>> We all think we know what government is.
>> How it works and what it does.
>> But what is it really?
What do we mean by "government"?
>> Is it this? >> Or this?
>> Are these people the government? >> Are you?
>> These are just some of the questions we'll
try to answer for you today. >> On Engage.
>> Hi, I'm Zach. >> And my name's Paloma.
People go fishing, not only for what they catch,
but also just to relax. >> Yeah, and everybody likes
a good fish story. But what happens when you're not
allowed to fish, even if it's just to feed your own family?
>> Many years ago, the US government signed
treaties with the Wisconsin Ojibwe tribes, which guaranteed
their rights to hunt, fish and gather on the lands that they sold.
>> As time went by, the state government ignored
these rights, and tribal members were fined or
arrested for simply doing what these treaties had guaranteed.
>> Then, two brothers did some research and decided enough was enough.
They went fishing and ended up with a very big catch.
>> The lifestyle at the time was a hunter gatherer lifestyle.
And the hunter gatherer lifestyle could not be sustained
within just the reservation boundaries themselves.
The Chippewas knew this. And as a part of the negotiation
of the treaty, they reserved the right to continue
hunting, fishing and gathering in the broader territory,
or in the ceded territory. They were rights that existed
in their ownership of that property before they sold it
to the United States. And when they sold it,
or ceded those lands to the United States,
they reserved to themselves that piece of the property
right, to continue to hunt, fish and gather on those lands.
>> That, not only was necessary for day to day
survival when the treaties were signed, but over time,
as Indian reservations generally are enforced in parts
of the state, it was needed in order to continue
to have people survive. And I mean literally survive.
>> For many of the people, it isn't about hunting or fishing
for sport, it's actually hunting and fishing for subsistence.
>> We don't hunt for the purpose of just hunting.
We hunt because we were taught to go out and get
food and bring it home and put it on the table.
>> So, the states are Wisconsin, Michigan and Minnesota.
That's related to conservation departments
that we know as the DNR today. They more or less assumed
that the states had primary jurisdiction there.
>> And just decided that they were going to go ahead and
illegally enforce state laws against tribal members.
That did last for probably 50 to 75 years.
That didn't stop individual Indian people
from exercising their rights. They just developed ways and
means by which to avoid capture, I guess, or avoid citation by the state.
>> We didn't have lawyers. We didn't have money for lawyers.
We didn't have the resources to fight things.
>> My grandma used to get mad at them, because one time
they came into her house and they opened up her refrigerator and they
took all the deer meat out of her refrigerator.
They arrested my dad.
>> Many tribal members were jailed, arrested repeatedly.
Tribal members were shot.
Joe White, a tribal member, was killed by a game warden.
The game warden was acquitted in Rice Lake in court there.
But we always maintained and knew that we had
reserved treaty rights.
The elders have always passed that on.
My grandma always told me that, as well.
>> The Tribble brothers, I think, are a
good example of those folks in the '60s and '70s who decided
that, you know, now is the time to present a legal challenge.
>> We were young guys then.
We had a tribal member named John Anderson, who was
pushing for higher education for Native Americans.
He recruited us to go to school. I picked a college
in Duluth, Minnesota. He introduced an Indian Law course.
And that Indian Law course, the instructor was
Larry Levinthal, an attorney out of Minneapolis.
>> He looked around the audience,
as Larry tells the story, and he said, "How many of you
here are Wisconsin Ojibwe?" And a few raised their hands.
He said, "Gee, it's a shame..." You know, that the Wisconsin
Chippewa tribes haven't taken a stand on this reserved rights
Article in the Treaty of 1937.
>> That said they retained the right to
hunt, fish and gather on ceded territories.
>> We drove back and forth. We would talk about this.
We'd say, how come we have to just hunt on reservations?
Why is it that we can't go off? And here, the treaty
rights give us the right to go off. One day after class,
we caught him in the hallway, Larry Levinthal.
We said, "Hey, Larry, is this what we think this means?
We can go off the reservation to hunt, fish and trap?"
And he said, "Yeah." "But we can't."
"What are we going to do?" He said,
"Well, you have to have a test case." "Oh, yeah?
What's a test case? What do we have to do?"
He said, "Well, you have to go out and get arrested."
So then, we said, "Well, we're going to do the test case.
We're going to do it." Mike and I planned to go out.
It was in the spring of 1974. We were going
to go out and, you know, get arrested.
>> We got arrested on Chief Lake.
And on Chief Lake, there's an imaginary
line that goes down the middle of the lake.
One side is the reservation. The other side is off the res.
>> Every day, when we fished, an airplane flew over.
And we knew that was the state game wardens flying over to
make sure all the fish shacks were inside the boundaries of
the reservation on Chief Lake. So I told Mike, I said, "Well,
we'll wait till they fly over and we'll move a fish shack
over to off the reservation." So, the next morning, after
we moved the fish shack over there, we got up real early
and got out there at dawn. Before we could do
anything, here comes the game wardens across the ice.
I had a copy of the treaty rights in my back pocket.
I took it out and I showed it to him.
I said, "We're not illegal here. We're exercising
our treaty rights. " Well, that didn't matter.
They still gave us a citation. So, we went
to court, got found guilty. We were fined.
The fine was stayed, pending appeal.
>> They brought their case up through all the different levels
of the court, and all the other Wisconsin Chippewa Bands joined in.
>> The District Court originally said the
rights do not exist. The Appeals Court came back
in January, 1983, and said that the District Court was wrong.
They do exist. We affirm the existence of the rights.
>> The state of Wisconsin sought review in
the US Supreme Court. The Supreme Court
refused to hear it. When they declined,
the appellant decision stays in effect.
And the one here is the 7th Circuit saying
this right still exists.
>> When I received the phone call,
I received the first phone
call from the Attorney General's office. It was a shock.
>> None of the other Wisconsin
tribes were paying attention to it.
You know, maybe something good will come of it, maybe not.
>> So, it was a surprise to the agency. It was going to have
a tremendous impact on operations,
and potentially natural resources.
>> So it was like, okay, now that we've won the case,
that these rights are reaffirmed and
they do exist, what do we do next?
>> I recall the tribal leaders scrambling to
study the treaty, and to sit with the attorneys,
and understand what the full impact of this might be.
>> And so, the Appeals Court sent it back down to the
District Court and said, figure out the scope of
the right, and figure out who regulates the right.
>> We didn't know, at that time, if Judge Doyle would be
favorable to us, or if this would be a difficult process.
Clearly, it involved a step-by-step negotiation.
>> One of the challenges that tribal leadership identified
to me was that, you know, how are we going to work with
the state when we don't have any relationship with them.
>> The Secretary at the time asked me to
take the lead in the tribal negotiations.
>> I recall that in those times, our tribal leaders were
angry with the DNR. And the DNR was clearly our enemy.
>> There were a lot of details that needed to be fleshed out.
What were the rights? How would they be exercised and regulated?
In the meantime, the tribes had the right to implement those rights.
>> I come from --, which is known in our
language as Lac du Flambeau. They mean the same.
They mean the Lake of Torches. I believe, back in the 16th
century, when the French Fur Traders came and they seen
my people, the Ojibwe people, out there spearing
by torch light. When treaty rights came about,
we were very aggressive fishermen. And Lac du
Flambeau got a lot of fish during that time.
And it really ticked a lot of people off.
(whistles blaring) (indistinct yelling)
>> What happened on the landings is that individuals
decided that this could not possibly be correct.
Indians needed to be stopped from harvesting fish,
particularly walleye, particularly with spears.
>> As American citizens, we were brought up with
the idea that everyone is equal under the law.
And we had the job of educating people about the fact that there
are other sovereign nations that live amongst us, who in fact,
own this whole country we have, and retain that sovereignty.
So there was a separate set of laws.
And that was protected by the federal law and the US Constitution.
>> The people who were involved representing
the state and representing the tribes sort
of decided to put the images that were being displayed
every spring out of their mind and just follow through on
the task they had before them, which is, how do we decide,
you know, what these harvests are going to be.
They were able to overcome, because they were both in this
sort of baptism of fire, in the creation of this relationship
that they didn't have before.
>> In 1990, a federal judge
ruled that the tribes and non-Indians would equally share
the harvest of resources, which eased some of the tensions
in the north woods. The next year, a study called
Casting Light Upon the Waters revealed that Ojibwe
spear fishing did not harm the resource, and that fish
populations remained healthy. To monitor and protect
the health of fish, and other resources, the Ojibwe tribes
banded together to form the Great Lakes
Indian Fish and Wildlife Commission.
>> It actually operates as the tribes' sort of DNR.
That's how it came to be.
We started out with just your fish biologists, your wildlife
biologists and enforcement. We had wardens here and there.
Bare bones budget. But now, after all these years,
we have sound science. We count and measure,
and sex and age, all the fish that we catch.
We have absolute numbers and the best science
of any resource you can have.
>> The disturbances of northern
Wisconsin are long gone and forgotten.
That's good for the state of Wisconsin.
>> So, things today with the DNR are a lot different
than they were back then. The bottom line is, we're
here for the resource. And once we figured that out,
and partnered up, instead of spending money on
lawyers, you're putting it into the resource.
>> For more information, visit
us on the Web at: ecb.org/engage
>> We all think we know what government is.
>> How it works and what it does.
>> But what is it really?
What do we mean by "government"?
>> Is it this? >> Or this?
>> Are these people the government? >> Are you?
>> These are just some of the questions we'll
try to answer for you today. >> On Engage.
>> Hi, I'm Paloma. >> And my name's Zach.
Places for a judge, a witness, a jury.
Even if you've never been to a courtroom like this
before, it's a pretty familiar sight from movies and TV.
>> Governments need legal systems for interpreting
and enforcing the law. In Wisconsin, there are
hundreds of municipal courts and hundreds of circuit
courts for our 72 counties.
>> But what about the 11 Indian tribes within our state?
As sovereign nations within our borders, which legal systems apply to them?
>> Well, it turns out, they have their own.
>> All rise. >> In recent years, Wisconsin's
Indian tribes have expanded their tribal court systems.
In northern Wisconsin, federal courts ruled that Wisconsin's
Ojibwe tribes retained the right to hunt, fish and gather
on their former lands. The tribes were then faced with the
task of regulating their harvest of natural resources.
>> The federal court ruled that besides having the right to
use or harvest the resource, that the tribes had retained
that part of their sovereignty on those rights to be able to
self-regulate, as sovereign governments, to regulate their
own people when they were exercising their rights. So
there were authorizations for tribal law enforcement
and tribal courts to adjudicate violations.
>> The establishment of courts started as a conservation court, if you will,
enforcing the rules governing hunting, trapping, gathering and fishing.
>> In the development of these conservation courts,
the tribes have expanded their jurisdiction
to include family issues, to include civil dispute issues
on the reservation. These are things that the tribe
never gave up the power to do. They just didn't have
the mechanism to do it. They didn't have the
judicial system. But now that they have them, they can
use it for purposes other than the conservation laws.
>> As the Ojibwe tribal courts grew, Wisconsin's other
tribes also began to expand their court systems.
>> Tribes are starting to do more things on their own.
Tribal courts were in their infancy stage,
and everything was growing, you know, we started
taking on more responsibilities at the same time.
>> One of the things that has been happening over the last
25 years, is that the tribes have had the resources now that they
haven't had for 200 years. And they have the resources now
to develop the institutions within their communities, that
define what a government is.
>> Each tribe that entered into a treaty negotiation
was considered a nation. And since they are a nation,
they develop their own ordinances. So Bad River will
have their own tribal car license, for example.
Lac Courte Oreilles will have their own licence.
Oneida has Oneida Nation. Menomonie Nation.
Ho-Chunk Nation.
>> There are 11 sovereign nations within,
basically, the state of Wisconsin.
So you have actually, 12 sovereign nations to deal
with in such a little, small area
such as the state of Wisconsin.
>> And we're all different, which I think
is something that a lot of individuals
don't really seem to understand. They try to put
tribes underneath a big umbrella of Native Americans.
But when it comes to court systems, we have very different laws.
>> Each one of them have their own system of justice.
And it was set up according to their people.
And each one of them have their own governments.
>> When we talk about working with
tribal courts, we're talking about
working with the tribal courts in these individual sovereign nations.
So we have to have relations with each of those sovereigns,
much like we would with 11 different countries.
>> What we're doing here today is bringing state and
tribal judiciaries together to gain a
better understanding of each other.
And we saw a need to do a more informal approach.
>> I think the philosophy
was to make it a very informal discussion, to just kind
of facilitate the information between the two courts.
>> All of these judges here today come from different counties,
and have different experiences with different tribes.
>> We get to know each other.
There is very little "judge" or "your honor" being used.
It's first name basis, and I think that is really important,
to create that understanding. John, if you can over simplify
this, I'm sending you to Washington!
>> How do you decide these differences in laws?
How do you resolve the problem of when you have two sovereigns?
>> A tribal member comes into a state court
and wants something adjudicated. Well, the state court judges
take a step back and say, wait a second, this is happening
for a tribal member, on tribal lands.
Why is it that I'm exercising jurisdiction?
>> This should be a decision made on a concept of comity.
And that is a legal concept that says that whenever you're
dealing with two sovereigns, that you begin by recognizing
each other as a sovereign. You begin by respecting
each other's laws and cultures that affect the people
of that sovereignty. And then, you're willing to
make decisions that are based more or less on
consensus and agreement of how to share that power.
You have to sit down and talk. And so, the most effective
way to deal with the issues of jurisdiction between state
and tribal courts is for the judges to sit down and to
know each other, get to know each other personally,
to be able to pick up the phone and to be able to call each
other when you have issues that
come where there's conflict between
the jurisdictions, and to have an agreed way of solving that.
>> Judge Anderson holds District court
in Red Cliff once about every six weeks.
>> Every 60 days. That's worked out real well.
Not only is it convenient for the people that live on the
northern tip of the peninsula of Bayfield County to get to the
Red Cliff Court building easier, but it also gives a chance
for Judge Gurnoe and I to sit down and chat about, is there
anything that we need to talk about, are there any
cases that are coming up that we either have a concern
that it needs to get moved from one court to the other.
>> I mostly like to deal in uncontested divorces.
>> Don't we all? >> Don't we all.
But actually, I'm able to use Judge Anderson as the Boogeyman
when people come in. If you've got an uncontested
divorce, I'll be happy to hear that.
If you want to argue about who gets the pot
and who gets the pan, you can take it over
to Judge Anderson. (both laugh)
Which is kind of a dirty trick on you.
>> That's okay.
>> We each share it and have
concurrent laws, and yet, if we pick up a telephone
or if we see each other and talk to each other, I think we
can decide which jurisdiction it's going to be held on,
so that justice to the people can be delivered, and can
be delivered in a fair way. And that's the ultimate goal
of a circuit court judge and any tribal court judge.
The common ground is justice, and justice for all, the state
and the other 11 nations.
>> For more information, visit
us on the Web at: ecb.org/engage