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• 1 2021-04-19T17:20:00+00:00 Treaty Rights 1 image_header 2021-04-19T17:20:00+00:00

  Above: Treaty of Traverse des Sioux, 1851. Painting by Frank Blackwell Mayer, 1885, courtesy of Minnesota Historical Society

  In the aftermath of social changes generated by the Civil Rights movement in the United States, Native Americans were able to push more vigorously for redress of their grievances. One of the issues was the states’ violation of the treaty rights of Indians to hunt, fish and gather in the lands they ceded to the U. S. The federal government had not enforced their part of these treaty agreements. Tribes brought suit to reaffirm these rights: Lac Courte Orielles v. Voigt was only one such case. In the LCO v. Voigt case, the federal courts ruled in 1983 that the signatory tribes to the 1837 and 1842 treaties had never ceded the right to hunt, fish and gather on lands in northern Wisconsin, Minnesota, and Michigan.

  Why did the court rule the way it did?

  Excerpts from Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt C.A. Wis., 1983. United States Court of Appeals, Seventh Circuit.

  Actions were brought involving property interests and hunting and fishing rights of Lake Superior Chippewa Indians in northern Wisconsin. James E. Doyle, of the United States District Court for the Western District of Wisconsin, granted defendants’ motion for summary judgment, and the plaintiffs appealed.

  Facts

  The LCO band was one of many bands of Chippewa Indians that lived in areas of northern Wisconsin, the Upper Peninsula of Michigan and northeastern Minnesota. Together with several other bands, the LCO band was referred to as “Lake Superior Chippewas.” The Chippewa [Ojibwa] bands subsisted mainly by hunting, fishing, trapping, harvesting wild rice, making maple sugar, and engaging in various gathering activities. In 1837, Wisconsin Territorial Governor Henry Dodge was authorized to negotiate a treaty with the Chippewas for the purchase of land in northern Wisconsin, just south of the Lake Superior basin. A treaty council was held. According to the notes of the secretary of the council, Commissioner Dodge told the assembled Indian chiefs in July 1837 that the Government wished to buy a portion of their land that was barren of game and not suited for agriculture. The Indians responded that they wanted to be able to continue their gathering and hunting activities on the lands, that they wished annuities [payments] for sixty years, after which their grandchildren could negotiate for themselves. Commissioner Dodge replied, in part: “I will make known to your Great Father [the president], your request to be permitted to make sugar, on the lands; and you will be allowed, during his pleasure, to hunt and fish on them.” Article 5 of the Treaty states: 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. In 1841, Congress appropriated $5,000 for the expenses of negotiating a treaty to extinguish Indian title to lands in Michigan, a portion of which was held by the Chippewa bands. The 1842 treaty included a cession of land north of that ceded in 1837. Article II of the Treaty of 1842 stated: The Indians stipulate for the right of hunting on the ceded territory, with the other usual privileges of occupancy, until required to remove by the President of the United States. The President issued an executive order on February 6, 1850. This Order stated in relevant part: The privileges granted temporarily to the Chippewa Indians by the fifth article of the treaty made with them on the 29 th of July 1837 and by the second article of the treaty with them of October 4 th, 1842, are hereby revoked and all of the said Indians remaining on the lands ceded as aforesaid, are required to remove to their unceded lands. On April 5, 1852, a group of Chiefs went to Washington to see the President. Chief Buffalo beseeched the President and his agents to honor the Treaty of 1842 as the Indians understood it. President Fillmore told the delegation that he would countermand the Removal Order of 1850. The Treaty of LaPointe was concluded September 30, 1854. It provided that the Lake Superior Chippewas living in Minnesota ceded their territory to the United States. These Minnesota bands were granted usufructuary [use] rights on the ceded land pursuant to Article 11. Article 2 specified that the United States agreed to withhold from sale, for the use of the Chippewas, certain described tracts of land. One was set aside for the LCO band. Even after the reservation boundaries were settled, many Chippewa Indians continued to roam throughout the ceded area, engaging in their traditional pursuits.

  The Law

  The Supreme Court has held that Indian treaties must be construed as the Indians understood them. “Treaty-recognized title” is a term that refers to Congressional recognition of a tribe’s right permanently to occupy land. It constitutes a legal interest in the land and, therefore, could be extinguished only upon the payment of compensation. Treaty-recognized rights of use do not necessarily require that the tribe have title to the land. It is perfectly consistent with the basic tenets of property law that one may enjoy a right of use that is limited in duration. The fact that it is so limited makes it no less of a legal right. Abrogation of such rights should not be found without compelling evidence that such an extinguishment was intended. A treaty is essentially a contract between two sovereign powers. If the United States promised a tribe that it would enjoy certain rights either for a specified period or until a specified event or events occurred, those rights were legally enforceable by the Indians.

  Summary of Findings

  Nothing in the record compels the conclusion that the LCO band understood the Treaty of 1854 as abrogating their treaty-recognized usufructuary rights. Similarly, nothing compels the conclusion that the Government intended such an extinguishment. The sequence of events following the attempted removal of the Chippewas in 1850 would logically have confirmed their belief that removal and extinguishment of usufructuary activities could be avoided if they did not harass white settlers. As to the intentions of the Government, the Removal Order of 1850 referred specifically to the extinguishment of usufructuary rights as well as ordering removal of the Chippewas. This suggests that the Government knew the Indians did not understand the exercise of usufructuary rights to be dependent on their permanent occupancy of the land. The rationale employed by Judge Doyle at best supports the implied abrogation of the LCO band’s usufructuary rights pursuant to the 1854 treaty. The extinguishments of treaty-recognized rights by subsequent Congressional act will be found only if it is clear that such a termination was intended. The evidence supporting relinquishment or abrogation in the instant case fails to meet that standard.

  Conclusion

  The LCO band enjoyed treaty-recognized usufructuary [use] rights pursuant to the Treaties of 1837 and 1842. The Removal Order of 1850 did not abrogate those rights because the Order was invalid. These aspects of our holding are consistent with the conclusions reached by Judge Doyle. We disagree with his conclusion that the Treaty of 1854 represented either a release or extinguishment of the LCO’s usufructuary rights. At most, the structure of the treaty and the circumstances surrounding its enactment imply that such an abrogation was intended. Treaty-recognized rights cannot, however, be abrogated by implication. The LCO’s rights to use the ceded lands remain in force. The case is remanded to the district judge with instructions to enter judgment for the LCO band on that aspect of the case and for further consideration as to the permissible scope of State regulation over the LCO’s exercise of their usufructuary rights.

  Listen to an Ojibwa fisherman talk about the struggle for fishing rights

  Fishing Rights. Video courtesy of WDSE-Duluth/Superior, MN, 2002. View transcript

  The state of Wisconsin petitioned the U. S. Supreme Court to review the 1983 Court of Appeals decision, but the court found no grounds to do so. After the 1983 ruling, five other Ojibwa bands in Wisconsin joined the lawsuit and proceeded with the case in the District Court to determine issues relating to regulation. In 1987 Federal Judge Barbara Crabb ruled that the tribes possess the authority to regulate their members and that effective tribal self-regulation precludes state regulation.

  How did perspectives on “heritage” and its relationship to fishing rights differ between many Native and non-Native people?

  Here is one Ojibwa man’s perspective

  Speech of Ojibwa Activist

  I’m eagle clan and I come from Waswaaganing
  what other Indians call Lac du Flambeau,
  a long time ago it was called Waswaaganing
  Waswaaganing literally translates
  “Waswa,” means spearing, spearing with a torch.
  “ganing,” the locator, the place where it happens.
  Waswaaganing, the place where they fish with a torch.
  But spearing has been going on at Lac du Flambeau for many, many
  Hundreds of years, a long time before the non-Indians showed up.

  I’m a teacher at the Lac du Flambeau grade school
  I teach culture. I tell Winaboozhoo stories.
  I do many things that are really not in the school curriculum . . .
  I teach the Ojibwe philosophy; I try to teach the Ojibwe philosophy.
  Respect, love, humility, kindness,
  Through stories, legends.
  I use cedar, tobacco, sage, sweetgrass.
  It’s being done more and more on the reservations now. Because
  What they call
  Neesh-wa-swi’ish-ko-day-kawn’ literally translated means the Seven
  Fires Prophecy.
  It talks about this time, this era that we’re in.

  Before I get into that I want to tell you about the spearing. . . .
  You can’t imagine.
  After a while you’d think you’d get immune to being swore at.
  You’d think you would get immune to being told that you were,
  That you weren’t going to get home that night,
  That you were going to get killed.
  You’d think you’d get immune to being spit on.
  You’d think you’d get immune to being . . . hit with rocks for a right
  That was granted by the Supreme Court of this land, their law.

  What the hell am I doing out here for ten fish?

  (excerpt from the public speech of Nick Hockings. From Larry Nesper, The Walleye War: The Struggle for Ojibwe Spearfishing and Treaty Rights, Lincoln: University of Nebraska Press, 2002, pp. 158-62)

  Why do you think he was willing to risk his life for ten fish?

  Here is the perspective of a non-Indian

  Letters to Editor. “Furious About Hunting, Fishing Ruling.” In Lakeland Times 2/3/1983.

  Dear Governor: I am writing to voice my concern over the recent ruling on an 1854 treaty agreement with the Chippewa Indians. This antiquated law provides them the right to ignore hunting and fishing regulations adopted by the state of Wisconsin. I for one am furious about this miscarriage of justice and want you to be aware of my feelings. To begin with, both you and I were born on this soil and should be entitled to no more or less than the current generations living on reservations. I also feel that if this agreement is to be honored, it must further be stated that the pursuit of game must be conducted using the means at hand at the time of the agreement. In 1854 the cartridge as we know it today was not in existence. This one piece brass case with primer and slug didn’t show up until 1850. Also, vehicles with internal combustion engines must not be used to transport hunter or game to and from the hunting ground. Further, all boats, canoes, bows and arrows must be handmade by the participants. Freezers, refrigerators and any other modern day appliances cannot be used to store any game harvested under the terms of that treaty. I do not feel these provisions are any more ridiculous than this treaty being considered valid in today’s society. Heritage, it’s true, should be preserved for future generations and that is why we celebrate Octoberfest, St. Patrick’s Day and the like, but to include this ancient agreement as part of one’s heritage is stupid, to say the least. I intend to do all in my power to revoke this ruling and I implore you to do the same.

  Do you think he views cultural heritage differently than Nick Hockings? Why do you think he argues that Ojibwa should have to hunt and fish without modern tools?

  While sporadic violence occurred against Indians attempting to fish, responsible parties representing the tribes and the states began to negotiate. In 1990 Judge Crabb ruled that the tribal allocation of treaty resources is a maximum of 50 percent of the resource available for harvest. In 1991 she issued an injunction barring protesters from being near the shores during spearing in northern Wisconsin. Today Minnesota, Wisconsin and Michigan Ojibwa bands negotiate annual fishing limits for Indian spear fishing and angling.

  Why did the issue of regulation generate such conflict?

  Non-Indian Fears

  Excerpts from “Ruling Allows Chippewa Indians Off-Reservation Hunting Anytime.” By Will Maines. In Lakeland Times, 2/3/1983, pp. 2, 5.

  Wholesale slaughter of fish and wild game or a reasonable exercise of treaty rights? Open conflict or meaningful negotiations between Indians, white sportsmen and the Department of Natural Resources? People all over northern Wisconsin are asking those questions and more in the aftermath of a federal court decision last week which affirmed the rights of Chippewa Indians to hunt freely on all lands ceded by treaties of 1837 and 1842. The 2-1 majority decision by three judges sitting in the U. S. Seventh Court of Appeals in Chicago overturned a 1979 decision by Federal Judge James Doyle which said the Indians gave up those rights in a treaty negotiated in 1854. The decisions were based on an action entitled Lac Courte Oreilles Tribe versus Voigt (Lester Voigt, former head of the DNR). The majority decision, while paving the way for Chippewas to hunt and fish in any manner they choose on publicly owned lands, did grant Judge Doyle the right to determine if any restrictions should be placed on those rights if deemed necessary to protect the natural resources. The DNR has begun an appeal of the decision and is seeking an injunction against the Chippewa Indians to prevent them from exercising the treaty rights in question until all appeals are completed. If street talk is any indication, emotions are running at a high level in western Oneida and Vilas counties among white residents who fear a wholesale taking of game, primarily deer at this time. Those directly involved in tourist-related businesses are fearful tourism will be devastated if the ruling is not overturned before spring spawning runs of walleye, muskies and other gamefish begin and Indians harvest thousands of vulnerable fish. Hunters are claiming the local deer herd will be wiped out if tribal members are allowed to continue indiscriminate hunting of deer. Indian leaders are asking for restraint, and one member of the Lac du Flambeau RNR Committee said, “There have been a few deer killed since the decision, but I wouldn’t say a lot. The white community is going to have to recognize our rights in terms of the decision and the DNR is going to have to negotiate with us that understanding. We want to protect the natural resource as much as anyone, and we aren’t going to abuse the resource.” Two points brought up by tribal members at a Lac du Flambeau council meeting were that the tribe should begin looking into asking for redemption of all fine monies paid by members over the years for game law violations on ceded lands and a monetary settlement from the state for all the years it has not recognized treaty rights and prevented Indians from exercising them.

  Subsequently, the tribes have been able to actively promote the improvement of fisheries and support environmental preservation generally, and they have cooperated with the states in a number of environmental projects.

  How are tribes working to protect the environment?

  Studying Fish Populations

  The Wisconsin Department of Natural Resources cooperates with tribes to survey and monitor fisheries. Here a DNR staff member traps, measures, marks, and releases fish. Each spring, these DNR crews study and evaluate the fish populations in Wisconsin waters so that sound policies can be developed. Photo courtesy of Wisconsin Department of Natural Resources.

  Reseeding Wild Rice on Little Traverse Bay Reservation

  Ojibwa tribes and the Great Lakes Indian Fish and Wildlife Commission (an organization of 11 Ojibwa communities that hires biologists to work with other scientists to protect natural resources) work to restore and enhance wild rice in the ceded territories by reseeding rice beds in the fall. Tribal rice chiefs also work with the Wisconsin Department of Natural Resources to set dates for the opening of off-reservation wild ricing. Enhancing rice beds also helps to attract waterfowl. Photo courtesy of Great Lakes Indian Fish and Wildlife Commission (GLIFWC).

  Monitoring the Loon, 2005

  On Lac du Flambeau Reservation, the waterfowl populations are monitored. Students from youth programs help in this effort. Photo courtesy of Great Lakes Indian Fish and Wildlife Commission (GLIFWC).

  Walleye Hatchery, 2006

  Tom Houle tends walleye eggs at the Bad River Hatchery. Many tribes operate hatcheries and stock fish in inland lakes as well as Lake Superior. Eggs are taken from speared fish. The eggs are fertilized, hatched, then the fish are reared and taken back to the lakes from which the eggs were taken. Photo courtesy of Great Lakes Indian Fish and Wildlife Commission (GLIFWC).

  Red Cliff Hatchery

  Greg Fischer displays coaster brook trout, a native species, in one of the hatchery's indoor raceways. Hatcheries produce and stock coaster brook trout. Photo courtesy of Great Lakes Indian Fish and Wildlife Commission (GLIFWC).

  Lake Trout Monitoring, 2006

  The GLIFWC performs annual lake trout assessments in Lake Superior to record size, growth, mortality, and abundance. Several thousand fish are measured each year by biologists. This data is used to determine the allowable catch, a figure that provides the basis for tribal and non-Indian lake trout harvest quotas in waters of the 1842 ceded area. Photo courtesy of Great Lakes Indian Fish and Wildlife Commission (GLIFWC).

  Whitefish Assessment

  GLIFWC staff seine for juvenile whitefish in order to assess the population. The GLIFWC tracks trends in the numbers of fish by stock and determines how particular stocks are affected by fishing. They then make policy recommendations. Photo courtesy of Great Lakes Indian Fish and Wildlife Commission (GLIFWC).

  Rearing Sturgeon

  Since 2002 surveys have been conducted in Manistee River, Michigan, to monitor the sturgeon population. It was discovered that the population was not sizable enough, so the tribe began the first portable streamside rearing facility to rear young fish to a size where they are likely to survive. This project was the result of consultations with elders, who did not want the sturgeon population removed to a hatchery, which is the usual means of rearing fish. The tribe's inland fisheries program is designed to preserve and enhance the tribal fishery while providing subsistence fishing opportunities to members. The program gives special focus to culturally significant fish (associated with clans) and those historically harvested in order to maintain healthy, abundant populations. Photo courtesy of Natural Resources Department, Little River Band of Ottawa Indians.

  Monitoring the Bear Population

  The Natural Resources Department includes in its mission the preservation and enhancement of wildlife resources that members harvest within the 1836 ceded territory. Special attention is given to culturally significant species and those animals that tribal members have historically relied upon. The bear rarely is hunted, but it is a clan symbol with great cultural importance, as the bear spirit helps humans in important ways. Tribal employees gather data on the bear population and habitat to monitor and manage the population so that it is healthy and sustainable. Photo courtesy of Natural Resources Department, Little River Band of Ottawa Indians.

  Monitoring the bobcat population

  The bobcat population and its habitat are being researched in order to develop scientifically-based harvest regulations. In addition to its wildlife projects, the Natural Resources Department monitors air and water quality and restores and monitors watersheds. In addition, they maintain a raptor repository to provide feathers for ceremonial purposes. Photo courtesy of Natural Resources Department, Little River Band of Ottawa Indians.

  Tribal and state fisheries’ biologists use survey data to determine how many fish can be taken by tribes and sports fishermen without endangering fish populations. They set allowable catches for each lake. Tribes declare how many fish and which waters they will harvest, then the harvest is monitored and daily bag limits for sport anglers are announced. Tribes have developed their own hunting and fishing regulations on and off reservations and enforced them as tribal members take fish to feed their families, sell, and use in ceremonies. Through tribal and state cooperative effort, a system has been created that supports both tribal fishing rights and sports fishery, and tribes press the federal government for more stringent air and water quality standards that help maintain healthy fish for consumption by Indian and non-Indian populations alike.

  Listen to George Meyer from the Great Lakes Indian Fish and Wildlife Commission (GLIFWC) Discuss the Effect of Court Rulings on Wildlife and the Environment

  GLIFWC. Video courtesy of Indian Country TV, 2009. View transcript

  Fish rehabilitation projects are not merely about protecting fisheries. They play an important role in cultural revitalization. A good example is the case of sturgeon on the Menominee reservation.

  Learn more about the Menominee Sturgeon Ceremony

  Menominee Sturgeon Ceremony

  When the Menominee settled at the present reservation, they settled at the Falls of the Wolf River, near what is now Keshena, even before the signing of the 1854 Treaty. This was such an important fishing place that the Menominee called it “NAMO’OUSKIWAMUT” or “sturgeon spawning place.” Up to the time that the whites placed dams on the Wolf River, Keshena Falls, on the present reserve was a great resort of these fish in the spring. Here the high water that follows the thaw and rain beats against a mass of rock making a drumming noise. Menominee folklore declares that this is the music of a mystic drum belonging to the Manitou who owns the cataract. They said that when this drum beats, the toads and the frogs begin the watering songs, and this sound calls the sturgeon to the pools and eddies below the cataract. There they formerly spawned and were then speared in large numbers. The Menominee Nation celebrate the return of the sturgeon with a feast and ceremonies . . . . The Department of Natural Resources had agreed to provide the Menominee Nation with ten lake sturgeon for the ceremony and spiritual events. This will be the fourth year that the Menominee Nation has celebrated the return of the sturgeon to their rightful home on the Menominee Indian Reservation. . . . The sturgeon has such historical importance to the Menominee that leaders chose the land for the present reservation partly because of the annual sturgeon migration up the Wolf River. There are now four dams that have been erected which stop the sturgeon at Shawano. The Wisconsin DNR had agreed to supply ten sturgeon which are then placed below Keshena Falls and allowed to swim in the Menominee waters. Prayer, song and offerings are part of the ceremony as this revered totem returns. Tribal members are allowed time to view the pre-historic looking fish before they are prepared. The sturgeon ceremony is only one of several that honor a clan symbol. Sturgeon are speared on Lake Winnebago, with last year recording a record harvest by sport anglers. In Potawatomi Traveling Times, May 11, 1996. The Newberry Library, McNickle Center Tribal Newspaper Collection.

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  Interactive timeline: Explore the history of treaty rights

  

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  Albert (Abe) LeBlanc

  In 1971, LeBlanc was arrested for fishing with a gill net and for fishing without a state license. Standing on treaty rights, his community filed a lawsuit against the state in Michigan state court. Photo courtesy of Great Lakes Indian Fish and Wildlife Commission (GLIFWC).

  Prayer Ceremony

  In December 1998 Tobasonakwut, an Ojibwa spiritual leader from Canada, provided a pipe prayer ceremony outside the United States Supreme Court in Washington D.C. prior to an important hearing about the 1837 Treaty rights. The Supreme Court ruled in favor of the Mille Lacs and other Ojibwas on March 24, 1999. Even though the Ojibwa had won treaty rights cases, Minnesota refused to recognize these decisions, so the Mille Lacs Ojibwa took the case to the Supreme Court. Photo courtesy of Great Lakes Indian Fish and Wildlife Commission (GLIFWC).

  Sturgeon Ceremony, Menominee Reservation

  This photo was taken at the annual sturgeon feast, a traditional thanksgiving ceremony for the return of the sturgeon. Because a dam blocks the sturgeon run today, the tribe and the Department of Natural Resources of the state of Wisconsin cooperate to transport sturgeon over the dam into Wolf River at the site of the tribe’s museum. There is a feast and men participate in the Fish Dance, followed by a powwow for the entire community and guests. Photo by Dale Kakkak, courtesy of College of Menominee Nation.

  Sturgeon Ceremony, Menominee Reservation

  The celebration also honors tribal elders and encourages cultural renaissance. Photo by Dale Kakkak, courtesy of College of Menominee Nation.

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• 1 2021-04-19T17:20:02+00:00 Treaties Present 1 image_header 2021-04-19T17:20:02+00:00

  Above: Erminie Wheeler-Voegelin at the Department of Justice, 1956. Erminie Wheeler-Voegelin Papers (Newberry Library, Ayer Modern MS, Wheeler-Voegelin Box 44, f. 17). View catalog record

  By the late 19th century, Indian political life focused on efforts to get the United States to fulfill treaty promises. Tribes petitioned Congress and the President for investigations of mismanagement of Indian resources and for redress for other treaty violations. Tribes sent delegations of leaders year after year to negotiate and lobby. And, as a last resort, tribes began to bring suit in federal court.

  The U. S. Court of Claims was established in 1855 for citizens to sue the United States. Tribes also sought redress here, but Congress passed legislation in 1863 barring them from this court, even though non-Indians could sue tribes. In 1881 Congress permitted individual tribes to obtain legislation that authorized the filing of a lawsuit. Obtaining an attorney required the permission of the secretary of the interior. This was a difficult process for tribes, and from 1881-1946 the court dismissed most Indian claims on legal technicalities. Practically every tribe filed one or more claims against the federal government.

  For example, after many years of petition and protest, in 1930 the Menominee obtained permission to hire an attorney, and in 1935 Congress passed legislation to allow them to sue in the Court of Claims for the mismanagement of their forest resources. They won their case in 1951, proving that the federal government failed to exercise fiduciary responsibility. Congress passed legislation in 1951 to award the Menominee about eight million dollars, but in 1954 tied that award to the termination of the Menominee’s trust relationship with the federal government.

  Listen to Menominees discussing these events

  Menominee Claim. From Since 1634: In the Wake of Nicolet. Video courtesy of Ootek Productions, 1993. View transcript

  Congress responded to pressure for reform in federal Indian policy by creating the Indian Claims Commission in 1946. This judicial tribunal was authorized to hear and determine Indian claims against the United States. Congress expected that in a short time, the Commission could dispense with Indian claims and relieve Congress of its responsibilities. Claims could be filed for failure to fulfill treaty provisions, obtain consent for land cessions, pay a fair price for land ceded, manage Indian resources and assets in a responsible manner, and, in general, failure to behave in a “fair and honorable” manner in dealings with Indians. Redress could come only in the form of a monetary judgment. Congress had to pass legislation to enable a tribe to collect an award. Claims averaged about 20 years between filing and settlement. A decision could be appealed to the Court of Claims and the Supreme Court. By 1951, 25 cases had been decided, only 2 in tribes’ favor.

  Do you want to learn more about the Indian Claims Commission?

  "Do We or Don't We?" Indianapolis Times, 9/24/1953

  News that Indian land claims would be adjudicated in court precipitated articles like this one that, by intent or not, posed an imagined threat to state residents. This article states that 200 million acres in the Midwest (Ohio, Michigan, Indiana, Illinois, Wisconsin, and Minnesota) were in question and that "the entire state of Indiana is in dispute." Even though the Indian Claims Commission was only able to make monetary judgments, the article inflames the situation by reporting that non-Indians "may have to give Indiana back to the Indians." Nine tribes were filing land claims for treaty violations in Indiana land cession cases. The cartoon ridicules the government for addressing Indian claims. Courtesy of Glenn A. Black Laboratory of Archaeology and the Trustees of Indiana University.

  "Three Cents Enough to Pay Indians?" Fort Wayne Indiana News, 9/23/1953

  This article raises the issue of injustice to Indians, which some Americans, as well as the Commission, were willing to consider. The U. S. paid for land cessions but the amounts paid were far below market value in many cases taken up by the Commission. Anthropologists at Indiana University (as well as scholars from other universities) were hired by the Department of Justice and by the Tribes suing the government to determine what tribe or tribes had exclusive occupancy of lands in question and what the fair value of the land was at the time of the treaties. The article suggests that ten dollars an acre was probably fair value for lands that the U. S. purchased for three cents per acre. In these cases, threats and fraud had been employed to obtain Indian consent. Courtesy of Glenn A. Black Laboratory of Archaeology and the Trustees of Indiana University.

  "U. S. Approves $12 Million to Pay Sioux for Land." New York Times, 8/6/1967

  The Sioux tribes (including the four Dakota communities in Minnesota) sued the U. S. over the price paid for the land they were pressured to cede during 1805-1863. The Dakotas proved fraud in the treaties of Traverse des Sioux and Mendota. The Sioux also proved that they were paid an unconscionably low amount for the lands they ceded and that the government failed to pay even that low amount in its entirety. They were awarded $12.2 million, to be divided among eight Sioux Tribes. The map shows the land in question. Courtesy of Glenn A. Black Laboratory of Archaeology and the Trustees of Indiana University.

  Erminie Wheeler-Voegelin at the Department of Justice, 1956

  Wheeler-Voegelin was one of the scholars who served as an expert witness for the Indian Claims Commission. She was on the faculty at Indiana University where much of the research on Midwest tribes was done under contract from the Department of Justice. The Commission adopted an adversarial approach so that the lawyers for the Department of Justice cross-examined the experts for the tribes and vice versa. The scholars, who viewed their research as an effort to reach an objective assessment, were extremely uncomfortable with this situation. Scholars, such as Wheeler-Voegelin, tried to instruct the court about Indian understandings of land tenure and other subjects. Their efforts informed, to some degree, subsequent rulings because the trust doctrine of the Supreme Court authorized treaties to be construed as the Indians would have understood them and ambiguities resolved in the Indians' favor. The United States, not the tribes, drew up the documents, so treaties should be read in a manner so as to protect the tribes' right to exist and to change with the times. The work of scholars on the claims also invigorated the field of "ethnohistory" as anthropologists combined the documentary record with ethnographic or archaeological field research and historians used anthropological work in combination with their documentary expertise. Wheeler-Voegelin was a key figure in the field of ethnohistory. Erminie Wheeler-Voegelin Papers (Newberry Library, Ayer Modern MS, Wheeler-Voegelin Box 44, f. 17).

  By the 1960s, Congress, influenced by public opinion, which in turn was shaped by Indian activism, was less hostile to the claims process, and the Indian Claims Commission decided cases in favor of the tribes more often than in early years. Tribal plantiffs won 57 percent of the cases filed. Although the Indian Claims Commission suspended activity in 1978, remaining cases were transferred to the Court of Claims and heard into the 1990s. Congress began making judgment awards in the 1960s, but tribes first had to obtain approval of a plan to use these funds, which delayed the awards for years. Per capita payments from these awards generally were small, about $1,000.

  Some Potawatomi communities filed a claim for unconscionable consideration, that is, they argued that the money they received for their several land cessions was below market value. The Pokagons and other Potawatomis in Michigan successfully petitioned the court to join the other plaintiffs. The Commission ruled in the Potawatomi Tribe’s favor in 1972 and 1973, and a monetary award of over $2,000,000 was made in 1974. It took several years for Congress to provide this money. The Pokagons received their share in 1983.

  Listen to John Low discuss what this claim meant to his community, the Pokagon Potawatomi

  John Low on Pokagon claims. Production by Mike Media Group, 2009. View transcript | View at Internet Archive

  In 1966, Congress passed legislation to allow tribes to bring suit in federal court, so tribes could file a wider variety of cases. For example, the Menominees sued the state of Wisconsin in 1962 after the state arrested tribal members for hunting on land assigned to the Menominee by the treaty of 1854. The state claimed that the termination of the Menominee abrogated the hunting and fishing rights guaranteed by treaty. The case went to the Supreme Court, and in 1968 the Court ruled that Menominee hunting and fishing rights survived termination, that is, tribes have an existence independent of any recognition by Congress and hunting and fishing rights are tribal rights. In other cases, Ojibwa communities filed suit to recover their off-reservation hunting and fishing rights.

  Listen to the Ojibwas’ Attorney Marc Slonim discuss the Mille Lacs v. Minnesota case

  Mille Lacs v. Minnesota. Video courtesy of Indian Country TV, 2009. View transcript

  The land claim cases and the associated frustrations spurred Indian activism. Indian organizations, such as the National Congress of American Indians, lobbied for treaty rights, and treaty rights became the rallying cry for the American Indian Movement. A “treaty rights movement” spread throughout Indian country, helping to shape a general cultural renaissance among Indians and bolstering tribal governments’ demand for sovereignty.

  Read an article in a tribal newspaper on how the Sault Saint Marie Ojibwas insisted on their exemption from the state’s motor fuel and cigarette taxes

  "Tribes close agreements over fishing and taxes," The Sault Tribe News, July 31, 2000

  How do Indian communities support the treaty rights movement?

  Eva Conner, St. Croix Ojibwa, running with the treaty staff in central Wisconsin en route to Washington D.C., 1998

  The Ojibwas had organized a number of culturally significant events in connection with the Mille Lacs v. Minnesota hunting-fishing rights case to be heard at the Supreme Court. The run with the staff energized Ojibwas throughout Minnesota and Wisconsin and elsewhere and lent a religious element to the struggle for treaty rights. Photo courtesy of Charlie Otto Rasmussen.

  Mille Lacs elder Jim Clark speaks to the crowd at the "talking circle" in Washington D.C. prior to the Supreme Court hearing in 1998

  Orations such as this one helped to mobilize support among Ojibwas and educate Ojibwas about their history and culture. Photo courtesy of Charlie Otto Rasmussen.

  At the International Indian Treaty Council, 1981

  Indigenous peoples began to share ideas and extend mutual support for aboriginal rights during the 1970s and 1980s. This council was held on White Earth reservation in Minnesota. In this photo, young people are shown with a drum that reads "International Indian Treaty Council." The drum was used as a means of transmitting prayer and as a way to unify people and restore health. The treaty rights movement motivated many young Indians to become involved in tribal politics and tribal government. Photo courtesy of Randy Croce.

  Vernon Bellecourt at the International Indian Treaty Council, 1981

  Vernon Bellecourt is seated at the table. He was an important founder and leader of the American Indian Movement. Bellecourt, an Ojibwa, was from the White Earth community. Photo courtesy of Randy Croce.

  Listen to Patty Loew, an Ojibwa journalist and activist, discuss the effects of the treaty rights movement

  Treaty Rights Movement. Video courtesy of Indian Country TV, 2009. View transcript

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  Ottawa Delegation to Washington, 1900

  During the late 19th century, Ottawa complaints about treaty violations were ignored by the U. S. Their villages in northern Michigan were in danger of being overrun by American settlers. One of the Ottawa leaders from the Harbor Springs area, Simon Keshigobenese, bought the land there to preserve it for Ottawas (Odawas). By 1900 Ottawa leaders had discovered that the U.S. had ignored the 1855 treaty obligation to invest some of the money paid to the Ottawas for a land cession. Keshigobenese and two other leaders, John Miscogon (standing) and John Kewaygeshik (on the right) went to Washington in 1900 to present the tribe’s grievances. Obtaining no satisfaction, the tribe obtained an attorney and in 1905 sued in the Court of Claims. They won the case and the accomplishment of Keshigobenese and the other leaders was a source of inspiration for future Ottawa leaders. Photo courtesy of National Anthropological Archives, Smithsonian Institution (NAA INV0613000/OPPS NEG 00466B).

  Ojibwas at the Supreme Court, 1998

  Prior to 1999, the Ojibwas had won fishing rights cases based on the 1837 treaty, but Minnesota refused to recognize these decisions, so the Mille Lacs Ojibwa took the case to the Supreme Court, which ruled in their favor on March 24, 1999. On December 1998, prior to the hearing, Ojibwa people from many reservations held a prayer ceremony outside the Court. Tobasonakwut, an Ojibwa spiritual leader from Canada, is shown here leading the pipe prayer ceremony. Photo courtesy of Great Lakes Indian Fish and Wildlife Commission (GLIFWC)

  Lawsuit against the U. S. for Financial Mismanagement

  In 1996, the Native American Rights Fund brought suit against the Department of the Interior on behalf of about 500,000 Indians, including people from the Midwest. At issue was the Department’s management of the income from allotments (largely lease and royalty income). NARF argued that the Department mismanaged and did not properly account for the money in the individual accounts. The income from allotments is collected and managed by the federal government, as trustee. This lawsuit initially was started by an Indian woman from the Blackfeet tribe in Montana, then became a class action suit. The federal district court in Washington DC ruled on behalf of the Indian plaintiffs and the judge ordered the Department to take corrective measures. In 2002, the judge held federal officials, including Secretary of the Interior Gale Norton and Assistant Secretary for Indian Affairs Neal McCaleb (Chickasaw) (shown in the photo) in contempt for not complying in good faith. Norton and McCaleb are shown above at a hearing on Indian trust accounts, held before the House Committee on Resources, February 6, 2002. In the background is Blackfeet Tribal Business Council member James St. Goddard. On December 21, 2010, the United States District Court for the District of Columbia granted preliminary approval to the Settlement. On December 8, 2010, President Obama signed legislation approving the Settlement and authorizing $3.4 billion in funds. Photo by Bill Clark, courtesy of Scripps Howard News Service.

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