Quileute & Quinault response to request for rehearing/rehearing en banc in ocean U&A case

Here is Quileute & Quinault’s response, addressing issues such as whether the Stevens treaties must be read together, the meaning of “fish” and whether U&As are species-specific, the proper use of the canons of construction, and what we know of the treaty negotiations at issue here.

Previous coverage here.

Makah & State request rehearing & rehearing en banc in dispute regarding Quileute’s and Quinault’s ocean U&A

Makah’s petition is here, and the state’s is here. Among the issues at stake in the case are whether the Stevens treaties must be interpreted monolithically and whether the evidence of whaling and sealing is sufficient to establish fishing usual & accustomed areas.

Careers in Indian Law — TODAY

Today, we’re delighted to host Trent Crable and Jeff Davis at the Indigenous Law and Policy Center. They will be speaking on Careers in Indian Law

Trent is a member of the Makah Nation. He graduated from Michigan Law School in 2005 and, until he relocated to Chicago, he worked for Morisett, Schlosser, Jozwiak, and McGaw, a Seattle law firm specializing in Indian Law.

Jeff is a member of the Turtle Mountain Band of Chippewa Indians and is an Assistant U.S. Attorney for the Western District of Michigan. Jeff is the tribal liaison for the W.D. Mich.

We’ll be in the Castle Board Room here at the law college. LUNCH is free.

Gatherer’s Rights under the Inland Settlement


New rules on gathering seen as an attack on Indians’ way of life

ST. IGNACE — Standing in a field with the Mackinac Bridge as a backdrop, Tony Grondin scatters loose tobacco on the ground.

He mutters a prayer in Anishinabewoon under his breath, thanking the life he is about to take for its gift. With a knife, he makes a deft, bloodless cut and then gently holds up his prey: branches of a nannyberry bush.

Grondin, 58, is a gatherer for his tribe, the Sault Ste. Marie Chippewa. From boiled bear fat (used as a salve) that he renders himself to porcupine pelts picked clean by beetles, he provides medicine and ceremonial items for the tribe’s healers. But he said his gathering is at risk, after five tribes and the state signed an agreement that restricts it.

“It’s wrong,” he said.

And he may flaunt the new rules.

Grondin said he treats all forms of life with dignity. Much of his knowledge of the woods and waters of the eastern Upper Peninsula was absorbed from elders and relatives who taught him. He will take the branches to his garage for drying, along with hundreds of other things he’s preparing.

Grondin isn’t just a gatherer; he’s a prodigious hunter, tracker, fisherman, trapper and taxidermist who tans his own hides. He makes unprocessed tobacco for ceremonies. He builds drums from tanned deer hides stained with dye he makes from walnuts.

When he harvests birch bark, he is careful not to kill the tree. When he harvests a plant or kills an animal, he uses every scrap.

Under the new agreement, Grondin — for the first time in his life — needs a permit to gather. The deal restricts him to certain state lands and limits what and how much he can gather. He must make reports on what he has picked or cut.

The rationale is to conserve nature’s resources, but he doesn’t buy it.

“We have been preserving them forever,” he said. “It baffles my mind to get permits.” Having someone dictate where elements of a medicine are gathered could render it useless. “A healer could reject it,” he said.

Living in 2 worlds

Grondin is a tall, silver-haired man. He thinks before he speaks.

Born and raised in St. Ignace, the city on the Upper Peninsula side of the Mackinac Bridge, Grondin has traced relatives back to the 1600s. His grandfather owned Rabbit’s Back, a lumpy chunk of land on Lake Superior where the tribe’s newest casino sits. His father taught him the Anishinabewoon language and how to gather.

He inhabits parallel worlds. He was raised Catholic, flies an American flag and won a Purple Heart as a U.S. soldier in Vietnam. He worked for the state highway department until retirement. The kitchen of the family home, which is not on a reservation, is decorated in an apple motif.

But in his study, the Indian half of his life unfolds. A gnarling bear on the wall is surrounded by seven majestic deer heads and a stuffed hawk, bobcat, fox, raccoon and weasel. Beautifully tanned pelts of coyote, badgers, beavers, skunks and deer hang in a corner. From a closet he pulls the elaborate outfit he wears at powwows, which he fashioned partly from the head, claws and feathers of a bald eagle killed by a car.

Gathering is more than roots and berries for Grondin. He gets excited when he comes across fresh roadkill — a possum, raccoon or a rabbit — that’ll soon be in his freezer. He saves the animals’ toenails for rattles.

Grondin’s garage, too, is a place of wonder: a cave of powerful sweet smells and odd bits of hairy flesh scattered among things like his Sears riding mower and red tool chest.

Every corner holds a surprise. There is a jar of rendered bear fat he boiled himself, moose hooves from Canada, bear claws with hair still stuck to them in a baggie and beetles feasting on the underside of a porcupine pelt on the floor. Dried sage and sweetgrass hang in bunches from the ceiling.

He gathers cedar bark to sheath the roof of a tepee at the local American Indian museum. Cutting cedar bark will kill the tree. He typically takes about 10 cedars a year, he said, using leaves for tobacco, milling the wood for drums and turning the tiniest branches into buttons for ceremonial shirts.

“My dad taught me all this,” he said. “Our culture teaches us to take what we need, and leave the rest for others.”

Reasons for a change

The Sault tribe’s 23,000 adult members are voting until Oct. 17 on whether to approve the hunting-fishing-gathering agreement with the state; ballots went out the last week in September. Until the voting ends, said tribal spokesman Cory Wilson, the tribe has no comment.

The state sought the rules on gathering so tribes could have access to what they need, but would work with local forest managers on where and when to get it, said Mary Dettloff, spokeswoman for the Department of Natural Resources.

“We’re permitting them to do it, but asking their cooperation,” she said. “You can’t just go into the forest and cut down the trees.”

Frank Ettawageshik, chairman of the Little Traverse Bay tribe near Petoskey, said the agreement gives the tribes certainty that their hunting, fishing and gathering rights under a 1836 treaty with the U.S. government will be honored. He said the gathering rules would help protect resources for coming generations.

Grondin disagrees.

“I hope our tribe rejects it,” Grondin said. “Whatever the tribe requires, I’ll do. But I will still gather where I want.”

This is a very interesting story, but if the only problem is that tribal gatherers and hunters need a permit, I’m not sure it’s compelling. I don’t see the Inland settlement doing anything but guaranteeing the right to gather, subject to tribal regulations. If Soo Tribe members want to reject the settlement, that is their prerogative, but the alternative likely is costly and (possibly disastrous) litigation.

However, though it isn’t as spectacular a story as the Makah whaling controversy, the possibility that some Michigan Indians will reject the Inland settlement is similar to that case, where tribal people harvested a whale in violation of tribal and federal law. The notion of tribal people rejecting treaty rights and their various interpretations by courts, tribes, and non-Indian governments in favor of “pre-treaty” rights is an interesting legal, historical, and political question.