Benzie Fishery Coalition

Tribal Inland Rights Case Finally Resolved
Tribal Inland Issues Still In Court
Private Talks Might Reach Consensus
Private Property Challenged
Tribal Claims for Inland Rights
1836 Treaty of Washington Overview
1836 Treaty of Washington Document
Participating  Local Indian Tribes
 

Tribal Inland Rights Case Finally Resolved

After more than two years of endless discussions, court motions and hearings, the inland rights issue brought against the State of Michigan, has been concluded. Going back to the Treaty of Washington of 1836, the long-standing dispute between the federal government and the interests of the five local Native American Indian tribes it represented and the people of the State of Michigan has been settled. Judge Enslen of the US District Court in Grand Rapids has accepted the terms each side has worked out.

The Treaty was tested in two phases. Years ago, the tribal claims for unique rights to fish the Great Lakes was resolved with court-approved consent agreements, and now the remaining claims of the Indians within the treaty area to hunt fish and gather on inland waters on “unsettled” lands has finally reached a compromise. Recently, each tribal council ratified its terms. Then the parties to the lawsuit reported back to the court, and the judge finally closed the litigation.

What was decided?

Owing to a lot of hard work on the part of the State and organizations that represented local sportsmen, both hunters and fishermen, the lawsuit gained very little for the complainants. Without this talented and highly supported resistance, the results could have been disastrous in destroying our natural resources, which should be available to all, and protected by all.

In the fishing end of things, the tribal fishermen retained their unique rights on Lakes Michigan, Huron and Superior. Basically, with a few exceptions, they have the same rights as sportsmen licensed by the state. Our fears for the possibility of such things as commercial fish farming on inland public waters have been allayed. Indian fishermen have to abide by the same rules as non-Indian.

Indian hunting rights have been amended to expand the deer-hunting season as far back as August first, but their hunting season will be closed temporarily during the firearms season, as set up by the State of Michigan each year. Other minor changes were made to some small game rules, but basically the deer hunting matter was the most significant gain for the tribes in the entire lawsuit.

Demands to give Indians the right of trespass and hunt on private lands without permission of the owner were dropped. We doubted this claim would ever be upheld, but like Yogi says, it’s never over until it’s over.

Ultimately, the need for legally defining the contentious issue of “unsettled” lands disappeared. This matter was the underlying fundamental item that prompted the suit in the first place, and now it is all in the history books, circa 2007.

Who really made out?

The lawyers, of course. Contract attorneys for the U.S. government and the tribes must have matched billings for those who worked for the state and federal governments, as well as sportsmen organizations who represented them, like the Benzie Fishery Coalition.
 

Tribal Inland Issues
Still In Court

 It is about time the parties concluded all the legal maneuvering and document trading, and get down to business.  What is at stake here is fundamental equal rights for all those in this state, Indian or otherwise.  We all must obey the law, and the law must equally apply to all.

Current Status      Private Talks Might Reach Consensus
If you have been wondering what has happened to the "inland" lawsuit between the local Native American tribes and the State of Michigan, we finally can tell you what has been going on, and where the issues stand today.
     The litigation continues, finally brought to court by a frustrated Michigan DNR, who claimed they couldn't plan for the future because of many unknowns created by the tribes' claim they had unresolved rights to "hunt, fish and gather" without state intervention or control within their treaty area. For first time readers, the treaty they refer to is the Treaty of Washington of 1836, signed by the US government and local Indians who vacated their lands for a price at that time. The terms of claimed tribal rights in this matter greatly depend on what the signers meant by (and what the court will now define as) "the right of hunting on the lands ceded, with the other usual privileges of occupancy, until this land is required for settlement". Those last three words will be the key to the case.
     The State of Michigan claims these words were meant as temporary arrangements for Indians who might return to the area, giving them the ability to sustain themselves until the lands were surveyed and sold as part of the settlement of Michigan. Furthermore, the State claims those rights expired long ago, as over 170 years have passed since the treaty was signed, and Michigan lands have been settled for many generations. The tribes claim, however, that only lands located within cities and villages and working farms have been "settled". All other property is subject to the treaty right. An elemental right claimed by the tribes in their initial claim was that they retain the right over private property in order to exercise their rights to hunt, fish, and "gather" within the treaty boundaries. Should any agreement or court decision intrude on owners' property rights, we believe there most certainly would be subsequent lawsuits to contest it.
     If current litigation lodged with Judge Enslen in the Kalamazoo Federal Court, proceeds, it will be up to the lawyers for each side to convince the judge that their position is the correct one. After more than a year of pretrial motions and legal interchanges between the parties were ordered to be ready for trial in January of this year.
     Why haven't we heard anything about the trial? After all, it is May 2006 and the court process should have been well underway by now.
     Well, folks, there has been quite a flurry of activity behind the scenes, as both sides have been meeting outside the courtroom to try and build a consensus and settle the case.
     This is how the Great Lakes Fishing issue was handled: no final court decision has been handed down on that either. Rather than placing the issue before the judge, the parties have been struggling with definitions, issues and possible terms of a consensus agreement that would forestall the need for a final judicial decision on the inland rights of the 5 tribes who are contesting the issue.
     The parties have agreed to confidentiality of their negotiations, keeping the public in the dark while they try to find terms of settlement that both can live with. Even the fact that talks were going on at all was not widely known, until now.
     The Benzie Fishery Coalition is a charter member of the Michigan Fisheries Conservation Coalition (MFRCC) formed several years ago to insure that the court was kept aware of the concerns and points of view of local sportsmen and businesses.
     Recently, the Coalition changed its name to the Coalition to Protect Michigan Resources (CPMR) because its membership has grown to include a lot more than sport-fishing groups. The Coalition represents Trout Unlimited and several sport-fishing groups including the BFC, but it also includes the Michigan Chamber of Commerce, several lake associations, the Michigan Bear Hunters Association, and others. Attorney Steve Schultz, who has capably represented sportsmen and women in this case since the 1980 initial litigation over Great Lakes fishing by the tribes, also represents the Coalition in this case.
     He was in the center of talks some six years ago when the second Great Lakes settlement agreement was signed. It was after these negotiations that the tribes placed inland fishing and hunting rights on the table. Schultz, who continues to represent the Coalition (and indirectly the BFC) in this matter, has given the BFC the limited information about the talks that we have laid out here, but not any detail of specific agreements or issues remaining to be resolved, due to the confidentiality agreement that prevents him from telling us the details.
     Should the parties fail to reach consensus, the matter will fall back in the court's hands, and might take several years to resolve. The State, the tribes and the Coalition are apparently trying to avoid a long and expensive trial, and are working together to find common ground, which would enable all sides to pursue their objectives in the near term.
     Based on data recently received by us from Steve Schultz, we can reveal the following:
     1.)  We have been in serious, extensive negotiations since last fall. Participants include all 5 tribes, the State, the U.S., the Coalition of which the BFC is a participant, and the Michigan United Conservation Clubs. The Coalition has been involved in every bargaining session, and represented by Schultz and at least one Coalition Board member.
     2.)  A confidentiality agreement was signed by all at the start of the negotiations, so details on the issues being negotiated cannot be revealed at this time. But, the public should be aware that the tribes have all adopted hunting and fishing regulations that permit, depending on which tribe is involved:  A der bag limit of 5, no more than 2 of which may be bucks: A turkey bag of 2 in the fall of either sex and 2 males in the spring; Ice fishing of 9 lines per fisherman and 4 lines otherwise; Spearing for all species except sturgeon and grayling, etc.
     On the other hand, current regulations do not allow commercial activity.
     3.)  There has been a lot of tribal hunting and fishing, it's just not well known. For example, the State of Michigan has provided over 200 tribal contact reports documenting hunting, spearing, snagging, off road vehicle use, etc. that would violate State law. Such activity is bound to increase, but the question is: Will it impact the hunting and fishing of State licensed folk? If the resource and opportunity can be protected, then a negotiated settlement with the tribes is a good thing, rather than have years of litigation with an uncertain result. In Wisconsin and Minnesota, where they do not have a negotiated result, the impact on sport fishers has been much more severe than what we are experiencing here. This also favors a negotiated solution, IF it doesn't negatively impact State licensed folks.
     Steve Schultz has promised to release additional material to us, once the information can be made public. Apparently the sides are making progress, but there are several key issues not yet resolved that could blow any outside-the-court agreement that the Federal Court will support. Let us hope the rights of the sporting public will remain protected, no matter what gains the tribes might achieve in pursuing what they believe history grants them.
     We agree that it would be better for the litigants find a way to settle this problem soon, and not leave it in Judge Enslen's purview to resolve the squabble in a way that neither side would like.

Private Property Challenged In Tribal Case
The rights of local American Indian tribes to hunt, fish and gather on private property is currently at issue in the legal contest now before Federal Court Judge Richard Enslen. Filed under their interpretation of the 1836 Treaty of Washington, the five local tribes and bands continue to demand unchallengeable rights for any of their members to use nearly all lands north of the Grand River and covered by the 170-year old treaty for their purposes without state regulation.

For nearly two years, lawyers for both sides of the lawsuit have been trading documents, outlining specifics of the definition of words in the treaty. The treaty gives the tribes rights in all lands “until the land is required for settlement.” Determining what constitutes “settlement” will determine whether the tribes have a treaty right on most private and public property in the northern half of the state.

The Treaty was first challenged in Federal Court back in the late 70s when four (now five) tribes demanded rights to net fish in the Great Lakes waters covered by the old treaty. Resultant consensus agreements have been signed to now limit the Native Americans to gill netting in the extreme north of Lakes Michigan and Huron, and to harvest whitefish and some lake trout by using trap net systems in most of the Great Lakes waters covered by the original treaty.
In 2000, as the second consensus agreement reached the signing stage, the tribes claimed rights in all inland streams, lakes and other waters and all public lands within treaty boundaries. It was agreed that the Great Lakes portion of the agreement should be signed, with a plan to visit the inland issues at a later date.
 

The Tribal Claim
Basically, the tribes want to be free of all state regulation on hunting, trapping, fishing and “gathering” in northern Michigan, an area that includes virtually every large lake and trout stream in the state and most of the public forests and privately owned commercial forests. They have defined lands that are “unsettled” as any part of this area not part of a municipality or working farm. Under the tribal interpretation as submitted by their experts in reports filed with the court, any privately owned hunting camp, summer cottage, or forest land would be subject to the tribal right to hunt or fish without complying with state law. It is the State’s contention that these words were intended for temporary application to Indians living at the time the treaty was signed, and that certainly, after 169 years, nearly all of the state has been “settled”. It is all privately owned now or was privately owned at one time and when it was owned by private landowners, the treaty right expired. (In fairness, the tribes do have regulations that require that tribal members get an owner’s permission before hunting his land, but those regulations are subject to change at any time if the tribes are successful.)

The BFC is a participant in the Michigan Fisheries Resource Conservation Coalition, which has filed to be a full party in the case to protect private property owners rights against the tribes’ claim that the treaty right exists on property that is outside a city or village limit or outside the boundaries of a farm. The MFRCC is waiting on a ruling from the Judge. Other groups in the MFRCC are the Michigan Chamber of Commerce, Michigan Trout Unlimited, the Grand Traverse Sport Fishing Association and about a dozen other lake property owner, hunting and fishing groups. MUCC is participating in the case, but has not asked to be a full party like the MFRCC.

Trial of this issue is scheduled for presentation of evidence and hearing testimony in January 2006, with expectations of a judge’s verdict sometime afterward. It is feared that if private property rights are overturned by the federal judge, the impact of such actions would be to create a real legal mess in this state. Don’t be too sure that these claims will never be accepted in our courts. Many thought the tribes Great Lakes contest at the time was preposterous, but the courts did rule in favor of the Indians. Who is to say that lightning won’t strike twice?
 

The 1836 Treaty of Washington was a treaty between the United States and representatives of the Ottawa and Chippewa nations of Native Americans. With this treaty, the tribes ceded an area of approximately 13,837,207 acres (55,997 km²) in the northwest portion of the Lower Peninsula of Michigan and the eastern portion of the Upper Peninsula of Michigan. This area represents approximately 37% of the current land area of the state of Michigan.

The treaty was concluded and signed on March 28, 1836 in Washington D.C. by Henry Schoolcraft, Indian Commissioner for the United States and several representatives of the Indian nations. The treaty was proclaimed on May 27, 1836.

The boundaries of the treaty begin at the mouth of the Grand River on the north side and follow the river east till it intersected boundaries described in previous treaties (the 1821 Treaty of Chicago and the 1819 Treaty of Saginaw. This point is in present-day Boston Township, Ionia County between Saranac and Lowell. From this point the boundary ran in a direct line to the headwaters of the Thunder Bay River in Albert Township in the southern portion of Montmorency County between Lewiston and Atlanta. The boundary followed the river to its mouth on Lake Huron and then northeast to the international boundary between the United States and Canada. It followed the international boundary through the St. Mary's River to a point in Lake Superior north of Gitchy Seebing, or the Chocolay River (named as the "Chocolate river" in the treaty) in the northeast corner of Chocolay Township in Marquette County, just southeast of Marquette, Michigan. The boundary followed the river to its headwaters in the northeast corner of Forsyth Township a few miles northeast of Gwinn. The boundary continued in a direct line to the headwaters of the Escanaba River (named as the "Skonawba river of Green bay" in the treaty) and then along the south bank of the river to its mouth north of Escanaba on the Little Bay de Noc. The boundary ran through the shipping channel into the Bay of Green Bay and then through Lake Michigan to a point west of the mouth of the Grand River and then due east to the starting point. (Content from Wikipedia)

A number of the Indians who had signed the treaty were later killed by other Indians, allegedly because of their participation.

Treaty of Washington of 1836 can be viewed on the Wikipedia website.

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