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Wisconsin Natural Resources magazine

Wisconsin Natural Resources magazine

© Robert Queen
DNR fisheries crews trap, measure, mark and release fish each spring to learn more about fish populations on northern Wisconsin waters.

© Robert Queen

August 2005

A generation of shared rights and shared responsibilities

Two decades after treaty fishing rights were reaffirmed, resource managers have more knowledge and stronger working relationships to share a harvest and sustain northern Wisconsin fisheries.

Lisa Gaumnitz and
David L. Sperling


Modern fish spearing off-reservation has continued for 20 years
How the harvest is managed
A track record of sustaining a fishery | Shortcomings in the system
Benefits of the treaty monitoring system | Benefits beyond regulations

Each spring as the ice melts on northern Wisconsin waters, anglers start getting ready for the fishing season by pulling their boats out of sheds, lubing their fishing reels and checking their trailer lights. At the same time members of Wisconsin's six Ojibwe tribes get ready for a traditional harvest that resumed in 1985 – off-reservation spearfishing of walleyes that gather in shallow spawning areas.

As in past years, fisheries biologists using models and up-to-date survey data determine how many walleyes can be safely taken without endangering fish populations. Tribes declare how many fish and which waters they will harvest. Creel clerks measure and monitor the take. Following the harvest, daily bag limits for sport anglers are adjusted and announced through newspapers, websites and posting at boat launches.

In the 22 years since the courts reaffirmed the Ojibwe's rights to spearfish off-reservation, as they had continuously done on their reservations, the tribes and Wisconsin Department of Natural Resources have built a stronger working relationship and learned a lot about the fisheries. Wisconsin communities have reached a peace in sharing the harvest. And while it's not a perfect arrangement, there's more fisheries work done on a wider area, fish populations are still stable, fisheries biologists know a lot more about the fisheries they manage, and some interesting projects have developed as a consequence of the need to collectively manage northern Wisconsin fisheries.

Modern fish spearing off-reservation has continued for 20 years

The landmark 1983 "Voigt decision" by the Seventh Circuit Court of Appeals determined that the Ojibwe had retained rights to hunt, fish and gather wild rice on lands they ceded to the federal government in treaties signed in 1837 and 1842.

The treaties functioned like a real estate transaction, says Charlie Rasmussen, Great Lakes Indian Fish and Wildlife Commission (GLIFWC) writer and historian. The federal government gained portions or all of what are now 30 northern Wisconsin counties, and the tribes retained rights to hunt, fish and gather on the lands, similar to when land is sold and the landowner retains mining rights.

The decision brought relief and happiness for Red Cliff tribal member Mark Duffy. He grew up listening to elders' stories of trying to evade detection, or getting arrested while fishing or hunting off-reservation.

"Suddenly, something tribal members had to do sneakily, behind the backs of the wardens to feed their family and keep up their tradition was legal for them to do," he said.

Tribal members started off-reservation spearfishing again in 1985 under interim rules negotiated by the tribes, DNR and GLIFWC, which the tribes created in 1984 to coordinate and implement the treaty rights.

Negotiations continued to create a permanent system that provides for tribal fishing rights and a sport fishery while maintaining fish populations.

"It became apparent early on that somebody was going to have to set total allowable catches for each lake, and the only way to realistically do that was to make some kind of population estimate," says Mike Staggs, DNR's fisheries director. "Likewise, we knew we'd have to have much more accurate accounting of both the treaty harvest and the sport harvest, so we'd have to upgrade our creel surveys."

At the time, Staggs was a systems ecologist for DNR's Bureau of Fisheries Management, and was assigned, along with Mike Hansen, now a University of Wisconsin-Stevens Point fisheries professor, to DNR's treaty fisheries team.

Staggs spent the better part of a year developing the population surveys for walleye, and determining annual angler fish harvest. After culling through past population estimates and creel surveys, he found that anglers caught an average of 955,900 walleye annually and kept 672,303, or 70 percent. He found that the total annual harvest came mainly from a relatively small number of successful anglers – seven percent – who each caught one or two fish, rather than a few anglers catching a large number of fish per trip.

Hansen developed a model that could be used to set the harvest quotas for walleye.

Meanwhile, the tribes and GLIFWC were developing their own population estimates, methodologies and regulations. Each tribe regulates fishing on its own reservation under its own codes, and regulates tribal members fishing off-reservation.

While the tribes and DNR staff were able to negotiate many aspects of the systems, the courts settled some contentious and critical issues.

On May 9, 1990, Judge Barbara Crabb ruled that the tribes would be entitled to a maximum of half of the fisheries resource available for harvest. She also ruled that the total number of walleye harvested by Ojibwe spearers and sport anglers combined should not exceed 35 percent of the adult walleye population on more than one in 40 waters in any given year, to avoid the risk of overharvest.

"Nobody got everything they wanted," Staggs says of the system. "Sport anglers had to give up some of their harvest. Tribal folks got tighter regulations than they wanted. But she crafted a brilliant decision, particularly for not being a fisheries person, and it has stood the test of time."

How the harvest is managed

Under the system Judge Crabb crafted, DNR and GLIFWC biologists set the number of walleye that can safely be harvested from each lake by the combination of tribal spearers and sport anglers. The tribes declare which lakes they want to spear, and what proportion of the safe harvest they plan to harvest. The six tribes work together through an intertribal task force to coordinate their declarations. DNR fisheries biologists use the tribal declarations to determine daily bag limits for sport anglers on those particular lakes. The tribes' declaration, and the corresponding daily sport bag limits are announced in April. Daily bag limits for sport anglers are increased later that summer, usually before Memorial Day, if the tribes have harvested fewer fish than they declared.

Each spearer is required to get a permit that day for the lake he or she intends to spear that night. The number of permits issued is limited by the remaining quota. Creel crews hired by GLIFWC count and measure each spearer's harvest as the spearers come ashore for the night.

Though Ojibwe can exercise their treaty rights to fish off the reservation throughout the year, they harvest almost all walleye during the spring spawning season. Adult fish are easiest to spear shortly after the ice melts when waters start to warm and walleye congregate in shallow water. On average, the combined tribal spearing harvest by 300-400 Ojibwe who participate is 25,000-30,000 walleye a year. Since 1990, Wisconsin's 1.4 million licensed sport anglers have harvested an average of 274,000 walleye per year. The tribal harvest is spread over the 144 lakes the tribes spear on average each year; the angler harvest is spread over the 859 classified walleye lakes in the ceded territory. On a lake-by-lake basis, the proportion of walleyes harvested by anglers and by tribal spearers is similar.

A track record of sustaining a fishery

"The system is doing what it was intended to do," Staggs said. "It allows for a tribal harvest that meets tribal needs and for a sport fishery – and it has a track record of generally protecting the walleye and musky populations."

A 1991 joint study by DNR, the U.S. Fish and Wildlife Service, GLIFWC and the tribes found as much. Concern over violence in the early years of treaty fishing spurred Congress to pass a special appropriation to fund the joint assessment. The resulting report, "Casting Light Upon the Waters: A Joint Fishery Assessment of the Wisconsin Ceded Territory," concluded: "People concerned about the fishery resource of northern Wisconsin can be confident that it is being carefully studied and is protected. Chippewa spearing has not harmed the resource. Fish populations in the ceded territory are healthy."

A UW-Madison study a decade later found that walleye populations on 859 walleye lakes were well within the ranges biologists consider healthy.

Shortcomings in the system

Staggs and other DNR fisheries folks are quick to note, however, that the system isn't perfect, and the Department of Natural Resources and the tribes don't always agree on a management approach.

For instance, DNR manages musky as a trophy species, setting lower harvest limits and higher minimum sizes to allow fish to reach trophy status. The agency has some concerns about both tribal and angler harvest of big fish on specific waters in the ceded territory.

Over the next few years, DNR's treaty fisheries team will be re-evaluating its musky management in the ceded territory, similar to the re-evaluation recently completed for walleye.

For their part, the tribes still express a need for more muskies to feed their families and use during ceremonies, said Mic Isham, GLIFWC Board of Commissioners chair and Lac Courte Oreilles member.

The recent joint walleye recovery project on Kentuck Lake is emblematic of the sometimes rocky, but worthwhile relationship between the two agencies. The 957-acre Vilas County lake experienced a still unexplained series of walleye year class failures that began in 1988. GLIFWC and the tribes were convinced that remedial actions should be undertaken. In 1997 they presented the DNR with a walleye rehabilitation plan.

"The initial DNR response to this plan was not favorable," said Isham. "But after two years of debate and discussion, GLIFWC, DNR and the tribes agreed to proceed with walleye rehabilitation efforts. Tribal fish hatcheries from Red Cliff, Lac du Flambeau, and Mole Lake and the Genoa National Fish Hatchery coordinated efforts to produce and stock walleye fry and fingerlings that would provide a foundation for natural reproduction in Kentuck Lake. In addition, harvest was reduced through a voluntary moratorium on treaty spearing and stricter harvest regulations for anglers. Together, these measures helped the Kentuck Lake walleye population come back stronger than ever. Tribal spearing has recently resumed and a more liberal harvest regulation for anglers is expected in 2006."

Protests and confrontations at the landings from those early days of spearfishing have waned. "After 20 years, people realize they are still catching walleyes," says Steve AveLallemant, DNR's northern Wisconsin fisheries coordinator.

Still, there's an undercurrent of resentment among some sport anglers and some Northwoods residents. Much of that has to do with perception that sport anglers have lost fishing opportunities.

In practice, however, the vast majority of anglers didn't even come close to catching their limit of five before spearfishing started off-reservation. Fully 93 percent of anglers fishing on walleye lakes didn't catch any walleye, according to creel surveys from 1980-1987. Only 3.8 percent caught one fish, 1.6 percent caught three fish, and 0.5 percent caught the legal bag limit of five.

The fish they caught, overwhelmingly, were good eating but not wallhangers: 65 percent were less than 15 inches and only five percent were 20 inches or greater.

"Everybody wants walleye and they're the toughest ones to get," AveLallemant says. "Our studies on an experimental lake, Escanaba, show that walleye density is only loosely related to catch rates. There were low catch rates even in years when fish were more abundant. If the fish were full of food, you couldn't catch them regardless of the density."

Other studies at Escanaba Lake demonstrated that new technology – fish finders and the like – didn't make a significant difference on catch rates either.

AveLallemant thinks some anglers grumble because they don't like the idea of spearing fish before they've spawned. But 84 percent of the fish speared between 1989 and 2003 were males, nine percent females, and the rest of undetermined sex, according to the 2003 joint fishery assessment update. In some years of late ice-outs, anglers are also fishing for spawning fish.

More importantly, he says, the system establishes an overall total allowable catch and appropriate annual harvest restrictions for each water and the tribes and anglers are abiding by those levels.

Protecting habitat on northern lakes makes much more of a difference for providing strong fish populations and good fishing in the future, AveLallemant says. A growing body of studies is showing that fish habitat is being eliminated or degraded as a result of waterfront development. More homes and bigger homes are sending more runoff into the water and polluting it. More people are clearing shallow water and the adjacent shoreland of native plants, shade trees and downed trees – all important habitat for fish. In turn, these changes are taking a toll on fish growth rates, abundance and the composition of the fish community.

"I'll have people argue that they don't believe this study or that study. I tell them that what has changed the most in the Northwoods isn't farming or treaty fishing. What has changed is people – the number who come here to live, to develop the shoreline, and to recreate on the waters," AveLallemant says.

Benefits of the treaty monitoring system

In addition to meeting its biological goals, the system Judge Crabb put in motion 15 years ago brought many other benefits to Wisconsin anglers and fish. Perhaps the greatest boon has been additional staff and focus devoted to walleye and musky populations – and the resulting wealth of information.

GLIFWC was formed, and all of the tribes established or beefed up natural resources staff. DNR hired new fish biologists and technicians, paid for by state tax revenues after then-Gov. Thompson and lawmakers agreed that Wisconsin's walleye fishery was a valuable resource that warranted proper monitoring and staffing. That tax revenue has been cut significantly over the years but has been partially offset by money from fishing licenses and some tribal gaming money so that DNR can continue its share of work.

© GLIFWC
A GLIFWC biologist uses a fyke net to sample fisheries that are harvested by both anglers and spearers.

© GLIFWC

DNR, GLIFWC, three of the tribes and the U.S. Fish and Wildlife Service now coordinate their efforts to survey different lakes, and as a result, significantly more are getting done at less cost to the individual organizations.

The result, says Larry Wawronowicz, Natural Resources Deputy administrator for the Lac du Flambeau, is "we know more now about walleye and musky dynamics here than in any other region in the United States."

The information is better and more reliable. Treaty fishery work led DNR to initially bring fisheries biologists and technicians from across the state to take on this new survey work. Staff were able to share their different techniques and gear and find out what worked best in northern waters.

DNR used those insights, and, working with GLIFWC and tribal fisheries staff, set standard methods for conducting fish population surveys – determining where they'd set fyke nets, when they'd electrofish based on water temperature, what gear they'd use, how they'd use it, what methods they'd use for choosing representative lakes, and other key things, Staggs said.

"The only way to get a good idea of how a fishery is changing in response to harvest is to sample it over time using the same methods and gear," he said.

The monitoring system grew out of necessity, he said, but it has produced a phenomenal amount of information that improved our regulations, stocking programs and the management of Wisconsin fisheries.

It's also produced interesting research and insights on anglers and the fish they pursue.

Doug Beard examined how anglers responded to different daily bag limits and found that anglers initially spent more time fishing on lakes with a five-walleye daily limit than on lakes with a lower limit. But on waters with larger limits, anglers took longer on average to catch a fish. Over time, anglers started dividing their time more evenly.

Andy Fayram investigated the effectiveness of the 15-inch minimum size length limits instituted statewide in 1990 on waters with self-sustaining walleye populations. The research showed the regulation reduced the total number of fish harvested, but did not affect how long it took to catch a fish, or alter walleye growth rates.

In a musky study, Fayram found that catch-and-release rates increased significantly over a 10-year-period. Voluntary release can play as large a role in managing musky populations as regulations such as minimum length limits.

Finally, Fayram analyzed the effects of DNR's recommended stocking rates for walleye in the ceded territory. He found that 35 small fingerling per acre was an optimal stocking rate that would result in more young fish surviving to fall in their first year than higher stocking rates used in the past. DNR will begin stocking walleye at these lower rates starting next spring, allowing the agency to stock more lakes with walleye.

Benefits beyond regulations

The concentrated effort, year in and year out, on lakes in the ceded territory has brought other benefits to Wisconsinites who fish. More fish are stocked in Wisconsin waters that don't sustain naturally-reproducing fish populations. DNR renovated its primary walleye and musky hatcheries in northern Wisconsin to meet rising demand for more, bigger, healthier fish for stocking. Fish hatcheries have been expanded at Lac du Flambeau and Red Cliff, and all tribes now maintain hatcheries to raise fish for stocking, including back into waters they spear.

More manpower is being directed at identifying and controlling zebra mussels, Eurasian watermilfoil, rusty crayfish and other invasive species that can harm fish and outdoor recreation. GLIFWC, for example, has a well-established program to combat invasive species.

The tribes' unique standing in the U.S. Constitutional system have enabled them to press the federal government for more stringent air and water quality standards that benefit all Wisconsinites who eat fish. "We manage our fisheries for subsistence fishing in addition to sport fishing," Wawronowicz said. "We are especially concerned that the fish we supply for every day consumption are edible and safe to eat. We are concerned that air and water quality standards be maintained to sustain those healthy fish as a healthy regular source of food."

He points to a recent lake sturgeon restoration project as another example. The tribe received a two-year federal grant to start to restore a lake sturgeon fishery within the Bear River system that links the Lac du Flambeau chain of lakes to the Mississippi River systems. "DNR staff helped us obtain lake sturgeon stock from the Mississippi River basin to maintain the genetic integrity of the fish we want to bring back for future generations."

Over the years, Wawronowicz says, there has been good cooperation among the tribes, DNR, the WATER Instutute at UW-Milwaukee, the U.S. Fish and Wildlife Service, and other federal agencies.

Perhaps the most telling partnerships are at the water's edge. Members of the Eau Claire Lakes chain association work with the Red Cliff to collect eggs from female fish that tribal members spear. The tribe hatches the eggs, raises the walleye at their hatchery, and then provides the fish to the lake association to stock back into the Eau Claire chain. "There's a lot of cooperation to replenish the fish taken out of the lakes to maintain them at a more stable level."

Lisa Gaumnitz is Public Affairs Manager for DNR's water programs. David L. Sperling edits Wisconsin Natural Resources magazine.