In a four-part series, The Intercept examines the blurred lines between private security and public law enforcement, and the impact of corporate money on the increasing opposition to oil pipelines.
Danielle M. Conway has posted her paper, “Promoting Indigenous Innovation, Enterprise, and Entrepreneurship Through the Licensing of Article 31 Indigenous Assets and Resources.” She published the paper in the SMU Law Review.
Here is the abstract:
The notion that indigenous entrepreneurship is inherently paradoxical to participation in the western marketplace must be challenged, even though there is a fine balance indigenous entrepreneurs maintain with their own world and the western world. This balance considers that indigenous entrepreneurs exist within transgenerational communities with complex cross-cultural linkages with the west. Far from fully segregating from western society and the states in which they reside, indigenous entrepreneurs seek to promote indigeneity through indigenous and non-indigenous commerce. As Hindle and Lansdowne explain, “[t]here need be no paradox, no contradiction, no values sacrifice, no false dichotomy between heritage and innovation.” Reference to the goals and objectives of the United Nations Declaration on the Rights of Indigenous Peoples bear this out. For example, article 19 of the Declaration relates to Indigenous peoples’ participation with respect to issues that affect them, their lands, their resources, and their rights. The Declaration also calls for good-faith efforts by states to consult and cooperate with Indigenous peoples about economic and social development that directly or indirectly impacts their rights. Relevant to this paper, article 31 of the Declaration deals with Indigenous peoples’ right to exercise authority and control over their cultural heritage, traditional knowledge, and traditional cultural expressions in addition to any intellectual property rights in these assets and resources. Accordingly, this Article promotes the use of the Declaration on the Rights of Indigenous Peoples as a basis for asserting indigenous control over article 31 assets and resources to spur indigenous enterprise and innovation. After asserting control, Indigenous peoples can then operationalize the use of their article 31 assets and resources to counteract the “history of dispossession, assimilation, child removal and other previous colonial policies [that have] created a legacy” of economic disadvantage, political and structural disadvantage, geographic and cultural disadvantage, and collective and individual disadvantage. This article focuses on licensing as a mechanism to both implement the goals and objectives of the Declaration and to reassert indigenous authority and control over indigenous assets and resources.
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.”
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.”
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)
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.”
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.
From the Escanaba Daily Press: “The conservation work performed by organizations such as the Bay De Noc Sports Fishermen and the MDNR was recognized as an integral component of the successful management of our inland fisheries. Is [the settlement] perfect? Not totally. However it is a far cry better than what was in place before because now everyone is thinking towards the future.”
The longer article appears to be an interesting CYA from the treaty rights opponents.
One nit to the author — the settlement doesn’t “change” the treaty, just interpret it.
From the AP: “The Sault Ste. Marie Tribe of Chippewa Indians said Thursday that its members have approved an agreement between five American Indian tribes and the state of Michigan over inland hunting and fishing rights.”
From Soo News: