Federal Court Dismisses Individual Tribal Member’s Attempt to Invoke Treaty Rights

Here are the materials in Turunen v. Creagh (W.D. Mich.):

56 DCT Order to Show Cause re Rule 19

57 Plaintiff’s Brief

58 DNR Brief

61 KBIC Letter

62 Fond du Lac Band Letter

63 Red Cliff Band

64 LCO Brief

66 Plaintiff’s Response to Tribes

67 DCT Order Dismissing Complaint

An excerpt:

Plaintiff, Brenda Turunen, is a member of the Keweenaw Bay Indian Community (KBIC), a federally recognized Indian tribe in Michigan’s Upper Peninsula that is the successor-in-interest to the L’Anse and Ontonagon bands of the Lake Superior Chippewa Indians. In 1842, the Lake Superior Chippewa  Indians signed a treaty with the United States of America, 7 Stat. 591 (the 1842 Treaty), in which the Indian signatories ceded large portions of the western Upper Peninsula of Michigan, but reserved “the right of hunting on the ceded territory, with the other usual privileges of occupancy.” 7 Stat. 591.

Plaintiff owns property that is within the “ceded territory” at issue in the 1842 Treaty. Plaintiff asserts that the “the usual privileges of occupancy” reserved by the KBIC on the ceded territory included commercial farming and animal husbandry. Based on that interpretation of the 1842 Treaty, Plaintiff seeks a declaration that she may—as a member of the KBIC—raise animals free from state regulation on her property within the ceded territory.

Plaintiff’s claim rests on the twin propositions that the KBIC retained certain rights in the 1842 Treaty, and that she may exercise such rights based on her membership in the KBIC. Although the Court must determine the scope of the rights retained by the KBIC to resolve Plaintiff’s claim, the KBIC is not a party to this action. Thus, the Court previously sought briefing from the parties regarding whether the KBIC should be joined pursuant to Federal Rule of Civil Procedure 19, and whether the case  should be dismissed if the KBIC could not be joined. After the parties responded, the Court—at Plaintiff’s urging—ordered Plaintiff to notify the KBIC of the pending action and the opportunity to intervene. The KBIC followed up to that notification with a letter to the Court stating that it would not intervene in the action, and further urging that the action be dismissed under Rule 19. For the following reasons, the Court concludes that the matter should be dismissed.

We have posted on this matter here, here, here, here, and here.

IPR on the W. Great Lakes Salmon Fishery


The intro:

Managers of salmon in Lake Michigan must soon decide how many fish to put into the lake each year. The salmon fishery is a man-made industry in the Great Lakes, produced by planting millions and millions of fish in the lakes. Keeping the salmon population in balance with the food supply is a challenge these days. Some scientists are raising new questions about the salmon’s demise in Lake Huron and whether it can be stopped in Lake Michigan.

Michigan DNR Makes Arrests for Illegal Gillnetting

From the Escanaba Daily Press:

GARDEN – Three men were arrested Monday in an alleged illegal gill netting operation on Big Bay de Noc, Department of Natural Resources conservation officers said.

The 1,100 pounds of fish seized consisted mainly of whitefish, with smaller quantities of burbot and walleye.

The wholesale value of the whitefish was placed at $860. In addition a 14-foot boat, motor and trailer were also confiscated, along with 1,200 feet of gill net and other gear used in the operation.

According to Debbie Munson Badini of the DNR Regional Office in Marquette, a misdemeanor charge is being sought through the Delta County prosecutor’s office for fishing with an illegal device. Additional charges being sought include felony resisting, obstructing a police officer for one of the men who fled the scene on foot.

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LRB and State of Michigan Enter into Agreement re: Authority of Tribal COs

From the Ludington Daily News:

Any confusion over whether tribal conservation officers have the right to stop state-licensed hunters has been removed.

The Little River Band of Ottawa Indians and the State of Michigan have entered into an agreement that satisfies a provision in the 2007 Inland Consent Decree regarding enforcement of conservation regulations, according to the Michigan Department of Natural Resources.

The issue came to light locally when Ed Haik, a retired Manistee County sheriff and the deputy chair of the Manistee County Board of Commissioners, noted that there was no legal mechanism for tribal conservation officers to stop state-licensed hunters or anglers. Last month, the county board sent a letter to Gov. Jennifer Granholm opposing any cross-deputization measures and asking for a public hearing on the issue.

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Op-Ed Supporting Michigan DNR

From the Traverse City Record-Eagle:

The State Department of Natural Resources is used to taking its lumps. It gets its share and more in the media, in deer hunting and fishing publications, from bloggers and even on this page in the form of editorials and letters to the editor.

It comes with the territory. The DNR, after all, is a taxpayer-supported agency and deals with some pretty volatile issues and individuals.

The agency oversees fishing, hunting, trapping and outdoor activities of all sorts, all of which have passionate adherents not shy about their opinions.

Too often, however, the agency and individual DNR officers don’t get the credit they deserve. Many spend untold hours in the heat and cold watching for poachers or monitoring fishermen. They’ve been shot at, punched and worse in the line of duty. They don’t often hear someone say “thanks.”

But without their efforts there’d be a lot fewer deer and fish for those who pay for the privilege of hunting and fishing.

Recently the DNR, with help from officers from the Sault Ste. Marie Tribe of Chippewa Indians, said they would charge six men with running an illegal commercial fishing operation on Lake Michigan’s Little Bay de Noc. The poachers may have claimed more than 20,000 pounds of walleye in just the last two months and thousands more over several previous winters.

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First DNR Inland Settlement Meeting

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.

Michigan Indian Treaty Rights Consent Decree

Here’s the text of the 144 page “draft” consent decree. It’s in draft form until the judge signs off, but this is it.


Michigan DNR has it chopped up, too, if you need a smaller size.