ottawa

Rat on Inland

Matthew L.M. Fletcher1 Comment

From the Leelanau Enterprise:

Tribal-state consent decree signed

Attorney Bill Rastetter figured he and other representatives of the Grand Traverse Band of Ottawa and Chippewa Indians had better attend the biennial meeting of the Conservation Resource Alliance in Traverse City for a couple reasons.

First, tribal members wanted to show support for natural resources, and the CRA seeks to protect watershed in northwest Michigan.

And secondly, they wanted to hear what just-appointed Michigan United Conservation Club executive director Dennis C. Muchmore had to say about the recently released consent decree acknowledging inland rights to hunt and fish within property defined by an 1837 treaty.

Muchmore, keynote speaker at the Oct. 18 luncheon, talked of opportunities afforded by the consent decree for MUCC and other sporting groups, the state, and the tribes to work together to promote their common causes.
“It was the polar opposite of 1981,” said Rastetter.

The consent decree, the result of two years of closed negotiation between the state and five Michigan Indian Tribes, was signed this week by U.S. District Judge Richard Alan Enslen.

The decree has no ending date. For all practical purposes, it represents the law of the land in how members of the five tribes hunt and fish in Michigan.

Rastetter is a veteran of the latest round of cases involving tribal issues, having enlisted as a pro-bono attorney working for Michigan Indian Legal Services shortly after federal Judge Noel Fox issued his landmark decision in 1979 granting treaty rights for Native Americans to gill net in the Great Lakes. Eventually, he was hired by the Grand Traverse Band to represent it in complicated legal cases with the state that had long-term implications.

Rastetter recalled attending a meeting in 1981 at which former MUCC director Tom Washington, who is now deceased, and former DNR director Howard Tanner denounced the emboldened tribal commercial fishers.

“What they had to say about the Indians, it would be an understatement to say it was a tirade,” said Rastetter. In defense of Washington and Tanner, considered stalwarts of the conservation movement, they were being reflective of a society of sportsmen fearful that the resources they cherished would be plundered.

Fox’s ruling came largely without limits, and eventually lake trout populations were over-harvested. Rastetter said Indian tribes were in their infancy. Most of the harvest in Grand Traverse Bay, he said, was by Native Americans who resided in the Upper Peninsula and were not members of the GTB.

Still, the die was cast. Indian fishermen were considered bad by members of the traditional conservation movement.

Flash forward to today, with the heard of MUCC reaching out to tribes as fellow conservationists, and the state and tribes willing to negotiate away portions of their legal positions in order to reach an agreement.

Somewhere along the way, the state and tribes came to terms that they should not be enemies. In fact, they are nearing an unfamiliar relationship — that of partners.

“Our biologists are working hand-in-hand with (Traverse City DNR fish biologist) Todd Kalish on a number of projects. Clearly there is a common mission,” said Rastetter.

Also familiar with the history of the struggles of GTB members is Henry (Hank) Bailey, a fish and wildlife technician with the GTB Natural Resources Department. He has the perspective of viewing the decree from two sides — that of an Indian who may have given up some of his treaty rights, and that of a protector of resources.

“We’ve always been great managers of resources,” he said, adding that GTB members believe in planning ahead seven generations in their use of natural resources. “That’s how far you need to be looking and planning for. You have to be careful with what you’re doing with the resource.”

Bailey has heard complaints from other GTB members that tribal negotiators gave up too much to get the settlement. “There are so many ways of looking at it. But it has been negotiated, so there has been give and take … the state folks have people who they have to answer to, and they’ll take a beating.”

State conservation officer Mike Borkovich has heard from those folks, who believe the state should have taken its case to trial. He, too, offers a bit of history.

“The treaty was made even before Michigan was a state. In a way, the state wasn’t in the negotiations for the treaty,” he said.

Hunters are concerned that GTB members are allowed to firearms hunt on public lands earlier than the traditional opener on Nov. 15. Fishers are concerned that limited netting — but not gill netting — will be allowed on larger inland lakes.

“I want people to be patient,” Borkovich suggests. “The tribal members are not anti-hunting or anti-gun zealots. If we all work together with proper management techniques, we will be able to sustain our resources.”

Rastetter said the decree is the first he knows of that recognizes tribal rights without having to first go to federal court, where states have traditionally lost their cases. The document is full of give-and-take, of which some pertains directly to Leelanau County. For instance, tribal rights were extended to lands enrolled in the state Commercial Forestry Act — but only lands of 1,000 acres or more. That provision excludes all property enrolled in Leelanau.

And “state parks” were specifically excluded from public lands falling under tribal rules — meaning that the hundreds of acres in Leelanau State Park were excluded from the early tribal firearms deer hunt.

“There are comprises like these that I’m sure tribal members are not happy about,” he said. “But this sets the stage for cooperation on a wide level on inland issues.”

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.

Representations of Michigan Indians in the Press

Matthew L.M. Fletcher

Nick Reo’s recent post on online posts written in response to the Inland settlement reminded me of a dissertation by Scott G. Sochay, “Newspaper Images of Native Americans: Michigan Newspaper Coverage of Treaties and Compacts Affecting Indians in the Territory and State of Michigan” (1998). The diss. covers the 1819Treaty of Saginaw, the 1836 Treaty of Washington, and the 1993 gaming compacts.

It’s a large document, but you can download it here:  Sochay Dissertation

Makwa, a Song About a Bear

Matthew L.M. Fletcher1 Comment

Kenny Pheasant’s got a lovely singing voice.

How the song came to be…

One morning when I went to teach at a local school , the first chorus of a song came to me that I had heard about a year ago. So, as I was driving, I began to sing it. This inspired me to write some additional verses that came to me very naturally. When I got to school that day, I taught it to the children and they loved it. We sang it every day for about two weeks. One day when I was leaving the school, the bus drivers met me at the door and said, “Mr. Pheasant, could you please teach the children another song, because we want to hear a different one now”. I guess what the children were doing was singing this song on the bus on the way to school and on the way back, every single day.

[from Kenny’s Anishinaabemdaa website, sponsored by the Little River Band of Ottawa Indians]

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.

The Keno Case

Matthew L.M. Fletcher1 Comment

In State of Michigan v. Little River Band of Ottawa Indians et al., the State is suing LRB and LTBB for violation of the gaming compacts requirement that the tribes share revenue from their gaming operations — LTBB Compact & LRB Compact. The tribes stopped payment when Governor Granholm authorized the state to begin keno at bars and restaurants. Senior District Court Judge Miles granted the State’s motion for summary judgment last April. The appeal to the Sixth Circuit is forthcoming. As those briefs go online, we will upload them here.

Judge Miles’ opinion is here: Opinion and Order

The State’s motion for summary judgment is here: Motion for Summary J

The tribes’ response brief is here: Tribes’ Brief

The State’s reply brief is here: Reply Brief

Mich. Supreme Court Justice Cavanagh Talk: Michigan Indian Judicial Association

Matthew L.M. Fletcher1 Comment

Justice Michael Cavanagh, the Michigan Supreme Court’s liaison with Michigan’s tribal courts, is speaking before the members of the Michigan Indian Judicial Association this morning.

Justice Cavanagh, along with Tribal Judge Michael Petoskey, spearheaded the Court’s adoption of Michigan Court Rule 2.615, extending comity to tribal court judgments.

Justice Cavanagh wrote about the origins of the rule in an article published in the University of Detroit Law Review. Download Justice Cavanagh’s Article.

Tribal courts from numerous tribes appeared at this talk today at the MSU College of Law: Nottawaseppi Huron Band of Potawatomi Indians, Pokagon Band of Potawatomi Indians, Little Traverse Bay Bands of Odawa Indians, Little River Band of Ottawa Indians, Bay Mills Indian Community, Keweenaw Bay Indian Community, Saginaw Chippewa Indian Tribe.

Justice Michael F. Cavanagh

Justice Cavanagh received a bachelor’s degree from the University of Detroit in 1962 and his law degree from the University of Detroit Law School in 1966. He began his career as a law clerk for the Michigan Court of Appeals. In 1967, Justice Cavanagh was hired as an assistant city attorney for the City of Lansing and thereafter was appointed as Lansing City Attorney, serving until 1969. He then became a partner in the Lansing law firm of Farhat, Burns and Story, P.C. In 1971, he was elected judge of the 54-A District Court. Justice Cavanagh was then elected to the Michigan Court of Appeals, where he served from 1975-1982. At that time, he was the youngest person ever elected to the Michigan Court of Appeals. Justice Cavanagh was elected to the state Supreme Court in 1982 and was re-elected in 1990, 1998, and 2006. He served as Chief Justice from 1991-95. Justice Cavanagh’s current term expires January 1, 2015.

The son of a factory worker and a teacher who moved to Detroit from Canada, Justice Cavanagh worked on Great Lakes freighters during the summers to help pay his tuition at the University of Detroit. During his years in law school, he was employed as an insurance claims adjuster and also worked for the Wayne County Friend of the Court as an investigator.

Justice Cavanagh has participated in numerous community and professional activities, including Chairman of the Board of the American Heart Association, Past President of the Incorporated Society of Irish/American Lawyers, Board of Directors of the Thomas M. Cooley Law School, and the Commission on the Future of the University of Detroit Mercy . He is a Member of the Institute of Judicial Administration, New York University Law School. He has served as Vice President of the Conference of Chief Justices, Chair of the National Interbranch Conference of Funding the State Courts, and member of the National Center for State Courts Court Improvement Program. Other appointments include the Michigan Justice Project, Chairman of the Judicial Planning Committee, Michigan Crime Commission, Judicial Coordinating Committee, and Chair of the Sentencing Guidelines Committee. Justice Cavanagh is the Supervising Justice of the Michigan Judicial Institute. Justice Cavanagh was instrumental in the planning, design, construction and eventual completion of the Michigan Hall of Justice. He has served as Supreme Court Liaison, Michigan Indian Tribal Courts/Michigan State Courts since 1990, and has attended many national Indian Law conferences and participated in Federal Bar Association Tribal Court symposiums.

Justice Cavanagh and his wife, Patricia, are the parents of three children, and have two grandsons. The Cavanagh family resides in East Lansing .

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)

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.”