AG asks courts for resolutions on inland tribal hunting and fishing rights
The tribal 1836 Treaty of Washington is once again in the news as being under dispute. Michigan Attorney General Mike Cox announced that his office has filed pleadings in federal court asking for judicial resolution of an inland hunting and fishing rights dispute between the state and five Michigan tribes over whether the tribes? legal right to hunt and fish on nearly 40 percent of Michigan?s land acreage has expired. At issue is language giving the tribes rights until ?the land is required for settlement.?
THE STATE is asserting that hunting, fishing and other rights retained by the tribes in the inland areas covered by the treaty have expired in virtually all non-reservation areas. The land mass in question includes much of the Lower Peninsula north of the Grand River as well as the eastern half of the Upper Peninsula. It totals approximately 13,837,207 acres, or roughly 37 percent of the acreage in the state.
THE TRIBES are expected to claim that they retain all of those rights wherever land is open today to the public for hunting and fishing. This would include all public lands in the treaty area, as well as private lands that are open to the public for hunting and fishing. According to the press release from the attorney general, in recent years, the five treaty tribes have implemented the licensing and regulation of tribal hunting and inland fishing seasons for public and private lands without a court decision affirming their right to do so. The tribal laws allow greater opportunities to tribal members than state law in terms of season, species, and regulations. These greater opportunities are extremely controversial among the public and needlessly expose tribal members to the risk of prosecution under the law.
?The current confusion over inland tribal hunting and fishing rights benefits no one and casts doubt over Michigan?s ability to appropriately manage its natural resources,? Cox said. ?For the sake of all parties involved, and so we can ensure proper protection of our natural resources, this legal question must be solved.?
THE ATTORNEY GENERAL has taken this action at the request of Michigan Department of Natural Resources Director K.L. Cool and is supported by the Governor?s office. ?Legal uncertainty is bad for public policy,? Cool said. ?Michigan?s natural resources need and deserve clear, concise management. Our state needs to understand its legal management jurisdiction. We look forward to achieving legal resolution to this long-standing uncertainty.?
Litigation over the meaning and effect of the treaty began in state courts in 1971 and in federal courts in 1973 in connection with disputes over tribal member use of large mesh gill nets on the Great Lakes. Both Michigan courts and the federal courts addressed the issue of whether the tribes? Great Lakes rights had been extinguished because the treaty area had been ?required for settlement.? Both court systems found that the Great Lakes would never be ?settled? within the meaning of the treaty and, therefore, that these tribes? right to fish in those waters would always exist. The courts, however did not address the question of inland hunting and fishing rights.
Five federally recognized Indian tribes are successors to the signatories to the treaty: the Bay Mills Indian Community in Brimley, the Grand Traverse Band of Ottawa and Chippewa Indians in Peshabestown, the Little River Band of Ottawa Indians in Manistee, the Little Traverse Bay Bands of Odawa Indians in Petoskey, and the Sault Ste. Marie Tribe of Chippewa Indians in Sault Ste. Marie.
THE COALITION VIEW: The coalition now includes such organizations as Hammond Bay Area Anglers Association, Michigan Trout Unlimited, the Michigan Chamber of Commerce, the Grand Traverse Area Sport Fishing Association, Burt Lake Preservation Association, Walloon Lake Property Owners Association, a sport fishing group of Port Huron, the Michigan Chapter of Fly Fishermen, and a number of new members as well. ?We suspect that the issue now having been filed, will attract more organizations to join in and want to participate with our coalition,? said Steven Schultz, attorney for the coalition.
The same issue took place several years ago in Wisconsin, but according to Schultz, the language in that treaty was much different and was stated in a different way, which allowed the issue to be approved in tribal favor.
?We think this treaty language is pretty clear — the right to inland hunting and fishing was extinguished,? Schultz said. According to Schultz, the coalition will now need to meet as a board and make some decisions as to its participation objectives.
?I?M VERY positive the coalition is going to participate and is going to defend the interests of inland land owners and sport fishermen and women,? Schultz added. ?We will be participating in the case one way or another.? Schultz said he thinks one of the main problems is the tribes like to say they have the same regulations and laws the state has, which is basically true. He argues, the tribes, if they prevail in this court action, can change their regulations any time and in any way they would like. ?The issue as far as I?m concerned, is the tribes have adopted regulations that allow their members to use 300 feet of gill nets on the Great Lakes for subsistence and personal use — it?s one thing to allow that on th
According to Schultz, there is nothing that would prevent the tribes from adopting those kinds of regulations for their personal use. ?A very small short gill net on an inland lake can take an awful lot of fish,? Schultz said. ?Plus if they lose it, it?s out there in the water where you?ve got boaters, swimmers, water skiing, and small fishing boats, which creates even more issues.? Schultz said the tribes have been very civil and so far the issue remains non-confrontational. The coalition, he said, does not want to have any confrontations.
?We want to resolve the issue, then deal with the results,? Schultz added. ?We?ll have to wait and see what the tribes actually ask for. But in the original draft lawsuit several years ago, they were asking for the right to go on private land that was open to the public.? .