Inland Hunting and Fishing

Inland Treaty Rights on Interlochen Public Radio

Matthew L.M. Fletcher

Interlochen Public Radio has been filing stories on the ongoing story of Inland treaty rights.

Here’s the first report, from September: Sept 9, 2007

IPR interviewed a DNR spokesperson, Frank Ettawageshik (LTBB), and Hank Bailey (GTB).

Here’s a report on the Traverse City DNR Meeting: Oct 19, 2007

IPR recorded comments from the Harris brothers, who believe they somehow have no rights, rights they allege are guaranteed to them by virtue of being “white men.” IPR also interviewed Suzanne McSauby (GTB), Derek Bailey (GTB), and Kelly Smith (DNR), who had a more balanced view.

Indians Slammed in Online Discussion Boards

Nick Reo1 Comment

Recently I wrote a post discussing the balanced and progressive nature of media coverage of the 2007 Consent Decree. I remain impressed by this balanced coverage. It appears that the issue is far less contentious than when the Great Lakes portions of these treaty negotiations were being hashed out in 1985 (and even 2000). I have heard several people voice this opinion recently, and I agree with the general assessment.

However, I know that this issue is complex and that there are a myriad of opinions about the new Consent Decree. I have been wanting to hear what the general public is saying about this issue, so I started exploring hunting and fishing-oriented discussion forums. Here is a little bit of what is out there. I cut-and-pasted posts verbatim. Admittedly, without the context of entire threads this can be misleading (especially since the posts come from a few different threads); however, this sample gives you a general flavor of what is being discussed. These posts all came from one popular site, Michigan-Sportsman.com

THE GOOD:

“Quite a few tribes in the Lake States already do run their own hatcheries and stock fish.”

———-

“the tribe up here has been stocking steelheads, coster brooktrout ,lake trout and they want to start with salmon soon from what i hear.”

———–

Just FYI, the Tribes dump a lot of salmon into the water every year.

 

THE BAD: 

“Isn’t the treay invalid if tribal members live in the ceded land? The whole point was to have them move away.
I don’t think I want any more of my money supporting state lands in hte tribal areas.”

——————-

“Wow!, wish I was an Indian getting all the extra, plus living off the tax base:lol”

THE UGLY:

“Total BS,another issue of kiss the minority azs or else,never anything equal,
It should be the same across the board for EVERYONE,youths included,young,old,black or white”

————–

“Maybe if everyone just starts making calls to the RAP line it will help. How am I to know if that person is legal under tribal laws? Will they be wearing a feather in their head?”

————–

“Didn’t you hear the indians will receive the whiteman’s first born and a residential lot fee for your home along with accessing a road tax fee because your driving over their unknown cementery.”

THE RATIONAL: 

“Come on guys the racial stereotyping and bashing of the native Americans has to be stopped or I’ll start closing all threads like this as soon as they open. There is room for open discussion on such matters but it must be done in a respectful way.”

Inland Settlement Consent Decree Materials

Matthew L.M. Fletcher1 Comment

The final documents are here

Stipulation

Consent Decree [sans appendices]

Sixth Circuit Opinion — Denial of Motion to Intervene by Amici

Court Approves Inland Settlement

Matthew L.M. Fletcher

From the AP: “A federal judge signed an agreement between the state of Michigan and five Indian groups on Monday giving the tribes the power to issue their own hunting and fishing licenses and write their own regulations.”U.S. District Judge Richard Enslen’s decree was the final step resolving a four-year-old lawsuit rooted in decades of debate over the meaning of tribal rights in modern times. It acknowledges the tribes’ rights under an 1836 treaty.”

Little Traverse Bay Bands et al. v. Great Spring Waters & Engler

Matthew L.M. Fletcher

In 2002, the three Michigan Ottawa tribes sued Great Spring Waters & Governor Engler over the State’s granting of rights to take millions of gallons of water from mid-Michigan’s water table — a sweetheart deal if there ever was one. The tribes sued under the Water Resources Development Act of 1986, but there was no cause of action and the district court dismissed the action. The tribes did not appeal.

Here is the motion to dismiss: Motion to Dismiss

Here is the Tribes’ response, plus an exhibit: Response Brief + Exhibits

Here is the reply brief: Reply Brief

Here is the order dismissing the case: Opinion

The tribes chose not to bring claims based on the treaty rights they had established in United States v. Michigan. At some point, we expect tribes to bring treaty claims in the environmental protection context — see our MSU Law Review paper.
There has been a fair amount of scholarly commentary on the case, such as this student note in the Columbia Law Review and this paper in the Vermont Journal of Environmental Law.

Inland Settlement Signed at Odawa Casino in Petoskey

Matthew L.M. Fletcher

From the Petoskey News Review:

“Four weeks after the various governments reached an understanding of how historic treaty rights apply to tribal members’ inland fishing and hunting activities, many of their officials and staff — about 100 people in all — gathered at the Odawa Hotel in Petoskey to commemorate the new agreement.

“Pipe and flag ceremonies and a gift exchange among governmental leaders were part of the celebration.

“It is a pretty exciting day,” said Little Traverse Bay Bands of Odawa Indians tribal chairman Frank Ettawageshik.

“While driving to Thursday’s event, Ettawageshik noted that he’d passed through some heavy fog before arriving in clearer conditions — and likened this experience to the years-long discussion and negotiation that led up to the agreement.

“Here we are back in the sunshine at the end of the clouds,” the chairman said.


Little Traverse Bay Bands of Odawa Indians tribal chairman Frank Ettawageshik signs a document commemorating a new consent decree which clarifies the hunting and fishing rights retained by five of Michigan’s Indian tribes in the Treaty of 1836. The LTBB hosted a celebration to commemorate the new agreement Thursday at its Odawa Hotel. (Ryan Bentley/News-Review)

2007 Consent Decree media coverage shows progress

Nick Reo

I have been tracking media coverage of the 2007 Consent Decree and have been pleased to see that most reporting on the issue has been balanced and reasonable. It is well documented that media coverage of topics related to American Indians and Indian affairs has been unbalanced and has had impacts on both public perception and policy making. Media coverage of Indian issues is critical because the majority of the general public has little to no direct contact with American Indians or tribal officials and news reports therefore serve as a primary influence on public perceptions of these issues (Jarding, Social Science Journal 2004). Local and regional newspapers around the state, including those in Ludington, Escanaba and Sault Ste. Marie, continue to provide coverage of this topic and their journalists are providing very professional and informative articles.

Furthermore, the recent news reports have given us a sense for the Michigan Department of Natural Resources’ public discussions of the 2007 Consent Decree and I am pleased to see their level of professionalism and balanced presentation of the topic. Unfortunately I have not yet made it to any of the MDNR’s public meetings, but it seems based on the media coverage that the MDNR is doing a stand-up job of leading these important discussions. I hope the MDNR’s productive public discussion on the Consent Decree is a sign that they are willing to work in an intergovernmental fashion with the 1836 tribes to co-manage fish, wildlife and ecosystems in the Ceded Territory in the future.

Lastly, I recently reviewed materials posted on the MUCC website regarding the 2007 Consent Decree and was again, very excited to see balanced and useful information that shows an understanding of treaty law and is respectful to Indian people and tribal resource rights.

It appears we have learned some important lessons from past experiences of treaty negotiations regarding resource use and management in and out of Michigan. If the 1836 tribes, the MDNR, federal agencies and other key partners can work together cooperatively, there is no doubt we can build on respective strengths and improve ecological and socio-economic conditions in the region over time.

Second DNR Explanatory Meeting

Matthew L.M. Fletcher

From the Ludington Daily News: “Chris Dobyns of the Michigan Attorney General’s office explained that several legal precedents were in the tribes’ favor heading into the negotiation on inland rights. The Canons of Construction, which are long-standing legal guidelines, explain that any ambiguous language in a treaty like “until the land is needed for settlement,” should be construed liberally in favor of tribes. Court rulings against the state of Minnesota and Wisconsin have reinforced this.”

More from the Ludington Daily News: “What will most residents notice once the new tribal consent decree kicks in? Nothing different, according to Little River Band Natural Resources Commission Chair Jimmie Mitchell, who spoke to the Daily News shortly after the agreement was announced.”

First DNR Inland Settlement Meeting

Matthew L.M. Fletcher

From the Soo Evening News:

Fisheries Chief Kelly Smith of the Michigan Department of Natural Resources indicated the fishing portion of the consent decree involved long and detailed discussion. The state was looking to protect fish stocks while at the same time minimizing the impact on licensed anglers and maintaining the current regulations. The tribes were looking to maximize harvest at peak times of efficiency utilizing spears and nets even during the spawning runs.

The tribes agreed to a permit system with notification requirements and timely harvest reporting. For its part, the state agreed to allow subsistence fishing activities even during spawning periods with certain restrictions designed to protect fish populations.

Walleyes, salmon and steelhead may all be taken by subsistence fishermen utilizing the tribal permit system with a variety of restrictions. They will be limited to somewhere between 5 and 10 percent of the walleye population in any given inland lake depending on acreage. Certain river systems leading into Big and Little Bay de Noc will also be open during the spawning run.

Smith observed the combination of sport anglers and subsistence fishermen should not exceed the 35 percent threshold required to maintain walleye populations on any given lake.

Steelhead and salmon will also be available to subsistence fishermen under the agreement with certain limitations again designed to protect brood stock in key areas.

Tribal members utilizing their own hunting permits will be allowed to harvest up to five deer a year with the season beginning the day after Labor Day and running into January. These permits will limit harvest to two antlered deer with only one allowed to be taken with a firearm before Nov. 1. The agreement also calls for a quiet period from Nov. 1-14, prohibiting the use of firearms for trial deer hunters.

Tribal regulations allow for the harvest of two turkey during the spring hunt and two more during the fall hunt. Migratory bird hunting will be governed by existing federal regulations with most other small game species unaddressed by the consent decree.

Bear hunters operating under tribal regulations will have the same start and end dates as Michigan hunters without any breaks. Tribal members will be entitled to up to 10 percent of the harvest within each bear management unit and that number can increase to 12.5 percent in the future if needed.

Tribal hunters are also guaranteed 10 percent of the state’s elk permits, but that can increase to 20 percent if the state issues less than 101 permits and more than 50.

Permits for both bear and elk will be transferable.

There were a number of questions from the audience following the DNR’s presentation including one member who asked if the tribe should be required to utilize the same equipment and techniques available at the time the treaty was signed.

“The courts have uniformly held that tribal members can use the same benefits of technology as non-tribal members,” answered Dobbins, meaning tribal members do not have any gear restrictions above and beyond the average sportsman.

Map of 1836 Ceded Territory & Area of Interest for 2007 Consent Decree

Nick Reo

The following map provides an overview of the 1836 Ceded Territory. I know Little Traverse Bay Bands of Odawa Indians’ GIS and Natural Resource Departments collaborated with the Grand Traverse Band recently to create a more detailed map of the Ceded Territory. I will ask the creators of this more detailed map later this week and request access for the Blog.