Tribal Treaties: It's time to learn more about them

The Treaty of 1836, also known as the Treaty of Washington, is an agreement between five tribes and the U.S. Government wherein the tribes ceded certain lands (See map) to the U.S. Government in exchange for money.

Under this Treaty, the five tribes residing on those lands (Bay Mills Indian Community, Sault Ste. Marie Tribe of Chippewa Indians, Grand Traverse Bay of Ottawa and Chippewa Indians, Little River Band of Ottawa Indians and the Little Traverse Bay Band of Odawa Indians) retained certain rights to hunt, fish and gather on lands ceded under the Treaty until the lands were “required for settlement.”

Article 13 of the Treaty of 1836 states:

“The Indians stipulate for the right of hunting on the lands ceded, with the other usual privileges of occupancy, until this land (the land ceded under the Treaty of 1836) is required for settlement.”
* “Usual privileges of occupancy” mean the ability to hunt, fish, trap and gather.

This is a confusing sentence. What does it mean that the Indians have the “right of hunting” on treaty lands until the land is required for settlement? What does “required for settlement mean”? To what extent do the tribes retain the “usual privileges of occupancy”?

These questions are central to why the State of Michigan is discussing a treaty from 1836 in 2007.

Why are we talking about something from 1836?

Discussions on the Treaty of 1836 first began when the tribes wanted clarification that the Article 13 provisions extended to fishing the Great Lakes. The federal courts confirmed that the Treaty did indeed extend to the Great Lakes and other fishable waters. As a result of this court decision, an agreement was reached in 2000 that defined tribal rights to fish on waters of the Great Lakes. Two agreements since that decision have established and currently regulate Great Lakes fishing efforts.

Having addressed Great Lakes fishing, the current negotiations between the State of Michigan, tribes and U.S. Government are attempting to clarify what “required for settlement” means and what “usual rights of occupancy” entail for fishing on inland waters and hunting, trapping and gathering on treaty lands.

The State of Michigan, tribes and U.S. Government are trying to reach consensus on the many issues surrounding this Treaty, including:

• When are the lands ceded under the Treaty actually “required for settlement” and to what degree must they be settled before the tribes are no longer able to exercise the hunting, fishing trapping and gathering rights they retained on the ceded lands?
• How should the resources be allocated including the allowable take of deer, bear, turkey, small game and fish from inland lakes?
• How does the treaty affect private property, state parks, state forests, national parks and national forests within the treaty area?

Sportsmen’s groups have signed on to be a part of these discussions in the role of amici, which means “Friend of the Court”. Amici have no actual decision-making authority, but are granted the ability to participate in the discussions in advisory capacity. The final decision-making authority over this agreement rests in the hands of the State of Michigan, the tribes and the U.S. Government.

Michigan United Conservation Clubs has gone into these discussions realizing that we will not have the ultimate say in the results, but our goal has been to defend the long-held conservation values of Michigan’s sportsmen and women to the extent allowed by the courts. These core values are:

• Ensuring healthy, sustainable populations of game species;
• Protecting private property rights;
• Ensuring fair methods of take;
• Protecting current game seasons; and
• Protecting Michigan’s sportsperson’s heritage

Next steps

The State of Michigan, the tribes and the U.S. Government are still negotiating the language within the treaty and how that language will be clarified. All amici are also privileged to these discussions, but are bound by a court enforced gag order. This means that the court has ordered the details to be kept strictly confidential until the discussions have been completed on all issues.

The purpose of this article is to begin to clarify this extremely complicated and confusing issue for Michigan’s hunters, anglers, trappers and conservationists. The amici are committed to providing you with the most thorough and up-to-date information as soon as possible and will be getting more information out immediately after the gag order is lifted.

If you have any questions, please contact the MUCC policy staff at 517-346-6475.