the angling fishery have more than tripled. Fish population estimates are now being made on nearly two dozen lakes per year, in contrast to fewer than half a dozen during the years preceding spearing. The Wisconsin DNR has recommended reductions in non-Indian bag limits on some lakes in an attempt to reduce the impact of angling on the walleye resource. Fish stocking is already a major activity in Wisconsin and the DNR acknowledges that it is not the solution to the growing demand for fish. Limited resources are simply being divided among increasing numbers of people.
For over a century, Wisconsin anglers have enjoyed walleye fishing through the forbearance of the Chippewa Indians. To quote Edmund Burke, "There is, however, a limit at which forbearance ceases to be a virtue."2 In spite of the public outcry resulting from the spear fishery, all users of the resources stand to benefit from recognition of the larger threat posed by the angling fishery. Wisconsin anglers do indeed owe the Chippewa Indians an enormous debt of gratitude.
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1 A Sand County Almanac, 1949. Oxford Univ. Press.
2 Observations on a Publication, 'The present state of the nation' (18th Century).
This essay was written (and not subsequently published) in the spring of 1990, pursuant to the publication of the opinion of the 7th District Court for Western Wisconsin ("the Crabb decision") in the case of Lac Courte Oreilles et al. vs State of Wisconsin.
G. R. Spangler
University of Minnesota
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Date created: October 3, 1997 Last modified: October 3, 1997 Copyright © 1997, George R. Spangler Maintained by: G. SpanglerGRS@fw.umn.edu