# Record and brief — Michigan v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0387%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1981 - **Citation:** 454 U.S. 1124 ## Text UONNed 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, (1832), and stand in relation to the United States as “domestic dependent nations.” Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1837). District Court Opinion Denying Stay, 505 F Supp 467 =. 269a As a consequence, they have many attributes of sovereignty. For instance, they possess immunity from suits to which they do not con- sent in federal and state courts. See United States vy. U. S. F. ¢> G. Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940); Thebo v. Choctaw Nation, 66 F. 372, 375 (8th Cir. 1895). The legislative history of 28 U.S.C. § 1362 shows that it was in- tended to permit Indian tribes to litigate issues in federal court on the same basis as if the government had instituted the action. See H.R.Rep.No. 2040, 89th Cong., 2d Sess. (1966) quoted in part in Moses v. Kinnear, 490 F.2d 21, 25 n.9 (9th Cir. 1973). Recognizing this status of Indian tribes, the courts have applied the so-called “co-plaintiff” [505 F Supp 487] Note 5—Continued rule to allow the tribes to stand in the shoes of the government for various purposes if they preperly might have been co-plaintiffs with the United States. The Ninth Circuit Court of Appeals has applied this rule to allow suits by Indian tribes to enjoin assessment of state taxes which are prohibited from being brought by private parties under 28 U.S.C. § 1341, on the same basis that such suits are permitted when the United States is plaintiff. Moses v. Kinnear, supra; Agua Caliente Band of Mission Indians v. County of Riverside, 442 F.2d 1184, 1186 (9th Cir. 1971), cert. denied 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972). See also, Walker v. River Paiute Tribe v. Sheehan, 370 F. Supp. 816, 821 (D.Nev.1973). Cf. United States v. Ahtanum Irrig. Dist., 236 F.2d 321 (9th Cir. 1956), cert. denied, 352 U.S. 988, 77 S.Ct. 386, 1 L.Ed.2d 367, 330 F.2d 897 (9th Cir. 1964), 338 F.2d 307 (9th Cir. 1964), cert. denied, 381 U.S. 924, 85 S.Ct. 1558, 14 L.Ed.2d 683, in which the court found that Indian property rights could not be lost through laches or estoppel. Because Indian tribes possess the essential aspects of sovereignty, normal consideration of comity applicable to private litigants do not apply to such tribes As such, the co-plaintiff rule should apply and the federal anti-injunction statute, 28 U.S.C. § 2283, should be no bar to the requested injunctive relief. See National Labor Relations Board v. Nash-Finch Co., supra; Leiter Minerals v. United States, supra, 352 U.S. at 220-225, 77 S.Ct. 287. 270a_ _—District Court Opinion Denying Stay, 505 F Supp 467 — — eee The matter of this court's power to act under the circumstances as well as the need for such action are beyond question. The only issue is how best to exercise the court's authority to protect the federal judgment with a minimum of friction. [6] It is clear beyond reasonable question that the three state court injunctions referred to above have to some extent prevented defendants from complying with this court's order to make “significant reductions” in the non-Indian fishery in order to make available to treaty-right fishermen a sufficient portion of the harvestable resource to guarantee an opportunity for them to harvest 50% of said resource. Interference with the exercise of Indian treaty fishing rights indisputably is within the jurisdiction of this federal court, and state court proceedings in- stituted by nonparties to this lawsuit cannot be allowed to frustrate either final determinations based on exhaustive research and evidence or the jurisdiction of this federal court. Data submitted by the United States Fish and Wildlife Service, which includes Department of Fisheries statistics, indicate that through August 1974, with the exception of the Nisqually River chum harvest in January which, for management purposes would be considered part of the 1973 run, Indian fishermen in the case area in 1974 have caught less salmon of each species than they caught in 1973, both in terms of total numbers of fish caught and in terms of the percentages of Indian harvest as contrasted with total non-Indian commercial salmon, or 3.5% of the total as compared with 3,404,710 salmon harvested by non- Indian commercial interests; through August of 1974, Indians have harvested 89,402 salmon or 2.4% of the total as compared with 3,628,513 salmon harvested by non-Indian commercial fishermen; when the sport catch through August of 1974 of 837,099 salmon is included, the Indian share of the total harvest is 2.0%. These figures illustrate in the most startling manner the gross in- equities between Indian and non-Indian harvest, and the complete fail- ure and inability of defendants to comply with this court's orders to make significant reductions in non-Indian fishing and to afford to Indians an opportunity to catch approximately 50% of the harvestable resource at their usual and accustomed grounds and stations. Because by their nature substantial fish resources will be lost for 1974 to plaintiff tribes if not harvested during the currently ongoing seasons, the immediate threat of substantial economic harm and serious hard- ship to many treaty-right fishermen convinces this court that prompt action is required to protect federal treaty rights that this court has District Court Opinion Denying Stay, 505 F Supp 467 =— 27a found are constitutionally guaranteed as the law of the land and to assure the viability of this court’s Final Decision # 1, unless and until it be modified or reversed. In all court litigation in which the United States has an interest, including cases involving the interpretation and application of treaties duly enacted as required by federal law and the national Constitution, the Attorney General of the United States, acting through the Justice Department and United States Attorneys, is the official authorized to speak and act for the people of the Nation in such matters. In this instance, the United States Attorney, presumptively in the national interest, has requested that this court enjoin enforcement of the in- junctions issued in all three of the above-referred to state court pro- ceedings. Plaintiff tribes, as descendants of signatories to treaties with the United States, have joined in that request. Rather than consider the state court proceedings in toto, upon the record now presented this court finds it necessary to consider the injunctions separately and therefore will discuss each of them in the order of issuance. It must be recognized, however, that each of the three state court proceedings was instituted by litigants none of whom was a party to this federal court action. Additionally, none of those state court proceedings joined the United States or the plaintiff tribes, the real parties in interest who could be, if not irreparably, at a minimum grievously, injured by state court injunctions preventing enforcement of the Department of Fisheries regulations promulgated for the express purpose of making more fish Note 5—Continued available to treaty-right fishermen. Finally, at none of the state court hearings were witnesses interrogated nor was any of the hearings a full scale evidentiary hearing; only affidavits of the litigants were presented, not subject to cross-examination, and the state court judges could only act upon the materials presented to them. Beyond question, the state court judges who issued the restraining orders involved herein performed their judicial functions in accordance with established law and practice in the state courts, and in an able and responsible manner beyond criticism in any particular whatever. However, it is clear from the cited authorities that the circumstances above recited can and should be considered by this court together with the full record before it, significant portions of which were not available to the state courts, in determining what action, if any, to take with regard to these state court proceedings. 459 F.Supp. 1028-33 (W.D.Wash.1978). 272a _— District Court Opinion Denying Stay, 505 F Supp 467 [505 F Supp 488] That the treaty catch was incremental upon the sports catch is not cognizable in these proceedings. This condition is wholly within the State’s control. It is discriminatory to regulate the Indians but not the sportsmen, and unnecessary to stop Indian fishing until after the sportsmen have been stopped. Although continued fishing at the rate evidenced this sum- mer in Zone MM-4 might well . pp 467 [505 F Supp 489] pounds, and MM-7, 151,780 pounds. These 1979 figures dup- licate the 1978 catch figures. Witness Kutkuhn, relying upon the Ad Hoc technical report off Lake Michigan, revealed that in Zone MM-6, 55,000 pounds would be the maximum take allowing for sustainability and a 121,000 pound withdrawal would amount to a put/grow/take fishery, a fishery sustained solely by planting. In Zone MM-7 a 35,000 pound catch would allow a self-sustaining population. A catch of 84,000 pounds would rende® the fishery put, grow and take. The sports catch exceeds even this. The State calls this fishery fully regulated. Zone MM-5 also exceeds the self-sustaining figures. It would appear that the State of Michigan is fully willing to permit withdrawal of lake trout which prevents natural reproduction so long as that withdrawal is performed by non- Indians and so long as there is sufficient economic return. (v) Zone MH-1. Zone MH-1 covers the Michigan waters of northern Lake Huron south to a line drawn perpendicular to the International Boundary from Rogers City. The State began stocking Zone MH-1l in 1973. The area was the focus of an intensive Indian fishery in the fall of 1978 and the spring of 1979, a time when the Indians, as a result of political pressure, had a self-imposed ban on fishing in Lake Michigan below Cross Village, and before allowable catch determinations had been established for the area. After this catch, the Ad Hoc Working Group determined that 3,000 pounds of trout were available under the put, grow and take option. Nevertheless, the Secretary and the tribes closed this area to all Indian fishing indefinitely, and the ban is expected District Court Opinion Denying Stay, 505 F Supp 467 =. 275a to be permanent. The State has not closed this area to sports fishermen, and estimates their catch for 1979 at 25,180 pounds. Dr. Kutkuhn testified that the State is managing this area on a put, grow and take basis. Despite this, during these pro- ceedings, the State attempted to hold the Indian fishermen to the self-sustaining stock standard and to take the size of their catch as inconsistent with the State's goals. State licensed commercial fishermen took 405,550 pounds of whitefish from this zone by September 30, 1979. Indian catch reports reveal a take of 178,948 pounds. The State's proposal offers the Indians 100,000 pounds of whitefish. The total allowable catch determined by the Ad Hoc Working Group is 550,000 pounds. (vi) Zone MH-2. Zone MH-2 covers Michigan waters of Lake Huron between lines drawn perpendicular to the International Boundary from Rogers City to Black River. Little Indian fishing is taking place in Zone MH-2. Indian fishermen took 1,100 pounds of lake trout and 5 pounds of whitefish in 1979. Non-Indian fishermen took 80,384 pounds of whitefish and sportsmen took 22,545 pounds of lake trout. All totals are well within allowable catches. Lake trout are available here: 84,000 pounds to permit a self-sustaining stock and 123,000 pounds for a put, grow and take fishery. However, the State’s proposal would ban the Indians from any take of lake trout and allocate them 100,000 pounds of whitefish. (vii) Zones MS-4 and -5. Zone MS-4 covers the Michigan waters of Lake Superior from a line running from Salmon Trout Point out to the Inter- national Boundary to a line drawn north from Beaver Lake. 276a _— District Court Opinion Denying Stay, 505 F Supp 467 Zone MS-5 is made up of the Michigan waters from Lake Superior between lines drawn north from Crisp Point and from Beaver Lake. Indian fishing for lake trout and whitefish in Zones MS-4 and MS-5 is negligible. However, the state commercial white- fish take from MS-5 appears to be excessive. Indian fishermen took 35,102 pounds of trout from MS-4 and 90 pounds from MS-5 in 1979. Sustained yield in MS-4 would permit a 118,00 pound take and MS-5 a 29,000 pound take. State-authorized fishermen took 8,363 pounds of lake trout from MS-5. [505 F Supp 490] In MS-4 Indian fishermen took 22,064 pounds of whitefish; non-Indians 37,829 pounds. The allowable catch is 10,000 pounds. In MS-5 Indians took 138,176 pounds; non-Indians 54,143 pounds. The allowable catch is 200,000 pounds. The State proposes to protect these stocks by permitting the Indian fishermen to take 100,000 pounds of lake trout from MS-5. The only other catch permitted would be herring and chubs. Here the Indians would not even be allowed to fish for whitefish. (viii) Zone MS-6, Zone MS-6 is roughly equivalent to the Michigan waters of Whitefish Bay, although it extends west to a line drawn north from Crisp Point to the International border. The State claimed that lake trout in MS-6 are in a state of depletion because of intensive Indian gill netting which began in the fall of 1974. District Court Opinion Denying Stay, 505 F Supp 467 = 277a Planting of lake trout began in MS-6 in 1962. Until 1973 plantings reportedly averaged 200,000 in Whitefish Bay alone. After that, the plantings were reduced to 100,000 in 1974, and then to less than 30,000 for the following th.ce years. The State’s case ag: st Indian gill netting is based upon a decline in the assessment fishing index, the C.P.E., from 1974 to 1975, and a decline in the total catch by licensed commercial fishermen. The declining catch reports are of little help in evaluating the lake trout stocks. These catch reports are provided, Schorf- aar's affidavit says, by assessment fishing by licensed com- mercial fishermen. Yet, the Department of Natural Resources began making the assessments itself in 1976. Full catch reports apparently are not provided, since in 1979 a C.P.E. of 1.66 is reported, but the catch report is zero. Either failure to report the catch ~ changes in assessment procedures are re- flected for the ye rs 1973-74. In 1973 a catch of 5,152 pounds is reported, with a C.P.E. of 32.30. In 1974, the reported catch is 3,278 pounds, with a C.P.E. of 53.27, significantly higher than the year before. The fact is, the saiapling effort has varied radically over the years. In 1973, 48,000 feet of net were set; in 1974 only 15,000. But, this limited effort is used to establish a peak on the C.P.E. graph, which is then shown to decline precipitously. The bias is also reflected in the extraordinary 1974 catch from a single year class, the 1968 class, with other year classes al- ready—before extensive gill netting—showing the decline which is reflected in subsequent years of sampling. Only the 1968 class continues to appear in high numbers, until 1978, when it too has nearly disappeared. The 1974 sampling is critical to determine the cause of the reduced catches in subsequent years, yet it is inadequate. It 278a _—dDistrict Court Opiaion Denying Stay, 505 F Supp 467 suggests some independent factor operated to lower the stocks in MS-6 in that year, the commercial assessment fisherman focusing his efforts so as to maximize his catch and then aban- doning his task. One possible cause of the decline is a drop in the natural reproduction rates. This would leave fewer fish available for recruitment into the fisheries. The 1978 catch does not appear to eliminate this hypothesis with respect to MS-6. The decline in lake trout in Whitefish Bay appears to reflect a general decline in the population across the southeastern shore of Lake Superior, whatever might be the cause. The Ad Hoc Working Group provides a table exhibiting the C.P.E. for lake trout age seven and older for various years. In 1971 this C.P.E. was 37 for MS-5, and 2.4 for MS-6. By 1978, the MS-5 C.P.E. is down to 10 and the MS-6 C.P.E. is down to .8. The relative decline in MS-6 is lower than in MS-5. Fishing pressure in MS-6 has relaxed this year as a result of the opening of other waters to treaty fishermen. If wholesale reports are presumed accurate, 23,088 pounds of lake trout were taken from Whitefish Bay in 1978, but only 11,000 pounds had been taken from Zone MS-6 by August 31, 1979. This direction makes it unnecessary for this court to intervene. [505 F Supp 491] The Ad Hoc Working Group suggested that any withdrawal of lake trout from Whitefish Bay would be incompatible with the goal of restoring a self-sustaining population in the zone. It proclaims its own data indicating a total allowable catch from Zone MS-6 of 3,100 pounds of jake trout over 21 inches, if wholly sustained by planting, unuseful as a management guide. This estimate apparently was based on a hypothesis of an admittedly high mortality rate. In fact, the report's District Court Opinion Denying Stay, 505 F Supp 467 =. 279a conclusion regarding the standing stock would make reported catches impossible. It appears that the 3,100 pounds estimate also assumes continued pl!» ting at present, token rates. It is also based upon a population reduced by state policy decisions to make only such token plantings. In its proposed Indian fishin allotment, the State allows 20,000 pounds of lake trout to be taken from Zone MS-6, the allotment being based on a native population of fat lake trout in the western end of the zone. The Ad Hoc report does not appear to take this population into account, for it does not authorize any such withdrawal from anywhere in the zone. The present levels of catch do not exceed this estimate of the available catch, nor did the evidence establish that no part of the present catch comes from this native stock. Although the present levels of withdrawal of lake trout from Zone MS-6 may be excessive the evidence presented does not adequately establish this at the present time, and Indian catches are declining significantly. The evidence did not establish that the gill netting beginning in 1974 is the only cause of the decline in the stocks in Whitefish Bay. Greater effort by the State in restocking the Bay would permit harvest at present rates and even permit the harvest to in- crease. State withdrawal from the lake trout stocks by re- duction of plantings has exceeded the reduction brought about by the Indian catch. Unknows factors brought about the decline even before Indian treaty fishing pressure began in 1974. The State estimates that the sustained yield for whitefish in Whitefish Bay is 200,000 pounds per year. The State has not shown regulation of the Treaty fishermen is necessary. The treaty fishery has never exceede’ this amount. The state licensed fishery has often exceeded it. The State can avoid 280a District Court Opinion Denying Stay, 505 F Supp 467 any excessive pressure on the whitefish resource by setting quotas for its licensed fishermen, a step which it has yet to take. D. The State's Showing of Irreparable Harm. The State’s evidence for each of the statistical zones reveals that it has utterly failed to show that Indian fishing has irrep- arably harmed lake trout, whitefish and other targeted species in the Michigan waters of the Great Lakes. Only in the case of lake trout was there any serious effort to establish this contention. The State’s basic objective here is to hold the Indians to the standards of its preferred management plan. Depletion is initially understood as a condition which harms the State’s policy of fostering recreational fishing. The State knows politi- cally and economically that it must allow a substantial harvest of lake trout by state licensed recreational fishers. State regu- lators like the recreational fisher, find him or her easier to regulate and more willing to accept Department of Natural Resources rules and requirements. Department of Natural Re- sources officials believe the motives of the angler—relaxation and recreation-—more worthy and to their liking than the Indians who are motivated by a desize to feed their families. The State also attempted to hold the Indian plaintiffs to standards which would apply if the lake trout stock were self-sustaining. Yet, depletion as a biological condition was not made out. When Indian fishing is measured against stand- ards set out by the Ad Hoc Working Group, standards which would allow for a suitably sized population of potentially spawning fish, the Indian fishermen more frequently fish at rates which permit such a population than District Court Opinion Denying Stay, 505 F Supp 467 =. 28la [505 F Supp 492] do state licensed fishermen. indian withdrawals exceeded the total allowable catch for a self-sustaining lake trout popu- lation in Zones MH-1, MM-3, MM-4 and MS-S. Even in MM- 3 and MH-1 the Indian take was well below the take which would render the fishery put, grow and take. The tribes have now closed MH-1 to all fishing. There is a problem about the statistics for MS-6. Avoidance of clustering would overcome the problems. The state licensed sport fishery greatly exceeds the take permitting even a put, grow and take lake trout fishery in Zones MM-6 and MM-7. State sports fish- ermen alone exceed the self-sustaining allocation in MM-5, almost exactly doubling it. In addition, the State continues to authorize lake trout fishing in MH-1, and when their take is added to the Indian take, it exceeds even the put, grow and take option. There is no zone where the Indian whitefish catch exceeds the allowable catch. However, the State sometimes permits its licensed fishermen to withdraw totals which, when added to those of the Indians, exceed the allowable catch. Indian fishing may very well interfere with the sports fish- ery. However, the State’s managemen’ plan is rooted in economics. A strong recreational fishery enhances the State’s economy. But, the State may not simply carry out this policy. The State did not challenge the fact that the Indian tribes have treaty-protected and aboriginal rights to fish in the Great Lakes. When these rights are acknowledged, the present levels of Indian take are generally within acceptable levels. While it appears that Indian fishing pressure may have been over-intense in certain areas of the Great Lakes, it is clear that the Indian tribes, together with the Secretary are actively 282a _— District Court Opinion Denying Stay, 505 F Supp 467 engaged in regulating the fishery in such a way that this will be prevented in the future, without interfering with the In- dian’s right of self-regulation. INDIAN TRIBAL REGULATION The State maintained that the Indians’ use of the gill net is unlimited, and that this will ultimately lead to the collapse of the fisheries resources, and that the conservation codes of the tribes and the Secretary's regulations are nothing more than licenses allowing slaughter of lake trout, whitefish, coho salmon, and other species. The above review makes clear that this has not happened at the present time. The issue now considered is whether this will inevitably occur. This court rejects the various curves submitted by the de- fendants to describe the Great Lakes fishery. These curves are based on unregulated, international fisheries and fisheries of the late 19th and early 20th centuries. There is no reason to believe that they represent the Indian fisheries of our time, where national and tribal governments limit individual effort, and these governments are no longer blinded by the myth of limitless resources. Nor are the curves helpful in describing present conditions in the Great Lakes, since, until the fish begin naturally reproducing, State planting efforts can be so manipulated as to duplicate the arch of these curves. Berg testified about tribal fishing regulations and the Sec- retary’s regulations of November 15, 1979, found in 25 C.F.R. Sub-part D (Ex. P-301). The Secretary's regulations were for- mulated pursuant to a Memorandum of Understanding reached between him and the tribes. (Ex. P-308.) Draft regulations were prepared by the tribal chairmen, their attorneys, and Fish and Wildlife officials (9 Tr. 1575). The draft regulations were commented on by State officials who attended at least one drafting meeting (9 Tr. 1575). Thereafter, the tribes met, District Court Opinion Denying Stay, 505 F Supp 467 =. 83a discussed and adopted the regulations which were then sent to the Secretary of the Interior for his consideration (9 Tr. 1575). He in turn made some changes and published the regulations in the Federal Register (9 Tr. 1576-77). The purpose for these regulations is to protect the fishery resource during the 1980 season (9 Tr. 1578). They are subject to change, as the need requires. The pertinent provisions of the Secretary's regulations were summarized by [505 F Supp 493] Berg beginning at 9 Tr. 1579. Treaty fishermen are identified by cards issued by the tribes and the Bureau of Indian Affairs (9 Tr. 1580; 25 C.F.R. § 256.44). Catch reports showing fishing locations, total catch, type of gear and the like are required under 25 C.F.R. § 256.45 (9 Tr. 1581). Limitations on fishing activities are found in 25 C.F.R. § 256.46. Zone MH-1 is closed to all tribal fishers (9 Tr. 1583). Grand Traverse Bay south of the 45th parallel is also closed (9 Tr. 1584). Most of Little Traverse Bay is closed (9 Tr. 1584). The Lower St. Mary’s River is closed to treaty fishers, as well (9 Tr. 1584). The regulations also contain restrictions on the size gill nets that permissibly may be used in areas of Lake Michigan (9 Tr. 1584). Target fishing for sport species and species listed by the Secretary as threatened and endangered is prohibited (9 Tr. 1586). Although lake trout is not defined as a sport species, there are harvest restrictions. If the catch of lake trout in any lift exceeds 20 percent of the total catch by weight, the individual making the lift shall not set nets in the same grid area for a period of ten days (9 Tr. 1588). 284a_ _— District Court Opinion Denying Stay, 505 F Supp 467 Spawning closures in Lakes Huron, Michigan and Superior are provided for in 25 C.F.R. § 256.46(d) (5 Tr. 1588). Further, nets may not be set within one half mile of the mouth of any rivers suitable for spawning (9 Tr. 1585). In order to deal with emergency situations that arise during the fishing season, a joint emergency regulatory committee has been provided for (9 Tr. 1589). The committee consists of tribal chairpersons, conservation committee chairpersons and one licensed commercial fisher from each tribe. 25 C.F.R. § 256.47(a). If the committee does not take suitable action when required, the area director of the Bureau of Indian Affairs is authorized to do so in the committee’s stead (25 C.F.R. § 256.57(b), 9 Tr. 1590). Berg testified that in his opinion as an expert biologist, the Secretary's regulations were adequate to protect the fish- ery resource in tie Great Lakes, at least for the immediate future (9 Tr. 1591). The regulations were designed to be modified from one fishing season to the next. Further, Berg wanted to see them strengthened so as to close the entire St. Mary’s River, not just the lower portion and to require some type of catch reports from subsistence fishermen (9 Tr. 1591-94). Only commercial fishermen had to submit catch reports to the tribes. Berg’s conclusion that the regulations adequately protect the resource was based in part on the fact that the State manages the lake trout fishery on a put and take basis in several areas in the Great Lakes (9 Tr. 1594). Since there is no significant natural reproduction of lake trout from planted fish, it makes little difference to the resource who harvests the fish (9 Tr. 1594). On April 28, 1980, these regulations were updated further, the tribes and the Secretary taking significant new steps for protection of the resource. 45 Fed. Reg. 28100. These regula- tions authorize seizure of equipment and gear for violations District Court Opinion Denying Stay, 505 F Supp 467 —- 85a of the regulations, require catch reports 10 days after the close of the month, and require subsistence fishers to submit catch reports; the arrest power is expanded; all of the St. Mary’s River is closed; a sanctuary is created below Fox Islands; no whitefish below 17 inches in length can be kept; depth re- strictions on small mesh gill nets are adopted; the spawning closure of Lake Superior is expanded to include all of Novem- ber; and, in a step which the State has shown unwillingness to adopt, treaty takes of whitefish and bloater chubs are limited in terms of the total allowable catch and lake trout takes are limited by the management option allowing sustained yield. Berg took an informal survey on the number of tugs used by all tribal fishermen and concluded the number was approx- imately ten (10 Tr. 1630). However, of this total number, only four or five are operational at any particular time due to the delapidated condition of the tugs and their constant state of disrepair (10 Tr. 1630-31). With regard to gill net selectivity, Berg testified, contrary to the testimony of state witnesses, that there is a significant differ- [505 F Supp 494] ence between length frequencies of lake trout taken by 3.5 inch versus 4.5 inch gill nets (10 Tr. 1613). Similarly, there is a statistically significant difference between length frequen- cies of lake trout taken by a 4.5 inch versus 5.5 inch gill net (10 Tr. 1613). A. [Mr. Richard Berg] I simply feel that there is no real solid evidence in this [Haas] report that lake trout are vulnerable to all sizes of mesh with regard to their life [sic] [length]. 286a _— District Court Opinion Denying Stay, 505 F Supp 467 Q. [Mr. Bruce R. Greene] So that you are saying that a gill net will be somewhat selective even with respect to lake trout? A. Significantly so, yes. Q. But, you are also saying, I gather, that it would be more selective for whitefish because of the bony structure of lake trout in comparison to whitefish. Is that correct? A. That is correct. Testimony of Richard E. Berg (Direct), (10 Tr. 1613). Further, according to Berg, a 5.5 inch gill net is sufficiently selective to allow lake trout and whitefish to reach first year spawning maturity. (10 Tr. 1615). It is clear from the above that the Indian fishery is not “unregulated” and that Indian regulations compare favorably with State regulations. To mention just a few of the matters brought up by the State: the Indian fishermen supply catch reports just as do state licensed fishermen. The State, to- gether with the federal government, has most of the data regarding the stocks. Director Tanner, despite his acknowl- edgment that it is theoretically possible for the State and the tribes to regulate side by side, declared that he was opposed to releasing State data to the tribes, even if it is indispensible to them if they are to set reasonable catch quotas. There is no obvious reason why the Indians should be required to dupli- cate these State and federal efforts. Neither the State nor the Indians generally employ quotas. The State sets quotas only for certain experimental commercial operations. It claims that its creel limit on sports fishermen has a similar effect on total catch. The Indians impose similar restrictions on their fishermen, limiting the total incidental catch of lake trout, when targeting for whitefish, to 20%. District Court Opinion Denying Stay, 505 F Supp 467 = 287a The Indians have a quota of zero pounds for targeted lake trout. The United States, the tribes, and the State have au- thority to set quotas for fishermen under their jurisdiction. The State has more of the information needed to set respon- sible quotas, but appears to find quotas unnecessary at the present time or to consider its data inadequate. The State has not set general quotas and asked the tribes to adopt them. Although the State indicated that selective gear may be absolutely necessary to protect endangered species, it did not proceed to demonstrate that gill nets cannot be so regulated as to provide the necessary protection. The evidence showed that the gill nets used by the Indians do result in an incidental catch of non-targeted species, with lake trout the principle victim. The tribes regulate the net mesh size, a factor which controls the frequency of catch of various sizes of lake trout and can exclude other species. Entry into the Indian fishery is limited to members of the Indian tribes. About 200 tribal members have been licensed, compared to 130 state fishermen. I do not find it unreason- able that the tribes have not yet imposed a limitation on the number of licenses available and only indirectly limit them by the imposition of a sizeable fee. Given the part-time nature of the Indian fishery, it appears that the State and tribes similarly evaluate the carrying capacity of the lakes. The tribes have begun radical zoning, declaring entire statistical zones off limits and excluding vast areas. The seasons adopted by the tribes coincide with those of the State. 288a _— District Court Opinion Denying Stay, 505 F Supp 467 STATE PROPOSAL FOR REGULATION OF INDIAN FISHING The proposal submitted by the State to show the court its concept of State regulation of Indian fishermen conclu- sively demonstrates its inability to comprehend its responsi- bility to its Indian citizens. Even if (505 F Supp 495] the State had made out that the stocks had been irreparably harmed, that the fishery is unregulated and that gill net fishing necessarily leads to biological depletion, this court could not authorize the State to regulate according to this plan. Under the plan, allocations are made to Indians from avail- able fish supplies after the demands of the State’s 130 licensed commercial fishermen are satisfied, the stocks are generally protected for sportsmen and all lake trout, with the exception of a few in Lake Superior, are delivered to the sportsmen. Other than the chub fishery, which has been closed to state licensed commercial fishers for several years and which is unsuitable for the type of gear possessed by Indian fishermen, the indians have been allocated species that no one else wants, has previously caught, or is currently catching. (Tr. 1455). According to Tanner and Scott, the State’s largess is limited to providing the Indians with “left overs.” Notwithstanding the Indians’ prior and paramount aboriginal federally pro- tected right to fish in the Great Lakes, the State adheres steadfastly to the view that the tribes are interlopers, inter- fering with its perceived mandate to manage the resource for the principal be%efit of state recreational fishers, for the sec- ondary benefit of state licensed commercial fishers, and last and least, for treaty right fishers, provided however that State fishers are not disrupted. Indian fishermen would be obliged District Court Opinion Denying Stay, 505 F Supp 467 =. 289a to provide for a self-sustaining stock of lake trout, even though the State does not require this of its sportsmen. They could not engage in any fishing, except for chubs and Lake Superior lake trout, until after they had found the capital and acquired the training necessary to operate sophisticated equipment which would replace their gill nets and make it impossible for them to continue fishing in small crews. The State initially seeks to limit the number of Indian fishermen who can exercise the tribal rights, as it has limited the number of licenses which it offers its own commercial fishermen. The State objective is to foster the fishery by drastically limiting the number of fishermen and making it “extremely profitable” for those who remain. This goal is mandated by this hardnosed view that the fishery is made up of fishermen out to make a “killing,” to become wealthy, at the expense of the fishery. This model is in turn adopted from laizze faire economics—from the motivations it supposes, to the hypothesis of no government regulation on which it depends. Such dogmatics are of little use here. The Indian fishery reveals a tradition of part-time fishermen who pool limited capital so as to get a favorable return from small individual takes. Regulation, whether exercised by the tribes, the State or the federal government, modifies the behavior of men, even if it is supposed that their only motivation is eco- nomic gain. The State attempted to justify its proposed regulations on the grounds that they would provide a moderate standard of living for perhaps 40 fishermen fishing with the State’s pre- ferred, expensive and non-traditional gear. When it came to demonstrate how even these 40 could make a living, it became clear that it would be necessary to ignore even basic expenses. No witness attempted to state a dollar amount each of the 40 2902 _— District Court Opinion Denying Stay, 505 F Supp 467 could expect, or what a moderate standard of living is. They were nevertheless quite able to declare that these fishermen could have one. The proposed regulations are grossly discriminatory against the Indians in denying them their traditional gear, even with- out a showing that the stocks cannot sustain the take which these nets would capture. Puyallup II. It is discriminatory in allocating the lake trout to sportsmen and demanding of the Indian that he fish in such manner that he will not take any of the lake trout which the State acknowledges are available for harvest. Puyallup II. It is not necesary to regulate Indian fishermen when those without treaty rights are still permitted to withdraw vast amounts of fish from the same waters and the Indians are deprived of them. Even under an allocation system, where treaty fishers are required to contribute to preser- [505 F Supp 496] vation of the species in the first instance, Indian fishermen are granted some initial proportion of available fish and non- treaty fishers are obliged to limit their catch accordingly. In Washington rivers and waters, where Indians explicitly hold their right in common with all other citizens in the territory, the Indians are entitled to no less than 45-50% of the available take. The State of Michigan seeks all of the fish its non-treaty fishermen want and presently take. It then graciously offers the remainder to the Indians. A more effec- tive denial of treaty rights can hardly be imagined. It must not be forgotten that the Indians preserved unabridged one hundred percent of their aboriginal right to take fish, while the State fishermen have only a privilege. This is the law of the Constitution. District Court Opinion Denying Stay, 505 F Supp 467 =. 29a CONCLUSION The State’s application for a stay is denied. The State has failed to show likelihood that it will succeed in establishing that it can regulate its Indian fishermen like any of the other of its citizens. The State must acknowledge that the Indians of Michigan have aboriginal and treaty-secured rights to fish in the waters of Michigan, and it cannot exclude those Indians from their livelihood or prevent them from taking available fish by their traditional fishing methods. Once the standards defining the treaty rights of Michigan Indians are set forth, it is clear that the State has not made out that Indian fishing must now be extra-tribally regulated lest it be irreparably harmed during the appeal of this action. State regulation now would undermine the constitutionally authorized con- gressional policy of fostering Indian sovereignty just when the tribes are expending their control over their own fisher- men. A stay pending appeal would alter the status quo, which is that Indian fishing is not regulated by the State at the present time. The regulations which the State proposed are wholly inconsistent with the Indian treaty right, discriminating against them, denying them the use of traditional gear, ex- cluding them from most of the fishery so that it may be pre- served for sportsmen and other state licensees. The gill net, properly regulated, was not shown to be inconsistent with the restoration of lake trout, for the State contends some of the trout can be taken. Its principal objection is that it would rather have these fish caught by sportsmen. Motions by all parties for admission of exhibits into evidence are granted. 292a Court of Appeal Remand Opinion 623 F2d 448 [623 F2d 448] UNITED STATES of America, Plaintiff-Appellee, Bay Mills Indian Community, Plaintiff-Intervenor-Appellee, Sault Ste. Marie Tribe of Chippewa Indians, Plaintiff-Intervenor-Appellee, Vv. STATE OF MICHIGAN, Michigan Natural Resources Com- mission and its agents, Dr. Howard A. Tanner, Director of the Department of Natural Resources; Dr. Henry Vondett, Chief, Fisheries Division, Department of Natural Resources; and George Dahl, Chief, Law Enforcement Division, De- partment of Natural Resources, (No. 79-1414), Defendants- Appellants. UNITED STATES of America, Plaintiff-Appellee, Bay Mills Indian Community, Sault Ste. Marie Tribe of Chippewa Indians, Plaintiffs-Intervenors-Appellees, v. STATE OF MICHIGAN, Michigan Natural Resources Com- mission and its agents Dr. Howard A. Tanner, John A. Scott and Frank P. Opolka, Defendants, Court of Appeal Remand Opinion 623 F2d 448 293a Thirteenth Judicial Circuit Court of the State of Michigan, Intervenor-Appellant, Grand Traverse Area Sport Fishing Association, (Nos, 79-1527 & 79-1528), Intervenor-Appellant. Nos. 79-1414, 79-1527 and 79-1528. United States Court of Appeals, Sixth Circuit. Argued Feb. 15, 1980. Decided May 28, 1980. [623 F2d 449] Before MERRITT and BOYCE F. MARTIN, Jr., Circuit Judges, and PECK, Senior Circuit Judge. PER CURIAM. On May 7, 1979, District Judge Noel Fox issued an opinion and a declaratory judgment, United States vy. Michigan, 471 F.Supp. 192 (W.D.Mich.1979), in an action brought by the United States and two Indian tribes in Michigan, the Chip- pewa and the Ottawa tribes (represented by the Bay Mills Indian Cominunity and the Sault Ste. Marie Tribe of Chippewa Indians) against the State of Michigan and certain state offi- cials. That case is now pending before us as appeal No. 79- 1414. The District Court held that under treaties entered into between the United States and the Chippewa and Ottawa 294a Court of Appeal Remand Opinion 623 F2d 448 tribes in 1836 and 1855, 7 Stat. 491 (1836), 11 Stat. 621 (1856), these tribes have unique, exclusive, off-reservation rights to engage in gill net fishing in waters of Lake Michigan, despite Michigan laws to the contrary. The District Court held that these treaties grant the Indians an absolute right to engage in gill net fishing in these waters free from any regulation by the State of Michigan or any limitations of time, place or manner generally applicable to other citizens, even if such gill net fishing completely destroys fisheries, fish supplies and spawning grounds in Lake Michigan. Having found in case No. 79-1414 that the state has no power to limit Indian fishing rights in any way, District Judge Fox in two other cases designated here as appeals Nos. 79-1527 and 79-1528, (consolidated for argument before us with case No. 79-1414) enjoined certain Michigan officials from inter- fering with Indian gill net fishing and enjoined certain Michi- gan state judges from proceeding any further in a state court action to determine the right of Indians to engage in gill net fishing in Grand Traverse Bay and from issuing a temporary restraining order against such pending disposition of the state action. On September 26, 1979, Judge Albert Engel of this Court stayed Judge Fox's order against the state judges until October 25, 1979, pending consideration of the stay by a full panel of this Court under Rule 8 of the Federal Rules of Appellate Procedure. For the reasons stated by Judge Engel in his order of September 26, 1979, we continued in effect the stay of District Judge Fox's order pending disposition of the appeals in these cases. We found on the basis of the record 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. We further concluded, tentatively, in assessing the likelihood of appellant's success Court of Appeal Remand Opinion 623 F2d 448 295a on the merits, that the reasoning of the Supreme Court of Michigan in People v. LeBlanc, 399 Mich. 31, 248 N.W.2d 199 (1976) appears to correctly state the law applicable to gill net treaty fishing by Indians in the Great Lakes. That case held that the State may regulate gill net fishing if necessary to preserve fish from extinction or prevent irreparable damage to fish supplies or destruction of fisheries. Since the decisions of the District Court in these cases and after this Court stayed the injunctive orders of the District Court, the Secretary of the Interior issued comprehensive regulations governing Indian fishing in the Great Lakes, in- cluding gill net fishing, under treaties entered into between the United States and Indian tribes. The regulations are comprehensive. 25 C.F.R. Part 256 (subpart 1), 44 Fed. Reg. 65747. They ban or restrict treaty fishing in certain areas, regulate net mesh size, prohibit [623 F2d 450] harvest of threatened or endangered species and designated sport species, prohibit fishing during the spawning season, prohibit the setting of nets in certain locations at certain times of year, and provide for emergency regulatory adjust- ments in the regulations. Both the Indian tribes and the government argue that, even assuming that state law would otherwise govern Indian fishing rights, these new regulations occupy the field with respect to treaty fishing and make general state fishing laws no longer applicable. The District Court has not addressed or decided this preemption issue or the effect of the new federal regulations on the responsibility, authority and juris- diction of state officials and state courts in the enforcement of the new federal regulations and state laws relating to the subject. 296a Court of Appeal Remand Opinion 623 F2d 448 Article I, Section 8 of the Constitution provides that Con- gress shall have the power “to regulate Commerce . . . among the several States and with the Indian Tribes.” Section 2 of Title 25, U.S.C. gives the Secretary of the Interior “the management of all Indian affairs and of all matters arising out of Indian relations” and Section 9 of Title 25 authorizes the President to “prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs.” The new regulations were issued under the authority of these statutes. Since Congress adopted in 1836 and 1855 acts in the form of the treaties with the Ottawa and Chippewa Indians, the government's preemption argument has a firm constitutional and statutory basis. This Court cannot, however, intelligently consider and decide the preemption question and its effect on state jurisdic- tion (an extremely important issue that may make a decision unnecessary on the other issues presented in this appeal) in the absence of a decision by the District Court on three ques- tions concerning the meaning and effect of the new federal regulations: (1) Were the new regulations intended to have, and do they have, the effect of preempting all state regulation of treaty fishing? (2) If so, do the new regulations prohibit enforcement by state officials? (3) If so, do the new regula- tions oust the state court of jurisdiction to control Indian fish- ing rights or does the state court retain concurrent jurisdic- tion with the federal court? The parties have not briefed the second and third questions. The answer to these questions may depend in part on the existence of viable tribal councils capable of enforcement. The taking of proof may be neces- sary. For these reasons, we remand the case to the District Court for consideration of the preemptive effect of the new federal regulations. The District Court should consider this question on the assumption that the case of People v. LeBlanc, 399 Mich. Court of Appeal Remand Opinion 623 F2d 448 297a 31, 248 N.W.2d 199 (1976) correctly states the applicable law in the absence of preemptive federal regulations. Although this Court has not finally decided the issue, it is presently inclined to the view, as it was when it issued the stay in these cases, that, in the absence of federal regulations occupying the field, the Supreme Court of Michigan in People v. LeBlanc, supra, has correctly stated the applicable standard governing state regulation of gill net fishing. , 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 U.S.C. § 2106 and continues in effect the stay heretofore entered. 298a Court of Appeals Order Denying Stay, December 5, 1979 FILED DEC. 5, 1979 JOHN P. HEHMAN, Clerk No. 79-1414 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, et al, Plaintiffs-Appellees v. STATE OF MICHIGAN, et al, Defendants-Appellants Before: MERRITT, Circuit Judge. ORDER This case is before a single judge of the court pursuant to the application of the State of Michigan under Rule 8, Federal Rules of Appellate Procedure, for a partial stay of the judg- ment entered in this case May 7, 1979. The State of Michigan requests the stay pending consideration of the appeal on the merits. The same application for a stay is before the Dis- trict Court, and the Court is informed that the District Court will conduct an evidentiary hearing on the issue beginning December 6, 1979. Rule 8 of Federal Rules of Appellate Procedure provides that application for a stay of the judgment or order of a Dis- trict Court “must ordinarily be made in the first instance in the District Court.” The rule continues: Court of Appeals Order Denying Stay, 299a December 5, 1979 A motion for such relief may be made to the Court of Appeals or to a judge thereof, but the motion shall show that application to a District Court for the relief sought is not practicable, or that the District Court has denied the application, or has failed to attend the relief which the applicant requested, with the reasons given by the District Court for its action. ‘In light of the language of this rule, together with the fact that the District Court is presently considering the same ques- tion, we believe that it would be inappropriate for this Court to enter a stay of the District Court’s judgment of May 7, 1979, at this time. There is no showing that the relief sought in the District Court is “not practicable” or that the District Court has “denied an application” for the same relief. Therefore, the application for stay of the District Court's declaratory judgment of May 7, 1979, is hereby denied with- out prejudice tv the rights of the parties to apply to this Court after the District Court has ruled on the application for stay. ENTERED BY ORDER OF THE COURT John P. Hehman /s/ John P. Hehman Clerk 300a Court of Appeals Order Denying Stay, December 14, 1979 FILED DEC. 14, 1979 JOHN P. HEHMAN, Clerk No. 79-1414 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, BAY MILLS INDIAN COMMUNITY; SAULT ST. MARIE TRIBE OF CHIPPEWA INDIANS, Plaintiffs-Intervenors-Appellees, v. STATE OF MICHIGAN, MICHIGAN NATURAL RESOURCES COMMISSION AND ITS AGENTS, DR. HOWARD A. TANNER, DR. HENRY VONDETT AND GEORGE DAHL IN THEIR OFFICIAL CAPACITIES, Defendants-Appellants. ORDER Upon consideration of the defendants-appellants’ application for partial stay of judgment pending appeal and request for immediate consideration, Court of Appeals Order Denying Stay, 30la December 14, 1979 And it appearing that these matters are presently pending before the district court, It is ORDERED that the application be denied. ENTERED BY ORDER OF THE COURT John P. Hehman /s/ John P. Hehman, Clerk 302a Court of Appeals Order Granting Stay, . May 30, 1980 FILED MAY 30, 1980 JOHN P. HEHMAN, Clerk No. 79-1414 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, BAY MILLS INDIAN COMMUNITY, Plaintiff-Intervenor-Appellee, SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS, Plaintiff-Intervenor-Appellee, v. STATE OF MICHIGAN, MICHIGAN NATURAL RESOURCES COMMISSION and its agents, DR. HOWARD A. LANNER, Director of the Department of Natural Resources; DR. HENRY VONDETT, Chief, Fisheries Division, Department of Natural Resources; and GEORGE DAHL, Chief Law Enforcement Division, Department of Natural Resources Defendants-Appellants. Court of Appeals Order Granting Stay, 3032 May 30, 1980 ORDER Before: MERRITT, Circuit Judge. The state of Michigan and its agents have applied for a stay of the District Court judgment in this case pending appeal. The District Court ruled, in a decision issued on May 7, 1979, that the state of Michigan lacked authority to regulate fishing by the Bay Mills Indian community and the Sault Ste. Marie tribe of Chippewa Indians in the territorial waters of the state. This Court on May 28, 1980, remanded the case to the District Court for a decision on the question of federal regulatory preemption. We retained jurisdiction over the other issues presented. For the reasons set forth below, the judgment of the District Court is stayed pending final disposition of this appeal. This is the third time that an application for a stay in this case has been presented to this Court. On the two previous occasions, the motions were denied because the state and its agents had not first pursued the motion to the fullest practic- able extent in the District Court, as Federal Rule of Appellate Procedure 8(a) requires: See Orders of December 5, 1979, and December 14, 1979. Although a motion to stay had been pend- ing below in both prior instances, the District Court had not yet acted. On May 9, 1980, the District Court after prolonged consideration denied the application for a stay. The District Court having acted, this Court now is prepared to entertain the motion for a stay in case 79-1414. In three companion cases, we have stayed the judgment of the District Court pending appeal. In cases 79-1527 and 304a Court of Appeals Order Granting Stay, May 30, 1980 79-1528, Judge Engel of this Court stayed the permanent in- junction that the District Court had issued against the Thirteenth Judicial Circuit Court of Michigan. See Order of September 26, 1979. A three-judge panel of this Court on October 19, 1979, continued the effectiveness of the stay pend- ing disposition of the appeal. What we stayed in cases 79-1527 and 79-1528 was the District Court decree that forbade the state court to proceed any further with a state injunctive action brought by the Grand Traverse Area Sport Fishing Association against gill net fishing in the Grand Traverse Bay area of Lake Michigan. In case 79-1635, a three-judge panel of this Court on Novem- ber 28, 1979, likewise granted a stay pending appeal. The stay in 79-1635 suspended a temporary restraining order issued by the District Court. The TRO had applied the principles of the decision in the present case—No. 79-1414—to the Grand Traverse Band of Ottawa and Chippewa Indians, in addition to the Indian plaintiffs herein. Our stay in 79-1635 tempo- rarily barred the extension of the May 7, 1979, District Court decision to the Grand Traverse Band. We granted the stay in cases 79-1527 and 79-1528 in order to avert the strong possibility that intensive gill net fishing by the Bay Mills Indian community and the Sault Ste. Marie Court of Appeals Order Granting Stay, 305a May 30, 1980 tribe of Chippewa Indians would irreparably damage the piscatorial ecosystem of Grand Traverse Bay. The stay in 79- 1635 was a product of our concern that excessive gill net fishing by the Grand Traverse Band could work similar ir- reparable damage throughout Michigan’s territorial waters. Our apprehensions are no less warranted in the present case, which leaves fishing by the Bay Mills Indian community and Sault Ste. Marie tribe of Chippewa Indians unfettered by state regulation throughout the territorial waters of the state of Michigan. Accordingly, the judgment of the District Court is stayed pending final disposition of the appeal of case 79-1414. ENTERED BY ORDER OF THE COURT John P. Hehman, Clerk By Grace Keller /s/ Deputy Clerk 306a Court of Appeals Order Modifying Stay, July 16, 1980 Filed July 16, 1980, John P. Hehman, Clerk. Nos. 79-1414, 79-1527, 79-1528 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, BAY MILLS INDIAN COMMUNITY, Plaintiff-Intervenor-Appellee, SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS, Plaintiff-Intervenor-Appellee, v STATE OF MICHIGAN, MICHIGAN NATURAL RESOURCES COMMISSION and its agents, DR. HOWARD A. TANNER, Director of the Department of Natural Réso ; DR. HENRY VONDETT, Chief, Fisheries Division, Department of Natural Resources; and GEORGE DAHL, Chief, Law Enforcement Division, Department of Natural Resources, (No. 79-1414), Defendants-Appellants. UNITED STATES OF AMERICA, Plaintiff-Appellee, BAY MILLS INDIAN COMMUNITY, SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS, Plaintiffs-Intervenors-Appellees. v STATE OF MICHIGAN, MICHIGAN NATURAL RESOURCES COMMISSION and its agents, DR. HOWARD A. TANNER, JOHN A. SCOTT and FRANK P. OPOLKA, Defendants, THIRTEENTH JUDICIAL CIRCUIT COURT OF THE STATE OF MICHIGAN, Intervenor-Appellant, GRAND TRAVERSE AREA SPORT FISHING ASSOCIATION, ° (Nos. 79-1527 & 79-1528), Intervenor-Appellant. Court of Appeals Order Modifying Stay, July 16, 1950 307a Before: MERRITT and MARTIN, Circuit Judges; PECK, Senior Circuit Judge. The United States and the Bay Mills Indian Community and the Sault Ste. Marie Tribe of Chippewa Indians have moved the Court to vacate and set aside its stay heretofore entered pursuant to the Court's opinion of May 28, 1980, and in the alternative to modify the stay. The Grand Traverse Area Sport Fishing Association has also moved the Court to clarify the opinion so as to insure that the Association may participate as a party in the proceeding on remand to District Judge Fox. I. This Court declines to vacate or set aside its stay heretofore entered. The Court does, however, modify the stay as follows: Indian treaty fishing, including gill net fishing, in that portion of the Great Lakes over which the State of Michigan claims jurisdiction to enforce its fishing laws shall be governed during the pendency of this litigation in the District Court and in this Court by the comprehensive regulations issued on this subject by the Secretary of the Interior contained in 25 C.F.R. part 256, 44 Fed Reg. 65747 (November 15, 1979), as amended, 45 Fed. Reg. 28100 (April 28, 1980) and as such regulations may hereafter be amended by the Secretary of the Interior, provided, however, that “enforcement officer,” as defined in § 256.4l(e) thereof, 45 Fed Reg. 28102, shall include conservation officers of the State of Michigan and such other law enforcement officers of the State of Michigan as are authorized under state law to enforce the fishing laws of the State of Michigan. This Court’s modification of its stay heretofore entered is based on the standard outlined in Reed v. Rhodes, 549 F.2d 1046 (6th Cir. 1976), after considering the recent Supreme 308a Court of Appeals Order Modifying Stay, July 16, 1980 Court decisions in White Mountain Apache Tribe v. Bracker, 48 U.S.L.W. 4897 (No. 78-1177, decided June 27, 1980) and Central Machinery Co. v. Arizona State Tax Comm'n, 48 U.S.L.W. 4904 (No. 78-1604, decided June 27, 1980). Il. The Court has also considered the motion of the Grand Traverse Area Sport Fishing Association to clarify its status as a party in the proceedings on remand together with the order of the District Court on this subject entered July 9, 1980. This Court finds that the Association is a party to this litigation and has a direct interest in the outcome thereof. The District Court should allow the Association to participate as a party in the proceeding in the District Court on remand and allow the Association to conduct discovery on the same basis as other parties. Accordingly, it is so ordered. ENTERED BY ORDER OF THE COURT JOHN P. HEHMAN /s/ Clerk Secretary of Interior Letter, April 21, 1981 309a RECEIVED APR24 12:01 PM’81 OFFICE OF THE GOVERNOR United States Department of the Interior OFFICE OF THE SECRETARY WASHINGTON, D.C. 20240 Honorable William G. Milliken Governor of Michigan Lansing, Michigan 48901 Dear Gevernor Milliken: The decline of the carefully restored fisheries of the Great Lakes is a matter of vital concern to this Department and it is clear that the tremendous pressures brought to bear by com- mercial, sport, and Indian fishermen on those fisheries are the principal cause of the decline. As a result of these pres- sures, various species, particularly Lake Trout, are suffering serious declines. The continued decline of these important species will reduce them to levels where another extremely costly, long-term restoration program will be necessary. To permit such a decline following years of costly restoration would be an unprecedented violation of the Department's fish and wildlife conservation mission, our responsibility for tribal treaty rights, and our stewardship of the Nation's natural resources. The continued necessity for the the current treaty fishing regulations issued in 1979, and subsequently extended on December 31, 1980, should, in view of these circumstances, be reevaluated. Evaluation by the Fish and Wildlife Service indicates that the program provided by the regulations may be failing to protect these fisheries which are vital to Indians and non-Indians alike. Consequently, I do not intend to ex- 310a Secretary of Interior Letter, April 21, 1981 tend these regulations beyond the May 11, 1981, expiration date. In the absence of federal regulations and during the period in which the courts proceed with a resolution of the legal aspects of the matter, conservation of the fishery must be ensured. Accordingly, I invite you or your designated repre- sentative to attend a meeting in Washington, D.C. It is my hope that a program acceptable to all parties, which will ensure the safety of valuable fish stock and the Tribes’ treaty fishery, can he created. Upon completion of a consensus manage- ment program, I propose that it be carried out by the parties in a manner which recognizes the concurrent responsibilities and duties of the State of Michigan, the Tribes, and the De- partment of the Interior. During the period between the expiration of the current regulations and development of a consensus program, I believe --in accordance with the stated inclinations of the United States Court of Appeals for the Sixth Circuit Court—the rea- soning of the Supreme Court of Michigan in People v. LeBlanc appears to correctly state the law applicable to fishing by Indians in the Great Lakes. Again, my primary concern is that the fishery not be permitted to decline while we await a definitive resolution of the legal issues. I trust that our meeting will be the first step toward achiev- ing an equitable resolution to the problems now threatening the rights of the respective parties and a nationally recognized natural resource—the Great Lakes Fishery. Sincerely, Jim Watt /s/ Jim Watt SECRETARY Court of Appeals Order Continuing Remand, July 10, 1981 Filed July 10, 1981, John P. Hehman, Clerk. No. 79-1414 No. 79-1527 No. 79-1528 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 3lla UNITED STATES OF AMERICA, Plaintiff-Appellee, BAY MILLS INDIAN | COMMUNITY, SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS, Plaintiffs-Interv: aors-Appellees, Vv. STATE OF MICHIGAN, MICHIGAN NATURAL RESOURCES COMMISSION and its agents, Dr. Howard A Tanner, Dr. Henry Vondett and George Dahl in their official capacities, Defendants-Appellants, GRAND TRAVERSE AREA SPORT FISHING ASSOCIATION, 13th JUDICIAL CIRCUIT COURT OF THE STATE OF MICHIGAN, Intervenor Defendant-Appellant. Before: MERRITT, MARTIN and JONES, Circuit Judges. 312a Court of Appeals Order Continuing Remand, July 10, 1981 ORDER The procedural history of this Indian treaty fishing rights case is recited in our opinion reported at 623 F.2d 448 (1980), remanding the case to the District Court to determine whether federal regulations governing gill net fishing preempt state regulation. After the remand of the case to the District Court last summer pursuant to that opinion, the following significant steps have occurred: (1) The District Court began taking proof on the preemptive effect of the regulations of the Sec- retary of the Interior governing gill net fishing in the Great Lakes issued last year during the pendency of the original appeal in this case, but the District Court has not ruled as yet on the questions referred to it in our opinion. (2) The Secretary of the Interior allowed the regulations in questio# to expire on May 11 of this year, apparently on grounds that he and the Bureau of Indian Affairs should defer to the states in connection with the regulation of Indian treaty fishing in the Great Lakes. (3) The State of Michigan has issued emer- gency regulations governing gill net fishing which appear to be less protective of Indian rights than the federal regulations. (4) The State of Michigan has moved that the order of remand be vacated and that the original judgment of the District Court be reversed. (5) This Court heard reargument of the case on June 19, 1981. In light of these events, this Court concludes as follows: 1. The treaty-guaranteed fishing rights preserved to the indians in the 1836 treaty, including the aboriginal rights to engage in gill net fishing, continue to the present day as federally created and federally protected rights. The protec- tion of those rights is the solemn obligation of the federal government, and no principle of federalism requires the fed- eral government to defer to the states in connection with the Court of Appeals Order Continuing Remand, 313a July 10, 1981 protection of those rights. The responsibility of the federal government to protect Indian treaty rights from encroach- ment by state and local governments is an ancient and well- established responsibility of the national government. 2. The right of the Indians to engage in gill net fishing is not absolute, however. It is subject to a rule of reason. In the absence of fede..l regulation, that right is subject to the type of state regulation outlined by the Michigan Supreme Court in People v. LeBlanc, 248 N.W.2d 199 (1976), a deci- sion which we believe accurately states the rule of reason and the principles of federal law applicable to this case. As pro- vided in LeBlanc, any such state regulations restricting Indian fishing rights under the 1836 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. 3. Thus if Indian fishing is not likely to cause irreparable harm to fisheries within the territorial jurisdiction of the State of Michigan, the state may not regulate it. 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 regulation exists. In the absence of such a showing, the state may not restrict Indian treaty fishing, including gill net fishing. Since the new Secretary of the Interior has now withdrawn the regulations issued by his predecessor, the essential question is now whether these standards have been satisfied. 4. The parties have not introduced proof on this subject, and the state has not carried the burden described in the paragraph immediately preceding. Accordingly, this Court 3l4a Court of Appeals Order Continuing Remand, July 10, 1981 is not in position at this time to determine whether the state's new regulations meet federal standards. We therefore decline to approve and put into effect on an interim basis the more restrictive emergency regulations of Indian treaty fishing recently adopted by the State of Michigan. 5. The United States and the Indian tribes represent to the Court that the tribes have adopted and will carefully enforce as a regime of tribal self-regulation the comprehensive rules regarding gill net fishing previously enacted by the Secretary of the Interior which were allowed to expire on May 11, 1981. Until modified by the District Court upon remand, the com- prehensive rules regarding gill net fishing previously en- acted by the Secretary of Interior and referred to in our opinion reported at 623 F.2d 448 (1980) and our order of July 16, 1980, will remain in effect as the interim rules regarding gill net fishing. The District Court may modify these rules on an interim basis under Rule 65, Federal Rules of Civil Procedure. 6. 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 District Court shall consider and decide in accordance with the principles outlined herein and in People v. LeBlanc, 248 N.W.2d 199 (1976), the questions of necessity and irreparable harm. Only upon a finding of necessity, ir- reparable harm and the absence of effective Indian tribal self-regulation should the District Court sanction and permit state regulation of gill net fishing. If the District Court should find after hearing evidence that state regulation and control of Indian treaty fishing is necessary to preserve the fish of Lake Michigan as a resource, then the District Court should sanction state regulation. In that event, the District Court should permit those state regulations necessary to prevent ir- reparable harm as heretofore stated. Court of Appeals Order Continuing Remand, 315a July 10, 1981 7. With respect to state court jurisdiction over cases in- volving Indian treaty fishing, we agree with the arguments and position of the United States presented on June 19, 1981. While these questions concerning Indian treaty rights and the degree of permissible state regulation are pending in this Court and in the District Court, it is improper under the supremacy clause of the United States Constitution for the state courts to make orders inconsistent with those of the federal courts. Thus, the District Court's injunctions in cases No. 79-1527 and 79-1528 continue to be appropriate. Those orders were issued by the District Court in aid of its jurisdiction to determine the rights of the parties under treaties of the United States. The state cases were brought after the federal case was pending and under consideration, and the orders of the state courts in those cases had the effect of interfering with and obstructing the orderly adjudication of the federal questions in the Dis- trict Court. The doctrine of abstention therefore does not apply. Accordingiy, the remand order of this court embodied in our opinion reported at 623 F.2d 448 (6th Cir. 1980) is con- tinued in effect as modified by this order. ENTERED BY ORDER OF THE COURT John P. Hehman /s/ Clerk ISSUED AS MANDATE: AUGUST LI, 1981 COSTS: NONE A TRUE COPY Attest: JOHN P. HEHMAN, Clerk By Audrey Crockett /s/ Deputy Clerk 316a District Court Opinion On Remand, August 18, 1981 Filed, August 18, 1981 Clerk John P. Hehman. UNITED STATES OF AMERICA IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION UNITED STATES OF AMERICA, et al., Plaintiffs, e M26-73 C.A. STATE OF MICHIGAN, et al., Defendants. OPINION On May 28, 1980, the United States Court of Appeals for the Sixth Circuit issued an Order which remanded this case to the district court to consider the meaning and effect of new federal regulations on this Indian treaty fishing dispute. Since this court’s opinion of May 7, 1979, the Secretary of the Interior had issued comprehensive regulations governing In- dian fishing in the Great Lakes, including gill net fishing.(1) The Indian tribes and the government argued before the Circuit Court that, even assuming that state law would other- wise govern Indian fishing rights, these new regulations oc- cupied the field with respect to treaty fishing and made general state fishing laws no longer applicable. Since this court had not addressed or decided the effect of these regula- 11) The Secretary of Interior's regulations are contained in 25 ©. F.R. part 258, 44 Fed. Reg. 65747 (Noveinber 15, 1979), as amended, 45 Fed. Reg. 28100 (April 28, 1980). District Court Opinion On Remand, August 18, 1981 317a tions on the power and authority of the state, the matter was remanded to this court to consider and answer the following ‘questions: (1) Were the new regulations intended to have, and do they have, the effect of preeempting all state regula- tion of treaty fishing? (2) If so, do the new regulations prohibit enforcement by state officials? (3) If so, do the new regulations oust the state court of jurisdiction to control Indian fishing rights or does the state court retain concurrent jurisdiction with the federal court? The Sixth Circuit Court stated that the answer to these ques- tions may depend in part on the existence of viable tribal councils capable of enforcement, and the taking of proofs may be necessary. United States v. Michigan, 623 F.2d 448, 450 (6th Cir. 1980). Several telephone conferences were held in an attempt to expedite the discovery process. The State originally proposed taking depositions of twenty-one Interior officials. Subse- quently, this list was narrowed down, and ultimately no depo- sitions took place. On July 16, 1980, the Sixth Circuit Court issued an Order which clarified Grand Traverse Area Sport Fishing Associa- tion’s (GTASFA) status in the remanded proceedings. In addi- tion, that Order modified a previously entered stay, and allowed treaty fishing under the Secretary of Interior's regu- lations. The State then filed a petition under the All Writs Act, 28 U.S.C. § 1651, with the U.S. Supreme Court, requesting the July 16th Order be lifted and the May 30th stay Order 318a District Court Opinion On Remand, August 18, 1981 reimposed. Associate Justice Byron R. White refused this extraordinary request, and left undisturbed the three-judge panel's Order of July 16, 1980. Trial on the remanded proceedings began on September 30, 1980 in Marquette. Nine days of testimony were heard. Various tribal witnesses testified concerning the existence of enforcement mechanisms. Evidence regarding tribal conser- vation codes, tribal enforcement efforts, and tribal courts was received. While many spoke about past difficulties in working with the State, the general feeling of the tribal witnesses was that the regulations were working, were effective, and had reduced the tension that had often existed when the State was regulating. Eric Jankel, Special Assistant te Secretary Andrus, testified about the facts, circumstances, and history surrounding the issuance of treaty fishing regulations. Mr. Jankel was in court and cross-examined on September 30th, October 16th, 17th and 24th. On November 3, 1980, with all counsel present in chambers, this court wanted to clarify a few points Mr. Jankel had made by asking him some questions during a telephone conference. Despite the fact that all counsel had four dif- ferent occasions to view Mr. Jankel’s demeanor, substantial amounts of time and money would be saved, and telephone conferences have been used successfully in other courts, see: Gottschalk, Courts Calling on Telephones to Economize, The Wall Street Journal, June 1, 1981, at 29, col. 3, the State threatened to appeal. To avoid further prolonging the pro- ceedings, additional questioning of Mr. Jankel was not under- taken. In late October, a treaty Indian fisherman was found in contempt of state court for engaging in activity that the Circuit Court had authorized in its July 16, 1980 Order. The State’s. Thirteenth Judicial Circuit, in GTASFA v. Maudrie, et al., District Court Opinion On Remand, August 18, 1981 319a File No. 79-7510 C.E., found Patrick G. Kinney in criminal contempt for fishing under the federal regulations in viola- tion of a fourteen-month old ex-parte restraining order. This district court was petitioned to enjoin the state court charge, and on November 13, 1980 a preliminary injunction was en- tered.I?] The regulations contained in 25 C.F.R. part 256, 44 Fed. Reg. 65747 (November 15, 1979), as amended, 45 Fed Reg. 28100 ( April 28, 1980), were interim rules promulgated by the Secretary of Interior and were scheduled to expire on their own terms on January 1, 1981. By that time, it was anticipated that permanent rules would be in place. With the election and upcoming change of Administrations, however, tremend- ous political pressure was brought to bear on the situation. Rather than adopting permanent rules, the Carter Administra- tion, through Secretary Andrus, extended the regulations to May 11, 1981. 46 Fed. Reg. 33 (January 2, 1981). This ex- tension maintained the status quo pending the beginning of the 1981 fishing season. The Notice in the Federal Register stated that it was anticipated that regulations governing treaty fishing would be published in April. With the change of Administrations, political pressure was again applied to end the federal regulatory scheme and give the State control over treaty fishing. On April 20, 1981, Mich- igan Congressman Guy Vander Jagt’s office revealed the Secretary's decision to let the regulations lapse. By identical letters sent to the Chairmen of the Tribes and the Governor, Secretary Watt announced his decision not to renew the fed- [2] A similar fact pattern was presented to this court in March 1981. At the hearing for a preliminary injunction held on March 19, 1981, counsel for the state court judge and GTASFA threatened to pros- ecute other treaty fishers for obeying the Sixth Circuit Court Order of July 16th. (Transcript of Proceedings, March 19, 1981, p. 11, 41). As in the Kinney matter, a preliminary injunction was issued. 320a District Court Opinion On Remand, August 18, 1981 eral regulations. Despite eight years of the government's urgings to the contrary,!3} the Secretary stated that the rea- soning of People v. LeBlanc accurately states the law appli- cable to treaty fishing. The Secretary invited the parties to meet in an attempt to work out a “consensus management program,” which would recognize the concurrent responsibil- ities and duties of the State, the Tribes, and the Department of the Interior. . In light of these developments, the State filed an emergency motion with the Sixth Circuit Court to set aside the remand order, and to put in place the State’s “emergency regulations” as an interim measure to replace the lapsed federal regulations. Rather than petitio [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0387%3A0. Public record. Not legal advice.