Amelia Schafer
ICT
In an effort to protect dwindling walleye and muskellunge, or “musky,” populations, the Wasswaaganing Anishinaabeg, or Lac Du Flambeau Band of Ojibwe, in the Wisconsin Northwoods elected to restrict fishing starting April 16 in the 19 lakes on its tribal lands to tribal members only. By the end of April, the state of Wisconsin filed a lawsuit that claims the tribe is violating its own treaty and on May 1, the United States District Court of Western Wisconsin issued a temporary restraining order against the tribe.
As a result of the restraining order, the tribe will lift its ban on non-tribal members fishing for walleye and musky on reservation lakes. Wisconsin’s walleye and musky fishing season begins May 2.
The tribe is preparing for a full hearing on the matter before the court on May 29.
The state claims the tribe does not have authority to restrict fishing rights on its lands and cites public safety concerns that could occur as a result of doing so. It also claims the tribe’s restrictions violate the Treaty of 1854.
“The 1854 Treaty did not grant the Chippewa Indians, including the Band, any authority to regulate fishing by non-Indians in Wisconsin’s navigable waters, including those State waters located within the boundaries of the Band’s reservation,” the lawsuit says. “The Band’s Resolutions … violate the limited powers granted to the Chippewa under the 1854 Treaty, as interpreted by this Court and the Seventh Circuit in Baker.”
But the resolution doesn’t ban non-Native people from fishing, said Araia Breedlove, Waaswaaganing Anishinaabe and the public relations director for the tribe. The resolution simply prohibits non-tribal members from harvesting the fish, she said.
If a non-tribal member accidentally catches a walleye or musky, they won’t be charged with a crime, they just need to put it back. The resolution doesn’t restrict catch-and-release fishing, it’s just an attempt to help protect the culturally important animals from over-harvesting and poaching, and it’s specifically targeted at the practice of sport fishing, Breedlove said.
Wisconsin’s fishing season begins May 2.
Walleye, or Ogaa, and musky, or Maashkinoozhe, are immensely important to Anishinaabe people, who have safely harvested them since time immemorial.
“A lot of people are frustrated, but I need to emphasize this is not a political statement. It’s not us versus them,” Breedlove said. “This is all about conservation. We completely encourage non-tribal members and tribal members alike to still go fishing. We’re asking fishermen to not at all target walleye and musky.”
All of the reservation’s lakes are stocked by the tribe’s own hatchery, for which the tribe does not receive state assistance, Breedlove said.
“All of our resources are manned by us,” she said. “It is frustrating, having this litigation, because we know what we’re doing and we know how to take care of these lakes better than anyone else.”
On April 16, the tribe announced its council had passed a resolution limiting walleye and musky fishing to just tribal citizens. It also announced forward-facing sonar would be banned, saying the practice contributes to over-harvesting. Forward-facing sonar allows anglers to see moving images of fish up to 100 feet ahead of their boat.
The council made the decision after hearing from the tribe’s fish hatchery manager, Breedlove said.
The decision was met with controversy, she said, as the lakes hadn’t been closed entirely. However, if tribal members were not allowed access to the lakes, it would result in a direct breach of treaty obligated fishing rights provided to Ojibwe people, she said.
Two state representatives, Wisconsin Department of Natural Resources Secretary Karen Hyun and Secretary’s Director James Yach, met with tribal officials on April 27 to request the resolution be rescinded. State representatives said Gov. Tony Ivers feared threats to public safety as a result of the resolution, Breedlove said.
“My obligation and my commitment to the Tribal Nations in Wisconsin remains the same,” Ivers said in a statement emailed to ICT. “I have deep respect and appreciation for Tribal sovereignty, Tribal leaders and elected officials, and the government-to-government relationships we share, and I will always be a governor who supports self-governance and the rights of the Nations to make decisions for their citizens.”
Ivers said he remains committed to working with tribal nations, but must also continue to advocate for all Wisconsin residents regardless of whether they are a tribal citizen or not. He said his administration spent weeks attempting to get more information from the tribe, including insight into how the decision would be implemented, but ultimately did not come to an agreement.
“Unfortunately, the lack of communication and transparency about this decision, coupled with outstanding safety concerns caused by generations of tension and violence that have surrounded Tribal rights and fishing on these lands for centuries, has the potential to unnecessarily sow division, stoke tension, and further entrench animosity between neighbors where it need not and should not exist,” the statement said. “This has left the state no other choice but to intervene and take additional legal steps.”
Breedlove said it wasn’t clear how the tribe’s decision was a threat to public safety.
The area, along with much of Wisconsin’s Northwoods, was the site of the Walleye Wars in the 1980s and 1990s in which non-Native residents protested, often violently, laws that allowed Ojibwe fishermen to practice spearfishing but prohibited non-Native people from doing so. Spearfishing is a traditional Indigenous fishing practice in which fishers, guided by torches, spear fish from the water at night.
The state’s lawsuit seemingly alludes to this history, citing concerns of confrontation between Wisconsin-licensed anglers, tribal law enforcement, and members of the public, both tribal and non-tribal.
“For example, many Wisconsin anglers are aware of Wisconsin’s anti-harassment law for hunters, anglers, and trappers, Wis. Stat. § 29.083,” the lawsuit says. “That law prohibits “[i]mpeding or obstructing a person who is engaged in lawful hunting, fishing or trapping.”
That law was created as a result of the racism and violent behavior Ojibwe fishermen experienced during the Walleye Wars.
According to the lawsuit, the state of Wisconsin argues that the U.S. Supreme Court decision in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin, often referred to as the “Voight case,” affirmed that the state, not tribes, has exclusive sovereignty over navigable waters within the boundaries of reservations within lands designated in the Treaty of 1854.
Because of this ruling, the state is arguing that the tribe cannot exclude non-tribal citizens from fishing on lakes within its reservation.
However, according to the band’s Tribal Conservation Code, the council does have the authority to protect and preserve tribal property, including wildlife and natural resources, in an effort to protect the health, security and general welfare of the tribe.
Additionally, the tribe restricted fishing in a similar manner in 2022 but only to one lake, Flambeau Lake. As a result, the walleye and musky populations increased tremendously, Breedlove said, and the state never voiced any concern about the measure. The state lawsuit claims the fish population was already on the rise prior to the tribe’s 2022 resolution.
“We still encourage anyone and everyone to still come up here and fish,” Breedlove said. “We have to take care of our resources.”
The ban will continue indefinitely, Breedlove said, until tribal fish hatchery officials indicate the population levels have stabilized.
“We’re hoping the litigation process will go in our favor so we don’t have to worry about back tracking on this issue,” she said.