Understanding Michigan’s Tribal Negotiations

Frequently Asked Questions

9-26-07

Litigation between five Michigan Tribes, the United States, and the State over the scope of treaty rights under the 1836 treaty has been ongoing for over 30 years. Until late 2003, however, tribal claims litigated in court only involved tribal fishing on the Great Lakes. In September 2003, the State filed a claim in Federal Court asserting that the Tribes no longer retained a right of hunting or any other “privileges of occupancy” on the lands ceded to the U.S. in 1836. The courts have established that other privileges of occupancy also include fishing and gathering.

After depositions from the expert witnesses were completed in early 2005, the State and Tribes decided it would be better for all concerned to negotiate a settlement instead of having the Judge make the decision. Usually a negotiated agreement is more acceptable to the parties than one that is imposed by a Judge. The Judge postponed the trial and negotiations began in the fall of 2005.

What was the focus of the negotiations?

When the treaty was signed in 1836 the Indians transferred to the United States government the land and waters within the treaty boundaries. The Indians retained their right to hunt, fish, and gather until the land was “required for settlement”. These are not so called “special rights,” but are rights that the Tribes never relinquished when the land was transferred to the United States.

In 1979, Judge Noel Fox ruled that it was not possible to settle the Great Lakes and that the Tribes retained their right to fish in those waters under their own regulations.

The current negotiations focused on which lands and waters in the treaty area should be open for Tribal hunting, fishing, and gathering and to what extent these activities may be exercised.

Why is such an old treaty still valid today?

Tribes retained something similar to an easement on the treaty land to enter the property for the purpose of hunting, fishing, and gathering. The Federal Courts including the Supreme Court have consistently ruled that the passage of time cannot erode the rights that the Tribes retained when the treaties were signed. In this specific treaty, the Tribes retained their rights until the land was required for settlement. As mentioned above, the negotiations focused on determining which lands would still be open to the Tribes for exercising their rights.

How can a treaty be changed?

Treaties are the supreme law of the land and all state governments and judges are bound by them. Only the President or Congress can change or abrogate a treaty. Several attempts to introduce bills in Congress to alter or abrogate certain treaties have failed because of little national support.

Can all Michigan Indians use the lands covered by the Treaty of 1836 as outlined in the Treaty?

No. Only the Tribes that are political successors to the original treaty signators have the right to use those lands as described in the Treaty. The following Tribes are parties to the Treaty today:

• Bay Mills Indian Community
• Sault Ste. Marie Tribe of Chippewa Indians
• Grand Traverse Band of Ottawa and Chippewa Indians
• Little River Band of Ottawa Indians
• Little Traverse Bay Band of Odawa Indians

Who had decision making authority during the negotiations?

The State, the United States, and the five Tribes listed above are full participants in the litigation and are the only parties that have authority to approve the agreement. Judge Richard Enslen, of the United States District Court, will have the final approval.

What role did sport and property owner groups have in the negotiations?

Several groups petitioned the Court to become amici curiae or full parties. Full party status was denied by the Court, but the Court allowed these groups to participate as amici. This status allows each group to provide input into the discussions but does not grant decision –making authority. The amici were present at the negotiating table during each session, voicing concerns and working to uphold their core values including:

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

This matter affects all of Michigan’s property owners, hunters, anglers, and trappers who utilize the lands and waters in the treaty area. Even though we were unable to officially reject or approve the negotiated language, as Michigan organizations representing property owners, hunters, anglers, trappers, and businesses, we felt it was imperative to take an active role and try to influence the outcome of all agreements affecting the management of many of the natural resources in a large part of the State.

How will the natural resources be managed under the new Agreement?

Management authority over the state’s natural resources lies with the Michigan Department of Natural Resources (MDNR). The MDNR manages the resources of the state based on the principles of sound scientific management. Within the treaty area, the State and Tribes will coordinate assessment activities and all proposed restoration, reclamation, or enhancement projects will need to be approved by the State. These projects would include, for example, the planting of fish or the improvement of wildlife habitat. The Tribes utilize professionally trained ecologists, wildlife biologists, and fishery biologists to assess and study the natural resources found on treaty lands. The United States role is to provide technical support to the Tribes.

What happened in the other states that attempted to resolve tribal natural resource issues?

After a large number of court cases, including many reviews by the U.S. Supreme Court, the fish and game resources of many states, including Wisconsin, Minnesota, Washington, Oregon and Idaho, have been allocated approximately 50 percent to Tribal users and 50 percent to non-Tribal users. (The 1836 treaty language does differ from many of the other treaties at issue in those cases, however.) In all cases, there were negotiations between the states and Tribes with direction from the courts to establish management procedures to protect the natural resources and share the harvest. In several of the states, even though the Tribes have a right to harvest up to 50 percent of the safe harvest, the actual take is much less.

What type of enforcement capabilities do the tribes have compared to those of the Michigan Department of Natural Resources?

The Tribes have professionally trained enforcement officers who currently enforce Tribal hunting and fishing regulations on treaty lands. MDNR conservation officers enforce natural resource regulations on all lands within the state. Michigan conservation officers can enforce violations of the Agreement committed by either Tribal or non-Tribal fishers. Tribal violations, however, proceed through the Tribal legal system.

How does the Tribal court system compare to Michigan’s courts?

Tribal courts are well established, and violations of the 2000 Great Lakes Consent Decree that have been prosecuted in the Tribal system have resulted in comparable outcomes to violations that were processed through the Michigan Courts.

Will the Tribes be able to hunt, fish, trap, and gather on private lands?

The Tribes are permitted to hunt and fish only on private lands that are open to the public and are open for a particular activity (e.g. hunting, trapping, gathering, or fishing). These activities are allowed on other private lands owned by non-tribal individuals only if State seasons and methods are followed and, if the land is posted, written permission is obtained from the owner as specified in the Michigan Recreational Trespass Act.

Will Tribal hunting and fishing be permitted within State, county and municipal parks, State wildlife refuges, State wildlife research areas and State fisheries research areas?

The Tribes shall only permit hunting and fishing in such locations when the areas are open to the public for hunting and fishing and with Tribal regulations that are no less restrictive than State regulations.

Will the newly negotiated Agreement expire?

There is no planned expiration date for the agreement; however, there are several mechanisms available that allow the document to be updated when the need develops. It is anticipated that over time, changes to the resources, increases in information, and other situations will require updating of the plan.

Will commercial harvests be permitted?

Except for furs, fruits, and some defined plant materials, commercial harvesting will not be permitted. Informal trade or barter within the Tribal communities is acceptable as long as fish and wildlife are not resold.

Will gill nets be permitted to harvest fish species?

Except for limited research projects using approved methods, gill nets will not be permitted.

Will snagging of fish be permitted?

The new Agreement prohibits the snagging of fish or retaining fish not hooked in the mouth when fishing with hook-and-line.

Will Tribal members be allowed to use spears as a method of taking fish year round?

A limited opportunity for taking fish with Spears, which is a traditional harvest technique, will be provided for Tribal members. Spearing performed during the designated walleye spawning season will fall under specially regulated fishing methods that involves the issuance of daily permits for each individual with set bag limits that count towards the annual allowable harvest for the Tribes, as scientifically determined for each lake.