Record and brief — Michigan v. United States
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81-549
IN THE
SUPREME COURT OF THE UNITED STATES
ALEXANDER L. sTeyar
October Term, 1981 CLERK
STATE OF MICHIGAN, MICHIGAN NATURAL
RESOURCES COMMISSION and its agents DR. HOWARD
A. TANNER, DR. HENRY VONDETT and GEORGE
DAHL in their official capacities,
Petitioners,
Vv
UNITED STATES OF AMERICA, BAY MILLS INDIAN
COMMUNITY, SAULT STE. MARIE TRIBE OF
CHIPPEWA INDIANS, GRAND TRAVERSE AREA
SPORT FISHING ASSOCIATION, 13th JUDICIAL
CIRCUIT COURT OF THE STATE OF MICHIGAN,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT PRIOR TO JUDGMENT
) RANK J. KELLEY
Attorney General
Robert A. Derengoski
Solicitor General
Thomas L. Casey
Assistant Attorney General
525 West Ottawa Street
762 Law Building
Lansing, Michigan 48913
(517) 373-1124
——__ +
PRINTED BY SPEAKER-HINES AND THOMAS, INC.. LANSING, MICHIGAN—1981
>
— em
QUESTIONS FOR REVIEW
I.
DO RESPONDENT INDIAN TRIBES POSSESS FISHING
RIGHTS IN GREAT LAKES WATERS CEDED BY
TREATIES OF 1836 AND 1855?
IF RESPONDENT TRIBES POSSESS SUCH FISHING
RIGHTS, DO THE STATE OF MICHIGAN AND STATE
COURTS NEVERTHELESS POSSESS AUTHORITY AND
JURISDICTION TO EXERCISE REASONABLE REG-
ULATION IN THE INTEREST OF CONSERVATION?
ii
TABLE OF CONTENTS
Page
QUESTIONS FOR REVIEW .....................4.. i
= Gs eer rr iii
rE ie isos cccsndandehhusaegenetasne 1
iinet cetauaasapedauueseeu nes 2
I nr ere 3
STATEMENT OF THE CASE ............cccccssess 3
REASONS FOR GRANTING THE WRIT
I.
Il.
Ill.
THE COURT OF APPEALS “HAS SO FAR DE-
PARTED FROM THE ACCEPTED AND USUAL
COURSE OF JUDICIAL PROCEEDINGS ... AS
TO CALL FOR AN EXERCISE OF THIS
COURT'S POWER OF SUPERVISION ........
THE ISSUE OF WHETHER INDIAN TRIBES
POSSESS FISHING RIGHTS IN GREAT LAKES
WATERS CEDED UNDER TREATIES OF 1836
AND 1855 PRESENTS “AN IMPORTANT QUES-
TION OF FEDERAL LAW WHICH HAS NOT
BEEN, BUT SHOULD BE, SETTLED IN THIS
REE. Sc eGutideas (0s 04 cttnnksentdteutenacs
IN PLACING LIMITATIONS UPON THE
STATE’S AUTHORITY TO REGULATE INDIAN
FISHING, THE LOWER COURTS HAVE DE-
CIDED A FEDERAL QUESTION IN A WAY IN
CONFLICT WITH THE MICHIGAN SUPREME
COURT AND IN CONFLICT WITH APPLI-
CABLE DECISIONS OF THIS COURT ........
CONCLUSION AND RELIEF SOUGHT ............
10
15
iii
INDEX OF AUTHORITIES
Cases Pages
Antoine v Washington, 420 US 194 (1975) .......... 19
Bay Mills Indian Community, et al v United States of
America, (docket nos. 18E, 58) 7 Indian Claims Com-
mission 576 (1959); 20 ICC 137 (1968); 26 ICC 538
Bu ohana 6 3 Meee eo 17
Department of Game of Washington v Puyallup Tribe
(Puyallup Il), 414 US 44 (1973) ...............04- 19
Mescalaro Apache Tribe v Jones, 411 US 145 (1973) .. 19
Organized Village of Kake v Egan, 369 US 60 (1962) .. 19
Ottawa and Chippewa Indians v United States,
42 Court of Claims 240 (1007) ..............esee0. 17
People v LeBlanc, 399 Mich 31; 248 NW2d 199
CRED Nk ccndpenvecevevessccccaccoesneseens 6, 9, 12, 15
Puyallup Tribe v Department of Game of Washington
(Puyallup I), 391 US 392 (1968) .................. 19
Puyallup Tribe v Washington Game Department
(Puyallup II), 433 US 165 (1977) ...............55. 19
State of Montana v United States, .... US ....;
SPEEDS cise cccscscccccssssetecscene 20
State of Washington v Washington State Commercial
Passenger Fishing Vessel Assn, 443 US 658 (1979) .. 19
United States of America v State of Michigan,
471 F Supp 192 (WD Mich, 1979) ................ 1,5
United States of America v State of Michigan,
505 F Supp 467 (WD Mich, 1980) ................ 2,8
United States of America v State of Michigan,
GD POE GOB (CAG, BOG) 2... cc ccccccvccccccccees 2,8
iv
Pages
Statutes
ee CE cd inedd bck es sbagenwgseeedeeases 3
ee EE hiecddn Se bendecs 4 senuduN sued oetesya 3
Si ekind db ciehe ever eunderssecsaved 3
eevee lech iadsvdicasiekbwesteses 3
ETE TTT TT TTT eT TTT ee 3
EE. Sb e dds eencecccseedcipadevisheons 8
Be ee GO Se MED 0 onc cccccccvcensevseesstce 3
Other Source
25 CFR part 256, subpart D, 44 Fed Reg 65747
(immediately effective November 16, 1979), revised
45 Fed Reg 28100 (April 28, 1980) ................ 7
ff EPPPPPTTTT TTITLELIT TTT TTT Teri rire 3
i f BPPTTTTOTTITITITILITETI TTT 3
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1981
STATE OF MICHIGAN, MICHIGAN NATURAL
RESOURCES COMMISSION and its agents DR. HOWARD
A. TANNER, DR. HENRY VONDETT and GEORGE
DAHL in their official capacities,
Petitioners,
v
UNITED STATES OF AMERICA, BAY MILLS INDIAN
COMMUNITY, SAULT STE. MARIE TRIBE OF
CHIPPEWA INDIANS, GRAND TRAVERSE AREA
SPORT FISHING ASSOCIATION, 13th JUDICIAL
CIRCUIT COURT OF THE STATE OF MICHIGAN,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT PRIOR TO JUDGMENT
OPINIONS BELOW
The judgment of the United States District Court for the
Western District of Michigan declaring that the Plaintiff tribes
pursuant to treaty possess fishing rights in portions of the
Great Lakes and that any State laws or regulations inconsistent
therewith are void ab initio is included in the appendix to
this Petition, App. 18a, and is reported at United States of
America v State of Michigan, 471 F Supp 192 (WD Mich,
1979). In a subsequent reported opinion the District Court
= =
denied the State’s request for a stay pending appeal. United
States of America v State of Michigan, 505 F Supp 467 (WD
Mich, 1980) App. 229a.
Beginning in late 1979 the Court of Appeals issued a series
of unreported orders which stayed various injunctive orders
entered by the District Court and discussed issues relevant
to the instant case: App. 204a (order dated September 20,
1979); App. 223a (order dated October 19, 1979); App. 226a
(order dated November 28, 1979). On May 28, 1980, the
Court of Appeals entered an opinion remanding the case to
the District Court for consideration of three specified pre-
emption questions, but retaining jurisdiction, App. 292a
United States of America v State of Michigan, 623 F2d 448
(CA 6, 1980). Two days later, on May 30, 1980, the District
Court's denial of a stay was overturned by the unreported
Court of Appeals order granting a stay, App. 302a. This stay
order was modified in subsequent unreported orders of July
16, 1980 (App. 306a) and July 10, 1981 (App. 3lla). No
judgment was entered on any of these orders, but on August
11, 1981, the Court of Appeals issued its July 10, 1981 order
as the Court’s mandate, App. 3lla. One week later, on
August 18, 1981 the District Court issued an opinion and
order (App. 316a) concluding that the Court of Appeals
remand order entered May 28, 1981 (App 292a; 623 F2d
440) and modified and continued in effect on July 16, 1980
(App. 306a) and July 10, 1981 (App. 3lla) is moot.
JURISDICTION
The District Court Judgment was entered May 7, 1979 and
a timely notice of appeal was filed on July 2, 1979. Although
the Court of Appeals has not entered a judgment in this case
pursuant to Fed R App P 36, the order of July 10, 1981 ( App.
3lla) was issued as the mandate on August 11, 1981 (App.
315a), apparently indicating the Court's position that the
=
July 10, 1981 order is a final judgment. It is unclear whether
judgment has been rendered, but the jurisdiction of this Court
to review the entire case is invoked under 28 USC § 1254(1).
TREATIES INVOLVED
This case involves interpretation of the 1936 treaty with
the Ottawa, etc., 7 Stat 491, and the treaty with the Ottawa
and Chippewa of 1855, 11 Stat 621, both of which are re-
produced in full in App. la, 94. The following articles are
of particular importance:
Treaty with the Ottawa, etc., 1836, Art. 13:
“The Indians stipulate for the right of hunting on the
lands ceded, with the other usual privileges of occupancy,
until the land is required for settlement.”
Treaty with the Ottawa and Chippewa, 1855, Art. 3:
“The Ottawa and Chippewa Indians hereby release
and discharge the United States from all liability on ac-
count of former treaty stipulations, it being distinctly
understood and agreed that the grants and payments here-
inbefore provided for are in lieu and satisfaction of all
claims, legal and equitable on the part of said Indians
jointly and severally against the United States, for land,
money or other thing guaranteed to said tribes or either
of them by the stipulations of any former treaty or
treaties; ....”
STATEMENT OF THE CASE
This is an action for declaratory and injuuctive relief brought
under 28 U5C §§ 1331, 1337, 1345, 1362, 2201, and 2202 by
the United States on its own behalf and on behalf of two
—_
Indian tribes and by the two tribes themselves against the
State of Michigan, its Natural Resources Commission, and
certain named State officials seeking a determination as to
whether certain alleged aboriginal and treaty fishing rights
exist in waters of the upper Great Lakes and whether the State
of Michigan has authority to regulate Indian fishing.
It is difficult to determine who made the first overtures to
sell Indian land in Michigan. It is known that by late 1835
both the Ottawa and Chippewa Indians in northern Michigan
were interested in selling their lands in order to obtain finan-
cial annuities and services such as blacksmiths and that the
United States was interested in obtaining land cessions from
the Indians. In the fall of 1835, a small group of Indians made
their way to Washington, D.C. to talk to government officials
about a treaty. The United States was interested in obtaining
larger land cessions than were available from this group of
Indians and so a larger treaty meeting was proposed. Instruc-
tions were sent to Indian agents in Michigan to arrange for a
larger delegation of Indian chiefs in order to negotiate a
treaty. In March, 1836, a group of approximately 25 Indian
chiefs from various bands of Michigan Indians arrived in
Washington, D.C., accompanied by escorts consisting of
traders and others known to the Indians. A guideline for the
treaty meeting itself included the following directive from
Lewis Cass, the Commissioner of Indian Affairs, to Henry
Schoolcraft, the principal negotiator of the treaty: “The great
object will be to do full justice to the Indians, and, at the
same time, to procure the land upon proper and reasonable
terms for the United States.” The treaty negotiations com-
menced on March 14, 1836 and concluded on March 28, 1836
at which time all of the chiefs and lelegates signed the treaty
document. The treaty was subsequently amended in part
by the United States Senate and Indian chiefs were later
assembled at Mackinac Island in order to obtain their assent
to the amendments. By July 16, 1836, the signatures of 96
=
chiefs were received assenting to the amendments. A copy
of the treaty as amended is set forth at App. la.
The treaty of 1836 provides for the sale and cession by the
Indians to the "sited States government of a tract of land
described in A::. 1 of the treaty. See the map, App. 194a.
Other articles of the treaty provided for certain reservations
to be held by the Indians for five years for the payment of
certain annuities and the provision of services, for the pay-
ment of certain debts of the Indians, for payments to certain
half-breed relatives of the Indians, and for investigation of
the removal of the Indians from Michigan to areas west of the
Mississippi River.
The treaty of 1855 (App. 9a) was the result of a desire
on the part of the Indians and the government that disputes
arising from several previous treaties be resolved and a desire
on the p. . of the Indians to hold individual title to land.
Among t! principal reasons for the 1855 treaty was the desire
to settle other debts and the desire for the Indians to obtain
money in exchange for releasing the United States from former
treaty obligations.
The original complaint in this case was filed in 1973,
amended complaints and answers were filed in 1975 and 1976
and trial was conducted between February 1978 and February
1979. In an opinion (App. 18a), United States of America v
State of Michigan, 471 F Supp 192 (WD, Mich 1979), and
Declaratory Judgment and Decree ( App. 195a), 471 F Supp at
278, the District Court declared that the Plaintiff Indian tribes
were the successors in interest to the signatories of the treaties
in question, that they possessed fishing rights in the waters
of the Great Lakes included in the territory ceded by the
treaties, and that any State statutes and regulations incon-
sistent with such rights were void ab initio. Petitioners filed
aillinn
a timely notice of appeal which was docketed in the Court
of Appeals as case no. 79-1414.
In August 1979 a lawsuit was instituted in a Michigan
Circuit Court by a group of sports fishermen and an injunc-
tion was obtained prohibiting all fishing with gill nets in
Grand Traverse Bay in the northwest portion of Michigan's
Lower Peninsula. In September 1979 Respondents obtained
a temporary restraining order and preliminary injunction from
‘the United States District Court for the Western District of
Michigan enjoining further proceedings in the state court
litigation. The Plaintiffs in the State court action and the
State court judges filed appeals which were docketed in the
Sixth Circuit as cases no. 79-1527, 79-1528, and which were
subsequently consolidated with the pending appeal filed by
the State of Michigan. On September 20, 1979 and October
19, 1979 the Sixth Circuit entered orders granting a stay of
the District Court’s injunction pending appeal, App. 204a,
223a. In its order of October 19, 1979 the Court of Appeals
concluded that unregulated gill net fishing by members of
the Respondent tribes posed a strong possibility of irreparable
damage, App. 224a.
“We find on the basis of the record now before us that
unless the order is stayed there is a strong possibility
that the fishery, the fish supply and spawning grounds
in Grand Traverse Bay will be irreparably damaged or
destroyed by continued intensive gill net fishing.”
The Court of Appeals also concluded that the reasoning of a
Michigan Supreme Court opinion, People v LeBlanc, 399
Mich 31; 248 NW2d 199 (1976) (which had previously been
rejected by the District Court) was more persuasive than the
reasoning of the District Court, App. 225a.
On October 26, 1979 the District Court entered an order
prohibiting the State from enforcing fishing regulations against
aniline
a group claiming treaty fishing rights who were not a party
to the lawsuit. T 22 State of Michigan appealed that order and
sought a stay which was granted by the Court of Appeals on
November 23, 1979, App. 226a. In sts order of November 28,
1979 the Court of Appeals concluded that continued intensive
gill net fishing by members of Plaintiff tribes posed a strong
possibility of irreparable damage throughout the Great Lakes
as well as in Grand Traverse Bay, App. 228a:
“Judge Fox's order of October 26, 1979 is hereby
stayed pending disposition of the appeals in nos. 79-1414
and 79-1527 for the reasons stated in our order of October
19, 1979 and for the further reason that, based on the
record now before us, it appears that the same considera-
tions apply in other areas of the Great Lakes as apply in
Grand Traverse Bay, which was the subject of our stay of
October 19, 1979. On the basis of the record now before
us, there is a strong possibility that fisheries, fish supplies
and spawning grounds in other areas of the Great Lakes
will be irreparably damaged or destroyed by continued
intensive gill net fishing.”
Not long after the Court of Appeals issued these orders
which first indicated disapproval of the rationale and rulings
of the District Court, but many months after entry of the
District Court's judgment, 471 F Supp 192, so-called “emer-
gency” federal regulations were promulgated by Respondent
United States of America which purported to govern fishing
by Respondent tribes. 25 CFR part 256, subpart D, 44 Fed
Reg 65747 (immediately effective November 16, 1979), re-
vised 45 Fed Reg 28100 ‘April 28, 1980). At oral argument
in the Court of Appeals on February 15, 1980 the United
States and the tribes relied heavily on the existence of these
post-judgment regulations as a separate and alternative basis
(in addition to the treaty interpretation issue raised by the
= =
State's appeal) for their contention that the State was without
authority to regulate fishing by Respondent tribes.
On May 9, 1980 the District Court entered an opinion and
order (United States of America v State of M ichigan, 505 F
Supp 467 (WD Mich, 1980), App. 229a) cenying the State’s
motion for stay of judgment pending appeal. A few weeks
later, on May 28, 1980, the Court of Appeals entered an
opinion remanding the case to the District Court for considera-
tion of the preemptive effect of Respondents’ so-called “emer-
gency” post-judgment federal regulations. United States of
America v State of Michigan, 623 F2d 448 (CA 6, 1980), App.
292a. Two days later the Court of Appeals entered an order
overruling the District Court's May 9 order and granting a
stay of the judgment pending final disposition of the appeal,
App. 302a. In a subsequent order dated July 16, 1980 the
Sixth Circuit modified its stay order to incorporate the terms
of Respondents’ post-judgment regulations, App. 306a. The
State filed a motion pursuant to 28 USC § 1651(a) in this
Court to vacate the Court of Appeals order, but the motion
was denied by Mr. Justice White on August 4, 1980. Michigan,
et al v United States, docket no. A-84. Hearings on the re-
manded issues were conducted in the District Court between
September and December, 1980.
On April 21, 1981 the Secretary of the Interior notified
Petitioners and Respondent tribes that the federal regulations
would not be extended beyond their May 11, 1981 expiration
date because evaluation by the Fish and Wildlife Service in-
dicated that the regulations “. . . may be failing to protect the
fisheries which are vital to Indians and non-Indians alike.”
App. 309a. The State of Michigan then filed emergency mo-
tions in the Court of Appeals seeking to set aside its remand
order since the preemption questions were moot and no longer
justiciable and to modify the stay to permit State regulation
consistent with the principles enunciated by the Michigan
—
Supreme Court in People v LeBlanc, supra, the reasoning of
which had been held “persuasive” by the Court of Appeals in
its order of October 19, 1979, App. 225a.
Following briefing and oral argument the Court of Appeals
entered an order on July 10, 1981 which, in effect, denied the
State’s motions and modified and continued in effect the
earlier remand opinion and orders of the Court, App. 314a,
315:
“The remand opinion and orders of the Court dated
May 28, 1980, and July 16, 1980 remain in effect except
as modified by this order.
“Accordingly the remand order of this Court embodied
in our opinion at 623 F2d 448 (6th Cir. 1980) is continued
in effect as modified by this order.”
The remand order to which the Court referred, 623 F2d at 450,
says as follows in pertinent part, App. 296a, 297a.
“For these reasons, we remand the case to the District
Court for consideration of the preemptive effect of the
new federal regulations. * * °
“Accordingly, the case is remanded to the District Court
for consideration of this question. This Court retains
jurisdiction of the other questions presented by the case
pursuant to 28 USC § 2106 and continues in effect the
stay heretofore entered.”
Thus in its July 10, 1981 order, which was simply the most
recent in a long series of orders dealing with stays and remands,
the Court of Appeals incorporated the terms of the expired
federal regulations as the terms of the stay pending final dis-
-_ =
position of the case based upon Respondents’ representations
that those terms had been adopted and would be carefully
enforced as a regime of tribal self-regulation.
No judgment was entered pursuant to Fed R App P 36, but
on August 11, 1981 the Court of Appeals purported to issue its
July 10, 1981 order as the mandate, App. 315a.
One week later, on August 18, 1981, the District Court
entered an opinion and order concluding that the Court of
Appeals remand was moot, App. 316a.
REASONS FOR GRANTING THE WRIT
I.
THE COURT OF APPEALS “HAS SO FAR DEPARTED
FROM THE ACCEPTED AND USUAL COURSE OF
JUDICIAL PROCEEDINGS . .. AS TO CALL FOR AN
EXERCISE OF THIS COURT'S POWER OF SUPERVI-
SION.”
Supreme Court Rule 17.1(a)
Perhaps the best example of the Court of Appeals’ departure
from the accepted and usual course of judicial proceedings
is the fact it is impossible to determine whether there has
been a judgment and, if there has, the extent to which the
District Court has been affirmed, modified or reversed. For
six years this case has been vigorously litigated in the District
Court, culminating in hundreds of exhibits, thousands of pages
of transcript, and two opinions comprising more than 120
published pages in the Federal Supplement. After two years
in the Court of Appeals, hundreds of pages of briefs have been
filed, two oral arguments have been held, stays and remands
have been entered and modified and a mandate has issued.
However, the Court of Appeals has not discussed any of the
evidence adduced at trial, none of the Court of Appeals’ orders
contain any meaningful discussion of the facts of the case or
the legal theories raised in the appeal, and no judgment has
been entered pursuant to Fed R App P 36. Nevertheless, the
Court of Appeals apparently considers the case closed and
the District Court appears to have assumed perpetual juris-
diction to regulate fishing in the Great Lakes, App. 329a.
Determination of this case without a ruling on the merits
is merely the most recent action by the Court of Appeals in
derogation of the accepted and usual course of judicial pro-
ceedings. For example, this case was tried in the District
Court and brought to the Court of Appeals solely on a question
of treaty interpretation. After the District Court judgment
and after the Court of Appeals issued interlocutory orders
expressing disagreement with the District Court’s rationale,
Respondents manufactured so-called “emergency” interim reg-
ulations purporting to regulate Indian fishing and asserted
them as an alternate independent basis for arguing that Peti-
tioner State of Michigan was without authority to regulate
Indian fishing. Not only did the Court of Appeals defer deter-
mination of the State’s appeal until the District Court could
hold hearings on the validity of the newly-manufactured reg-
ulations, it ordered them to be implemented while their
validity was being litigated. After having been in force for
15 months, Respondent United States concluded that the reg-
ulations may not be adequate to protect the fishery and so
declined to extend them, but the Court of Appeals nevertheless
ordered the regulations to remain in effect while the litigation
was pending, App. 314a.
In its most recent order of July 10, 1981 the Court of
Appeals has again departed from the accepted and usual
course of judicial proceedings. For example, in the first num-
= Ss
bered paragraph of the order (App. 312a) the Court refers
to treaty guaranteed fishing rights, aboriginal rights and fed-
erally-created and federally-protected rights. This confusing
amalgam of different legal theories leaves the State of Michi-
gan totally at a loss to understand the basis for the Court's
ruling. The absence of discussion of the facts of this case
and controlling legal principles makes it impossible to deter-
mine to what extent the District Court judgment has been
affirmed, modified or reversed. In paragraph numbered two
of the July 10th order the Court refers to the Michigan Su-
preme Court decision in People v LeBlanc, supra, and purports
merely to follow it, but even a cursory comparison of the
LeBlanc decision with the Court of Appeals order indicates
that the Court of Appeals has far exceeded LeBlanc and
applied a much stricter standard. The Michigan Supreme
Court in LeBlanc said, 399 Mich at 64:
“In the lig’ t of these cases, we conclude that on remand,
the district court should uphold defendant's conviction
for fishing with an illegal device only if:
“1) The prohibition of the gill net is necessary for the
preservation of the fish protected by the regulation;
“2) The application of this prohibition to the Chip-
pewas is necessary for the preservation of the fish pro-
tected;
“3) And the regulation does not discriminate against
the Chippewas.”
The Court of Appeals, on the other hand, while stating that
the LeBlanc decision “accurately states the rule of reason and
the principles of federal law applicable to this case” applied
a much stricter standard, App. 313a:
~~ =
“As provided in LeBlanc, any such state regulations
restricting Indian fishing rights under the 1836 treaty,
including gill net fishing, (a) must be 2 necessary con-
servation measure, (b) must be the least restrictive
alternative method available for preserving fisheries in
the Great Lakes from irreparable harm, and (c) must
not discriminatorily harm Indian fishing or favor other
classes of fishermen.”
Petitioners submit that the stricter standard applied by the
Court of Appeals is not supported by the LeBlanc decision,
is not supported by previous decisions of this Court and,
indeed, is supported only by principles espoused in Respon-
dents’ briefs and the erroneous judgment of the District Court.
If this new standard is to be extrapolated from prior cases,
surely an analysis and explanation should be given.
The Court of Appeals July 10, 1981 order says that the
State of Michigan may not regulate Indian fishing if such
fishing is not likely to cause irreparable harm and further
says that the parties have not introduced proof on this subject,
App. 313a-314a. Such a statement contradicts the Court of
Appeals own orders of October 19, 1979 ( App. 223a); Novem-
ber 28, 1979 ( App. 226a); May 30, 1980 ( App. 302a); and July
16, 1980 (App. 306a) in which it granted stays because the
State of Michigan had in fact demonstrated the likelihood of
irreparable injury.
The District Court in its Opinion and Order of August 18,
1981 also appears to have disregarded the accepted and usual
course of judicial proceedings by issuing an order declaring
that the Court of Appeals remand order was moot ( App. 328a)
despite the fact that the Court of Appeals had rejected that
very argument when propounded by the State of Michigan.
In its July 10, 1981 order the Court of Appeals refused to set
aside its remand order and said, App. 314a:
a ' oe
“The remand opinion and orders of this Court dated
May 28, 1980 and July 16, 1980 remain in effect except
as modified by this order.”
The effect of the Court of Appeals interpretation of its
July 10, 1981 order, and the District Court's August 18, 1981
opinion and order, is that without deciding the merits of the
issues raised by Petitioner's appeal, the Court of Appeals has
remanded the case to the District Court solely for consideration
of three specified preemption questions, has issued a mandate
and considers the appeal concluded while the District Court
has ordered that the remanded issues are moot and purports
to assume perpetual jurisdiction over regulation of fishing
throughout Michigan’s territorial waters in the Great Lakes.
The termination of an appeal in such a manner is an avoidance
of the Court of Appeals’ duty to decide appeals in a reasoned
manner consistent with the Federal Rules of Appellate Pro-
cedure which this Court has issued.
In the event that the July 10, 1981 order of the Court of
Appeals is not a judgment, even though the Court of Appeals
has purported to issue a mandate upon that order, it is ap-
parent that the instant case satisfies the criteria of Supreme
Court Rule 18 for certiorari to review a case pending in a
Court of Appeals before judgment is given. The issues raised
in this case—whether there is an Indian treaty fishing right
and whether the State has any authority to regulate the ex-
ercise of that right—are of paramount public importance, and
the erroneous nature of the District Court judgment and the
failure of the Court of Appeals to render a judgment justify
the deviation from normal appellate practice and require im-
mediate settlement in this Court. The questions involved are
of imperative public importance not only to the instant parties,
but to all of the citizens of Michigan, the citizens of the entire
Great Lakes region (the Great Lakes are bordered by eight
states lying within five separate federal circuits), and indeed
=
to the nation as a whole. The Great Lakes and the fishery
resource they contain are a national treasure without equal
anywhere in the world. The decision in this case will determine
the authority to control utilization of that resource and thus
presents issues of vast importance. Are the Great Lakes
fishery resources to be controlled by the District Court, Indian
tribes, the State of Michigan (and other Great Lakes states),
the federal government, or some sort of consortium of these
entities? The erroneous nature of the District Court judgment
and the failure of the Court of Appeals to issue a reasoned
judgment affirming, modifying or reversing the District Court
has resulted in extraordinary confusion regarding the authority
to enforce fishing regulations in the Great Lakes, and with no
effective regulation, the fishery resource is threatened with
immediate irreparable harm and complete depletion soon.
In summary, this Court should grant certiorari to review
the entire case to correct the lower courts’ failure to follow the
accepted and usual course of judicial proceedings and in order
to render final judgment on the important legal issues pre-
sented.
Il.
THE ISSUE OF WHETHER INDIAN TRIBES POSSESS
FISHING RIGHTS IN GREAT LAKES WATERS CEDED
UNDER TREATIES OF 1836 AND 1855 PRESENTS “AN
IMPORTANT QUESTION OF FEDERAL LAW WHICH
HAS NOT BEEN, BUT SHOULD BE, SETTLED BY
THIS COURT.”
Supreme Court Rule 17.1(c)
By the terms of the treaty of 1836, large portions of territory
were ceded to the United States and ultimately became part
of the State of Michigan which entered the Union the next
year in 1837. Article 13 of the 1836 treaty included a provision
=
by which the Indians stipulated “for the right of hunting on the
lands ceded with the other usual privileges of occupancy until
the land is required for settlement.” It is not disputed that the
phrase “usual privileges of occupancy” encompasses fishing,
but Petitioners submit that the interpretation of the treaty
presents an important question of federal law which was
wrongly decided by the District Court, has not been addressed
by the Court of Appeals and which has not been, but should
be, settled by this Court.
The treaty interpretation questions are important because
of the geographic scope and economic significance of the pur-
ported fishing rights. Respondents claim a fishing right, free
from State regulaticn, throughout vast portions of the Great
Lakes, far beyond the bounds of any reservation. The pur-
ported right is worth hundreds of thousands of dollars annually
to Respondeni tribal members and the exercise of that pur-
ported right by Respondents has had a significant deleterious
impact upon the resource itself and upon the multi-million
dollar commercial and recreational fishing programs of the
State of Michigan. The State maintains that Respondents ex-
ercising purported treaty rights engage in indiscriminate fish-
ing operations, particularly with lethal non-selective gill nets,
which, if continued unchecked by State regulation, will lead
to irreparable depletion of the fishery resource throughout the
Great Lakes.
Interpretation of Indian treaties is, of course, a federal ques-
tion which, in an individual case, may depend to a great extent
on the intent of the signatories. The State submits that the
District Court disregarded properly admitted evidence, relied
on inadmissible material, and engaged in a wide-ranging attack
on the non-indian participants to the treaty negotiation process
v vich is completely without support in the record and which
resulted in erioneous factual findings and incorrect conclusions
of law. When the treaty language is analyzed under correct
oii
legal principles according to the true intent of the parties as
disclosed by the record, it is clear that none of the parties con-
templated the unlimited and perpetual fishing right which
the District Court declared to exist. The State submits that
any fishing right retained or created by the 1836 treaty ex-
pired shortly thereafter when “the land [was] required for
settlement.” Alternatively, the Petitioners submit that the
treaty of 1855 operated to extinguish any fishing right which
survived until that time. Alternatively, the State submits that
by virtue of prior litigation in the United States Court of
Claims and the Indian Claims Commission, Respondents may
not argue that they retain any enforceable fishing rights. See
Bay Mills Indian Community, et al v United States of America,
(docket nos. 18SE, 58) 7 Indian Claims Commission 576 (1959);
20 ICC 137 (1968); 26 ICC 538 (1971) and Ottawa and
Chippewa Indians v United States, 42 Court of Claims 240
(1907). While the existence of the specific fishing right
claimed in the instant case was not technically at issue in that
prior litigation, Petitioners submit that the arguinents made by
the tribes and the adjudications rendered in those cases compel
rejection of Respondents’ purported right in the instant case.
Even if a fishing right is deemed to exist, the State submits
that the District Court improperly concluded that the instant
Respondents may enforce the right. In an order entered July
30, 1976 the District Court limited the issues to be tried to
the question of the existence of a treaty right and the jurisdic-
tion of the State to regulate the exercise of those rights. The
State was prohibited from discovery and adducing evidence
on the question of which Indians, if any, were entitled to assert
the purported treaty right. Despite the District Court's limita-
tion of the issues and prohibition against Petitioners adducing
evidence on the question, the Court nevertheless erroneously
concluded that Respondents could assert the treaty rights.
=
Ill.
IN PLACING LIMITATIONS UPON THE STATE’S AU-
THORITY TO REGULATE INDIAN FISHING, THE
LOWER COURTS HAVE DECIDED A FEDERAL QUES-
TION IN A WAY IN CONFLICT WITH THE MICHIGAN
SUPREME COURT AND IN CONFLICT WITH APPLI-
CABLE DECISIONS OF THIS COURT.
Supreme Court Rules 17.1(a), 17.1(c)
In 1976 the Michigan Supreme Court in People v LeBlanc,
supra, 399 Mich at 64, cited numerous decisions of this Court
and concluded that State regulations banning the use of gill
nets could be applied to a member of one of Respondent
tribes if:
“(1) The prohibition of the gill net is necessary for the
preservation of the fish protected by the regulation; (2)
the application of this prohibition to the Chippewas is
necessary for the preservation of the fish protected; (3)
and the regulation does not discriminate against the
Chippewas.”
Three years later the District Court declared the existence
of a fishing right and concluded that all State statutes and
regulations which interfered with the right were void ab initio.
471 F Supp at 281; App. 202a. Most recently, in its order of
July 10, 1981, the Court of Appeals purported to adopt the
standard enunciated in People v LeBlanc, supra, but in reality
imposed a much harsher burden upon the State:
“The State bears the burden of persuasion to show by
clear and convincing evidence that it is highly probable
that irreparable harm will occur and that the need for
—19—
regulation exists. In the absence of such a showing, the
State may not restrict Indian treaty fishing, including
gill net fishing,” App. 313a.
“Only upon a finding ¢f necessity, irreparable harm
and the absence of effective Indian tribal self-regulation
should the District Court sanction and permit State regu-
lation of gill net fishing,” App. 314a.
“As provided in [People vy LeBlanc, supra] any such
State regulations restricting Indian fishing rights under
the 183€ treaty, including gill net fishing, (a) must be a
necessary conservation measure, (b) must be the least
restrictive alternative method available for preserving
fisheries in the Great Lakes from irreparable harm, and (c)
must not discriminatorily harm Indian fishing or favor
other classes of fishermen.” App. 313a.
Assuming that an Indian fishing right exists, the extent to
which that right may be regulated by the State in the Courts
of Michigan presents a federal question which, the State sub-
mits, the lower courts have decided in a way in conflict with
the Michigan Supreme Court and applicable decisions of this
Court. In a long line of cases this Court has held that even
where Indian treaty fishing rights exist, the State may never-
theless regulate in the interest of conservation particularly
when the activity to be regulated occurs off-reservation. See
Puyallup Tribe vy Department of Game of Washington (Puy-
allup I), 391 US 392 (1968); Department of Game of Washing-
ton v Puyallup Tribe (Puyallup II), 414 US 44 (1973); An-
toine v Washington, 420 US 194 (1975); Puyallup Tribe v
Washington Game Department (Puyallup III), 433 US 165
(1977); State of Washington vy Washington State Commercial
Passenger Fishing Vessel Assn, 443 US 658 (1979); Organized
Village of Kake v Egan, 369 US 60 (1962); Mescalaro Apache
= =
Tribe v Jones, 411 US 145 (1973); State of Montana vy United
States, US , 67 L Ed 2d 498 (1918).
The District Court rejected any State authority to regulate
and the Court of Appeals misconstrued decisions from this
Court and applied an unduly restrictive burden of proof before
State regulation can occur. The State of Michigan maintains
that tribal self-regulation and regulation under the now-ex-
pired federal regulations are inadequate to protect the fishery
resource. Under the incorrect legal standards enunciated by
the courts beiu-v, it is virtually impossible for the State to
make the required showing in order to enforce State fishing
regulations. It is therefore necessary for this Court to grant
certiorari in order to correct the lower courts and enunciate
the appropriate standards for State regulation of Indian treaty
fishing.
CONCLUSION AND RELIEF SOUGHT
Because of the importance of the issues presented, the er-
roneous nature of the decisions below, and the lower courts’
departure from the accepted and usual course of judicial pro-
ceedings, a writ of certiorari should issue to review this case.
Respectfully submitted,
FRANK J. KELLEY
Attorney General
Robert A. Derengoski
Solicitor General
Thomas L. Casey
Assistant Attorney General
525 West Ottawa Street
762 Law Building
Lansing, Michigan 48913
(517) 373-1124
TABLE OF CONTENTS
Page
1. 1836 Treaty with the Ottawa, etc.,
7 Stat 491 (Signatures, schedule and
supplemental Article omitted.) .............. la
2. 1855 Treaty with the Ottawa and Chippewa
(Signatures omitted.) ........................ 9a
3. District Court Judgment, United States of
America v State of Michigan, 471 F Supp 192
PE UU Siccetcag ce 18a
4. Court of Appeals Stay Order, Opinion and
Exhibits, September 20, 1979 .............__. 204a
5. Court of Appezls Stay Order, October 19, 1979... 293
6. Court of Appeals Stay Order, November 28, 1979 226a
7. District Court Opinion Denying Stay, United
States of America v State of Michigan, 505
F Supp 467 (W.D. Mich, DE eddedebescl.. 229a
&. Court of Appeals Remand Opinion, United
States of America v State of Michigan, 623 F2d
Re We ibe ov edkncinaciiccés,c,2. 292a
9. Court of Appeals Order Denying Stay,
RN WE MU ios vewanicucevnscecdces. 298a
10. Court of Appeals Order Denying Stay,
December 14, 1979 .......................... 300a
11. Court of Appeals Order Granting Stay,
SE ME Shah cnkbupcdiilccecacexé....22 302a
12. Court of Appeals Order Modifying Stay,
NE Ghiiwhinneiccebetehndden soc. cva: 306a
13. Secretary of Interior Letter, April 21, 1981 |... 309a
14. Court of Appeals Order Continuing
15.
Remand, July 10, 1981 (Issued as
Mandate, August 11, 1981) ............ 3lla
District Court Opinion and Order on Remand,
<i nsgltiecy, Becca Cee OER Oe TNE A 316a
1836 Treaty la
TREATY WITH THE OTTAWA, ETC., 1836.
Articles of a treaty made and concluded at the city of Washing-
ton in the District of Columbia, between Henry R. School-
craft, commissioner on the part of the United States, and
the Ottawa and Chippewa nations of Indians, by their chiefs
and delegates.
ARTICLE FIRST. The Ottawa and Chippewa nations of
Indians cede to the United States all the tract of country
within the following boundaries: Beginning at the mouth of
Grand river to Lake Michigan on the north bank thereof, and
following up the same to the line called for, in the first article
of the treaty of Chicago of the 29th of August 1821, thence, in
a direct line, to the head of Thunder-bay river, thence with
the line established by the treaty of Saganaw of the 24th of
September 1819, to the mouth of said river, thence northeast
to the boundary line in Lake Huron between the United States
and the British province of Upper Canada, thence northwest-
wardly, following the said line, as established by the commis-
sioners acting under the treaty of Ghent, through the straits,
and river St. Mary’s, to a point in Lake Superior north of the
mouth of Gitchy Seebing, or Chocolate river, thence south to
the mouth of said river and up its channel to the source thereof,
thence, in a direct line to the head of the Skonawba river of
Green bay, thence down the south bank of said river to its
mouth, thence, in a direct line, through the ship channel into
Green bay, to the outer part thereof, thence south to a point
in Lake Michigan west of the north cape, or entrance of Grand
river, and thence east to the place of beginning, at the cape
aforesaid, comprehending all the lands and islands, within
these limits, not hereinafter reserved.
ARTICLE SECOND. From the cession aforesaid the
tribes reserve for their own use, to be held in common the
following tracts for the term of five years from the date of
2a 1836 Treaty
the ratification of this treaty, and no longer; unless the United
States shall grant them permission to remain on said lands
for a longer period, namely: One tract of fifty thousand acres
to be located on Little Traverse bay: one tract of twenty
thousand acres to be located on the north shores of Grand
Traverse bay, one tract of seventy thousand acres to be located
on, or, north of the Pieire Marquetta rive’, one tract of one
thousand acres to be located by Chingassanoo,—or the Big
Sail, on the Cheboigan. One tract of one thousand acres, to
be located by Mujeekewis, on Thunder-bay river.
ARTICLE THIRD. There shall also be reserved for the
use of the Chippewas living north of the straits of Michili-
mackinac, the following tracts for the term of five years from
the date of the ratification of this treaty, and no longer, unless
the United States shall grant them permission to remain on
said lands for a longer period, that is to say: Two tracts of three
miles square each, on the north shores of the said straits, be-
tween Point-au-Barbe and Mille Coquin river, including the
fishing grounds in front of such reservations, to be located by
a council of the chiefs. The Beaver islands of Lake Michigan
for the use of the Beaver-island Indians. Round island oppo-
site Michilimackinac, as a place of encampment for the Indians,
to be under the charge of the Indian department. The islands
of the Chenos, with a part of the adjacent north coast of Lake
Huron, corresponding in length, and one mile in depth. Sugar
island, with its islets, in the river of St. Mary's. Six hundred
and forty acres, at the mission of the Little Rapids. A tract
commencing at the mouth of the Pississowining river, south of
Point Iroquois, thence running up said stream to its forks,
thence westward, in a direct line to the Red water lakes, thence
across the portage to the Tacquimenon river, and down the
same to its mouth, including the small islands and fishing
grounds, in front of this reservation. Six hundred and forty
acres, on Grand island, and two thousand acres, on the main
land south of it. Two sections, on the northern extremity of
1836 Treaty 3a
Green bay, to be located by a council of the chiefs. All the
locations, left indefinite by this, and the preceding articles,
shall be made by the proper chiefs, under the direction of the
President. It is understood that the reservation for a place of
fishing and encampment, made under the treaty of St. Mary’s
of the 16th of June 1820, remains unaffected by this treaty.
ARTICLE FOURTH. In consideration of the foregoing
cessions, the United States engages to pay to the Ottawa and
Chippewa nations, the following sums, namely. Ist. An annuity
of thirty thousand dollars per annum, in specie, for twenty
years; eighteen thousand dollars, to be paid to the Indians
between Grand River and the Cheboigan; three thousand six
hundred dollars, to the Indians on the Huron shore, between
the Cheboigan and Thunder-bay river; and seven thousand
four hundred dollars, to the Chippewas north of the straits,
as far as the cession extends; the remaining one thousand
dollars, to be invested in stock by the Treasury Department
and to remain incapable of being sold, without the consent
of the President and Senate, which may, however, be given,
after the expiration of twenty-one years. 2nd. Five thousand
dollars per annum, for the purpose of education, teachers,
school-houses, and books in their own language, to be contin-
ued twenty years, and as long thereafter as Congress may
appropriate for the object. 3rd. Three thousand dollars for
missions, subject to the conditions mentioned in the second
clause of this article. 4th. Ten thousand dollars for agricultural
implements, cattle, mechanics’ tools, and such other objects
as the President may deem proper. 5th. Three hundred dollars
per annum for vaccine matter, medicines, and the services of
physicians, to be continued while the Indians remain on their
reservations. 6th. Provisions to the amount of two thousand
dollars; six thousand five hundred pounds of tobacco; one
hundred barrels of salt, and five hundred fish barrels, annually,
for twenty years. 7th. One hundred and fifty thousand dollars,
in goods and provisions, on the ratification of this treaty, to
4a 1836 Treaty
be delivered at Michilimackinac, and also the sum of two
hundred thousand dollars, in consideration of changing the
permanent reservations in article two and three to reservations
for five years only, to be paid whenever their reservations
shall be surrendered, and until that time the interest on said
two hundred thousand dollars shall be annually paid to the
said Indians.
ARTICLE FIFTH. The sum of three hundred thousand
dollars shall be paid to said Indians to enable them, with the
aid and assistance of their agent, to adjust and pay such debts
as they justly owe, and the overplus, if any, to apply to such
other use as they may think proper.
ARTICLE SIXTH. The said Indians being desirous of
making provision for their half-breed relatives, and the Pres:-
dent having determined, that individual reservations shall not
be granted, it is agreed, that in lieu thereof, the sum of one
hundred and fifty thousand dollars shall be set apart as a
fund for said half-breeds. Ne person shall be entitled to any
part of said fund, unless he is of Indian descent and actually
resident within the boundaries described in the first article
of this treaty, nor shall any thing be allowed to any such
person, who may have received any allowance at any previous
Indian treaty. The following principles, shall regulate the dis-
tribution. A census shall be taken of all the men, women, and
children, coming within this article. As the Indians hold in
higher consideration, some of their half-breeds than others,
and as there is much difference in their capacity to use and
take care of property, and, consequently, in their power to
aid their Indian connexions, which furnishes a strong ground
for this claim, it is, therefore, agreed, that at the council to
be held upon this subject, the commissioner shall call upon
the Indian chiefs to designate, if they require it, three classes
of these claimants, the first of which, shall receive one-half
more than the second, and the second. double the third. Each
1836 Treaty 5a
man woman and child shall be enumerated, and an equal share,
in the respective classes, shall be allowed to each. If the
father is living with the family, he shall receive the shares of
himself, his wife and children. If the father is dead, or sepa-
rated from the family, and the mother is living with the family,
she shall have her own share, and that of the children. If the
father and mother are neither living with the family, or if
the children are orphans, their share shall be retained till they
are twenty-one years of age; provided, that such portions of
it as may be necessary may, under the direction of the Presi-
dent, be from time to time applied for their support. All other
persons at the age of twenty-one years, shall receive their
shares agreeably to the proper class. Out of the said fund of
one hundred and fifty thousand dollars, the sum of five thous-
and dollars shall be reserved to be applied, under the direction
of the President, to the support of such of the poor half-breeds,
as may require assistance, to be expended in annual instal-
ments for the term of ten years, commencing with the second
years. Such of the half-breeds, as may be judged incapable
of making a proper use of the money, allowed them by the
commissioner, shall receive the same in instalments, as the
President may direct.
ARTICLE SEVENTH. In consideration of the cessions
above made, and as a further earnest of the disposition felt
to do full justice to the Indians, and to further their well
being, the United States engage to keep two additional black-
smith-shops, one of which, shall be located on the reservation
north of Grand river, and the other at the Sault Ste. Marie.
A permanent interpreter will be provided at each of these
locations. It is stipulated to renew the present dilapidated
shop at Michilimackinac, and to maintain a gunsmith, in addi-
tion to the present smith’s establishment, and to build a dormi-
tory for the Indians visiting the post, and appoint a person
to keep it, and supply it with fire-wood. It is also agreed, to
support two farmers and assistants, and two mechanics, as the
6a 1836 Treaty
President may designate, to teach and aid the Indians, in
agriculture, and in the mechanic arts. The farmers and me-
chanics, and the dormitory, will be continued for ten years,
and as long thereafter, as the President may deem this arrange-
ment useful and necessary; but the benefits of the other stipu-
lations of this article, shall be continued beyond the expiration
of the annuities, and it is understood that the whole of this
article shall stand in force, and inure to the benefit of the
Indians, as long after the expiration of the twenty years as
Congress may appropriate for the objects.
ARTICLE EIGHTH. It is agreed, that as soon as the said
Indians desire it, a deputation shall be sent to the southwest
of the Missouri River, there to select a suitable place for the
final settlement of said Indians, which country, so selected
and of reasonable extent, the United States will forever guaran-
ty and secure to said Indians. Such improvements as add value
to the land, hereby ceded, shall be appraised, and the amount
paid to the proper Indian. But such payment shall, in no case,
be assigned to, or paid to, a white man. If the church on
the Cheboigan, should fall within this cession, the value shall
be paid to the band owning it. The net proceeds of the sale
of the one hundred and sixty acres of land, upon the Grand
River upon which the missionary society have erected their
buildings, shall be paid to the said society, in lieu of the value
of their said improvements. When the Indians wish it, the
United States will remove them, at their expence, provide
them a year’s subsistence in the country to which they go, and
furnish the same articles and equipments to each person as
are stipulated to be given to the Pottowatomies in the final
treaty of cession concluded at Chicago.
ARTICLE NINTH. Whereas the Ottawas and Chippewas,
feeling a strong consideration for aid rendered by certain of
their half-breeds on Grand river, and other parts of the country
ceded, and wishing to testify their gratitude on the present
1836 Treaty 7a
occasion, have assigned such individuals certain locations of
land, and united in a strong appeal for the allowance of the
same in this treaty; and whereas no such reservations can be
permitted in carrying out the special directions of the President
on this subject, it is agreed, that, in addition to the general
fund set apart for half-breed claims, in the sixth article, the
sum of forty-eight thousand one hundred and forty-eight dol-
lars shall be paid for the extinguishment of this class of claims,
to be divided in the following manner: To Rix Robinson, in
lieu of a section of land, granted to his Indian family, on the
Grand river rapids, (estimated by good judges to be worth
half a million,) at the rate of thirty-six dollars an acre: To
Leonard Slater, in trust for Chiminonoquat, for a section of
land above said rapids, at the rate of ten dollars an acre: To
John A. Drew, for a tract of one section and three quarters,
to his Indian family, at Cheboigan rapids, at the rate of four
dollars; to Edward Biddle, for one section to his Indian family
at the fishing grounds, at the rate of three dollars: to John
Holiday, for five sections of land to five persons of his Indian
family, at the rate of one dollar and twenty-five cents; to
Eliza Cook, Sophia Biddle, and Mary Holiday, one section
of land each, at two dollars and fifty cents: to Augustin Hame-
lin junr, being of Indian rescent, two sections, at one dollar and
twenty-five cents; to William Lasley, Joseph Daily, Joseph
Trotier, Henry A. Levake, for two sections each, for their
Indian families, at one dollar and twenty-five cents: To Luther
Rice, Joseph Lafrombois, Charles Butterfield, being of Indian
descent, and to George Moran, Louis Moran, G. D. Williams,
for half-breed children under their care, and to Daniel Marsac,
for his Indian child, one section each, at one dollar and twenty-
five cents.
ARTICLE TENTH. The sum of thirty thousand dollars
shall be paid to the chiefs, on the ratification of this treaty, to
be divided agreeably to a schedule hereunto annexed.
8a 1836 Treaty
ARTICLE ELEVENTH. The Ottawas having considera-
tion for one of their aged chiefs, who is reduced to poverty, and
it being known that he was a firm friend of the American
Government, in that quarter, during the late war, and suffered
much in consequence of his sentiments, it is agreed, that an
annuity of one hundred dollars per annum shall be paid to
Ninzweegon or the Wing, during his natural life, in money
or goods, as he may choose. Another of the chiefs of said
nation, who attended the treaty of Greenville in 1793, and is
now, at a very advanced age, reduced to extreme want, to-
gether with his wife, and the Government being apprized that
he has pleaded a promise of Gen. Wayne, in his behalf, it is
agreed that Chusco of Michilimackinac shall receive an annuity
of fifty dollars per annum during his natural life.
ARTICLE TWELFTH. All expenses attending the jour-
neys of the Indians from, and to their homes, and their visit
at the seat of Government, together with the expenses of the
treaty, including a proper quantity of clothing to be given
them, will be paid by the United States.
ARTICLE THIRTEENTH. The Indians stipulate for the
right of hunting on the lands ceded, with the other usual
privileges of occupancy, until the land is required for settle-
ment.
In testimony whereof, the said Henry R. Schoolcraft, com-
missioner on the part of the United States, and the chiefs and
delegates of the Ottawa and Chippewa nation of Indians, have
hereunto set their hands, at Washington the seat of Govern-
ment, this twenty-eighth day of March, in the year one thou-
sand eight hundred and thirty-six.
1855 Treaty 9a
TREATY WITH THE OTTAWA AND CHIPPEWA, 1855.
Articles of agreement and convention made and concluded at
the city of Detroit, in the State of Michigan, this the thirty-
first day of July, one thousand eight hundred and fifty-five,
between George W. Manypenny and Henry C. Gilbert,
commissioners on the part of the United States, and the
Ottawa and Chippewa Indians of Michigan, parties to the
treaty of March 28, 1836.
In view of the existing condition of the Ottowas and Chip-
pewas, and of their legal and equitable claims against the
United States, it is agreed between the contracting parties as
follows:
ARTICLE 1. The United States will withdraw from sale
for the benefit of said Indians as hereinafter provided, all the
unsold public lands within the State of Michigan embraced in
the following descriptions, to wit:
First. For the use of the six bands residing at and near
Saulte Ste. Marie, sections 13, 14, 23, 24, 25, 26, 27, and 28, in
township 47 north, range 5 west; sections 18, 19, and 30, in
township 47 north, range 4 west; sections 11, 12, 13, 14, 15,
22. 23, 25, and 26, in township 47 north, range 3 west, and
section 29 in township 47 north, range 2 west; sections 2, 3,
4, 11, 14, and 15 in township 47 north, range 2 east, and sec-
tion 34 in township 48 north, range 2 east; sections 6, 7, 18,
19, 20, 28, 29, and 33 in township 45 north, range 2 east; sec-
tions 1, 12, and 13, in township 45 north, range 1 east, and
section 4 in township 44 north, range 2 east.
Second. For the use of the bands who wish to reside north
of the Straits of Mackinac townships 42 north, ranges 1 and 2
west; township 43 north, range 1 west, and township 44 north,
range 12 west.
10a 1855 Treaty
Third. For the Beaver Island Band—High Island, and Gar-
den Island, in Lake Michigan, being fractional townships 38
and 39 north, range 11 west—40 north, range 10 west, and in
part 39 north, range 9 and 10 west.
Fourth. For the Cross Village, Middle Village, L’Arbre-
chroche and Bear Creek bands, and of such Bay du Noc and
Beaver Island Indians as may prefer to live with them, town-
ships 34 to 39, inclusive, north, range 5 west—township 34
to 38, inclusive, north, range 6 west—townships 34, 36, and
37 north, range 7 west, and all that part of township 34 north,
range 8 west, lying north of Pine River.
Fifth. For the bands who usually assemble for payment at
Grand Traverse, townships 29, 30, and 31 north, range 11
west, and townships 29, 30, and 31 north, range 12 west, and
the east half of township 29 north, range 9 west.
Sixth. For the Grand River bands, township 12 north, range
15 west, and townships 15, 16, 17 and 18 north, range 16 west.
Seventh. For the Cheboygan band, townships 35 and 36
north, range 3 west.
Eighth. For the Thunder Bay band, section 25 and 36 in
township 30 north, range 7 east, and section 22 in township
30 north, range 8 east.
Should either of the bands residing near Sault Ste. Marie
determine to locate near the lands owned by the missionary
society of the Methodist Episcopal Church at Iroquois Point,
in addition to those who now reside there, it is agreed that
the United States will purchase as much of said lands for the
use of the Indians as the society may be willing to sell at the
usual Government price.
1855 Treaty lla
The United States will give to each Ottowa and Chippewa
Indian being the head of a family, 80 acres of land, and to each
single person over twenty-one years of age, 40 acres of land,
and to each family of orphan children under twenty-one years
of age containing two or more persons, 80 acres of land, and
to each single orphan child under twenty-one years of age,
40 acres of land to be selected and located within the several
tracts of land hereinbefore described, under the following
rules and regulations:
Each Indian entitled to land under this article may make
his own selection of any land within the tract reserved herein
for the band to which he may belong—Provided, That in case
of two or more Indians claiming the same lot or tract of land,
the matter shall be referred to the Indian agent, who shall
examine the case and decide between the parties.
For the purpose of determining who may be entitled to
land under the provisions of this article, lists shall be prepared
by the Indian agent, which lists shall contain the names of
all persons entitled, designating them in four classes. Class
Ist, shall contain the names of heads of families; class 2d, the
names of single persons over twenty-one years of age; class
3d, the names of orphan children under twenty-one years of
age, comprising families of two or more persons, and class 4th,
the names of single orphan children under twenty-one years
of age, and no person shall be entered in more than one class,
Such lists shall be made and closed by the first day of July,
1856, and thereafter no applications for the benefits of this
article will be allowed.
At any time within five years after the completion of the
lists, selections of lands may be made by the persons entitled
thereto, and a notice thereof, with a descriptior of the land
selected, filed in the office of the Indian agent in Detroit, to
be by him transmitted to the Office of Indian Affairs at
Washington City.
12a 1855 Treaty
All sections of land under this article must be made accord-
ing to the usual subdivisions; and fractional lots, if containing
less than 60 acres, may be regarded as forty-acre lots, if over
sixty and less than one hundred and twenty acres, as eighty-
acre lots. Selections for orphan children may be made by
themselves or their friends, subject to the approval of the
agent.
After selections are made, as herein provided, the persons
entitled to the land may take immediate possession thereof,
and the United States will thenceforth and until the issuing
of patents as hereinafter provided, hold the same in trust for
such persons, and certificates shall be issued, in a suitable
form, guaranteeing and securing to the holders their possession
and an ultimate title to the land. But such certificates shall not
be assignable and shall contain a clause expressly prohibiting
the sale of transfer by the holder of the land described therein.
After the expiration of ten years, such restriction on the
power of sale shall be withdrawn, and a patent shall be issued
in the usual form to each original holder of a certificate for
the land described therein, Provided That such restriction shall
cease only upon the actual issuing of the patent; And provided
further That the President may in his discretion at any time in
individual cases on the recommendation of the Indian agent
when it shall appear prudent and for the welfare of any holder
of a certificate, direct a patent to be issued. And provided also,
That after the expiration of ten years, if individual cases shall
be reported to the President by the Indian agent, of persons
who may then be incapable of managing their own affairs from
any reason whatever, he may direct the patents in such cases
to be withheld, and the restrictions provided by the certificate,
continued so long as he may deem necessary and proper.
Should any of the heads of families die before the issuing of
the certificates or patents herein provided for, the same shall
issue to the heirs of such deceased persons.
1855 Treaty 13a
The benefits of this article will be extended only to those
Indians who are at this time actual residents of the State of
Michigan, and entitled to participate in the annuities pro-
vided by the treaty of March 28, 1836; but this provision shall
not be construed to exclude any Indian now belonging to the
Garden River band of Sault Ste. Marie.
All the land embraced within the tracts hereinbefore de-
scribed, that shall not have been appropriated or selected
within five years shall remain the property of the United
States, and the same shall thereafter, for the further term of
five years, be subject to entry in the usual manner and at the
same rate per acre, as other adjacent public lands are then
held, by Indians only; and all lands, so purchased by Indians,
shall be sold without restriction, and certificates and patents
shall be issued for the same in the usual form as in ordinary
cases; and all lands remaining unappropriated by or unsold to
the Indians after the expiration of the last-mentioned term,
may be sold or disposed of by the United States as in the case
of all other public lands.
Nothing contained herein shall be so construed as to prevent
the appropriation, by sale, gift, or otherwise, by the United
States, of any tract or tracts of land within the aforesaid
reservations for the location of churches, school-houses, or for
other educational purposes, and for such purposes purchases
of land may likewise be made from the Indians, the consent
of the President of the United States, having, in every instance,
first been obtained therefor.
It is also agreed that any lands within the aforesaid tracts
now occupied by actual settlers, or by persons entitled to pre-
emption thereon, shall be exempt from the provisions of this
article; provided, that such pre-emption claims shall be proved,
as prescribed by law, before the lst day of October next.
14a 1855 Treaty
Any Indian who may have heretofore purchased land for
actual settlement, under the act of Congress known as the
Graduation Act, may sell and dispose of the same; and, in
such case, no actual occupancy or residence by such Indians
on lands so purchased shall be necessary to enable him to
secure a title thereto.
In consideration of the benefits derived to the Indians on
Grand Traverse Bay by the school and mission established in
1838, and still continued by the Board of Foreign Missions of
the Presbyterian Church, it is agreed that the title to three
separate pieces of land, being parts of tracts Nos. 3 and 4,
of the west fractional half of section 35, township 30 north,
range 10 west, on which are the mission and school buildings
and improvements, not exceeding in all sixty-three acres,
one hundred and twenty-four perches, shall be vested in the
said board on payment of $1.25 per acre; and the President of
the United States shall issue a patent for the same to such
person as the said board shall appoint.
The United States will also pay the further sum of forty
thousand dollars, or so much thereot as may be necessary, to
be applied in liquidation of the present just indebtedness of
the said Ottawa and Chippewa Indians; provided, that all
claims presented shall be investigated under the direction of
the Secretary of the Interior, who shall prescribe such rules
and regulations for conducting such investigation, and for
testing the validity and justness of the claims, as he shall deem
suitable and proper; and no claim shall be paid except upon
the certificate of the said Secretary that, in his opinion, the
same is justly and equitably due; and all claimants, who shall
not present their claims within such time as may be limited
by said Secretary within six months from the ratification of
the treaty, or whose claims, having been presented, shall be
disallowed by him, shali be forever precluded from. collecting
the same, or maintaining an action thereon in any court what-
1855 Treaty 15a
ever; and provided, also, that no portion of the money due
said Indians for annuities, as herein provided, shall ever be
appropriated to pay their debts under any pretence whatever;
provided, that the balance of the amount herein allowed, as
a just increase of the amount due for the cessions and relin-
quishments aforesaid, after satisfaction of the awards of the
Secretary of the Interior, shall be paid to the said Chippewas
or expended for their benefit, in such manner as the Secretary
shall prescribe, in aid of any of the objects specified in the
second article of this treaty.
ARTICLE 2. The United States will also pay to the said
Indians the sum of five hundred and thirty-eight thousand and
four hundred dollars, in manner following, to wit:
First. Eighty thousand dollars for educational purposes to
be paid in ten equal annual instalments of eight thousand
dollars each, which sum shall be expended under the direction
of the President of the United States; and in the expenditure
of the same, and the appointment of teachers and management
of schools, the Indians shall be consulted, and their views and
wishes adopted so far as they may be just and reasonable.
Second. Seventy-five thousand dollars to be paid in five
equal annual instalments of fifteen thousand dollars each in
agricultural implements and carpenters’ tools, household furni-
ture and building materials, cattle, labor, and all such articles
as may be necessary and useful for them in removing to the
homes herein provided and getting permanently settled there-
on.
Third. Forty-two thousand and four hundred dollars for the
support of four blacksmith-shops for ten years.
Fourth. The sum of three hundred and six thousand dollars
in coin, as follows: ten thousand dollars of the principal, and
16a 1855 Treaty
the interest on the whole of said last-mentioned sum remaining
unpaid at the rate of five percent, annually for ten years, to be
distributed per capita in the usual manner for paying annuities.
And the sum of two hundred and six thousand dollars remain-
ing unpaid at the expiration of ten years, shall be then due
and payable, and if the Indians then require the payment of
said sum in coin the same shall be distributed per capita in the
same manner as annuities are paid, and in not less than four
equal annual instalments.
Fifth. The sum of thirty-five thousand dollars in ten annual
instalments of three thousand and five hundred dollars each,
to be paid only to the Grand River Ottawas, which is in lieu
of all permanent annuities to which they may be entitled by
former treaty stipulations, and which sum shall be distributed
in the usual manner per capita.
ARTICLE 3. The Ottawa and Chippewa Indians hereby
release and discharge the United States from all liability on
account of former treaty stipulations, it being distinctly under-
stood and agreed that the grants and payments hereinbefore
provided for are in lieu and satisfaction of all claims, legal
and equitable on the part of said Indians jointly and severally
against the United States, for land, money or other thing
guaranteed to said tribes or either of them by the stipulations
of any former treaty or treaties; excepting, however. the right
of fishing and encampment secured to the Chippewas of Sault
Ste. Marie by the treaty of June 16, 1820.
ARTICLE 4. The interpreters at Sault Ste. Marie, Macki-
nac, and for the Grand River Indians, shall be continued, and
another provided at Grand Traverse, for the term of five years,
and as much longer as the President may deem necessary.
ARTICLE 5. ‘The tribal organization of said Ottawa and
Chippewa Indians, except so far as may be necessary for the
1855 Treaty l7a
purpose of carrying into effect the provisions of this agree-
ment, is hereby dissolved; and if at any time hereafter, further
negotiations with the United States, in reference to any matters
contained herein, should become necessary, no general con-
vention of the Indians shall be called; but such as reside in
the vicinity of any usual place of payment, or those only who
are immediately interested in the questions involved, may
arrange all matters between themselves and the United States,
without the concurrence of other portions of their people, and
as fully and conclusively, and with the same effect in every
respect, as if all were represented.
ARTICLE 6. This agreement shall be obligatory and bind-
ing on the contracting parties as soon as the same shall be
ratified by the President and Senate of the United States.
In testimony whereof the said George W. Manypenny and
the said Henry ~. Gilbert, commissioners as aforesaid, and
the undersigned chiefs and headmen of the Ottawas and Chip-
pewas, have hereto set their hands and seals, at the city of
Detroit the day and year first above written.
18a District Court Judgment 471 F Supp 192
[471 F Supp 192]
UNITED STATES of America et al., Plaintiffs,
Vv.
STATE OF MICHICAN et al., Defendants.
No. M26-73 C.A.
United States District Court,
W. D. Michigan, N. D.
May 7, 1979.
[471 F Supp 200]
OPINION
PREFACE
FOX, Chief Judge.
“No one can deny that the constitution of the United States
is the supreme law of the land; and consequently, no act of
any state legislature, or of congress, which is repugnant to it,
can be of any validity. Now, if an act of a state legislature be
repugnant to the constitution of the state, the state court will
declare it void; and if such act be repugnant to the constitu-
tion of the Union, or a law made under that constitution,
which is declared to be the supreme law of the land, is it not
equally void? And under such circumstances, if this court
should shrink from a discharge of their duty, in giving effect
to the supreme law of the land, would they not violate their
oath, prove traitors to the constitution, and forfeit all just claim
to the public confidence?” Worcester v. Georgia, 31 U.S. (6
Pet.) 515, 571-2, 8 L.Ed. 483 (1832) (McLean, J., concurring)
(emphasis supplied ).
When matters of great public and constitutional signifi: ance
involving fundamental duties of the United States come here
District Court Judgment 471 F Supp 192 19a
for resolution, this court assumes an extra duty of care in ex-
plaining the reasons for its decision. As always, the court
states the factual basis and legal standards on which
[471 F Supp 201]
its conclusion rests so that the appellate court will know the
legal grounds for this court's decision. Equally important,
however, th’ court assumes also an affirmative obligation to
attempt to educate the public concerning the basic principles
underlying our constitutional democracy and the practical ap-
plication of these principles in our public affairs. See, Oliver
v. Kalamazoo Bd. of Education, 368 F.Supp. 143 (W.D. Mich.
1973).
NORTHWEST ORDINANCE
THE NORTHWEST TERRITORIAL GOVERNMENT—1787
THE CONFEDERATE CONGRESS, JULY 13, 1787
AN ORDINANCE FOR THE GOVERNMENT OF THE
TERRITORY OF THE UNITED STATES NORTHWEST
OF THE RIVER OHIO
ARTICLE III
Religion, morality, and knowledge being necessary to
good government and the happiness of mankind, schools,
and the means of education shall forever be encouraged.
The utmost good faith shall always be observed towards
the Indians; their lands and property shall never be taken
from them without their consent; and in their property
rights, and liberty they never shall be invaded or dis-
turbed, unless in just and lawful wars authorized by Con-
gress; but laws founded in justice and humanity shall,
from time to time, be made, for preventing wrongs being
done to them, and for preserving peace and friendship
with them. (Emphasis supplied. )
20a District Court Judgment 471 F Supp 192
The above language, taken from the Northwest Ordinance,
first enacted by the Confederated Congress in 1787 and re-
enacted by the First Congress of the United States at its very
first session in 1789, is the backdrop for this action. It will be
discussed in detail in the course of this opinion.
Also a backdrop of this case is the history of the American
treatment of the Indians. In 1869 President Gran’ »ppointed
a commission [pursuant to Act of Congress of Apri: 10, 1869]
composed of “nine men, representing the influence and philar-
thropy of six leading States, to visit the different Indian reser-
vations, and to ‘examine all matters appertaining to Indian
affairs.” Their report includes the following language:
While it cannot be denied that the government of the
United States, in the general terms and temper of its
legislation, has evinced a desire to deal generously with the
Indians, it must be admitted that the actual treatment they
have received has been unjust and iniquitous beyond the
power of words to express. Taught by the government
that they had rights entitled to respect; when those rights
have been assailed by the rapacity of the white man, the
arm which should have been raised to protect them has
been ever ready to sustain the aggressor. The history of
the government connections with the Indians is a shame-
ful record of broken treaties and unfulfilled promises.
The history of the border white man’s connection with
the Indians is a sickening record of murder, outrage,
robbery, and wrongs committed by the former as the
rule, and occasional savage outbreaks and unspeakably
barbarous deeds of retaliation by the latter as the excep-
tion.
The class of hardy men on the frontier who represent
the highest type of the energy and enterprise of the
American people, and are just and honorable in their
District Court Judgment 471 F Supp 192 2la
sense of moral obligation and their appreciations of the
rights of others, have been powerless to prevent these
wrongs, and have been too often the innocent sufferers
from the Indians’ revenge. That there are many good men
on the border is a subject of congratulation, and the files
of the Indian Bureau attest that among them are found
some of the most earnest remonstrants against the evils
we are compelled so strongly to condemn. The testimony
of some of the highest military officers of the United States
is
[471 F Supp 202]
on record to the effect that, in our Indian wars, almost
without exception, the first aggressions have heen made
by the white man, and the assertion is supported by every
civilian of reputation who has studied the subject. In
addition to the class of robbers and outlaws who find
impunity in their nefarious pursuits upon the frontiers,
there is a large class of professedly reputable men who
use every means in their power to bring on Indian wars,
for the sake of the profit to be realized from the presence
of troops and the expenditure of government funds in
their midst. They proclaim death to the Indians at all
times, in words and publications, making no distinction
between the innocent and the guilty. They incite the
lowest class of men to the perpetration of the darkest
deeds against their victims, and, as judges and jurymen,
shield them from the justice due to their crimes. Every
crime committed by a white man against an Indian is
concealed or palliated; every offense committed by one
Indian against a white man is borne on the wings of the
post or the telegraph to the remotest corner of the land,
clothed with all the horrors which the reality or imagina-
tion can throw around it. Against such influences as these
the people of the United States need to be warned. The
22a District Court Judgment 471 F Supp 192
murders, robberies, drunken riots, and outrages perpe-
trated by Indians in time of peace—taking into considera-
tion the relative population of the races on the frontier—
do not amount to a tithe of the number of like crimes
committed by white men in the border settlements and
towns. Against the inhuman idea that the Indian is only
fit to be exterminated, and the influence of the men who
propagate it, the military arm of the government cannot
be too strongly guarded. It is hardly to be wondered at
that inexperienced officers, ambitious for distinction, when
surrounc.i by such influences, have been incited to
attack Indian bands without adequate cause, and involve
the nation in an unjust war. It should, at least, be under-
stood that in the future such blunders should cost the
officer his commission, and that such destruction is an
infamy.U1)
(1)
Violence against Indians who would exercise their rights is not a
ghost in a history book nor a deed which we can ascribe to long dead,
anonymous ancestors. The threat of violence today was documented in
a recent article by Tom Opre in the Detroit Free Press, which is re-
produced in part below:
DETROIT FREE PRESS/SUNDAY, AUG. 27, 1978
PICTURE—TOM OPRE
Confrontations have come close so far. Rock and bottle-throwing
incidents, boat sinkings and swampings, torn and stolen gillnets
and innumerable heated verbal exchanges along with pushing and
shovings are the limit so far in the Charlevoix area. Coast Guard
patrols had to protect Indian boats in some incidents. Both sides
have armed themselves prior to this in Upper Peninsula incidents
earlier, but no shots were fired.
(It’s reported reliably, though, that one Indian netter, launching
in Round Lake and moving under the channel bridge to Lake Michi-
gan, was very accurately bombed by local white fishermen and
their families. The bombs? Bagged up contents from camper
porta-potties. Police agencies are now patroling the bridge.)
“We don’t want Indian gear destroyed or anyone — on either
side — hurt,” Washington emphasized. “We don’t want any more
District Court Judgment 471 F Supp 192 23a
Report of Commission of Citizens (November 23, 1869), cited
in Report of Commission of Indian Affairs, 47-48 (1869).
(Emphasis supplied. )
Senator Clay made similar points on the floor of the Senate
in 1835. Speaking of the Cherokee Indians of Georgia, he said,
as reported in the Congressional Globe for February 4, 1835:
Mr. C. said he wished to turn the attention of the Senate
to the nature of the wrongs this people had suffered-—to
the present condition of the Cherokees, whose lands had
been guarantied by the United
[471 F Supp 203]
States. He went into the examination with the utmost
feelings of sorrow and regret at the miserable state to
which these tribes were reduced by the laws of the States.
But he would assure the honorable Senators from Georgia
he was actuated by no hostile intentions to that State.
Georgia was the first that made these encroachments; she
originated the plan of invading the Indian rights, and she
had carried it far beyond all others. He had not all these
various laws before him. It was not necessary to go into
Wounded Knees on our hands,” a reference to South Dakota troubles
a few years ago where both Indians and federal officers were killed.
A DNR observer at Charlevoix told me the situation had cooled
somewhat in the past week, though.
“Indians seemed to have backed off a bit,” he said. “Maybe
that’s because most of the boat launching sites are closed to them
now. Indians operate from small boats launched by hand at the
lakeshire. The operations are efficient, though. DNR estimates
of the best single day's catch off Norwood was 14,000 pounds, most
of it whitetis). Lake trout and salmon are taken regularly, though.
The heinous deeds of our ancestors appear no further from us than our
present ability to restrain the “frontiersmen” lost in our more civilized and
more self-righteous society.
24a District Court Judgment 471 F Supp 192
details; it was sufficient to notice the results. By the
first act Georgia abolished the Government of the
Cherokee nation. No nation (said Mr. C.) can exist with-
out a Government of some kind. These people had formed
and established a Government in imitation of our own.
But it was wholly immaterial what the humble form of
that Government might be. Georgia had abolished it.
She next proceeded to divide their territories into counties,
and distribute them by lotteries among their citizens—
every head of a family being entitled to the land drawn
against his number. She did indeed reserve a small
pittance of a few acres for those Indians who wished to
remain within her limits, but under circumstances that
rendered them worthless. She gave them no rights, no
franchise, no single privilege. They were denied the power
of testifying in courts of justice. No Indian could be a
witness in favor of his fellows.
The present case is not a 14th Amendment case, as defend-
ants advocate. It is an Indian treaty case in which the State
asks the court to abrogate the Indians’ aboriginal rights which
have survived for over 12,000 years and are valid to this day,
and which were guaranteed to the Indians by the Treaty of
Ghent and the Treaties of 1836 and 1855. This case deals only
with the jurisdiction of the Federal government over the
Indians and its authority to enter into treaties which bind the
states. Const. Art. 6, cl. 2; Art. I, § 8.
Michigan would take the Indians’ subsistence and livelihood,
their right to fish, and divide it by a modern-day lottery, the
Indians being permitted to compete for licenses equally with
those who have taken their rights from them.
District Court Judgment 471 F Supp 192 25a
I.
INTRODUCTION
On April 9, 1973, the United States of America in its own
behalf and in behalf of the Bay Mills Indian Community, in-
itiated this litigation in order to protect the tribe’s rights to
fish in certain waters of the Great Lakes vested in the tribe
by virtue of aboriginal occupation and use, the Treaty of Ghent
of 1814, and the Treaty with the Ottawa and Chippewa Nation
of 1836. In its complaint, the United States asked that the
State be enjoined from interfering with the Indians’ treaty-
confirmed rights to fish in the Great Lakes.
The Bay Mills Indian Community intervened in the action
on December 12, 1974, and added certain individual officials
of the Michigan Department of Natural Resources as defend-
ants in its complaint. Bay Mills also expanded the scope of
the complaint by alleging that it possessed a reserved exclu-
sive fishing right in Whitefish Bay of Lake Superior and a
right to fish in the remaining waters of Lake Superior free of
state regulation. Accordingly, Bay Mills asked the court for
declaratory and injunctive relief to prohibit the State from
interfering with these fishing rights, and an affirmative order
that the State must exercise its police power to regulate any
non-Indian fishing which would be in derogation of these
rights. Bay Mills amended its complaint on October 28, 1975,
added the Michigan Department of Natural Resources as a
defendant, and again expanded the scope of the complaint by
alleging a treaty-protected, reserved right to fish in all of the
area of the Great Lakes ceded to the United
[471 F Supp 204]
States in a treaty signed in 1836. This ceded area covered large
portions of Lakes Michigan, Superior, and Huron.
26a District Court Judgment 471 F Supp 192
The Sault Ste. Marie tribe of Chippewa Indians, a tribe
organized in 1975 under the Indian Reorganization Act, 25
U.S.C. § 476, intervened in this action and filed a complaint
against the above-named defendants on December 12, 1975.
In its complaint, the tribe alleged a treaty-protected, reserved
right to fish in Lake Superior free from state regulation. On
June 17, 1976, the Chippewa tribe filed an amended complaint
in which it alleged an exclusive right to fish in the waters
reserved to the Indians in the Treaty of 1836, and a right to
fish in the ceded waters of the Great Lakes free from state
regulation.
The United States amended its complaint in June of 1976
to comply with the intervenors’ complaints, with minor dif-
ferences. The United States did not allege that there existed
“ceded waters” under the 1836 treaty, but instead alleged
that the Indians had an aboriginal right to fish in the waters
adjacent to the lands ceded under the 1836 treaty and adjacent
to the lands reserved in that treaty. Also, the United States
did not ask for a declaratory judgment that the tribes have
exclusive fishing rights in all the waters adjacent to land
reservations contained in the 1836 treaty, but instead asked
the court to determine that the State had no jurisdiction to
regulate anyone fishing within the Bay Mills Indian Com-
munity reservation, which it alleges included Whitefish Bay.
In effect, the United States’ complaint excluded the Chippewa
tribe’s allegation that it has exclusive fishing rights in certain
waters of the Great Lakes adjacent to 1836 treaty reservation
areas in addition to Whitefish Bay.
The plaintiffs’ pleas for relief are grounded in the Supremacy
Clause of the United States Constitution, Article 6, Clause 2.
The State of Michigan, in its answer, disputed the inter-
pretation given the Treaty of 1836 by the plaintiffs, questioned
the continued existence of the tribes which were signatories
District Court Judgment 471 F Supp 192 27a
to the Treaty, and alleged as defenses: (1) that the treaty was
a removal treaty, and therefore the Indians intended to re-
linquish any aboriginal fishing rights they may have held in
1836; (2) a subsequent treaty in 1855 discharged all prior
rights under the 1836 treaty; (3) this 1855 treaty was an
accord and satisfaction extinguishing all prior rights; (4) the
Indians did not have any aboriginal rights over the Great
Lakes; (5) Article 13th of the 1836 Treaty—which granted
the Indians the right to use the fruits of the land until the
land is required for settlement—acted as a reservation upon
a condition subsequent, and that condition having occurred,
the use is extinguished; (6) the land reservations made in the
1836 Treaty have expired by the terms of the Treaty; (7) even
though there may be a treaty-protected right to fish, the State
of Michigan may still regulate this right in the interest of con-
servation or under other state police powers; (8) the expan-
sion of the Sault Ste. Marie Chippewa reservation may be
done only with the consent of the state; (9) the Chippewa
Tribe was dissolved by the 1855 Treaty, and the Chippewa
tribe from Sault Ste. Marie is not in privity with the original
signatories to the treaty.
The State of Michigan set forth a counterclaim in its answer
in which it asked the court to declare that the Indians involved
in this action are not exempt irom state regulation. The Court
views this counterclaim as a repetition of the denials and
defenses set forth above, however.
The Michigan United Conservation Clubs (MUCC), a
sportsman’s group, petitioned this court for permission to in-
tervene in the action. That petition was denied for reasons
set forth in an earlier opinion of this court; MUCC has been
permitted to act as an amicus curiae, however.
After numerous pretrial motions were disposed of, trial began
on February 27, 1978. The Court heard extensive historical
28a District Court Judgment 471 F Supp 192
evidence and received voluminous documentation meant to
provide a basis for interpreting the often ambiguous treaties
in issue in this case. Extensive briefs and arguments con-
sidered the issue of whether the State of Michigan or the
United States
[471 F Supp 205]
alone has the right to regulate fishing by the plaintiff tribes
in the Upper Great Lakes.
Before the filing of the complaint and continuously during
the course of these proceedings, the State of Michigan and
certain individually named state officials have acted in deroga-
tion of the vested aboriginal and federal rights of the plaintiff
Indian tribes. The conflict between the state and tribal fisher-
man is notorious; scarcely a day goes by without an article
appearing in one or more of the state’s major newspapers con-
cerning the controversy. That it is a passionate issue is ex-
emplified by a recent wholly improper attempt to influence
this Court through the circulation of petitions amongst sports
fishermen which urged that the court rule against the Indians.
The circulation of petitions is an action diametrically at odds
with the methods of access to the courts mandated by the
Federal Rules of Civil Procedure. This misguided action gave
thousands of people the erroneous impression that constitu-
tional rights are a matter of popular contest. This was a cor-
ruption of the concept of the Federal Judicial system. In a
democracy, many times people violate Constitutional and In-
alienable rights. The United States Courts exist to ensure
guaranteed constitutional rights against the TYRANNY OF
POPULAR MAJORITIES. Federal Court Judges are, or ought
to be, custodians of secured constitutional right.
Before giving my specific findings of fact and conclusions
of law, and in the effort to foster public understanding, I
District Court Judgment 471 F Supp 192 29a
present the following more exhaustive statement of the issues
and law involved in this case.
The United States, guided by the Nixon administration and
acting in its role as trustee for the Indians, filed this action
against the State of Michigan to secure Indian rights which
it says were reaffirmed by an 1836 Treaty with the Ottawa and
Chippewa Indians. In so doing it was merely accepting obliga-
tions imposed by the Northwest Ordinance, supra. The North-
west Ordinance not only provided for Michigan’s first govern-
ment but simultaneously set the standard by which the ter-
ritorial government and the United States would be obliged
to deal with the Indians of the Territory.
By this enactment, the Founding Fathers declared a guard-
ian-ward relationship between the United States and the
Michigan Indians. Trained as they were in denominational
schools, where their routine assignments included translation
of the bible from English to Latin and from Latin to Greek,
the Founding Fathers did not hesitate to found this relation-
ship on moral and religious principles, the principles which,
generally,they transformed into political principles when they
formulated our present government, including them in the
Declaration of Independence and the Preamble to the Con-
stitution as well as here in the Northwest Ordinance. It is
these principles which must be applied here in interpreting
the treaties and in measuring the transactions between the
United States and its wards, the Indians. To do otherwise
would be in violation not only of the laws of man but also of
the laws of “nature and nature’s God,” which are, or ought to
be the Supreme Law of this land.
Also, before Michigan’s statehood, the United States entered
into a treaty with Great Britain in which it offered its most
solemn word as a nation, in formal treaty, to honor all rights
of the Michigan Indians.
District Court Judgment 471 F Supp 192
ARTICLE THE NINTH
The United States of America engage to put an end,
immediately after the ratification of the present treaty,
to hostilities with all tribes of nations of Indians with
whom they may be at war at the time of such ratification;
and forthwith to restore to such tribes or nations, re-
spectively, all the possessions, rights, and privileges,
which they may have enjoyed or been entitled to in one
thousand eight hundred and eleven, previous to such hos-
tilities: Provided always, That such tribes or nations shall
agree to desist from all hostilities, against the United
States of America, their citizens and sub-
[471 F Supp 206]
jects, upon the ratification of the present treaty being
notified to such tribes or nations, and shall so desist ac-
cordingly. And his Britannic majesty engages, on his
part, to put an end immediately after the ratification of
the present treaty, to hostilities with all the tribes or na-
tions of Indians with whom he may be at war at the time
of such ratification, and forthwith to restore to such tribes
or nations, respectively, all the possessions, rights, and
privileges, which they may have enjoyed or been entitled
to, in one thousand eight hundred and eleven, previous to
such hostilities: Provided always, That such tribes or
nations shall agree to desist from all hostilities against
his Britannic majesty, and his subjects, upon the ratifica-
tion of the present treaty being notified to such tribes or
nations, and shall so desist accordingly.
This provision of the Treaty of Ghent, signed on December
24, 1814 (8 Stat. 218), was not mere rhetoric; it was a com-
promise position secured from Britain, which threatened in-
definite continuation of the War of 1812 unless the United
District Court Judgment 471 F Supp 192 3la
States restored the rights of Britain’s Indian allies. Both na-
tions pledged to restore to such tribes or nations all the pos-
sessions, rights and privileges which they may have enjoyed
or been entitled to in 1811, before such hostilities. Both na-
tions assumed the guardianship of the Indians and acknowl-
edged all aboriginal Indian rights to use land, sea and air in
the New World, excluding all whites from their territory until
and unless the United States had secured the lands from the
Indians by valid, just, humane treaties. As guardian, the United
States was obliged to acquire the lands and other property
not on the best terms it could get for itself, but on the best
terms it could get for the Indians. At all times it was required
to peotect the Indians’ interests. In the Treaty of Ghen, Britain
effected its duty as guardian of the Indians of the lands it
surrendered to the United States by securing a promise from
the United States to assume a guardian relationship toward
those Indians. The United States agreed to treat these Indians
not as a defeated enemy, but as a ward fully possessed of all
rights arising by virtue of original occupancy and use of the
lands. The United States accepted this obligation in exchange
for an identical promise by Great Britain and in order to end
the War of 1812. Indians of the Northwest Territory who had
allied with Great Britain were possessed of aboriginal rights,
vested by virtue of original occupancy and use and Interna-
tional treaty and protected by the obligations of their guardian,
the United States.
In our constitutional system of government the states cannot
enter into treaties with foreign governments—only the federal
government can. When acting within its power to deal with
foreign governments, the federal government can make treaties
which give it authority in areas which otherwise would belong
solely to the states. In such cases the state no longer has au-
thority in areas governed by the treaty. Federal control of
migratory waterfowl, for instance, derives from a treaty with
Great Britain. In this case the federal government has entered
32a District Court Judgment 471 F Supp 192
into a treaty with Indians, a matter which, like foreign affairs,
is within its sole jurisdiction. One question presented here is
whether this treaty with the Indians deprives the state of all
authority to regulate matters covered by the treaty, specifically
Indian fishing in certain waters of the Great Lakes.
From the earliest times the United States has been am-
bivalent about its assumed role as trustee for the Indians, ex-
pressing noble sentiments executed by ignoble actions. During
the 18th and 19th centuries the United States typically dealt
with the Indians by treaty, as co-sovereign nations. Typically
also, the United States secured Indian lands on terms which
were little short of conquest and carried out the treaty in such
fashion as to complete the vanquishment.
Michigan has staked most of its case on an 1830 Act of
Congress called “An Act to provide for an exchange of lands
with the Indians residing in any of the states or territories, and
for their removal west of the river Mississippi,” (4 Stat. 411)
and referred to as the “Removal Act.” Congress
[471 F Supp 207]
did nothing in this Act to lessen the obligation of the Execu-
tive toward the Indians.!2) The prinicipal authorization of the
Act is to make it lawful for the President to offer lands be-
longing to the United States west of the Mississippi to the
Indians who chose to exchange their present lands. Section 7
of the Act indicates that the Act does not contemplate any
variation in Indian policy: “Provided, That nothing in this act
contained shall be construed as authorizing or directing the
violation of any existing treaty between the United States and
any of the Indian tribes.”
[2]
American Heritage Pictorial History of the Presidents, Vol. 1. P. 224
(1968).
District Court Judgment 471 F Supp 192 33a
Of necessity, this court has had an opportunity to review
the actions of almost every administration in the history of
our country. The removal policy in question began during
the Presidency of Thomas Jefferson. Piecemea! removal began
during Monroe's administration but slowed down during the
administration of John Quincy Adams, who had a humane
and paternal attitude toward the Indians. Andrew Jackson
ran for office supporting the policy and received authorization
from Congress to implement it. During Jackson's term Henry
Schoolcraft was appointed to secure from the Indian bands,
whose progeny make up the plaintiff tribes, lands which would
become the State of Michigan. During Van Buren’s presiden-
cy, pressure for removal of Indians to lands west of the Missis-
sippi waned. The Indians stayed in Michigan, but were de-
prived of their rights under the 1836 treaty, and many others,
almost as quickly as they were signed. By the time Pierce
became President, even many of the eastern states wanted to
keep Indians on their ancestoral homes. A new treaty was
signed with the Michigan Indians during this administration
which gave the Indians permanent reservations (most of which
no longer exist) in exchange for releasing the United States
from its unfulfilled financial and personal property obligations
under earlier treaties.
In an effort to provide a perspective on the Removal Policy
of the United States, I quote the following accounts of noted
historians who the State’s own expert testified are authorita-
tive and reliable. (Tr. 1716.)
3. Removal of the Eastern Indians
An American journalist who had spent several years in India,
and whose small children had come to love the Indians, came
home in 1958. Shortly thereafter he found the boys crying
as they watched a TV “Western” because, as one moaned,
“They're killing Indians!” Papa had to explain that these were
34a District Court Judgment 471 F Supp 192
not Indians of India but Red Indians, and that to kill them
was part of the American Way of Life.
The only extenuation of American policy toward the natives
of North America is that it continued an old-world process
of one race or people pushing a weaker one out of an area
that it wanted. Almost every European today is a descendant
of Asiatic intruders into Europe; almost every North African
the descendant of Arab intruders. “The country is a land for
cattle,” said the children of Reuben to Moses when they saw
the land of Gilead, “and thy servants have cattle; wherefore,
said they, if we have found grace in thy sight, let this land
be given unto thy servants for a possession.” In the United
States as elsewhere in the nineteenth century, this process of
conquest and expansion took the form of a relatively highly
developed civilization pushing out a backward people who
could not or would not be absorbed, and who were too few
in number and weak in technique long to resist. But some of
the Indians put up a very good fight.
The problem of United States-Indian relations, which for
many years had involved international rivalries, became local-
ized after the Florida treaty was ratified in 1821. “Foreign
interference” could no longer be used as an excuse for abusing
the Indians. And there was no more need to placate them
to prevent their siding with the British, French, or Spanish.
Efforts to maintain Indian reservations within the Eastern
states was generally unsuccessful, although a few small one,
such as that at the Abnaki in Oldtown,
[471 F Supp 208)
Maine, and the Tuscarora reservation near Niagara Falls, still
endure, menaced or sliced away by the bulldozer. Conditions
for a reservation’s lasting were a partial adoption by Indians
District Court Judgment 471 F Supp 192 35a
of the American Way of Life, and a strong government service
to protect them from the white man’s trickery and alcohol. But,
for fifty years after American independence, the Indians did
not wish to conform, many federal agents were political hacks,
trading posts were unable to compete with unauthorized pri-
vate traders who supplied the Indians with liquor, and fron-
tiersmen everywhere coveted the Indians’ land.
Monroe’s administration bowed to demands of the West by
adopting a removal policy. Plans for concentrating the tribes
west of the Mississippi now began to take shape, and piecemeal
removal began in the 1820's from the Old Northwest and the
lower South, to segments of what had been the domains of
the Caddo, the Quapaw, and the Osage. Tribesmen with
well-developed farms, especially influential halfbreeds, were
given the choice of removal, or staying put and becoming
American citizens. Those who preferred to leave, exchanged
their property for new lands in the West and were promised
payment for travel expenses and the value of improvements
on their relinquished property. The assent of the Indians was
often merely nominal; federal commissioners bribed important
chiefs, and, if necessary, got them drunk enough to sign any-
thing. “Persuasion” often took the form of urging the Indians
to sell improvements for cash with which to pay off debts
to white traders. This removal policy slowed down during the
administration of John Quincy Adams, whose attitude toward
the Indians was humane and paternal, but picked up momen-
tum and was carried to a successful conclusion (from the white
point of view) under Jackson. The President, having nego-
tiated several removal treaties during his military career, knew
very well the hardships involved, but regarded this as the
only possible way to save the Indians from extinction. They
were faced with the irresistible force of a white expansion
which the Democrats had no intention of checking.
36a District Court Judgment 471 F Supp 192
Soon after Jackson’s inauguration, Georgia, Alabama, and
Mississippi asserted jurisdiction over Indian reservations, in
contemptuous disregard of federal treaties, and even set up
county governments to be put in operation as soon as the
rightful owners of the soil were expelled. Congress then passed
an Indian Removal Act (1830), appropriating half a million
dollars for this purpose. The President was authorized to
grant lands in the unorganized part of the Louisiana Purchase
in exchange for those relinquished in the East, to protect
the Indians in their new reservations, to pay expenses of re-
moval and one year’s subsistence, and compensate them for
improvements on the relinquished land.
The liquidation of Indian reservations in the Old Northwest
was largely accomplished between 1829 and 1843. Mixed
bands of Shawnee, Delaware, Wyandot, and other were per-
suaded to accept new reservations west of Missouri. Their
numbers were drastically reduced by disease on the journey.
Theft by federal officials of what was due to the Indians, and
funeral rites for those who died en route, exhausted their
resources long before this “trial of tears,” as it was aptly called
by later writers sympathetic to the Indians, came to an end.
Many groups were unable to make the journey in one season
and suffered intensely at improvised winter quarters. A cholera
epidemic broke out in 1832; measles took hundreds of lives.
Further trials awaited the survivors, especially those who
hoped to till the soil; the cost of equipment reduced them to
penury or debt long before they could raise a crop or draw
upon tribal annuities. Money from the sale of improvements
at the old village ordinarily went into the expenses of travel,
if it did not stick in the pockets of federal agents.
At one point during these removals, hostilities broke out.
Black Hawk, chief of the Sauk and Fox, who had fought on
the British side in 1812, tried to retain his ancient tribal seat
at the mouth of Rock river, Illinois, opposite Davenport, Iowa.
District Court Judgment 471 F Supp 192 37a
White squatters encroached on the village and enclosed the
Indians’ cornfields. After the
[471 F Supp 209}
governor of Illinois had threatened him, Black Hawk agreed
that after crossing the Mississippi for his annual winter hunt,
he would never return. But his people, threatened by hostile
Sioux, ran out of food. Hoping to find a vacant prairie in which
to plant a corn crop, Black Hawk recrossed the Mississippi in
the spring of 1932 with about 1000 members of his tribe. The
governor of Illinois, assuming this to be a hostile expedition,
called out the militia (Abraham Lincoln commanding a com-
any) and pursued the starving Indians up the Rock river into
the Wisconsin wilderness. It was a disgraceful frontier frolic,
stained by wanton massacre of Indians, including women and
children. The only redeeming feature was the chivalrous con-
sideration of Black Hawk by Lieutenant Jefferson Davis of
the regular army, when the captured chief was placed in his
charge; forty years later, Davis referred to Black Hawk's rear-
guard action at Wisconsin Heights as the most gallant fight
he had ever witnessed. Black Hawk subsequently visited the
“Great White Father” in Washington and was presented with
a sword and a medal by President Jackson. But he lost his
tribal lands.
The four great Indian nations of the Old Southwest, the
Chickasaw, Creek, Choctaw, and Cherokee, were Jackson's par-
ticular problem. In 1830 the Choctaw of Mississippi signed
a treaty providing for their removal within three years. As
with others, this migration brought death, suffering, and pov-
erty. In 1832 a treaty was signed with the Creek nation to
wind up their large reservation in Alabama. Some members
kept individual allotments and faced the cunning of new white
neighbors who poured into their reservation before they could
leave. Many died on the journey. By 1860 the Creek nation
38a District Court Judgment 471 F Supp 192
had lost about 40 per cent of its population. The rest settled
in the Indian Territory, near the Choctaw. The Chickasaw of
Mississippi, a fairly small group, fared better and obtained
fairly good prices for their improvements, since their land was
desirable for cotton plantations.
These three nations were agricultural and sedentary; some
even held Negro slaves. The Cherokee, whose nation spread
over northwest Georgia into Alabama and around Chicka-
mauga, Tennessee, were even more advanced, by European
standards. It had always been a white grievance against the
Indians that they rejected “civilization.” The Cherokee, un-
fortunately for themselves, took the palefaces at their word.
George Gist, a halfbreed whose Indian name was anglicized
as Sequoyah, provided the necessary spark. Convinced that
literacy was the key to Indian survival, Sequoyah invented
a simple form of writing and printing the Cherokee language;
Bibles, other books and even a weekly newspaper The Chero-
kee Phoenix were printed. These Indians welcomed Christian
missionaries, built roads, houses, and churches, adopted a con-
stitution for the Cherokee nation and elected a legislature.
They became more civilized than the Georgia “crackers” and
“hill-billies” who coveted their lands. Nor, for that matter,
do the inhabitants of Faulkner's Yoknapatawoha County ap-
pear to be an improvement over the Chickasaw whom they
replaced.
The independence of the Cherokee nation had been guaran-
teed by the United States in a treaty of 1791, but the State of
Georgia had been chopping away at their lands for over thirty
years, and regarded the treaty as obsolete. Discovery of gold
in the Cherokee country in 1828 brought this controversy to
a head, and a rough class of whites to the spot. Here was a
case of federal supremacy against the state rights, as clear at
that of South Carolina; but President Jackson let Georgia have
her own way. His secretary of war, Peggy Eaton’s husband,
District Court Judgment 471 F Supp 192 39a
informed the Cherokee that they were mere tenants at will.
The federal troops sent by President Adams to protect the
Indians were withdrawn, and Major Ethan Allen Hitchcock,
sent by the war department to investigate frauds against them,
made so devastating a report that the department suppressed
it. Chief Justice Marshall decided, in a test case brought by a
missionary (the Reverend Samuel C. Worcester of Vermont),
that the laws of Georgia rightly had
(471 F Sup; -.0]
no force within Cherokee territory. Jackson commented, “John
Marshall has made his decision. Now let him enforce it.”
As Georgia held a lottery to dispose of their lands, and no
friends in power appeared to help them, the Cherokee were
forced to accept removal. Agents of the Indian administration
negotiated a treaty with a small minority of the chiefs in 1835,
but most of them refused to attend the negotiations, and few
departed within the three-year limit set by the treaty. A pro-
test to President Van Buren, signed by 15,665 Indians, was
blandly ignored. So, in 1838, regular troops under General
Winfield Scott rounded up the Cherokee and started them on
the long trial to Indian Territory. This journey cost them
one-quarter of their number, but the remainder reorganized
their national government, prospered, and have retained their
language and alphabet to the present day. Several hundred
die-hards in the Great Smokies, who resisted removal, were
eventually given the Qualla reservation in North Carolina.
A similar controversy with the Seminole of Florida ended
in ..ar. A tricky treaty of removal, negotiated in 1832 with a
few chiefs, was repudiated by the greater portion of the tribe,
led by a brave chieftain named Osceola. Secure in the fast-
nesses of the Everglades, Osceola baffled the United States
Army for years, and was only captured by treachery at a truce
40a District Court Judgment 471 F Supp 192
conference. Many seminoles were rounded up and sent west,
but others kept up the fight until 1542. By that time they
had cost the United States some $20 million and 1500 lives.
A few thousand remained in the Everglades. Their descend-
ants, known as the Miccosukee Seminoles, are the only occu-
pants of some 200,000 acres of swampland north of the Tamiami
trail. They live, like their ancestors, by hunting, fishing, and
a little agriculture. Never having made peace with the United
States, they are currently threatened by drainage and develop-
ment projects, and a “progress” which they do not want.
The only Western statesman to denounce these shabby and
dishonorable proceedings was Henry Clay. His speech in the
. Senate on 14 February 1835 is the more praiseworthy because
the Indians had no votes, and because his Kentucky constitu-
ents cared nothing for them. He quoted the long list of treaties
guaranteeing to the Cherokee their lands, and the still longer
list of acts of the State of Georgia which violated not only these
treaties, but the most elementary principles of justice and
decency. He drew tears from the eyes of the senators, but they
did nothing for the Cherokee except to expedite their removal.
President Jackson seems to have kept a good conscience
about all this, and several friends of the Indians, such as Lewis
Cass and Thomas L. McKenny, head of the war department's
bureau of Indian affairs, supported removal as the only alter-
native to extermination. Jackson’s rationale of Indian removal
appears in his Farewell Address of March 1837: “The states
which had so long been retarded in their improvement by the
Indian tribes residing in the midst of them are at length re-
lieved from the evil, and thus unhappy race—the original
dwellers in our land—are now placed in a situation where we
may well hope that they will share in the blessings of civiliza-
tion.” Lewis Cass went the General one better, piously invok-
ing the theory that God intended the earth to be cultivated.
Cherokee cultivation evidently did not count.
District Court Judgment 471 F Supp 192 4la
By the end of Van Buren’s presidential term, it was assumed,
at least by the Democrats, that the Indian question had been
solved. All important Eastern tribes—those who, in Jackson's
phrase, had “retarded improvement” (i.e. resisted white land
grabbers)}—had been provided for behind a barrier that ran
from Lake Superior through Wisconsin and Iowa Territories,
thence along the western boundaries of Missouri and Arkansas
to the Red river on the Texas border. Behind this line the
tribes were guaranteed possession “as long as grass grows and
water runs”; and thence most of them were eventually ousted,
when the tide of white settlement lapped around them and
slaughtered their game. But, in a sense, the removal policy
[471 F Supp 211]
was justified by the later history of the “five civilized Indian
Nations’—Creek Cherokee, Choctaw, Chickasaw, and Sem-
inole—in Oklahoma. Removal gave them the necessary respite
to recover their morale, and until the Civil War they succeeded
in keeping white men out.
Looking backward, it is now evident that, in view of the
irresistible push of the westward movement, Indian removal
was the lesser evil. It had to be, but, the process was carried
out with unnecessary hardship to the victims.
In many instances missionaries and other individuals man-
aged to protect the Indians. The Ojibway or Chippewa had
a reservation along the Bad river of Wisconsin, which was
taken under the protection of the Reverend L. H. Wheeler,
a Protestant missionary at La Pointe. When, in 1850, white
pioneers began lobbying Congress to remove these Indians
west of the Mississippi and acquire their lands, Wheeler visited
the proposed site of the resettlement and reported that it
would be a deed of mercy to shoot every Ojibway rather than
send them there. Congress reconsidered, and in 1854 guaran-
42a District Court Judgment 471 F Supp 192
teed these Indians three small reservations on the south shore
of Lake Superior, which they still hold in 1964. Other tribes
were not so fortunate. Between 1853 and 1856 the United
States negotiated no fewer than fifty-two treaties, mostly with
nations in the Mississippi valley or west of the great river,
by virtue of which it added 174 million more acres to the public
domain.
Remnants of the Six Nations who had been guaranteed
possession or reservations in New York State, by treaties con-
cluded as far back as 1784, have been fighting a losing battle.
Chief Red Jacket of the Seneca long managed to preserve the
integrity of his people in their reservation, which is now
covered by the City of Buffalo. After his death in 1830, a
group of New York speculators known as the Ogden Land
Company began an intensive drive to get possession of the
Seneca reservation. By bribing greedy individuals to act as
“chiefs” and sign away land, this company managed to rob
the tribe of almost their entire heritage. President Var Buren,
to his credit, denounced the subsequent “treaty” as a steal,
but it passed the Senate, by the casting vote of Vice President
Johnson, the reputed slayer of Tecumseh.
Samuel Eliot Morison, The Oxford History of The American
People (1965) at 445-52.
Similarly, the American Heritage Pictorial History of the
Presidents (1968), Vol. 1, states:
TRAIL OF TEARS
Although the Indian Removal Act of 1930 simply au-
thorized the President to negotiate for land, Andrew Jack-
son’s “requests” were in fact orders. Resigned to their fate,
the Choctak and Chickasaw began the long journey from
the Southeast to Arkansas and Oklahoma. But the Creek,
who had disastrously encountered Jackson in 1813 and
District Court Judgment 471 F Supp 192 43a
1817, knew better than to believe his promise of guaran-
teed territory west of the Mississippi. Standing their
ground in 1832, they extracted a treaty that said “they
shall be free to go or stay, as they please.” Four years
later, their chiefs in chains and guns at their backs, the
Creek joined the exodus. In 1832, the Sauk were driven
from their Illinois villages and across the Mississippi, leav-
ing possessions and food stores behind. When Chief Black
Hawk sent his braves to negotiate with the military, their
white flags were ignored. After several skirmishes, the
desperate leader tried to lead his starving people back
home, but they were stopped at the river. That pathetic
series of events, known as the Black Hawk War, cost
hundreds of Indian lives. In Georgia, the peaceful Chero-
kee sought and won from the Supreme Court a favorable
decision, to which neither the state officials nor President
Jackson paid any attention. Like the other Indian tribes,
the Cherokee embarked on a long journey to the West,
along a “trail of tears.”
During the 20th century these Indians attempted to secure
rights previously denied them. During Theodore Roosevelt's
(471 F Supp 212]
presidency, Congress passed a law which permitted them to
appear before the Court of Claims to settle the ownership of
monies held in trust by the United States at the time of the
1855 Treaty. The Ottawas and Chippewas filed suit, and,
in 1907, were able to show that the United States still owed
them monies which were to have been paid twenty years after
the signing of the original treaty. Ottawa and Chippewa In-
dians v. United States, 42 Ct. Cl. 240 (1907). In 1946, during
the Truman administration, Congress established the Indian
Claims Commission. The Bay Mills Indians filed suit and
proved that their land had been worth approximately seven
4da District Court Judgment 471 F Supp 192
times what they were paid in the 1836 treaty. Bay Mills In-
dians v. United States, 26 1.C.C. 538 (1971), Indian Claims
Commission Docket # 18E and 58.
The present action marks the first time during the long
history of these Indian peoples that the United States has not
been the opposing party in their effort to secure rights granted
to them by solemn treaties. The action was initiated by the
United States during the Nixon administration, was pressed
during the Ford administration, and carried forward during
the Carter administration. As the case presently stands, the
United States and the plaintiff Indian tribes, the parties to the
two treaties here in question, have come to this court agreeing
that their treaties reserved Indian fishing rights in the Upper
Great Lakes.
That there are persons within the state whose rights to fish
derive from federal (as opposed to state) law has been totally
unacceptable to the state and its Department of Natural Re-
sources. The state’s position on this fundamental concept was
stated by its counsel in his opening argument:
There is no question but that the State now and always
has stood ready to provide fishing privileges to all our
citizens, commercial fishing privileges to all our citizens
on an equal basis, including Indians or others of whatever
race or ethnic background.
(Tr. 1210) The state obdurately adheres to this position despite
the fact that the Supreme Court of the United States long ago
rejected the identical contention. In United States v. Winans,
198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905), the Supreme
Court reviewed a lower court decision which held, in effect,
that the Indians were to be treated just like any other citizen
of the State of Washington, notwithstanding their treaty re-
served the right to fish at their usual and accustomed sites.
District Court Judgment 471 F Supp 192 45a
The Court first stated the lower court's ruling and then ar-
ticulated unambiguously its disapproval:
In other words, it was decided [by the lower court]
that the Indians acquired no rights but what any inhabi-
tant of the territory or state would have. Indeed, acquired
no rights but such as they would have without the treaty.
This is certainly an impotent outcome to negotiations and
a convention which seemed to promise more, and give
the word of the nation for more.
Id. at 380, 25 S.Ct. at 644. See also Seufert Bros. Co. v. United
States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555 (1919).
Although the United States before 1836 exercised dominion
over the area which was later to become the State of Michigan,
it had not as of that time taken steps to extinguish aboriginal
title in the Ottawas and Chippewas. The southern portion of
the Michigan territory was becoming settled in the early 1800's
and there could be no assurance of cloudless title in non-Indian
settlers so long as the Indians’ aboriginal title to the land
remained unextinguished. While the United States had several
options available to it in order to accomplish an extinction of
Indian title, it chose the most common method of that time
and negotiated a treaty of cession with the Ottawa and Chip-
pewa living in the northwestern portion of the lower peninsula
and eastern half of the Upper Peninsula of what is now the
State of Michigan.
Central to the plaintiffs’ contentions and rooted in United
States v. Winans, supra, is the concept that under the treaty
the Indians were the grantors of a significant land cession and
the United
46a District Court Judgment 471 F Supp 192
[471 F Supp 213]
States was the grantee. As in any land transaction (not just
those involving the Indians), the grant extends only to those
interests and rights specifically conveyed and to none others.
When the Indians granted to the United States their owner-
ship in the land and waters of the Great Lakes described in
Article First of the 1836 treaty, they retained all those rights
not specifically conveyed. Among the retained rights was
their aboriginal right to continue to fish in the ceded waters
of the Great Lakes.
A misunderstanding quickly arises if the transaction be-
tween the United States and the Indians is thought of as the
ordinary land transaction were the seller conveys all of his
rights in the property he sells. Under this interpretation, it
would be necessary for the Indians to be able to show that the
United States granted them the right to fish. The transaction
is better understood if the focus is upon the concept of “reser-
vation.” The Indians gave up some rights, reserving all those
not specifically conveyed. In a Washington treaty, for instance,
the Indians explicitly reserved a right to fish at “all usual
and accustomed places.” They then conveyed their land, with-
out conveying to the United States the right to exclude the
Indians from the land adjoining the places where they fished.
The owners who purchased the land adjoining these fishing
places did not have the right to exclude Indians from the land
because the Indians implicitly reserved a right to cross it,
there being no other way to exercise their fishing right. The
white owners only had the right to exclude non-Indian tres-
passers. Likewise, certain Western Indian tribes explicitly
reserved land for agricultural purposes, the treaty not specifi-
cally conveying all the water of adjacent rivers to the United
States. The tribes reserved whatever water they needed to
make use of their land. White settlers with similarly arid lands
were not provided for by the treaties, and were not entitled
District Court Judgment 471 F Supp 192 47a
to any water used by the Indians. The reservation was im-
plied from the fact that the Indians could not otherwise use
their lands for agriculture The Michigan Indians here claim
that they never granted their right to fish to the United States,
but reserved it so that they could continue to exercise their
way of life while living in Michigan, a right they reserved
under the treaty. They are not obliged to show that the United
States granted them the right to fish, but only that they re-
served it. They need not show that they explicitly reserved it.
Of course, not every treaty of cession leaves the Indian
grantors with reserved fishing rights. In order for the right
to exist in the first instance, it must be shown that the Indians
were in fact using the resource, i.e., that they exercised this
right, subsumed within their larger, aboriginal right to their
land and water. Thus, the factual predicate for the reserved
fishing right is the documented historic, ethno-historic, an-
thropologic and archaeologic evidence proving that commercial
and subsistence fishing was of significance to the Indians dur-
ing treaty times. Plaintiffs’ testimony at trial overwhelmingly
established this factual predicate. Having established these
facts, the reserved right to fish arises by implication. Thus, the
Indians impliedly reserved the right to subsistence and com-
mercial fishing because of this resource’s importance to the
Indian community at and before the time they entered into
the treaty.
In additicn to the implied right to fish, plaintiffs also rely
on explicit language in the treaty in support of their claims.
Article XIII provides that:
The Indians stipulate for the right of hunting on the
lands ceded, with the other usual privileges of occupancy,
until the land is required for settlement.
48a L. trict Court Judgment 471 F Supp 192
7 Stat. 485. This language constitutes an explicit reservation
of a right broad enough to include the taking of fish from the
Great Lakes for subsistence and commercial purposes.
Because the language of the treaties is general, vague and
ambiguous, the issues before this court involve not only the
treaties themselves but also the history of their negotiation
and the entire history of the
[471 F Supp 214]
Michigan Indians. This is the way the case has been tried by
the parties. The plaintiffs submitted evidence that, in this
northern region of the present United States, where agricul-
ture has always been difficult but fish have been in abundance,
Indians have relied upon fishing as basic to their livelihood
since 10,000 years before Christ. They submitted evidence
that the Indians adopted gill nets from their eastern cousins
shortly after the birth of Christ, and used them productively for
centuries, even though, as defendants said, white men could
not get a catch from such nets unless made of much finer ma-
terials. The plaintiffs presented experts who testified that the
Michigan Indians grew to depend upon the fisheries to secure
European goods and that their earliest participation in the
European market economy rested upon their expertise at fish-
ing. It is this sort of evidence which this court had to evaluate
in order to determine whether the Ottawas and Chippewas so
depended upon subsistence and commercial fishing at the time
they signed the treaty of 1836 that they could not have know-
ingly signed away their right to fish.
District Court Judgment 471 F Supp 192 49a
The lands ceded by the treaty of 1836 were less explored
than many regions of the far west. More desirable lands in
Michigan had been secured by prior treaties.{3]_ The
[3]
The Treaty of Saginaw of 1819, 7 Stat. 203 (1819), secured the area
around the thumb of the lower peninsula. The negotiation of that treaty
is not only typical of treaty negotiations, but also reveals how General
Lewis Cass, Secretary of War in 1836, dealt with the Indians in 1819,
when he was a commissioner. When General Cass was leaving for the
negotiations in which he planned to “procure a cession of that valuable
territory,” he realized he had a very difficult assignment because the
Indians had not received the annuity they had been promised in an
1807 Treaty. Treaty of Nov. 17, 1807 (7 Stat. 105.) Accordingly, he
secured a personal bank loan for the amount of the “annuity” (which
was in fact a grant) so that he might have silver to place before the
Indians during the negotiation. As Cass put it, he got the money so that
he would “be able to comply with past engagements before I call upon
the Indians to perform others.” F. Dustin, The Saginaw Treaty of 1819,
8 (1919). He displayed the silver during the negotiations and gave it
to the Indians only after they signed the new treaty. Thus, the considera-
tion from the first treaty served to secure not only the first treaty, but
the second also.
Although Cass had made extensive preparations to ensure that the
Indians would be there when he arrived, few Indians had come. He
sent out runners to gather missing chiefs and tribal leaders, but did not
wait for them to arrive. He began negotiations at once. S$. Gross, Indians,
Jack and Pines, 1962. at p. 17. Cass’ actions were an aggressive pursuit
of his objective of acquiring “that valuable land.” The Indians were
primitive and uncivilized, but they knew what they wanted, and they
did not want to move out of Michigan beyond the Mississippi. They
wanted to stay on their hunting grounds.
The Chief, O-Ge-maw-ke-to, addressed Cass’ proposal of cession as
follows:
“You do not know our wishes. Our people wonder what has
brought you so far from your homes. Your young men have invited
us to come and light the council fire. We are here to smoke the
pipe of peace, but not to sell our lands. Our American Father
wants them. Our English Father treats us better. He has never
asked for them. Your people trespass upon our hunting grounds.
You flock to our shores. Our waters grow warm; our land melts
like a cake of ice. Our possessions grow smaller and smaller. The
50a District Court Judgment 471 F Supp 192
[471 F Supp 215]
lands of Upper Michigan were bypassed by settlers who sought
agricultural lands further west. Only a few thousand Indians,
organized into bands, inhabited the entire area along with a
few traders and military men. These Indians used the land
warm wave of the white man rolls in upon us and melts us away.
Our women reproach us. Our children want homes. Shall we sell
from under them the spot where they spread their blankets? We
have not called you here. We smoke with you the pipe of peace.’ ”
History of Saginaw County, 151 (1881).
The account of Cass’ speech reads as follows:
“To this the Commissioner replied with earnestness, reproving the
speaker for arrogant assumption, that their Great Father at Washing-
ton had just closed a war in which he had whipped their Father,
the English king, and the Indians too; that their lands were for-
feited in fact by the rules of war, but that he did not purpose to
take them without rendering back an equivalent, notwithstanding
their late acts of hostility; that their women and children should have
secured to them ample tribal reserves on which they could live,
unmolested by their white neighbors, where they could spread their
blankets and be aided and instructed in agriculture.”
History of Saginaw County, 151 (1881).
This humiliation was in fact contrary to the provisions of the Treaty of
Ghent with Great Britain ending the War of 1812. Under that treaty the
Indians regained in full the rights which Cass, impelled by the zest of
his heroism, declares do not exist. After this initial session, negotiations
continued in the presence of Cass’ soldiers and 60 other whites, until a
treaty was signed in ceremony for which Cass supplied 5 barrels of
whiskey. Saginaw Treaty of 1819, 17 (1919).
To meet the resistance brought about by the Indians’ desire to retain
their hunting grounds, Cass assured them they could continue to hunt
in the forests. S. Gross, supra, at 17. By this deception and by granting
them the silver vested under the earlier treaty, Cass induced the Indians
to believe, mistakenly, that they had won a victory and could retain
their lands and their earlier treaty rights.
It is reported that in other negotiations Cass told Ohio Indians he
would take a cession of their lands from Michigan Indians if the Ohio
Indians did not sell. He brought the Michigan Indians to Ohio for the
negotiations. (Tr. 493.)
District Court Judgment 471 F Supp 192 5la
and water, seasonally migrating over the land to secure the
resources of the area.
In the 1830's some of the Indians wanted to acquire annuities
like their Potawatomie brothers and realized that the United
States would give such payments in exchange for land. One
group indicated that it would cede Drummond Island in Lake
Huron; chiefs of questionable authority offered to cede lands
belonging to other Indians in order to get an annuity. Even
these groups had so little understanding of American property
law that they expected to continue using the land as before
even after a cession.
Lewis Cass, Secretary of War, and Henry Schoolcraft, Indian
Agent in Michigan, were not interested in such proposals.
They ordered representatives of all area Indian bands to
Washington, escorted by traders chosen because of their known
influence over the Indians and who were rewarded by the
terms of the subsequent treaty. Away from their forest homes
for over four months, many for the first time in their lives,
unable to engage in their ordinary pursuits, housed in build-
ings and transported over streets, the Indians signed a treaty
written by white traders, explained to them by white inter-
preters and fostered by men who had supplied them with
firewater for years. They were then permitted to return to
their homes.!41 Before and during its negotiation and by the
[4]
Similar coercion was effected in different fashion in treaty negotiations
with the Osages:
On the 8th of November, 1808, Peter Chouteau, the United States’
agent for the Osages, arrived at Fort Clark. On the 10th he as-
sembled the Chiefs and warriors of the Great and Little Osages in
council, and proceeded to state to them the substance of a treaty,
which, he said, Governor Lewis had deputed him to offer the Osages,
and to execute with them. Having briefly explained to them the
purport of the treaty, he addressed them to this effect, in my hearing,
and very nearly in the following words: “You have heard this treaty
52a District Court Judgment 471 F Supp 192
language of the treaty, they were assured that they could con-
tinue to use the land when they returned to their homes, as
before. Had they felt anxious about their fishing grounds
before the negotiations, those fears were allayed: areas sought
by whites were granted exclusively to the Indians, and no
mention was made that the treaty might take any other fish-
ing rights away.
By the terms of the treaty monies granted to the Indians for
their land were assigned to traders to pay for Indian debts,
and Henry Schoolcraft negotiated over $50,000 for his relatives.
The Indians got their annuities, certain services, reservations
at their traditional fishing grounds and a promise of land in
the West.
But, the white men were not through with the Indians. The
Senate ratified the treaty with an amendment limiting the
terms of the reservations to five years or longer, as the United
States might permit. This put the Indians on notice that things
explained to you. Those who now come forward and sign it, shall
be considered friends of the United States and treated accordingly.
Those who refuse to come forward and sign it shall be considered
enemies of the United States, and treated accordingly.” The Osages
replied in substance, “that if their great American father wanted a
part of their land he must have it, that he was strong and powerful,
they were poor and pitiful, what could they do? He had demanded
their land and thought proper to offer them something in return
for it. They had no choice, they must either sign the treaty or be
declared enemies of the United States.” George C. Silbey, factor
at Fort Osage, cited in Schmeckebier, the Office of Indian Affairs,
Its History, Activities, and Organization (1927), pp. 59-60.
District Court Judgment 471 F Supp 192 53a
[417 F Supp 216]
had not gone as they had understood them. But, Schoolcraft
allayed their fears by assuring them they could continue to
use all of their lands as before, leading them to understand
that this use would go on without limit. Satisfied, the Indians
signed the pact.
The United States did not pay all of the annuities promised;
took the most important of the fishing grounds to build a
canal and permitted settlers to come into the territory to such
an extent that the Indians feared they would lose their reser-
vations and there would be no land left for them. The United
States wanted to secure clear title over Indian lands so that
they could be sold to settlers and to concentrate the Indians
in fewer locations on less land. These motivations led to a
new treaty in 1855. In that treaty, signed in Detroit, the United
States granted the Indians reservations and assumed specific
obligations to provide services and benefits in exchange for a
release from the prior treaty financial and personal property
obligations it had not fulfilled. The reservations were again
placed near traditional fishing grounds. In a separate treaty,
the United States offered compensation for the fishing grounds
granted in perpetuity and which it had destroyed at Sault
Ste. Marie.
After the 1855 treaty, the United States dealt with the treaty
Indians on a local basis, no longer pretending that there was
an Ottawa and Chippewa Nation. More recently, it recognized
the Bay Mills tribe under the Indian Reorganization Act as an
Indian tribe entitled to the benefits of prior Indian treaties.
Most recently, it did the same for the Sault Ste. Marie band
of Chippewa Indians.
When a court is called upon to construe an Indian treaty,
the Supreme Court has mandated that it employ the following
54a District Court Judgment 471 F Supp 192
principles which flow from the guardianward relationship of
the United States to the Indians: The treaty must be construed
as the Indians would have understood it; doubtful expressions
must be resolved in favor of the Indians, and treaties must be
construed liberally in favor of the Indians. Generally, these
principles are laid down so that Indian tribes, usually number-
ing little more than a few thousand, are not wholly disad-
vantaged by the strength and resources of the United States.
In this case every justification ever given in support of these
principles is satisfied. The treaty was imposed by subtle, in-
vidious and incidious negotiators who sought only signatures
without regard for whether they were a product of free con-
sent; the treaties binding the Indians were written in English,
although the Indians knew no English and their language
arose out of a hunting and fishing tradition without a concept
of property; interpreters could only describe general outlines
of the agreement; details were left to the good faith of the
drafters; the final version of the treaty was drafted behind
closed doors by Heury Schoolcraft and the traders who es-
corted the Indians to Washington; these men had conflicts
of interest and each was rewarded handsomely by the treaty,
altogether receiving over a quarter of a million dollars.
From the history of the negotiations of the 1836 and 1855
treaties, evidence of the sort of use the Indians made of the
Great Lakes fisheries at the time of the 1836 Treaty, and
bound as I am to construe the treaties as they would have been
understood by the Indians, I am compelled to conclude that
the Ottawa and Chippewa Indians, and the plaintiff tribes
as their successors, reserved an aboriginal right to fish in the
waters of the Great Lakes ceded by the Treaty of 1836, which
right they may exercise without regulation by the State of
Michigan.
Specific findings of fact and conclusions of law are contained
in a following section of this opinion.
District Court Judgment 471 F Supp 192 55a
Insofar as any motion has been of significance, it has been
ruled upon at the appropriate time. Certain insubstantial
motions remain and will be dealt with summarily.
The State has before the court a motion to require the
joinder of all necessary and indispensable parties. It argued
that this order was necessary to bring into
[417 F Supp 217)
the action all Indians claiming fishing rights as descendants
of the signatories to the 1836 Treaty. The court recognizes
the position that the State finds itself in is difficult. However,
a substantially similar argument was advanced by the State
in support of its second motion for partial summary judgment.
In that motion, the State asked that the court bring into the
action all individuals who may possess any individual fishing
rights as a result of the dissolution of the tribal organizations
by the Treaty of 1855. The court denied that motion, and
indicated that the present parties were sufficient to enable
the court to pass on Phase I issues before it.
The individual defendants have petitioned this court for the
right to a jury wial. Because this action involves prospective
injunctive relief sought by plaintiffs, and because plaintiffs
have not presented any evidence of tortious conduct by any
of the named individual defendants, there is no basis for re-
quiring a jury trial, and defendants’ motion is denied.
The State’s motion for a three-judge court is likewise easily
disposed of.{51 The sole basis upon which plaintiffs have
prosecuted this action is that the Indians possess an aboriginal
fishing right which has been confirmed by treaty with the
[5]
Because this action commenced before the repeal of 28 U.S.C. § 2281
on August 12, 1976, that statute and interpretative case law applies to
this motion. See, Pub.L. 94-381, § 7.
56a District Court Judgment 471 .F Supp 192
United States. Under the United States Constitution, Article
VI, clause 2, a treaty made under the authority of the United
States becomes the supreme law of the land. Consequently,
because a treaty provision maintains the same status as a
federal statute, the State cannot regulate what federal law
preempts. This is the foundation of plaintiffs’ allegation that
the State of Michigan may not regulate federally protected
fishing rights. Obviously, the plaintiffs are relying upon the
Supremacy Clause of the Constitution to support their claim.
The Supreme Court of the United States has indicated that a
three-judge court is not necessary where the action is based
on the Supremacy Clausel61 Further, any relief plaintiffs re-
request is also premised on that constitutional ground. For
these reasons, the State’s motion is denied.
The State has indicated that several motions to compel dis-
covery have not been ruled upon. To the contrary, the court
ruled in an Order of July 30, 1976 that these motions were
moot and need not be decided.
I have not considered plaintiffs’ Exhibits P-1, P-2 or P-3
in my deliberations in this matter or in this opinion.
Il.
JURISDICTION, ISSUES AND PARTIES
(1) Jurisdiction is vested in this Court by virtue of:
(a) 28 U.S.C. § 1345, in that the United States brings
this action on its own behalf and on behalf of the Bay
Mills Indian Community and the Sault Ste. Marie Tribe
(6)
Swift v. Wickham, 382 U.S. 111, 122, 124-29, 86 S.Ct. 258, 15
L.Ed.2d 194 (1965); see also, Moe v. Confederated Salish and Kootenia
Tribes, 425 U.S. 463, 481 n. 17, 96 S.Ct. 1604, 48 L.Ed.2d 96 (1976).
District Court Judgment 471 F Supp 192 57a
of Chippewa Inidians, federally recognized Indian tribes,
in connection with its administration of Indian affairs and
in fulfillment of its fiduciary duties;
(b) 28 U.S.C. § 1331, in that the matter in controversy
involves the fishing rights of the plaintiff tribes, which
in both instances have a value in excess of $10,000, ex-
clusive of interests and costs, which are claimed to exist
and to be see *red under the Constitution, laws and trea-
ties of the Un. d States; and
(c) 28 U.S.C. § 1362, in that this action is brought bv
Indian tribes with governing bodies duly recognized by
the Secretary of the Interior alleging violations of their
rights under the Constitution, laws and treaties of the
United States.
(2) Each of the plaintiffs has standing to maintain the
claims asserted in this action.
(3) An actual controversy exists between each of the plain-
tiffs on the one hand and
[471 F Supp 218]
the defendants on the other, as to the meaning of the treaties
at issue herein and the existence of any tribal right to fish in
the Michigan waters of the Great Lakes under those treaties.
(4) A declaratory judgment is properly sought pursuant to
28 U.S.C. § 2201 and § 2202, and this court may grant such
relief.
(5) Venue is properly laid in this court under 28 U.S.C.
§ 1391(b) in that all defendants reside within the Western
District of Michigan.
58a District Court Judgment 471 F Supp 192
(6) This trial has been limited to the issues identified for
separate trial by this Court in its Order of July 30, 1976, which
are:
(a) Whether the Indians reserved or retained fishing
rights in the Great Lakes waters purportedly ceded by
them under the Treaty of 1836 (7 Stat. 491);
(b) If the Indians reserved rights to fish in those waters,
were those rights abrogated in whole or in part by the
Treaty of 1855 (11 Stat. 621); and
(c) Assuming those reserved fishing rights were not
abrogated, does the State possess any jurisdiction to regu-
late the exercise of those rights by treaty tribe members?
The United States of America is a party plaintiff which
brought this suit in its own behalf and in behalf of plaintiff-
intervenor Bay Mills Indian Community and Sault Ste. Marie
Tribe of Chippewa Indians pursuant to its federal trust re-
sponsibility toward those tribes.
The Sault Ste. Marie Tribe of Chippewa Indians is a present-
day tribal entity which, with respect to the matters which
are the subject of this litigation, is a political successor in
interest to the Indians who were party to the Treaty of 1836.
It is recognized by the United States as a currently functioning
Indian tribe maintaining a tribal government. This tribe is
organized pursuant to Section 16 of the Indian Reorganization
Act, 25 U.S.C. § 476. Its membership is determined in accord-
ance with its Constitution and By-Laws, and the membership
criteria require proof that the member is an Indian of the
treaty area. (Tr. 1127-29; Ex. P-120.)
The Bay Mills Indian Community is a present-day tribal
entity which, with respect to the matters that are the subject
District Court Judgment 471 F Supp 192 59a
of this litigation, is a political successor in interest to the In-
dians who were party to the Treaty of 1836. It is recognized
by the United States as a currently functioning Indian tribe
maintaining a tribal government on the Bay Mills Reservation.
This tribe is organized pursuant to the Indian Reorganization
Act, 25 U.S.C. § 476. Its membership is determined in ac-
cordance with its Constitution and By-Laws and the member-
ship criteria require proof that the member is an Indian of the
treaty area. (Tr. 1059-62; Ex. P-119.)
Defendants in this cause are the State of Michigan, its Na-
tural Resources Commission, and certain officials of the Mich-
igan Department of Natural Resources. The State of Michigan
exercises regulatory power over the Great Lakes fishery with-
in its borders. This power is exercised by and through defend-
ant Natural Resources Commission, which is the state admin-
istrative agency with responsibility for regulating the Great
Lakes fishery.
Defendant Howard Tanner is the Director of the Depart-
ment of Natural Resources. As such he is the chief executive
officer of the Department, with overall responsibility for ad-
ministering the state’s fisheries program and enforcing state
fishing laws and regulations. John Scott!7) is the Chief of the
Fisheries Division of the Department, and as such is respon-
sible for the administration of the state's fisheries program.
Louis Grayl8] is the Acting Chief of the Law Enforcement
Division of the Department, and as such is responsible for
the enforcement of the state fishing laws and
[7]
The Department of Natural Resources officers were sued in their
official capacities. Names of the current holders of the positions have
been substituted for those named in the Amended Complaint. See
Fed.R.Civ.P. 25(d) (1).
[8]
Id.
60a District Court Judgment 471 F Supp 192
[471 F Supp 219]
regulations. Together those officials are responsible for ad-
ministering and enforcing the statutes, regulations, orders and
policies governing the Great Lakes fishery which are chal-
lenged by plaintiffs in this case.
III.
WITNESSES
Plaintiffs’ expert witness Helen Hornbeck Tanner is an eth-
nohistorian who has studied American Indian tribes for ap-
proximately thirty years, and who has concentrated for the
last sixteen years on the study of Indian tribes of the Upper
Great Lakes. She has testified as an expert witness in other
cases involving issues of Indian culture and history. Her train-
ing and experience have been concentrated in analyzing and
interpreting the history, culture and lifestyle of Upper Great
Lakes Indian tribes. (Tr. 53-56, 66-74; Ex. P-130).
Plaintiffs’ expert witness Charles E. Cleland is an anthro-
pologist specializing in archaeology and ethnozoology. He has
spent the majority of his professional career in personally
investigating and analyzing Upper Great Lakes Indian tribes
and their relationship to the animal species found in that area
in historical and prehistoric times. (Tr. 658-92; Ex. P-141.)
Plaintiffs’ expert witness James A. Clifton is an anthro-
pologist and ethnohistorian who has specialized in the study
of Indian tribes’ responses to changes in their aboriginal
culture brought about by European contact and dominance.
He has spent more than half of his professional career in the
particular study of Indian tribes of the Upper Great Lakes
and the Ohio valley, including the removal policy and its
implementation in that area. Further, he has extensive ex-
District Court Judgment 471 F Supp 192 6la
perience in the analysis of Algonquian personal names as writ-
ten by Europeans and Americans in order to determine the
pronunciation and identity of the named persons. The testi-
mony showed that from his early training at the University
of Chicago he did not follow the traditional subject matter
breakdowns of American higher education but prepared to
engage in the broad, reliable cultural investigations which
were especially helpful to this court. The defendants’ effort
to impeach him for lack of compartmentalized academic certi-
fications was comparable to an effort to disqualify Thomas
Edison as an expert on electricity. (Tr. 2058-2109; Ex. P-177.)
Defendants’ expert witness Phillip P. Mason is an historian
and archivist whose academic training and research have con-
centrated on American social and economic history. The wit-
ness is not, by either training or experience, thoroughly famil-
iar with the culture of the Upper Great Lakes Indians. His
familiarity with the facts in this case rests primarily upon his
work in editing the papers of Henry Schoolcraft and upon
examination of documents since being retained by defendants.
The limited perspective of his experience and his academic
discipline, limited as they are to written accounts of the matters
in issue here, prevented him from enlightening the court as
to the total circumstances of the treaties. (Tr. 1214-25, 1237-47,
1252-55, D. Ex. 291.)
Defendants’ witness Asa T. Wright is a fisheries biologist
who has been employed by defendants in that capacity for
most of his professional career. He has no educational back-
ground or experience in either history or anthropology, nor
has he been trained in the research or analysis of historic doc-
uments. This lack of training, background and familiarity
permitted him to offer opinions from his field of expertise
which are at odds with the facts. (Tr. 1844-53, 1859-63, D. Ex.
313.)
62a District Court Judgment 471 F Supp 192
The oral testimony of the tribal witnesses educated in the
history and customs of their people by tribal elders is found
to be reasonable and credible factual data regarding certain
relevant aspects of Indian life at and after treaty times. (Tr.
130-32, 776-77, 1066-70, 1095-98, 1105-06, 1113-15, 1129-33.)
IV.
FINDINGS OF FACT
A. The Indians of the Treaty Area.
While the term “Ottawa and Chippewa Nations” is used in
the treaty and by this
[471 F Supp 220]
court in its opinion, the term is a non-Indian term used to
describe Indian peoples of a similar culture, and was not used
by the Indians themselves in describing their political organiza-
tion. The primary unit of political and economic organization
was the band, which was frequently associated with a village.
Political authority was weak; decisions were usually reached
by consensus, and persons become “chiefs” for ad hoc purposes
based upon skill. From both a political and Indian cultural
perspective, there was no such thing as an Ottawa-Chippewa
tribe or nation. (Tr. 100-02, 596, 772-76, 779-81. )
Four different but related tribes of Indians have been as-
sociated with the area later included within the State of Michi-
gan—the Ottawa, Chippewa (or Ojibway), Potawatomi and
Wyandot (or Huron). (Tr. 93.) The Ottawa, Chippewa and
Potawatomi had an early tradition of closeness and referred to
themselves as the Three Fires. (Tr. 93.) The Ottawa and
Chippewa share a common language. According to Chippewa
tradition, they were located originally in the valley of the St.
Lawrence River and migrated westward to the northern pen-
District Court Judgment 471 F Supp 192 63a
insula of Michigan somewhere near the year 1500. Some Chip-
pewa bands moved farther west to Wisconsin. (Tr. 93.) The
Ottawas, which means “traders,” were historically identified
with Manitoulin Island in Lake Huron, which is a part of
Canada. (Tr. 94.) The Ottawas too advanced westward and
settled in the lower peninsula of Michigan with concentrations
near the Straits of Mackinac. (Tr. 94.) The Wyandots lived
in the area of prese
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