Rez Life: An Indian's Journey Through Reservation Life (12 page)

The sad thing is that in this argument neither side understands what a treaty is and how treaty rights work. Indians aren’t “allowed” to hunt or fish. It isn’t a matter of “permission.” To cast treaty rights as “special rights” is to suggest that they are in some sense an expression of pity or a payment for wrongs done or a welfare system for Stone Age people. But treaty rights were not “given” to Indian people because of past cruel treatment or because of special racial status. Nor were treaty rights “given” to Indians in exchange for land, as the Indian poster claimed.

Rather, when Indian bands signed treaties (and no new treaties have been signed since the end of the treaty period in the 1870s), they
reserved
land, which became reservations, and they
reserved
rights. Treaty rights are rights that the Indians who signed treaties always had, rights they explicitly reserved when they signed their treaties. In addition to rights specifically reserved in the treaties (such as those
for hunting and fishing in the 1837 treaty signed by Mille Lacs) there is an understanding that rights not explicitly given up are still reserved, though this is implied more so than stated. A tribal lawyer I know had this to say: “It’s just like when you enter into a contract with someone to, say, mow their lawn. You are exchanging your time and labor for money. You reserve all your other rights, unless explicitly stated otherwise. So, you agree to mow the lawn and you reserve the right to, say, not get fucked up the ass. Just because you didn’t specify, when you agreed to mow someone’s lawn in exchange for twenty dollars, that you didn’t want to be fucked up the ass doesn’t mean that you implied or understood that you gave up the right not to get fucked up the ass. It’s assumed—that’s what ‘other rights reserved’ means.” A good example, that. The long and short of it (as Sean might say) is that the government doesn’t “give” rights to anyone—Indian or other. Americans enjoy rights under the Constitution and in particular under the Bill of Rights that are not “granted” by Congress, the president, or
the government.

It has been argued that the U.S. government entered into treaties with Indian tribes because it didn’t imagine that the tribes would be around much longer. The government assumed that Indians would either be dead or be totally assimilated in the very near future. Just as the Indians who signed the treaties couldn’t foresee the full impact of their decisions, neither could the U.S. government. The United States was mainly after three things: timber, farmland, and settlement. The idea never occurred to the government that fishing with rods and lures for a small inland species, which wasn’t nearly as nourishing or tasty as saltwater staples such as cod, would someday generate billions of dollars in revenue. This was nothing like the future it imagined for the heartland: grain, timber, towns, mines.

Most tribal treaty rights in the United States involve hunting, fishing, gathering, water rights, and travel. That is, most tribes were anxious to have explicit language protecting the rights that affected their daily survival—their search for food and shelter and their religious purposes. In most cases treaty rights like hunting and fishing become complicated because, by and large, each state has its own hunting and fishing laws that control bag limits, harvest methods, and seasons. This is not something the federal government controls unless a species in question is protected, or, like waterfowl and salmon, crosses state lines in an annual migration. So, as with gaming, an agreement reached between sovereign nations becomes complicated on the level of local and state government.

Take, for instance, the Puyallup Indians who live near Tacoma, Washington, on Commencement Bay. They had been fighting for their treaty rights since the 1950s, long before the Tribbles stabbed some fish on Chief Lake in Wisconsin in 1974. They were routinely arrested and beaten up by game wardens, sheriffs’ deputies, and city cops. Children were arrested along with adult protesters. Boats were rammed and fishermen and -women fell in the water. The local and state newspapers refused to run ads paid for by the tribe explaining their situation. Television stations refused to broadcast any story on the issue. The whole media apparatus of the state of Washington shut them out. Salmon were already on the decline, and salmon brought in a lot of tourist dollars and were commercially fished by many outfits in Washington state. The Puyallup’s claims could jeopardize all of that. But then, in 1964,
Marlon Brando accepted an invitation from the tribe to help publicize their plight. And in the spring of 1964 the portly actor and a local Indian shoved off from shore in a small skiff. They managed to catch one small salmon. But one was enough. They were both thrown into jail. The Indian was charged. Brando was not. Still, the action had its effect: the world began paying attention to tribal treaty rights. The Puyallup won their case in court a decade later. “Marlon Brando was the first person of non-color to step forward to help us,” remembered SuZan Satiacum on the evening of Brando’s death. “Marlon Brando was ahead of his time.”

It is easy to see why non-Native outdoorsmen care about treaty rights: they think these impinge on their own rights to hunt and fish. Treaty rights create special limits, harvest methods, and seasons for Indians that seem unfair to non-Indians. And it is easy to see why those who serve the sportsmen, those who are involved in the $11 billion tourism industry in Minnesota, care as well. Every boat, motor, trailer, gas station, restaurant, campground, motel, RV park, and grocery store up and down this food chain is affected by rises and drops in tourism, and every time there is a rise or drop in tourism most people in the industry see a walleye in the calculations. The same goes for other species of fish and game that Indian tribes are allowed to catch exclusively or with much greater ease than non-Natives.

But part of the antipathy toward treaty rights might not have anything to do with industry. Many of the protesters at boat landings in Wisconsin and those who belonged to anti-treaty organizations in Minnesota were, like their Indian neighbors, relatively poor. Also like their Indian neighbors, they are not making money off the fish (Mille Lacs Band members are prohibited from selling their walleye on the market). Most of them seem to be upset by what they see as “special rights” or unfair (and hence, in their words, un-American) advantages. However, what they don’t understand about treaty rights related to fishing extends equally to what they don’t understand about their own rights. Contrary to what anti-treaty groups believe, non-Natives don’t have the right to fish and hunt. They do have, presumably, the right to life, liberty, and the pursuit of happiness. They have a right to an attorney. They have the right to remain silent. Fishing and hunting, however, are
privileges
. These are privileges for which they must pay. In most cases they pay in the form of hunting and fishing licenses, state duck stamps, and the like. And if they are convicted of a felony those privileges are taken away, sometimes permanently.

In one of the ironies attending the issue of treaty rights, anti-treaty groups (some of whose proud constituents belong to the John Birch Society and Posse Comitatus) have made the claim that they are following the teachings of Martin Luther King Jr. when they protest against the “special privileges” given to Indians—and that they are doing their best to give “equal rights to whites” throughout the Midwest. Their most strident claim is that Indian fishing methods—with spears and nets—are tantamount to raping the land. This is a fairly odd claim, given the history of the previous 500 years. It is also especially odd given the fishing statistics in contested waters. For instance, in Mille Lacs the yearly quota for netting and spearing in 2010 was about 13,500 pounds. Initially, in 1997 the quota was set at 40,000 pounds annually and was intended to move upward until it reached 50 percent of the catchable stock. In contrast, the annual reported take of sport fishermen on Mille Lacs is about 1 million pounds. Steve Smith, a water quality expert in Minnesota, maintains that it is impossible to take 1 million pounds of fish from any lake annually and still have a healthy fish population. Those who fish and practice “catch and release” are also part of the problem; statistics from the Minnesota Department of Natural Resources suggest that one-third of all fish caught and released in shallow warm-water lakes such as Mille Lacs die. But the claim is made anyway—that Indians are raping the land.
The claim was echoed by Jesse “The Body” Ventura when he was governor of Minnesota and was asked about the suit filed by the Mille Lacs Band in 1990. He responded, “If those rules apply then they ought to be back in birch-bark canoes instead of with 200-horsepower Yamaha engines with fish finders.” He went on to say (showing that he had no knowledge of how treaty rights work) that he also had a “natural heritage” giving him special rights. “My heritage as a frogman is DuPont fishing. I would question why I can’t DuPont fish,” he said, referring to the method employed by the navy S
eal
s of throwing a grenade into the water and collecting the stunned fish. It’s strange logic. If every agreement between governments locked the signers into the technology in use at the time of the treaty we would be living in fairly backward conditions. But I think it is safe to say that many Ojibwe would go back to using wooden spears and birch bark canoes if non-Natives simply fished with cane poles from shore, with bits of pork rind on the end of their hooks, only as far west as the Ohio River.

In a very strange turn of events, the white supremacists who chanted “Timber Niggers!” and “Indians go home” at boat landings are on the same side as many environmentalists regarding treaty rights. The Makah Indians from Neah Bay, perhaps the remotest point in the lower forty-eight states, are in such a bind. When the gray whale was taken off the endangered species list and was, in fact, once again thriving, the Makah planned to continue their ancient practice of whale hunting, not really for sustenance as much as for cultural and spiritual reasons. In 1998 the annual Makah Days celebration was approaching a showdown with environmental groups. Their police force of five officers, usually sufficient security when the tribe held a picnic, canoe races, or a small powwow, was deemed insufficient as the Sea Shepherd Society began to assemble a fleet to blockade the Makah’s first ceremonial whale hunt in generations. Some estimates suggested that 20,000 protesters would show up to stop the Makah.
As it turned out, the gray whale migration was late and no whale was harvested. By the time the Makah killed a whale in 1999 the protesters were deterred by the Coast Guard, which detained their boats if they approached within 500 yards of the Makah whaling canoe. Protesters did succeed in stopping the whale hunt in 2000 by driving skiffs close enough to spook the whale into diving. The Makah whale hunt is still hotly disputed today.

As the Makah show, Indians as well as whites care about treaty rights in a way that extends beyond economics, though treaty rights saw many Indians through the dark years of the twentieth century. For instance, at Mille Lacs, with two successful casinos, an expanding land base, and well-funded infrastructure (largely because of the casinos) the Indians care deeply about their right to fish even though it doesn’t bring them any money. Fishing is, as with the Makah, a part of their heritage and identity, not just an issue of economics or class. The same is true at the other end of the spectrum: when the state of Wisconsin offered to settle with the Lac du Flambeau Band of Ojibwe in Wisconsin in the 1980s, the offer was refused. Flambeau was then and is now incredibly poor. And the offer was a good one. If we do the math (the amount offered versus the number of fish speared in a year by Flambeau members), the settlement would come out to about $3,000 per fish speared. At the time no more than 13 percent of Flambeau tribal members speared fish, and of those who speared most spent only one or two nights doing it and usually harvested no more than two dozen fish per family. The tribe put the issue to referendum. The members, as noted above, rejected the state’s offer.

“Look at it this way,” offers Sean. “When a white person dies the children inherit whatever their parent left them. Money. Houses. Investments and retirement money the parent didn’t get a chance to spend. Well, they didn’t earn that, did they? I mean, their parent earned that. Well, our treaty rights are like that. Our grandparents and great-grandparents worked to keep our land and our rights and we get to benefit from that. That’s just how it works. If Chief Migizi or Shabashkung or whoever had called it quits and moved to White Earth we wouldn’t even have a rez. But they stuck it out. They stayed when the world was against them. And because of that we have casinos and our fishing rights and our communities and our ceremonies. It’s our inheritance. Why isn’t that fair?”

2

We’re done with the nets for the day. They were pulled, stripped, and reset. The fish were filleted, packaged, and frozen. Another good day. Everyone went back to sleep for a few hours and now it’s mid-afternoon and Marc and Mike are standing in the middle of the narrow dirt trail we’ve been walking along.

“Is it or isn’t it?” asks Marc.

“I think it is. I can definitely see that little bastard moving.”

They crane their necks and squint against the sun. They’re watching a black speck move back and forth 400 yards up the road. Marc, Mike, and Sean have traded their slickers for camouflage, their nets for shotguns, the tubs of fish for decoys. They are hunting turkeys in the very first reservation turkey season. Turkeys, once nearly extinct in Minnesota and Wisconsin, have made a dramatic comeback in the last twenty years, thanks to the efforts of conservation groups across the country. The road we’re on runs through the middle of land recently purchased by the Mille Lacs Band—3,600 acres of swamp and scrub reserved exclusively for tribal members as a hunting preserve. They call it “the 3600.” Mille Lacs and most other landowning reservations can set their own hunting seasons and limits for the game on their land. They can also control access. Some tribes sell hunting or fishing permits to non–band members. Mille Lacs doesn’t.