Petition for Writ of Certiorari — Township of Leland v. Grand Traverse Band of Ottawa & Chippewa Indians

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Ne, 98 485 SEPa

In The OFFICE OF THE CLERK

Supreme Court of the Anited States

@ctober Term, 1997

TOWNSHIP OF LELAND; VILLAGE OF NORTHPORT

Petitioners,

GRAND TRAVERSE BAND OF

OTTAWA & CHIPPEWA INDIANS,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court of

Appeals For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

with Appendix

*THEODORE W. SWIFT

STEPHEN O. SCHULTZ

R. LANCE BOLDREY

FOSTER, SWIFT, COLLINS & SMITH, P.C.

313 S. Washington Sq.

Lansing, MI 48933

(517) 371-8152

Counsel for Petitioners REC Elv ED |

*Counsel of Record SFP 21] 998

WILLIAM M. eiese! OFFICE OF THE CLERK

CUNNINGHAM, DA » SUPREME

BEEBY, ROGERS & ALWARD——— OL") U.S. |

413 S. Union St., P.O. Box 878 lem

Traverse City, MI 49685

(616) 946-5760

Co-Counsel for Petitioners

LEGAL ADVAN T AGE 432 Walnut Street * Cincinnati, OH 45202

(800) 581-2252

_ QUESTIONS PRESENTED

In 1994, the Grand Traverse Band of Ottawa & Chippewa .

Indians (“the Tribe”) brought suit against Petitioners and the

Director of the Michigan Department of Natural Resources,

contending that the Tribe’s implied right of access to the waters of

the Great Lakes, a corollary to the Tribe’s implied right to fish

-found-in the 1836 Treaty of Washington, 7 Stat. 491, included the

right to moor large tribal commercial fishing vessels at recreational

marinas owned and operated by the municipalities, notwithstanding

a nondiscriminatory prohibition on the mooring of commercial

fishing vessels at these recreational marinas. The questions

presented are:

1. Whether the decision by a divided panel of the

Sixth Circuit Court of Appeals conflicts with decisions of this

Court because the court of appeals rewrote Treaty provisions to

expand an implied right to fish to include the right to moor

commercial fishing vessels in marinas constructed by third parties

more than 130 years after the Treaty was signed.

2. Whether the court of appeals correctly expanded

implied off-reservation Treaty rights to grant tribal members the

right to occupy public and private lands not owned by the Tribe or

its members.

3. Whether this Court should resolve a conflict

between the Courts of Appeals for the Sixth and Ninth Circuits and

address the important federal question of whether attorney fees

may be awarded pursuant to 42 U.S.C. § 1988 in cases where a

federal court is interpreting treaties to determine the scope of

reserved rights.

(on 2 r Es vey ariacpemeramene oom.

iii

PARTIES TO THE PROCEEDINGS

Petitioners, Defendants-Appellants below, are the Township

of Leland and Village of Northport. Also a Defendant below is the

Director of the Michigan Department of Natural Resources.

Respondent, Plaintiff-Appellee below, is the Grand

Traverse Band of Ottawa and Chippewa Indians.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...-------sssssrrtn ii

PARTIES TO THE PROCEEDINGS ...-------++**°"" iii

OPINIONS AND JUDGMENTS BELOW ....---++-ee°? 1

DEINE 5 Sp bencreeseascresessssccer® l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...-.------sss00"" l

STATEMENT OF THE CASE ...-----sssstcctcnn 2

I Historical Background ....-------****"" 2

Il The Present Conflict ....------+ssctr 4

Ill. The Fee IsstlG .. eee eee 6

REASONS FOR GRANTING THE PETITION ....------> 7

I. THE COURT OF APPEALS’ DECISION TO EXPAND

AN IMPLIED RIGHT OF ACCESS TO A RIGHT OF

OCCUPANCY FLATLY CONTRADICTS DECISIONS

fie WU OMIT vgs sow sie Sees sess sees 8

Il.

THE SIXTH CIRCUIT COURT OF APPEALS’

DECISION TO AWARD ATTORNEY FEES CANNOT

BE RECONCILED WITH THE NINTH CIRCUIT

COURT OF APPEALS’ SUPERIOR DOCTRINE THAT

FEES MAY ONLY BE AWARDED IN CASES

INVOLVING “KNOWN AND WELL-DELINEATED”

pes go A Poe yea re rest See 18

A. The Court ls’ ision Di nflicts

wi Ninth ircuit Decisi in US y.

Sy 6 oN iy ok WW ne eS bk wage 18

QOINCLIIGION ccc cc cece cece tees eeeseneeeds 26

Vii

TABLE OF AUTHORITIES

Cases 5

Choctaw Nation of Indians v. United States,

Sue Ue Aa 401d C1989) ib cae ee. 8, 12

Golden State Transit Corp. v. Los Angeles,

ee ck awe e wees 25

Lac Courte Oreilles Band of Lake Superior

Chippewa Indians v. State of Wisconsin,

653 F. Supp. 1420, 1431 (W.D. Wisc. 1987) ..... 14

Maine v. Thiboutot,

RE re 1 19

Maryland Pest Control Ass’n. v.

Montgomery County, Maryland,

884 F.2d 160, 163 (4" Cir. 1989),

cert. den., 494 U.S. 1056 (1990) .............. 25

Mille Lacs Band of Chippewa Indians

v. State of Minnesota, 853 F.

Supp. 1118, 1144-45 (D. Minn. 1994) ........ 10, 13

Oklahoma Tax Commission v. Chickasaw Nation

eS ee err 12

Viii

Klamath Indian Tribe, 473 U.S. 753, 774 (1985) .. 12

People v. LeBlanc, 248 N.W.2d 199 (Mich. 1976) ........ 3

Sokaogon Chippewa Community v, Exxon Corp,

805 F. Supp. 680, 700 (E.D. Wisc. 1992),

aff'd., 2 F.3d 219 (7 Cir. 1993), cert. den.,

S20 US. 1s isk beak RS 9, 10, 14

South Dakota v. Yankton Sioux Tribe,

66 U.S.L.W. 4092 (U.S. Jan. 26, 1998) ......... 12

State of Minnesota v Mille Band of Chippewa Indians

cert. granted, 66 U.S.L.W. 3781

(U.S. June 8, 1998) (No. 97-1337) ............ 12

United States v. Choctaw Nation,

Fae a i, Pe TE, ha a ek ode pate es 12

United States v. Michigan,

471 F. Supp. 192 (W.D. Mich. 1979),

aff'd., 653 F.2d 277 (6" Cir. 1981),

cert. den., 454 U.S. 1124 (1981) ........ _s 2, 3, 9, 21

United States v. Michigan,

623 F.2d 448 (6 Cir. 1980), modified

653 F.2d 277 (6" Cir. 1981), cert. den.

O56 ULB. NIDRESOWED 4.0 5 Soe OES CT Ci wes 3, 21

813 F.2d 1020, 1022-23 (9" Cir. 1987),

cert. den., 485 U.S. 1034 (1988) ......---

United States v. Washington, (Washington II),

873 F.2d 240 (9" Cir. 1989).......--+>-

United States v. Washington, (Washington III),

935 F.2d 1059 (9 Cir. 1991) .....----->

United States v. Winans,

198 U.S. 371 (1905) ....-- ee ee eee eee

Washington v. Fishing Vessel Ass’n.,

443 U.S. 658 (1979) ...-- eee eee eres

White Mountain Apache Tribe v. Williams,

810 F.2d 844, 852 (9" Cir. 1987) ....----

Statutes

28 U.S.C. § 1254(1) . 0 cece cece cece cceeres

28 U.S.C. §§ 1343(a) and re Se ee

42 U.S.C. § 1983... eee s errr en eererces

METRE TOME esac cera ce eesecnscsess

19, 20, 24

19, 21, 24

i HM

: .

; .

Other

Supremacy Clause, U.S. Const., art. VI. cl.2 ......... 1, 25

eee Or EN, Be a eae cee 1,2

Treaty of Washington, 7 Stat. 491 ............... ii, 1,2

OPINIONS AND JUDGMENTS BELOW

The first court of appeals opinion is reported at 141 F.3d

635 (6" Cir. 1998) and reprinted in the appendix (“App.”) at |.

The second court of appeals opinion is an unreported decision,

Nos. 96-2396/96-2466 (6 Cir. July 1, 1998) reprinted at App. B.

These two judgments, which involve closely related questions and

are therefore properly addressed in a single petition for a writ of

certiorari pursuant to Supreme Court Rule 12.4, affirmed orders

and rulings of the District Court for the Western District of

Michigan reprinted at App. E1-E6.

JURISDICTION

The court of appeals entered its judgment on April 15,

1998. App. A. A timely petition for rehearing with suggestion for

rehearing en banc was denied on June 10, 1998. App. C. The

second judgment of the court of appeals was entered on July 1,

1998. App. B. The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the following treaty, constitutional, and

statutory provisions: Treaty of Detroit, 11 Stat. 621; Treaty of

Washington, 7 Stat. 491; U.S. Const., art. VI, cl. 2; and 42 U.S.C.

§§ 1983 and 1988. App. D.

STATEMENT OF THE CASE

The Tribe is a recognized successor to signatories of 1836

and 1855 Treaties with the United States and, as such, enjoys an

implied Treaty-reserved right to fish in certain waters of the Great

Lakes. United States v. Michigan, 471 F. Supp. 192 (W.D. Mich.

1979), aff'd., 653 F.2d 277 (6" Cir. 1981), cert. den., 454 U.S.

1124 (1981). The Tribe claims that the Municipalities violated this

right by enforcing nondiscriminatory regulations preventing the

mooring of commercial fishing vessels at the Municipalities’

recreational marinas. The Tribe also claims that enforcement of

the regulations violated a 1985 Consent Decree of the District

Court, which was entered into by, inter alia, the Tribe and the

State of Michigan, but not by the Municipalities.

I. Historical Background.

In 1836, the "Ottawa and Chippewa Nations" entered into

a treaty with the United States, by which the tribes ceded to the

United States much of what is now the State of Michigan. Treaty

of Washington, 7 Stat. 491 ("1836 Treaty"). Article 13 of this

Treaty provides that "the Indians stipulate for the right of hunting

on the land ceded, with the other usual privileges of occupancy,

until the land is required for settlement." App. at D. In 1855, the

tribes entered into a second treaty by which they reserved specific

tracts of land. Treaty of Detroit, 11 Stat. 621 ("1855 Treaty").

Those specifically described reservation lands include lands

adjacent to the Leland and Northport marinas, but they do not

include the lands, or bottomlands, upon which the marinas now sit.

App. at D.'

In the 1970s, extensive litigation confirmed that, under the

1836 and 1855 Treaties, the Tribe had reserved the right to fish.

People v. LeBlanc, 248 N.W.2d 199 (Mich. 1976); United States

v. Michigan, 471 F. Supp. 192. “In the 1836 treaty, the Ottawa

and Chippewa understood that they could continue to use the land

to the extent necessary to continue to live [as fishers)." United

States v. Michigan, 471 F. Supp. at 238. Accordingly, "the Indians

impliedly reserved a right to fish . . . in the ceded waters of the

Great Lakes." Id. at 258. In defining the parameters of this

implied right, the court held that although the Tribe is not limited

to the use of primitive technologies, "the scope of the Indian right

to fish at the present time is defined by the character of Indian

fishing at the time of the treaty" because treaty fishing rights are

rights that were reserved out of rights existing at the time of the

treaties. Id. at 259.

After confirming the treaty right to fish, the court of

appeals remanded the case to the district court for a determination

of the propriety of attempted regulation of the right by the State of

Michigan. United States v. Michigan, 623 F.2d 448 (6" Cir.

1980), modified, 653 F.2d 277 (6" Cir. 1981), cert. den., 454 U.S.

1124 (1981). That litigation culminated in the entry of a 1985

Consent Decree in which various tribes and other parties agreed to

‘The Tribe concedes, for purposes of this litigation, that

"neither the Tribe nor its members is asserting any ownership

rights in the property occupied by the Leland or Northport marinas

_.." App at F4.

implement a zoning system for the Great Lakes that, inter alia,

assigned certain "grids" of the lake to treaty fishers and other grids

to other parties, including the State of Michigan. See, App. at A.

Il. The Present Conflict.

A recreational marina owned and operated by the

Township of Leland was constructed beginning in 1967 and a

recreational marina owned and operated by the Village of

Northport was expanded between 1982 and 1989. App. at F2.

Both marinas consist of breakwalls surrounding docks within

dredged areas of artificially-created harbor that were previously —

unprotected from the open waters of Lake Michigan. Although

both marinas prohibit the mooring of commercial fishing vessels,

the Municipalities permit all vessels, including the Tribe’s

commercial fishing vessels, to utilize access ramps at the marinas

free of charge. App. at F2 and F3.”

In this case, the Tribe alleged that the prohibition on the

mooring of tribal commercial fishing vessels at the marinas violates

the Tribe’s right to fish. App. at Fl. The Tribe also brought two

claims under 42 U.S.C. § 1983, for violation of the equal

protection clause and deprivation of property rights without due

process of law. Jurisdiction of the district court was invoked under

28 U.S.C. §§ 1343(a) and 1362.

?The marinas also serve as harbors of refuge to all vessels.

App. at F2 and F3.

In resolving cross- motions for summary judgment, the

district court agreed with the Tribe’s primary contention, finding

that the tribal right to fish includes the right to access traditional

fishing grounds and that the Treaties fixed such "implied"

easements as would enable this fishing right to be exercised. App.

at El. The court further held that this implied easement of access,

allowing the Tribe to "meaningfully fish from traditional areas,"

includes a right to moor tribal commercial vessels at the marinas

notwithstanding the general prohibitions against commercial use.

Id.

The court of appeals, in a majority opinion authored by

Judge Nathaniel Jones, affirmed the district court. The majority

concluded that, in keeping with the principle that treaties are to be

construed “liberally in favor of Native Americans,” “the 1836 and

1855 treaties provided for an easement of access” that of necessity

includes the right to moor in the Municipalities’ marinas. App. at

A. The court also concluded that, by prohibiting the mooring of

tribal commercial fishing. vessels at their marinas, the

Municipalities were improperly interfering with the Consent Decree

binding the Tribe, the state and other parties. Judge James Ryan

dissented, noting that “the term ‘access’ simply does not denote

‘mooring,’” and that the logical result of the court’s ruling would

be to give the Tribe a “right to moor its boats at every marina to

be built hereafter at any location on the shoreline.” Id.

If. The Fee Issue.

In addressing the Tribe’s 42 U.S.C. § 1983 claims, the

district court dismissed the equal protection claim and questioned

the due process claim in a footnote, stating that:

GTB’s 18 [sic] U.S.C. § 1983 claim for

deprivation of property without due process will

not be resolved herein. The GTB has not briefed,

and the defendants have not had an opportunity to

respond to, the merits. To the extent that the GTB

claims the consent decree as a source in itself of

a property right, the claim cannot be made.

Assuming that a § 1983 claim can be made for a

treaty-based property right, whether the claim is

one for a procedural due process violation under

the 14th amendment simpliciter, or for a

substantive due process violation, the defendants

should have an opportunity to be apprised of, and

respond to, the nature of the plaintiff's claim or

claims. App. at El (citations omitted).

The Tribe subsequently abandoned this claim, yet filed a motion

seeking fees for all work performed in the course of the litigation.

In response to the Tribe’s request for fees, the

Municipalities argued that the court should adopt the position of

the Court of Appeals for the Ninth Circuit, which held in a

procedurally identical case that attorney fees are available in treaty

cases only if the rights involved are “known and well-delineated,”

and not in treaty interpretation cases. United States v. Washington,

813 F.2d 1020, 1023 (9" Cir. 1987). The district court disagreed

with the position of the Municipalities by attempting to distinguish

Washington, and then awarded the Tribe $98,518 in fees. App. at

E6. The court of appeals simply “declined to decide” whether to

adopt the Ninth Circuit’s test. App. at B. The court of appeals

then affirmed the fee award, ruling that the unaddressed 42 U.S.C.

§ 1983 claim was a basis for awarding fees. Id.

REASONS FOR GRANTING THE PETITION

This case presents issues of critical importance to the

developing body of Supreme Court jurisprudence concerning tribal

rights. Although state and local governments have long been

required to recognize rights reserved by Indian tribes in ancient

treaties, this case radically changes the degree to which the rights

of state and local governments and other private property owners

are subservient to implied tribal rights. The decisions below have

broad impacts reaching far beyond the Petitioner Municipalities,

the tribes that are parties to the treaties involved in this case, and

the State of Michigan. If these decisions are allowed to stand, not

only will these Municipalities be forced to allow occupancy of, as

distinguished from mere access through, their marinas, but other

property owners, both public and private, may be required to allow

tribal members to occupy improvements to their real estate.

Furthermore, state and municipal governments, faced with the

threat of liability for significant attorney fees, will lose the ability

to sensibly evaluate and respond to tribal demands for new rights.

Significantly, the decisions below either flatly contradict or ignore

this Court’s own rulings or conflict with superior decisions of other

circuit courts of appeal.

I. THE COURT OF APPEALS’ DECISION TO

EXPAND AN IMPLIED RIGHT OF ACCESS TO A

RIGHT OF OCCUPANCY FLATLY CONTRADICTS

DECISIONS OF THIS COURT.

In deciding that tribal fishers have a right to moor

commercial fishing vessels at the Municipalities’ marinas, the

lower courts found that mooring rights are included within the

scope of rights reserved in the 1836 and 1855 Treaties. Treaty

rights, however, are reserved rights and, because no right to

appropriate the use of structures constructed by non-Indians existed

at the time of the treaties, it is impossible for the tribes to have

reserved such a right. Further, any right to moor far exceeds the

boundaries of the right to fish impliedly reserved in the 1836 and

1855 Treaties. In finding a right to moor, the court of appeals

e.ceeded its power and ran afoul of this Court’s jurisprudence by

rewriting and expanding the Treaties beyond any sensible

construction.

As noted supra, "[t]he scope of the Indian right to fish at

the present time is defined by the character of Indian fishing at the

time of the Treaty." United States v. Michigan, 471 F. Supp. at

259, citing, Choctaw Nation of Indians v. United States, 318 U.S.

423, 431-32 (1943). Courts interpreting the phrase "usual

privileges of occupancy," the literal reservation of rights contained

within the 1836 Treaty, have held that those privileges involve uses

of property exercised as of the time of the treaty. See, ¢.2.,

Sokaogon Chippewa Community v. Exxon Corp., 805 F. Supp.

680, 700 (E.D. Wis. 1992), affd., 2 F.3d 219 (7 Cir. 1993), cert.

den., 510 U.S. 1196 (1994). Such an interpretation naturally

results from the fact that the rights enjoyed by tribal members

under treaties are not rights that were granted by the United States,

but rights that the Tribes possessed at the time of the treaty and

retained for themselves. United States v. Michigan, 471 F. Supp.

at 212-13, relying upon United States v. Winans, 198 U.S. 371

(1905).

Given the “reserved” nature of treaty rights, it is apparent

that no right to moor could have been included among the rights

secured by the 1836 and 1855 Treaties. As the Municipalities

pointed out below, neither the perceived need for moorage for

large steel-hulled vessels nor the recently constructed artificial

facilities at issue in this lawsuit could have been foreseen by the

signatories to the 1836 and 1855 Treaties. The Tribe and the

lower courts did not take issue with this statement or point to any

evidence to the contrary; rather, the court of appeals simply

declared that because dockage for large vessels was “needed” to

enable the Tribe to fish certain areas, the tribal right of access

includes dockage rights. App. at A.”

2The court of appeals stated that an inability to dock tribal

fishing vessels at the Municipalities’ two marinas “would simply

destroy all rights to commercially fish that were conveyed by [the

Treaties].” App. at A. There is mo record support for this

sy toe TS ae

In concluding that mooring is guaranteed by the Treaties,

the court of appeals created a type of right that did not exist in

1836 or 1855 — a right to appropriate improvements to real

property over which the Tribe does not have title. Judge Ryan, in

dissent, recognized the fundamental flaw in the majority’s logic:

“the term ‘access’ simply does not denote ‘mooring.’” App. at A.

The newly-created right to moor far exceeds any mere right of

access; the lower courts have given tribal fishers the right to

occupy the Municipalities’ property, rather than the right to simply

cross that property to access the "unsettled" waters of the Great

Lakes.

Recognizing the significant distinction between

usufructuary rights and occupancy rights, other federal courts have

correctly ruled that "coming on to property and living there,

however briefly, is more invasive than hunting or fishing on that

property, and suggests an ownership interest rather than a license

or profit a prendre." Sokaogon Chippewa Community, 805 F.

Supp at 704. A mere right of access, however, is not an interest

in property; indeed, it is not even a "cloud on title." See, e.g.,

Mille Lacs Band of Chippewa Indians v. State of Minnesota, 853

F. Supp. 1118, 1144-45 (D. Minn. 1994). There is no fundamental

difference between the right to moor at a marina and the right to

camp on property discussed and rejected in the Sokaogon case.

The "rights" granted tribal fishers in this case are clearly

occupancy rights that are far different than and reach far beyond

any treaty right of access.

statement.

An examination of the easement analysis adopted by the

lower courts reveals the degree to which the court of appeals

expanded the scope of tribal rights reserved by the Treaties. In

dissent, Judge Ryan acknowledged the force of the analogy made

by the Municipalities below, an analogy that illustrates how

occupancy rights cannot be simply an incident of access rights. As

Judge Ryan paraphrased the Municipality’s analogy:

“when a landlocked estate has an implied access

easement over a servient estate, that means the

landlocked-estate’s owners may use a road over

the servient estate. And, if the road is originally

dirt but is paved by the servient-estate’s Owner,

the landlocked-estate’s owner may continue using

the road, in its new improved state, and is not

required to pay for that improvement. But, if the

servient-estate’s owner builds a garage next to the

road, the laadlocked-estate’s easement over the

road does not now give rise to a right to spend the

night in the garage, no matter how sympathetic the

circumstances.” App. at A.

This analogy describes precisely what the lower courts

ruled: that the holder of an easement for access (the Tribe) now

has a right to occupy property (the later-created marina facilities)

adjacent to an access point (the shores of Lake Michigan). This

right of occupancy represents an extreme leap of logic from an

implied right of access derived from an implied right to fish.

By rewriting the 1836 and 1855 Treaties to elevate a right

of access to a right of occupancy, the court of appeals ignored

principles articulated by this Court. As this Court held in Choctaw

Nation of Indians v. United States, 318 U.S. 423 (1943), although

Indian treaties should be construed liberally, “even Indian treaties

cannot be rewritten or expanded beyond their clear terms to

remedy a claimed injustice or to achieve the asserted understanding

of the parties." Id. at 432. See, also, Oregon Department of Fish

and Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 774 (1985).

More recently, in mmission v. Chickasaw

Nation, 515 U.S. 450 (1995), this Court, applying the concept that

tribal rights are reserved, refused to read an Indian treaty to

encompass a principle about which the parties “likely gave no

thought.” Id. at 466-67. Just this term, in South Dakota v.

Yankton Sioux Tribe, 66 U.S.L.W. 4092 (U.S. Jan. 26, 1998), this

Court limited the principle of resolving treaty ambiguities in favor

of a tribe, cautioning that, when a Court is interpreting a negotiated

agreement with a tribe, the Court must apply a “sensible

construction” to avoid an “absurd conclusion.” Id. at 4096. Taken

together or individually, these decisions of this Court hold that a

‘In an earlier case involving the Choctaw Nation, this Court

held that it is beyond the power of the judicial branch of

government “to alter, amend, or add to any treaty.” United States

v. Choctaw Nation, 179 U.S. 494, 533 (1900).

court may not rewrite or expand treaties and must apply a rule of

sensible construction.”

In this case, the lower courts disregarded principles

articulated by this Court when creating a right of occupancy from

an implied right of access derived from an implied right to fish.

Not only did the courts dramatically rewrite and expand the 1836

and 1855 Treaties, but, as Judge Ryan recognized in dissent, the

courts failed to apply the rule of sensible construction required by

this Court’s recent decision in Yankton Sioux. As Judge Ryan

wrote,

“even the solemn business of interpreting age-old

Treaty obligations requires the application of some

common sense. With all due respect, I fail to see

the common sense in construing 1885 [sic] Indian

fishing rights treaty obligations as including the

right to moor commercial fishing vessels in

Municipal marinas built more than 100 years

later.” App. at A.

SThe Court has recently granted certiorari in another fishing

rights case to decide whether fishing and hunting rights are

extinguished when tribal title to land is extinguished. State of

Minnesota v Mille Lacs Band of Chippewa Indians, cert. granted,

66 U.S.L.W. 3781(U.S. June 8, 1998)(No. 97-1337). This Court’s

resolution of Mille Lacs may well instruct that the mooring rights

found in this case, even if contemplated by the parties, were

extinguished by the terms of the Treaties. Consequently, should

this Court determine to refrain from granting certiorari in this case

at this time, the pendency of the underlying Mille Lacs case

suggests that this case should be held in abeyance.

——————————

The lower courts’ dramatic expansion of the 1836 and

1855 Treaties and failure to use common sense directly contradicts

this Court’s rulings and should be reviewed by this Court.

ok The Importance of the Federal Question

Addressed in this Case Justifies the Issuance of

a Writ of Certiorari.

As Judge Ryan properly recognized, the logic and effect of

the court of appeals’ decision is not limited to these Municipalities,

but may easily be read to provide the Tribe with the “right to moor

its boats at every marina to be built hereafter at any location on the

shoreline.” App at A. Actually, the court’s decision has a much

broader impact upon private property rights.

Prior to the lower court’s decision, courts interpreting the

extent of tribal fishing rights had ruled that the exercise of such

rights allows only minimal imposition upon private property rights.

“Usufructuary rights, like hunting and fishing, imply temporary

presence and minimal physical occupation of the land.” Sokaogon

Chippewa Community, 805 F. Supp. at 701. Usufructuary rights

also do not generally involve a right to trespass on private lands.

Lac Courte Oreilles Band of Lake Superior Chippewa Indians v.

State of Wisconsin, 653 F. Supp. 1420, 1431 (W.D. Wisc. 1987).

That Tribal rights may have only minimal impact on the rights of

private property owners has also been recognized by this Court.

i ial Passenger Fishin

Vessel Association, 443 U.S. 658, 684 (1979), this Court held that

treaty fishers cannot rely upon access rights to destroy the rights

of other citizens. By transforming an access right into a right to

occupy off-reservation property, the court of appeals’ decision in

this case threatens the rights of countless private property owners.°

The court of appeals’ extension of treaty rights to include

the right to occupy off-reservation, unowned real property

constitutes a fundamental and unprecedented expansion of Indian

treaty rights. In undertaking this expansion, however, the court

failed to identify amy language in the Treaties and any legal

principle upon which such an expansion of the treaty right can rest.

After stating that “the [Treaty] rights also included an easement of

access over the lands surrounding these traditional fishing grounds,

even were the land to have been privately owned,” the court made

the quantum leap that this “easement of access over the land”

includes the right to occupy real property improvements adjacent

to that easement neither owned nor constructed by the Tribe. Such

a leap is based solely on the conclusion that a “contrary result

[would] frustrate the purpose of the Treaties,” a purpose that is

unstated. App. at A. Upon such tenuous grounds, a federal court

has now held for the first time that off-reservation property owners

must give up occupancy of their real property and improvements

to tribal members who admittedly do not own it, did not build it,

and have no claim of fee ownership. Furthermore, the court of

appeals’ decision may very well represent the first time that a

federal court has found that treaty-reserved “rights” include rights

that did not exist at the time the treaty was executed. As federal

While Petitioners are municipalities, the lower courts draw no

distinction between public and private property owners and their

holdings apply with equal force to any private marinas where a

Tribe might claim the “need” to occupy the marina in furtherance

of its claimed right of access to its fishing grounds.

courts continue to define tribal rights in this and many other

contexts, the court of appeals’ decision creates precedent that could

drastically alter treaty-interpretation jurisprudence. As such, this

issue is one that should be examined by this Court.

D. The Consent Decree Does Not Provide an

Alternative Basis for Granting New Rights to

the Tribe.

In addition to relying on the Treaties themselves, the lower

courts found that the Consent Decree granted a right to moor. As

explained below, however, the Consent Decree, to which the

Municipalities are not parties, does not grant the Tribe any

mooring rights in the Municipalities’ marinas.

The Consent Decree provides no alternative basis for

granting mooring rights to the Tribe. As the district court properly

recognized, any finding that the Municipalities were interfering

with the Consent Decree is dependent on, inter alia, a finding that

the enforcement of the Municipalities’ commercial use restrictions

against the Tribe’s fishers is a violation of Treaty rights (App. at

El, "to violate the one [the Treaty right] was to violate the other

[the court order]"). Similarly, the court of appeals concluded that

any violation of the Consent Decree was “as a result” of the

court’s conclusion that “the treaty rights . . . include transient

mooring.” App. at A. Thus, the Municipalities could not be

directed to provide mooring for Tribal commercial fishing vessels

under the Consent Decree if the Tribe’s fishers did not have

mooring rights reserved under the Treaties. As discussed supra,

however, there is no right to moor granted by the 1836 and 1855

Treaties. To the extent that the lower courts attempt to use the

Consent Decree to grant tribal fishers more rights than do the

Treaties, such a result impermissibly and unconstitutionally rewrite

and expand those Treaties.

Any reliance on the Consent Decree as requiring the

Municipalities to provide mooring for tribal commercial fishing

vessels is erroneous for other reasons as well. The district court

was correct that, in general, non-parties who interfere with the

implementation of court orders or who interfere with the court’s

custody of the res in a proceeding in rem may be enjoined from

continued interference. App. at El. In this case, however, there

has been no interference with either the Consent Decree or the

court’s possession of a res. As Judge Ryan noted:

The GTB did not use the marinas before the

incidents leading to this lawsuit . . . [and] makes

no claim that the building of the marinas had any

adverse effect on its rights. Thus, the construction

of the marinas certainly did not impede access to

the fishing grounds, or make access in any sense

more difficult; in fact, the existence of the marinas

does not interfere with the GTB’s access one whit.

App. at A (emphasis in original).

If anything, the free use of improved launch ramps provided the

Tribe by the marinas actually enhanced the Tribe’s ability to access

the Great Lakes fishery. Thus, any belief that the Municipalities

were frustrating the Consent Decree and any reliance upon that

decree as providing an alternative basis for granting mooring rights

must fail.

Il. THE SIXTH CIRCUIT COURT OF APPEALS’

DECISION TO AWARD ATTORNEY FEES CANNOT

BE RECONCILED WITH THE NINTH CIRCUIT

COURT OF APPEALS’ SUPERIOR DOCTRINE

THAT FEES MAY ONLY BE AWARDED IN CASES

INVOLVING “KNOWN AND WELL-DELINEATED”

TREATY RIGHTS.

A. The Court of Appeals’ Decision Directly

Despite the Sixth Circuit Court of Appeals’ assertion that

it could award fees while declining to decide whether to adopt the

Ninth Circuit’s “known and well-delineated rights” test, App. at A,

the court’s decision directly repudiates Ninth Circuit jurisprudence.

The lower courts awarded the Tribe fees under 42 U.S.C.

§ 1988, which provides that:

In any action to enforce a provision of section . .

. 1983 . . . of this title, . . . the court, in its

discretion, may allow the prevailing party, other

than the United States, a reasonable attorney’s fee

as part of the costs." 42 U.S.C. § 1988.

To be entitled to fees, therefore, the Tribe must be a prevailing

party in an action properly brought under 42 U.S.C. § 1983. See,

Maine _v. Thiboutot, 448 U.S. 1, 9 (1980); United States _v.

Washington, (Washington 1), 813 F.2d 1020, 1022-23 (9™ Cir.

1987), cert. den., 485 U.S. 1034 (1988).’

The issue of whether treaty rights claims may be brought

under 42 U.S.C. § 1983 was thoroughly discussed in United States

v. Washington, (Washington 1, 813 F.2d 1020 (9™ Cir. 1987);

Washington II, 873 F.2d 240 (9" Cir. 1989); and Washington III,

935 F.2d 1059 (9 Cir. 1991)). The rule set forth in these

decisions is that a § 1983 violation does not arise where the claim

is dependent upon interpretation of a treaty. It is only when a

claim is brought to enforce "known and well-delineated" treaty

rights that the claim might give rise to an action under § 1983.

In Washington I, the Court of Appeals for the Ninth

Circuit first faced the issue of whether 42 U.S.C. § 1988 entitled

tribes to fees arising out of numerous cases that had culminated in

this Court’s opinion in Washington Vv. Fishing Vessel Ass’n., 443

U.S. 658 (1979). In Washington v. Fishing Vessel Ass’n., as in

the instant case, tribes brought claims for violations of treaty rights

and 14th Amendment rights. Also, as in the instant case, the tribes

7The Municipalities were granted summary judgment on the

Tribe’s equal protection claim. Accordingly, only the Tribe’s due

process claim is even arguably capable of supporting the fee

award. That claim is dependent upon an interpretation of the scope

of the Tribe’s treaty rights, a finding that those rights were being

violated, and a ruling that those rights support a claim under 42

U.S.C. § 1983.

prevailed on their treaty-interpretation claim, abandoned equal

protection arguments after the lower court’s initial decision, and

failed to litigate due process claims to a favorable ruling.

Washington I, 813 F.2d at 1024.

In deciding whether the tribes were entitled to fees, the

Washington I court first noted that the tribes’ right to fees

depended upor whether the tribes had stated a claim under § 1983.

Washington I, 813 F.2d at 1022-23. The court answered this

question by considering the character of the principal question

presented in Washington v. Fishing Vessel Ass’n and found that

certiorari had been granted to interpret the nature and scope of

treaty rights. Washington I, 813 F.2d at 1023, citing Washington

v. Fishing Vessel Ass’n., 443 U.S. at 674. Examining this Court’s

decision, the Ninth Circuit ruled:

It is not disputed that the Indians had rights under

the treaty. Just exactly what those rights were was

unknown until the Supreme Court decision. Jf the

State of Washington violates these now known

and well-delineated rights, there would be an

actual conflict between state and federal law

which might give rise to a § 1983 action. That,

however, has not yet happened and is not the

situation.

We therefore hold that the Tribes’ treaty

interpretation claims do not give rise to a claim

cognizable under § 1983. Accordingly, we

conclude that such claims do not support an award

of attorney’s fees under § 1988. Id. at 1023

(citations omitted, emphasis added).

Thus, Ninth Circuit doctrine holds that fees may not be awarded

in treaty cases where the court is interpreting the scope of treaty

rights, but only where the court is enforcing rights that are already

"known and well-delineated." See also, Washington III, 935 F.2d

at 1061.°

As in Washington I and II, this case involves treaty

interpretation and definition of the nature and scope of treaty

rights, rather than an action to enforce "known and well-

delineated" rights. While courts have previously ruled that the

Tribe has a right to fish, the issue of whether the Tribe also enjoys

a treaty-reserved right to moor commercial fishing vessels at the

8in Washington II, the tribes sought attorney fees for work

performed in a phase of the litigation in which the tribes were

granted partial summary judgment "establishing the right to have

hatchery-bred fish included in their treaty-based allocation of

salmon and steelhead trout, and to have such treaty fish protected

from environmental degradation." Washington II, 873 F.2d at 241

(emphasis added). Phase Il, like Phase I, presented treaty

interpretation issues and "merely extends [the right to harvest fish]

to hatchery fish;" accordingly, the Ninth Circuit again concluded

that fees could not be awarded under § 1988. Id. at 242.

Municipalities’ recreational marinas was never before addressed.”

As previously discussed, the lower courts construed the

scope of the Tribe’s implied right: of access (flowing from its

implied right to fish) and concluded that this right includes a right

to moor commercial fishing vessels at the Municipalities’

recreational marinas. Language used by the district court illustrates

that the court was interpreting the scope of treaty rights, rather than

merely enforcing “known and well-delineated" rights. For

instance, the district court began its analysis by stating that the

"Defendants misconstrue the scope of the right." App. at El

(emphasis added). The court then found it necessary "to discern —

the intended scope of the GTB’s right of access [by] consulting

the treaty which reserved the right of access and prior court

constructions of that treaty." Id (emphasis added). After engaging

in lengthy analysis and interpretation of the Tribe’s treaty-reserved

rights, the district court concluded that "the GTB is entitled to

summary judgment on its claim to establish its treaty-reserved

right to access improvements to the marinas such as mooring

slips." Id (emphasis added). Accordingly, the court "declared" that,

under the Treaties of 1836 and 1855, the Tribe has a right to dock

at the Municipalities’ marinas. Id. As these quotations illustrate,

the lower courts were not merely enforcing known and well-

°As in Washington I, it is not disputed that the Tribe here had

treaty rights, including a right of access. Just exactly what those

rights were with respect to dockage at recently constructed

recreational marinas was unknown until the District Court’s

decision. Compare, Washington I, 813 F.2d at 1023.

delineated rights, but, as in Washington I, were resolving a dispute

over the very existence, nature, and scope of treaty rights.'°

Rather than addressing the viability of the Tribe’s claim for

fees using the rubric of Washington, the Sixth Circuit purportedly

“declined to decide” whether Washington should be adopted and

concluded that fees could be awarded on the basis of the

unaddressed due process claim. App. at B. In so doing, however,

the Sixth Circuit repudiated Washington. Washington, like this

case, included an unaddressed due process claim upon which the

tribes attempted to base their claim for fees. After prevailing on

the treaty interpretation claim in Washington, the tribes in that case

proceeded in exactly the same manner in which the Tribe

proceeded in this litigation; that is, those tribes abandoned equal

protection arguments and failed to litigate a due process claim to

a favorable ruling. Given the identical posture of the two cases,

the Sixth Circuit’s decision can in no way be reconciled with the

Ninth Circuit decisions in Washington."

Notably absent from prior decisions in United States _v.

Michigan are any statements regarding a right to moor. Prior to

the District Court’s decision in this case, no court had ever

determined that a right to moor was included within the scope of

any treaty-based right to access. This further supports the obvious

conclusion that the right to moor could not have been “known and

well-delineated” at the time this case commenced.

''Even had the Sixth Circuit applied the Washington analysis,

it would have been error for the court to conclude that a right to

moor was sufficiently established to be "known and well-

delineated" and support a § 1983 claim. Quite obviously, the 1836

and 1855 Treaties say nothing about mooring rights in marinas the

B. The Ninth Circuit’s Approach to Fee Awards in

Treaty C Advances Superior Publi li

and Legal Doctrine.

In rejecting Washington and holding the Municipalities

liable for the Tribe’s fees in this treaty-interpretation case, the

lower courts set a dangerous precedent and sent a troubling signal

to any municipal and state government faced with tribal claims of

heretofore unknown treaty rights. Specifically, the lower courts

have placed state and local governments on warning that in cases

allocating or defining the limits of treaty, property and other rights

as between governments, non-tribal governments may be subjected

to enormous costs if they disagree with the scope of rights asserted

by atribe. It is critical to recognize that in cases such as these, the

courts are not addressing a deprivation of known individual rights,

but rather are engaging in an initial allocation of rights and powers

between governments. To subject state and local governments to

fee awards in such cases dramatically impacts the ability of these

governments to protect both their own property rights and the

existence of which was not even contemplated at the time the

Treaties were signed. The Tribe’s claims in this case are far more

attenuated than those advanced in Washington I and II. While

those Washington cases involved the character of the primary right

expressly reserved in a treaty, the Treaties in this case do not

expressly reserve a right to fish. See App. at D. The right to

moor defined in this case is a "right" several times removed from

the basic treaty; it is a right that the lower courts determined to be

within the scope of an implied right of access derived from an

implied right to fish. Consequently, Sixth Circuit dicta suggesting

that a right to moor is "known and well-delineated" in these

Treaties is clearly erroneous.

rights of non-Indian citizens. Ir litigation of this nature, allowing

tribes to recover attorney fees tor simply determining whether a

type of right even exists advances poor public policy.

Not only are there strong policy reasons for preferring the

Ninth Circuit approach, but the approach in Washington also stands

on superior legal ground. In its initial opinion, the Sixth Circuit

correctly acknowledged that Treaty rights must be recognized by

state and local governments by virtue of the Supremacy Clause,

U.S. Const., art. VI. cl.2. App. at D. As this Court has held,

however, the Supremacy Clause is not itself a rights conferring

provision and does not create rights enforceable under 42 U.S.C.

§ 1983. Golden State Transit Corp. v. Los Angeles, 493 U.S. 103,

107 (1989). Consequently, numerous lower courts have found that

claims brought based on the Supremacy Clause do not support fee

awards under 42 U.S.C. § 1988. See, €2., White Mountain

Apache Tribe _v. Williams, 810 F.2d 844, 852 (9" Cir. 1987);

Maryland Pest Control Ass’n. v. Montgomery County, Maryland,

884 F.2d 160, 163 (4" Cir. 1989), cert. den., 494 U.S. 1056

(1990). Thus, fees under 42 U.S.C. § 1988 should not be available

in cases involving treaty rights applicable to state and local

governments by virtue of the Supremacy Clause, and the

Washington approach should be adopted by this Court.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Stephen O. Schultz

Counsel of Record

R. Lance Boldrey

FOSTER, SWIFT, COLLINS

& SMITH, P.C.

313 S. Washington Sq.

Lansing, MI 48933

(517) 371-8152

Counsel for Petitioners

William M. Davison

CUNNINGHAM, DAVISON, BEEBY,

ROGERS & ALWARD

413 S. Union St.

P.O. Box 878

Traverse City, MI 49685-0878

(616) 946-5760

Co-Counsel for Petitioners

Opinion in Docket No. 96-1168,

Bie fad es ies ee ks

Opinion in Docket No. 96-2396/96-2466,

MNTINO oie cok Sy. ee es

Order Denying Petition for Rehearing,

TO IRs ase hs ke

Treaties, Statutes, and

Constitutional Provisions ..........

. A-1 thru A-24

. B-1 thru B-20

.. C-l thru C-2

. D-1 thru D-46

Opinion,

Ged Te A eS ea ....... El-l thru El-30

Partial Judgment,

RE EW oes vk Cec She ek a E2-1 thru E2-3

Order and Judgment,

GETTING Si ks es yids <a abags E3-1 thru E3-2

Opinion,

Gen Te a ie. SS SU ees .... E41 thru E4-22

Partial Judgment,

WOE I eS iilons aaah GS Soca nO RR ES-1 thru E5-2

Order and Amended Judgment

with Opinion,

Milne UOIB Sissi. oy0: cee aig eae E6-1 thru E6-14

Two excerpted pages of the

First Amended Complaint,

(hd PO on ia ac Ghinkas so Os Fl-1 thru F1-3

Two excerpted pages from a brief,

filed 4 W985. io wick OR Nwraenics sass F2eh thee F2-5

One excerpted page from a "

filed 4/17/95 ...-.... OT Ly a F3-1 thru F3-2

Two excerpted pages from

discovery materials,

(ed AAAS EA as owe ae Sw es F4-1 thru F4-3

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

Electronic Citation: 1998 FED App. 0109P (6th Cir.)

File Name: 98a0109p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Grand Traverse Band of

Ottawa and Chippewa

Indians,

Plaintiff-Appellee,

No. 96-1168

Director, Michigan

Department of Natural

Resources,

Defendant,

Township of Leland;

Village of Northport,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 94-00707--Richard A. Enslen, Chief District Judge.

Argued: July 28, 1997

Decided and Filed: April 15, 1998

Before: JONES, NELSON, and RYAN, Circuit Judges.

COUNSEL

ARGUED: Stephen O. Schultz, FOSTER, SWIFT,

COLLINS. & SMITH, Lansing, Michigan, for Appellants.

William Rastetter, Cedar, Michigan, for Appellee.

ON BRIEF: Stephen O. Schultz, FOSTER, SWIFT,

COLLINS & SMITH, Lansing, Michigan, for Appellants.

William Rastetter, Cedar, Michigan, John F. Petoskey,

GRAND TRAVERSE BAND LEGAL DEPARTMENT,

Suttons Bay, Michigan, for Appellee.

JONES, J., delivered the opinion of the court, in which

NELSON, J., joined. RYAN, J. (pp. 15-17), delivered a

separate dissenting opinion.

OPINION

NATHANIEL R. JONES, Circuit Judge. Defendants,'

the Village of Northport and the Township of Leland

'The Director of the Michigan Department of Natural

Resources ("MDNR") was also a named Defendant in the

suit. Significantly, however, MDNR does not appeal the

judgment.

A-2

("municipalities"), appeal from a partial grant of summary

judgment for the Plaintiffs, the Grand Traverse Band of

Ottawas and Chippewas ("GTB"). GTB sued to enforce its

treaty based claim to establish transient mooring access to

the Leland and Northport Marinas as well as declarative

relief pursuant to a 1985 consent order. For the reasons

that follow, we affirm.

I. Background

GTB is the successor in interest to the Grand Traverse

Band of Ottawas and Chippewas, who along with other

Native American tribes, signed two treaties with the United

States in 1836 and in 1855. In these treaties, the Ottawas

and Chippewas reserved the right to continue commercial

and subsistence fishing in the Great Lakes Region. The

tribes, however, ceded their lands (most of what is now the

State of Michigan) to the United States government.

Specifically, the 1836 treaty reserved for the Ottawas and

Chippewas the right to fish in their usual places, which

included the waters off the Leelanau Peninsula. Treaty of

Washington, 7 Stat, 491. The 1855 treaty preserved a

reservation located adjacent to these traditional fishing

grounds. Treaty of Detroit, 11 Stat. 621. The land and

water areas upon which the Leland and Northport marinas

now rest, historically, were used by the Ottawas and

A-3

Chippewas to access fishing sites in Lake Michigan and

Traverse Bay. ”

The Township of Leland is located on the west side of the

Leelanau Peninsula on the Grand Traverse Bay. The

Leland Marina lies on that side of the Peninsula. The

Leland Marina has 58 mooring slips which can hold up to

120 vessels. The Village of Northport shore is located on

the eastern shore of the Leelanau Peninsula where the

Northport Marina is located. Northport Marina has 100

slips, including 5 dedicated to commercial use and can

accommodate up to 116 vessels. Each marina is owned and

operated by the corresponding municipality.

During the 1970s, the United States instituted litigation

against the State of Michigan in order to protect Native

>The municipalities appear at some points to assert that

their marinas are adjacent to the areas used by treaty fishers

for access to their fishing grounds. However, the district

court’s factual conclusion that the land on which the

marinas sit, historically, has been used by treaty fishers to

access their traditional fishing grounds was not clearly

erroneous. This conclusion is supported by ample evidence,

including an affidavit by Dr. James McClurken, an

ethnohistorian who specializes in Native American tribal

culture and history. (J.A. at 94-101). Although the

municipalities baldy assert that GTB’s access to traditional

fishing grounds was located adjacent to their marinas, they

provide absolutely no evidence to substantiate this claim

and do not directly challenge the district court’s conclusion

on appeal.

A-4

American fishing rights. As a result of this litigation, the

district court expressly found that the 1836 and 1855

treaties gave Native American treaty fishers, including

GTB, the right to fish for subsistence and commercially in

the Great Lakes Region. United States v. Michigan, 471 F.

Supp. 192, 216 (W.D. Mich. 1979), mod. in part, 653 F.2d

277 (6th Cir. 1981). The district court further held that this

right could not be burdened or abridged by the State of

Michigan. Id. at 270. On appeal, this court affirmed that

the treaties gave Native Americans the right to fish the

Great Lakes, a right restricted only by state conservation

efforts that utilized the least restrictive means available.

United States v. Michigan, 653 F.2d 277, 279 (6th Cir.

1981).

After remand, the parties involved in the litigation signed

a consent order which was adopted by the district court on

May 31, 1985, and was to be in effect for 15 years.’ The

district court had adopted this consent order, after a hearing,

in which the court explicitly found that it would be

"superior to [other plans] in protecting the Indian reserved

treaty fishing right."" 12 ILR 3079. The consent order

granted Native American fishers the exclusive right to

>The Village of Leland and the Township of Northport

were not named parties to this consent order, which was

between the United States Government, the State of

Michigan and various Native American organizations,

including GTB.

A-5

commercial fishing in certain areas of Lake Michigan, and

restricted their use of other areas. It divided Lake Michigan

into several hundred grids or zones, reserving the three

main grids surrounding the Leelanau Peninsula (where the

Leland and Northport Marinas are located) for the exclusive

use of GTB. These grids lie in traditional fishing waters

reserved in the 1836 treaty and are numbered 615, 714, and

715 respectively. GTB was also granted exclusive fishing

rights in grids 616, 715, 716, 815 and 816.

Additionally, as part of the consent order, GTB agreed to

forgo all gill net fishing from small boats in specified zones

in order to preserve certain species of fish that had nearly

been depleted by over fishing. Thus, GTB began using

large boats that cannot be "trailered."* The consent order

also expressly required the use of impoundment gear in

some areas that must also be utilized with large

nontrailerable vessels. Grids 615 and 714 are both located

in the rough open waters of Lake Michigan that cannot be

accessed safely with small boats.

George Duhamel, a GTB member, began docking his

commercial fishing vessel at the Northport and Leland

Marinas in 1993. Shortly after Duhamel began docking his

vessel at the marinas, he was told that he could not moor

his vessel at the marinas because of agreements between the

*Boats that could not be placed onto trailers pulled by

a car or truck.

A - 6

municipalities and the State of Michigan that limit the

commercial use of the marinas.’ When Duhamel refused

to remove his vessel from the Northport slip in July of

1993, he was arrested. In 1994, Duhamel was threatened

with arrest when he attempted to moor his boat at the

Leland Marina. On October 17, 1994, after negations

between the parties failed, GTB filed suit against MDNR

challenging the commercial use .prohibitions at the

Northport and Leland Marinas. On December 27, 1994,

GTB filed an amended complaint adding the Township of

Leland and the Village of Northport as Defendants. The

parties then filed cross motions for summary judgment.

The district court granted partial summary judgment to

GTB, finding that the Defendants could not bar GTB’s right

to use the marinas for commercial fishing without violating

‘Both municipalities have contracts with the State of

Michigan limiting the commercial use of their marinas.

Leland’s agreement with MDNR, signed in May 1967,

provides that no commercial vessels may be permitted to

"regularly" use the facilities. (J.A. at 203). Northport’s

agreement, signed in 1988, prohibits regular commercial use

absent written approval, as well as all commercial fishing

vessels. (J.A. at 211).

A-7

the consent order and the 1836 and 1855 treaties.® This

appeal followed.

IT.

The municipalities raise two arguments on appeal. First

the municipalities argue that the district court erred in

granting summary judgment on GTB’s treaty based claim of

mooring access to their marinas. Second, the municipalities

argue that the district court erred by granting summary

judgment pursuant to the 1985 consent order in which the

municipalities were not parties. We review a district court’s

grant of summary judgment de novo, Russo v. City of

Cincinnati, 953 F.2d 1036, 1041-1042 (6th Cir. 1992), and

findings of fact for clear error. Eastern Kentucky Resources

v. The Fiscal Court of Magoffin County, 1997 WL 631261

at *7 (6th Cir. 1997). We will discuss each issue in turn.

A. Treaty Rights

°GTB also claimed relief pursuant to 18 U.S.C. § 1983,

alleging that the municipalities violated its fishers’

constitutional right to equal protection of the laws. The

district court granted summary judgment to MDNR and the

municipalities on this claim, and GTB does not appeal that

judgment.

A-8

It is undisputed that the rights retained by GTB in the

treaties of 1836 and 1855 included access to its traditional

fishing grounds located within the areas of the Leland and

Northport marinas. The parties to this dispute, however,

question the scope of that right. The municipalities assert

that GTB’s right to fish does not include a right to occupy

the marinas and at most GTB possesses an easement of

access over the municipalities’ marinas. This right, they

argue, is limited to the right of ingress and egress only, and

not to a limited use of improvements such as mooring

slips.’ We disagree. |

On the outset, we note that it is well settled that Native

American treaties must be liberally construed in favor of

Native Americans. State of Washington v. Washington

State Commercial Passenger Fishing Vessel Ass'n, 443 U.S.

658, 676 (1970); Antoine v. Washington, 420 U.S. 194

(1975); Choctaw Nation of Indians v. United States, 318

U.S. 423, 432 (1943). The rights granted by the treaties at

issue here clearly included the right to fish the waters of the

7The municipalities also devote a large amount of their

brief to legal arguments that an easement holder cannot

utilize improvements located adjacent to an easement.

Those legal arguments are completely irrelevant to the

present appeal, however, because as noted in footnote 4

supra, the district court’s conclusion that the areas on which

the marinas now sit was utilized by GTB, is not clearly

erroneous.

A-9

Great Lakes region for both subsistence and commercial

fishing.* The rights also included an easement of access

over the land surrounding these traditional fishing grounds,

even were the land to have been privately owned. See

United States v. Winans, 198 U.S. 371, 381, 384 (1905)

(noting that treaty rights "impose[] a servitude upon every

piece of land as though described [in the treaty]...and fixes

in the land such easements as enables the right to be

exercised."); see also Seufert Bros. Co. v. United States, 249

U.S. 194, 198-99 (1919). This easement, implied by

reservation or necessity, reserved the access necessary to

allow the treaty fishers to fish from their traditional fishing

areas.” See Winans, 198 U.S. at 384; United States v.

Michigan, 471 F. Supp. at 238. As noted, the marinas

‘The district court in the Michigan litigation, provided

a detailed history of the Chippewas’ and Ottawas’

dependence on fish for both subsistence and commercial

resources. United States v. Michigan, 471 F. Supp. at

221-225. This dependence stretched back as far as 10,000

B.C. Id. at 214.

*Although a profit a pendre is more likely the technical

term for GTB’s interest because they have a right to take

fish from the waters, see, e.g., Mille Locs Band of

Chippewas v. Minnesota, 952 F. Supp. 1362, 1376 (D.

Minn. 1997), aff'd 124 F.3d 904 (8th Cir. 1997) (defining

profit a pendre), the distinction is not determinative for

purposes of this appeal and we find easement law

instructive.

A- 10

owned by the municipalities fall squarely within the

location of this easement. In addition, the treaties did not

in any way, limit the means by which fish were to be taken

from the lakes or restrict the treaty fishers to using

technology that was in existence at the time of the treaty.

See United States v. Michigan, 471 F. Supp. at 260 ("The

right [to fish] may be exercised utilizing improvements in

fishing techniques, methods and gear. It may expand with

the commercial market which it serves, and supply the

species of fish which that market demands, whatever the

origin of the fish.").

In order to continue commercial fishing, however, GTB

must utilize large boats that cannot be trailered. Thus, we

find that two basic principles mandate that the right of

access to GTB’s traditional fishing grounds includes the

right of transient anchoring of commercial vessels at the

municipalities’ marinas. First, courts are bound to construe

treaties, not only liberally in favor of Native Americans, but

in a way to "reserve to the Tribes all rights necessary to

effectuate the purpose of the Treaty." Swim v. Bergland,

696 F.2d 712, 716 (9th Cir. 1983) (citing Menominee Tribe

of Indians v. United States, 391 U.S. 404, 406 (1968);

Winters v. United States, 207 U.S. 564, 575-77 (1908)); see

also Winans, 198 U.S. at 380-381 (securing access to

fishing grounds over private property because "[n]o other

conclusion would give effect to the treaty.").

A- ll

In the present case, the scope of the treaty right of access

to traditional fishing grounds includes transient mooring on

the public property of the municipalities, because not only

would a contrary result frustrate the purpose of the treaties,

such a result would simply destroy all rights to

commercially fish that were conveyed by them. The district

court correctly concluded that "[t]here simply is no material

dispute of fact that GTB fishers reasonably require the

ability to occasionally moor their vessels at Northport and

Leland in order to: access traditional areas in grids 714 and

615, fish with impoundment gear and, fish for chubs,

unload nets, off-load fish and seek shelter during

emergencies." G7B v. Michigan Dep't of Natural Resources,

971 F. Supp. 282, 291 (W.D. Mich. 1995). Undeniably, it

is not safe to fish in the open waters of grids 714 and 615

in small trailerable boats as testified by John Robertson,

Chief of the Fisheries Division of MDNR. These grids

require large boats that cannot be trailered in and out of a

marina on a daily basis. Moreover, the consent order

expressly requires equipment that cannot be trailered on a

daily basis. There are no harbors near GTB’s fishing areas

that would allow GTB to fish with the boats that they must

now utilize.'° Further, even MDNR has recognized the

necessity behind GTB’s request for access to the mooring

‘The next nearest marina would require round trips of

between five and ten hours.

A-12

slips. Indeed, MDNR has not appealed the judgment, and

has previously indicated a willingness to relieve the

municipalities of any alleged obligation to prohibit GTB’s

requested access. (J.A. at 323)."

The municipalities do assert that according to "simple

logic" the fishing grounds that are now not safely accessed

through small boats, were not fishing grounds that were

fished at the time of the treaties. This "simple logic,"

however, is refuted by direct evidence submitted by GTB in

the form of affidavits by no fewer than four individuals

who all testify to the contrary. Additionally, the fishing

grounds reserved by the treaty fishers in the treaties was not

limited any specific way. See United States v. Michigan,

471 F. Supp. at 231 ("This area include[d] the waters of the

Great Lakes...."). Thus, we find that the district court’s

conclusion in that regard was not clearly erroneous.

Secondly, contrary to the municipalities’ position, we find

that traditional property law concepts do not prohibit the

use of improvements on an easement when necessary for

effectuation of the easement’s purpose. Cf United States v.

"MDNR has explicitly stated that their agreements with

the municipalities do not preclude the municipalities from

providing mooring slips to GTB, has indicated that the

access requested was reasonable under the specific facts,

and has noted that the access was necessary to give effect

to the 1985 consent order. (J.A. at 173, 313, 323)

A - 13

Hughes, 408 F.2d 619, 621 (6th Cir. 1969) ("[T]he owner

of the dominant easement has all the rights incident or

necessary to proper enjoyment of the easement.") (citing 25

Am. Jur. 2d Easements & Licenses §§ 72-75). References

to cases such as Delaney v. Pond, 86 N.W.2d 816 (Mich.

1957), upon which the municipalities base their contentions,

are thus easily distinguishable. See also, Lakeside

Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868

(Tex. Ct. App. 1988); Douglas v. Bergland, 185 N.W. 819

(Mich. 1921). In Delaney, for example, the court did

restrict an easement of access to a river merely to ingress

and egress, and prohibited the dominant estate holder from

sun bathing and permanently mooring its boats on the

plaintiffs’ property. Delaney, 86 N.W.2d at 817. The court

found that because the easement was an express easement

which specifically stated that it was an easement for a right

of way, the easement was limited to ingress and egress

only. Jd. The court, however, noted that "[t]he right

granted to plaintiffs to make use of the water granted to

plaintiffs no rights to the bordering land beyond that

necessary to permit enjoyment of the water rights." Id.

(emphasis added). The court also noted that the "use of an

easement must be confined strictly to the purposes for

which it was granted or reserved." Jd; see also Lakeside,

750 S.W.2d at 871 (noting that the scope of an easement is

rendered "to the extent reasonably necessary to afford

ingress and egress to the owner of the dominant estate and

A- 14

no more."). Because there was no showing in Delaney of

the necessity of sun bathing on the plaintiff's property or of

a permanent mooring of the defendant’s boats, the court

strictly construed the express easement as one for only

egress and ingress. Delaney, 86 N.W.2d at 817. Here, to

the contrary, GTB is forced to utilize boats that cannot be

trailered, and will not be afforded ingress and egress, or any

access by commercial boats to their fishing grounds,

without use of the marinas. Thus, the scope of the

easement must include mooring access to the

marinas in order to permit use and enjoyment of the

easement. Otherwise, an easement of access over the land

where the marinas are situated, would be meaningless.

Moreover, there was no express easement in this case that

was limited to its specific terms, but rather an easement by

reservation or necessity the purpose of which was access to

fishing grounds. Furthermore, the marinas are clearly

equipped for the commercial uses envisioned by GTB,

which uses will not materially increase the burdens on the

marinas. Cf Delaney, 86 N.W.2d at 817 ("A principle

which underlies the use of all easements is that the owner

of an easement cannot materially increase the burden of it

upon the servient estate....") (citing Am.Jur., Easements §

115).

Finally, we find other arguments made by the

municipalities in order to justify their restriction of GTB’s

use of the marinas unavailing. As noted, the municipalities

A- 15

contend that agreements with the MDNR mandate that

commercial vessels are not permitted at their marinas. This

is incorrect for two reasons. First, under the Supremacy

Clause of the United States Constitution, treaties override

any conflicting state or local laws. U.S. Const., art. VI. Cl.

2; accord United States v. Michigan, 471 F. Supp. at 281.

Second, as noted, MDNR clearly indicates that it believes

that GTB is entitled to access to the marinas and that the

agreements provide no interference with that right. See note

10, supra. Moreover, we note that Northport has already

granted a commercial vessel much larger than those owned

by GTB permission to use its marina regularly. Thus, the

agreements do not provide an obstacle to GTB’s use, and

the municipalities have not indicated how GTB would

interfere with the use of this property that is already opened

for use by the public at large. Significantly, GTB does not

request any more mooring rights than those that the marinas

already allow. Thus, there are simply no reasons why such

use would be prohibited. Accordingly, we hold that the

1836 and 1855 treaties provided for an easement of access

to reach traditional fishing grounds which includes the right

of transient mooring in the municipalities’ marinas.

B. Consent Order

The municipalities assert that the district court incorrectly

granted declarative relief pursuant to the 1985 consent

A - 16

order, because the municipalities were not parties to that

order. Thus, the municipalities assert that the district court

erred by granting partial summary judgment in favor of

GTB restricting any interference with the consent order.

We do not agree.

A district court has the jurisdiction to enforce consent

decrees. Vanguards of Cleveland v. City of Cleveland, 23

F.3d 1013, 1018 (6th Cir. 1994) (citing Williams v.

Vukovich, 720 F.2d 909, 920 (6th Cir. 1983)). Such decrees

are settlement agreements "subject to continued judicial

policing." Jd. at 1017. In addition, a consent decree must

be construed "to preserve the position for which the parties

bargained." /d. at 1018.

The consent order at issue in this case expressly provided

GTB the right to fish in its traditional fishing grounds. This

order was litigated and found sufficient to "protect[] the

Indian reserved treaty fishing right" 12 ILR 3079,

established by the 1836 and 1855 treaties, and affirmed by

the Michigan litigation. See United States v. Michigan, 471

F. Supp. 192. The treaty rights, as discussed, include

transient mooring access to the marinas. Asa result, and in

furtherance of the consent order, then, GTB is permitted to

moor its vessels at the marinas. To do otherwise would

interfere with the express purpose of the consent order.

Although the municipalities were not named parties to the

order, it is well settled that third parties who interfere with

a court order may be enjoined from doing so. See

A-17

Washington State Commercial Passenger Fishing Vessel,

443 U.S. at 693 n.32. In Washington State Commercial

Passenger Fishing Vessel, the Supreme Court found that

commercial fishing associations who were interfering with

the district court’s order pursuant to a Native American

treaty, could be bound by the order, although they were not

parties to the proceeding that led to the issuance of the

order. /d. The Court found in the alterative, that the

fishing association’s members, as citizens of the State of

Washington which was a party to the prior proceedings,

could be bound on that basis as well. /d. We find

Washington State Commercial Passenger Fishing Vessel

controlling. Here too, third parties are attempting to

interfere with a prior court order mandating that Native

American treaty fishers be permitted to fish in their

traditional grounds. Additionally, the alternative basis

provided in Washington State Commercial Passenger

Fishing Vessel is applicable because the Village of

Northport and the Township of Leland are instrumentalities

of the state. MDNR, is also an instrumentality of the state,

and thus any agreements made by MDNR conflicting with

the consent order would also be void abinito with respect to

GTB.

Furthermore, we find the Second Circuit’s position in

Association for Retarded Citizens of Connecticut v. Thorne,

30 F.3d 367 (2d Cir. 1994), cert. denied, 513 U.S. 1079

A- 18

(1995), distinguishable.” In Thorne, the Second Circuit

ruled that the district court had improperly joined a third

party as a defendant in the litigation and had improperly

issued a preliminary injunction against the third party

requiring it to abide by the terms of a previously entered

final order. Jd. at 368. The court noted that the All Writs

Act, used as a basis for the district court’s decision, did not

grant a district court the authority to enforce a decree -

against a nonparty to a privately negotiated settlement

agreement. /d. at 370. The court contrasted an instance

"(w]here the district court exercises its jurisdiction to rule

on the merits of a litigation...determines that the law

requires a certain outcome and is empowered to issue

remedial orders to effectuate that outcome," with a privately

negotiated consent decree that does not determine the rights

and obligations of the parties as required by law. Id. In

the latter case, the district court found that the All Writs

Act does not empower a district court to enforce the

privately negotiated decree against those not parties to it.

Id. In the present case, to the contrary, the consent order

was adopted pursuant to litigation which determined that the

'2Moreover, the district court, although citing the All

Writs Act as permitting the court to fashion orders against

third parties who frustrate the implementation of a court

order, see 28 U.S.C. § 1651, expressly declined to issue an

injunction pursuant to the Act, noting that declaratory relief

would permit access issues to resolve themselves.

A-19

Bae Re oe

law expressly required that GTB be permitted to fish the

Great Lake region as provided by treaty. Therefore, the

Second Circuit’s decision is distinguishable here.

Il.

In sum, the treaties of 1836 and 1855 grant GTB access

to moor their commercial vessels on the municipalities’

marinas. The municipalities may not interfere with this

access without violating the treaties and the 1985 consent

order. We note that this decision grants only a transient

right to moor on an occasional basis in common with the

recreational public who also utilize the facilities.

Accordingly, the district court’s judgment granting partial

summary judgment to GTB is AFFIRMED.

DISSENT

RYAN, Circuit Judge, dissenting. In my judgment, the

Grand Traverse Band of Ottawa & Chippewa Indians is not

entitled to moor its fishing vessels at the marinas at Leland

or Northport either by virtue of the Treaties of 1836 and

1855, or by virtue of the consent judgment between the

tribe and the State of Michigan. Therefore, I respectfully

dissent.

The GTB’s brief repeatedly makes the following

statement: "In order to have access to the fishing

opportunities" to which they are undeniably entitled, the

"GTB must be able to utilize mooring slips at the Leland

and Northport marinas, because no other access exists ...

." (Emphasis added.) If this proposition is an abbreviated

syllogism, it is an invalid one: the term "access" simply

does not denote "mooring." I do not dispute that in order

to carry on its commercial fishing business, the GTB must

use vessels that cannot be trailered; nor do I dispute that in

order to use these vessels, the operators must be able to

moor them occasionally at a marina. But, rather plainly, it

does not follow that the tribe’s need for marina facilities

creates a right to use Leland’s or Northport’s marinas.

A- 21

Perhaps the State of Michigan is obligated to build the GTB

a marina; perhaps the GTB must build its own marina; I

offer no opinion about these matters. But certainly the

GTB’s need of a marina does not give rise to an obligation

on the part of Leland or Northport to provide one.

Even the solemn business of interpreting age-old treaty

obligations requires the application of some common sense.

With all due respect, I fail to see the common sense in

construing 1885 Indian fishing rights treaty obligations as

including the right to moor commercial fishing vessels in

municipal marinas built more than a hundred years later.

The GTB did not use the marinas before the incidents

leading to this lawsuit. While the tribe suggests that its

enjoyment of its fishing rights was imperfect during this

period because it could not dock its boats anywhere, it

makes no claim that the building of the marinas had any

adverse effect on its rights. Thus, the construction of the

marinas certainly did not impede access to the fishing

grounds, or make access in any sense more difficult; in fact,

the existence of the marinas does not interfere with the

GTB’s access one whit. Likewise, the GTB does not claim

it was entitled, either as an incident of its treaty rights or as

an incident of the consent order between it and the State of

Michigan, to have Leland, Northport, or anyone else build

marinas for its use. The GTB’s argument is simply that

now that the marinas do exist, it must be permitted to moor

there because mooring is an incident of its right of access

A -22

to the fishing grounds. Presumably, since the GTB has a

right of access to the waters of Lake Michigan over

virtually all of the shoreline ("every piece of land") of the

Leelanau Peninsula, the tribe has a corresponding treaty

right to moor its boats at every marina to be built hereafter

at any location on the shoreline. But that, of course, is

absurd. |

To me, the fact that using the Leland and Northport

marinas would make the GTB’s indisputable right of access

to Lake Michigan more convenient proves nothing. The

municipalities make a persuasive analogy: When a

landlocked estate has an implied access easement over a

servient estate, that means the landlocked-estate’s owners

may use a road over the servient estate. And if the road is

originally dirt but is paved by the servient-estate’s owner,

the landlocked-estate’s owner may continue using the road,

in its new improved state, and is not required to pay for

that improvement. But if the servient-estate’s owner builds

a garage next to the road, the landlocked-estate’s easement

over the road does not now give rise to a right to spend the

night in the garage, no matter how sympathetic the

circumstances. Even if the landlocked-estate’s owner has

been ordered by a court in an unrelated matter not to use a

car, and therefore has to walk down the road, and the road

is long, and he occasionally gets very tired or caught in a

rainstorm while walking down the road, he still is not

entitled to take shelter in the garage.

A - 23

At bottom, my objection is simple. The building of these

marinas did not change anything about the GTB’s access

rights; the marinas neither increased nor decreased the

GTB’s ability to access the fishing grounds in question.

The responsibility for an absence of modern, efficient, and

meaningful "access" cannot be laid at the door of Leland

and Northport, and therefore, they are not required to

ameliorate the problem by allowing commercial fishing

vessels to moor at the marinas they built for the exclusive

use of recreational vessels.

I would reverse.

NOT REC N ICATION

Nos. 96-2396/96-2466

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Grand Traverse Band

of Ottawa and Chippewa

Indians,

Plaintiff-Appellee,

eo @ & © €@

Cross-Appellant, * On appeal from the United

* States District Court for the

v. * Western District of Michigan

Director, Michigan ¥

Department of Natural ”

Resources; Township :

of Leland; Village of *

Northport, °

Defendants-Appellants*

Cross-Appellees, ss

BEFORE: JONES, NELSON and RYAN, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge. This is

an appeal and cross-appeal of an award of attorney’s fees

under 42 U.S.C. § 1988. The full facts of the underlying

litigation in this appeal are set out in this court’s opinion in

B- 1

Grand Traverse Band of Ottawa and Chippewa Indians v.

Director, Michigan Department of Natural Resources, et. al,

No. 96-1168, 1998 WL 171331 (6th Cir. April 15, 1998).

For the purpose of the attorney’s fees issue we briefly

summarize the pertinent facts.

The Grand Traverse Band of Ottawas and

Chippewas (“GTB”) sued the Village of Northport, the

Township of Leland and the Director, Michigan Department

of Natural Resources (“MDNR”) challenging commercial

use prohibitions contained in agreements between MDNR

and the municipalities that prevented GTB tribal fishers

from mooring their commercial fishing vessels at the

municipalities’ marinas. GTB charged that enforcement of

the commercial use restrictions against them deprived its

members of the right to fish guaranteed by treaties with the

United States in 1836 and 1855, as well as a 1985 consent

judgment entered into with the State of Michigan. These

documents, GTB asserted, entitled its members to fish

certain traditional fishing grounds located in the Great

Lakes areas, and to enjoy a right of access to these areas

that included mooring access to the municipalities’ marinas.

GTB also asserted two claims under 42 U.S.C. § 1983, that

the enforcement of the commercial use prohibitions violated

its rights of due process and equal protection of the laws.

B-2

On December 19, 1995, the district court granted

summary judgment to GTB on its treaty-based and consent

judgment claims to establish mooring access to the

municipalities’ marinas. The district court granted summary

judgment to the municipalities, however, on GTB’s equal

protection claim, and in a footnote of the opinion declined

to rule on the due process claim finding that the claim

needed further briefing. J.A. at 530 n.1. Subsequently, in

a letter to the district court on December 29, 1995, GTB

voluntarily dismissed the due process claim “in the spirit of

comity” because the grant of partial summary judgement in

its favor provided GTB with sufficient relief. J.A. at 548.

This court affirmed the district court’s decision granting

transient mooring access to GTB on appeal.

GTB then sought attorney’s fees from both

Northport and Leland.' On August 19, 1996, Gb iiled an

amended bill of costs for attorney’s fees and expenses under

42 U.S.C. § 1988 for the following: 1) approximately

552.59 hours of billed attorney’s fees in the primary

litigation, at $175.00 an hour totaling $96,703.25; 2) 335.43

hours of billed attorney’s fees in ancillary federal and state

'GTB did not seek fees against MDNR. After the filing

of time lawsuit, MDNR supported GTB’s request for

mooring access and submitted a memorandum to the district

court in GTB’s favor.

B - 3

court proceedings’ concerning: a) the arrest of a GTB

member for mooring at the Northport Marina, and b) access

to the Northport marina, at $175.00 an hour totaling

$58,700.25; 3) expenses in the primary proceeding of

$1,815.06; and 4) expenses in the ancillary state and federal

court proceedings of $617.76. J.A. at 845-46.

In three separate opinions, the district court granted

GTB fees and held the municipalities jointly and severally

liable for the entire amount of $98,518.31 (fees plus

expenses) for the primary litigation. The district court

We refer to three separate proceedings as the “ancillary

proceedings” for which GTB seeks attorney’s fees. The

proceedings arose after a GTB tribal fishermen, George

Duhamel, was arrested and prosecuted for criminal trespass

when he docked his commercial fishing vessel at the

Northport Marina. In response, GTB sought declaratory

and injunctive relief in federal court in United States v.

Michigan, No. 2 73 CV 26, the first of the three separate

proceedings, and a case over which the district court had

continuing jurisdiction under the terms of the 1985 consent

order. Apparently, the resolution of this case rendered that

suit superfluous and that action was dismissed as moot. In

the second proceeding, Northport commenced civil

proceedings in state court against Duhamel seeking an

injunction prohibiting Duhamel from mooring his vessel at

its marina. GTB defended Duhamel in this state court civil

action and also in the state court criminal proceeding

concerning the trespass charge. GTB sought attorney’s fees

for all three of these proceedings, however, only against

Northport.

B-4

‘>

determined that although it had declined to address GTB’s

§ 1983 due process claim in its initial determination of

summary judgement, the claim arose out of time same

nucleus of facts as time treaty-based claims and as a

prevailing party in the primary litigation GTB was entitled

to a fee award. The district court, however, declined to

award fees in the ancillary federal and state court

proceedings, noting that the municipalities were not even

parties to the federal proceedings and that the fees in the

state proceedings did not specifically concern GTB, but one

of its members.’ The municipalities appeal time district

court’s award of attorney’s fees in the primary litigation and

GTB cross—appeals the denial of fees in the ancillary

proceedings.

II.

We review a district court’s grant of attorney’s fees

for an abuse of discretion, giving the district court’s award

of fees “substantial deference.” Hadix v. Johnson, 65 F.3d

532, 534 (6th Cir. 1995) (citing Hensley v. Eckerhart, 461

U.S. 424, 437 (1983)). In so doing, we apply a clearly

erroneous standard in determining whether the prevailing

*In one opinion concerning attorney’s fees, the district

court initially found that GTB might be entitled to fees for

the ancillary proceedings, but after further briefings by the

parties declined to award fees.

B-5

party has in fact worked the hours claimed; we determine

whether the court erred "when reviewing legal questions

concerning the relationship of the hours billed to the points

on which the party prevailed”; and “we look to see whether

the district court has misapplied the reasonable practices of

the profession when determining whether a party used poor

judgment in billing the opposing party for hours spent on

the case.” Wooldrige v. Marlene Industries Corp., 898 F.2d

1169, 1175 (6th Cir. 1990).

While each party to a lawsuit ordinarily bears his or

her attorney’s fees and costs, 42 U.S.C. § 1988 authorizes

an award of reasonable attorney’s fees to prevailing parties

in civil rights litigation. Hensley, 461 U.S. at 429. Under

that section, which provides that “[i]n any action or

proceeding § 1988 because it is not an action to enforce §

1983. Treaty interpretation claims, the municipalities argue,

do not support claims under § 1983.

In the Washington litigation, relied upon by the

municipalities, the Ninth Circuit discussed the issue of

attorney’s fees in Native American treaty cases. See United

States v. Washington, 935 F.2d 1059 (9th Cir. 1991)

(Washington IV); United States v. Washington, 873 F.2d

240 (9th Cir. 1989) (“Washington III”); United States v.

Washington, 813 F.2d 1020 (9th Cir. 1987) (“Washington

II’); United Slates v. Washington, 774 F.2d 1470 (9th Cir.

1985) (“Washington I"). In Washington II, the Ninth

Circuit found that treaty interpretation claims do not give

B- 6

rise to claims cognizable under § 1983 unless those claims

involve “known and well—delineated rights.” Washington

IL, $13 F.2d at 1023. The court noted that throughout the

prior litigation in the case concerning the Native

American’s right to fish under several treaties, there was no

discussion of the state’s violation of the Native Americans’

rights under the treaties or the Fourteenth Amendment,

because those rights were unknown until after a Supreme

Court decision defining those rights. Jd. The court found,

however, that if the State of Washington presently had

violated the rights delineated by the Supreme Court in the

earlier litigation, there would be an actual conflict between

state and federal law which might give rise to a § 1983

action. Jd. Because the treaty interpretation claims did not

involve known and well delineated rights, the court found

that they could not give rise to a § 1983 claim and

accordingly could not serve as a basis for awarding

attorney’s fees. /d.

The court also rejected a second alternative basis for

§ 1988 attorney’s fees, that there was a pendent Fourteenth

Amendment claim pleaded in the original complaint, finding

that any such claims “lurking about were so attenuated and

unsubstantial as to be absolutely devoid of merit.” /d.

(citations and quotation marks omitted). In Washington III,

the Ninth Circuit again reversed an award of attorney’s fees

in Phase II of the litigation, finding that the judgment in the

case resulted from treaty interpretation and was not based

B-7

on a violation of rights under the treaty, and as such could

not be a basis for an award attorney’s fees. Washington III,

873 F.2d at 242. In Washington IV, however, the Ninth

Circuit reversed the district court’s decision denying a

request for fees in the case. The court held that fees were

proper in that aspect of the litigation because it was a

subproceededing to enforce the Native Americans’ rights to

take certain fish. Washington IV, 935 F.2d at 1061. The

court found that previous litigation had attempted to define

the treaty rights, but that the subproceeding involved in its

case was purely an action to enforce them. /d. The court

noted that the district court had not been required, as in

prior litigation, to interpret the treaties on define the rights

conferred, but instead to enforce well-defined _ rights

recognized by both parties. /d Accordingly, the court

found that attorney’s fees could be awarded on that claim.

Id.

We decline, however, to decide whether this circuit

will adopt the Ninth Circuit’s “known and well—delineated

rights” test for determining whether treaty claims may

properly serve as a basis for awarding attorney’s fees under

§ 1988. Rather, we rely on the basis used to award fees

“We do note, nonetheless, that GTB does have a strong

argument that their case, unlike Washington II and

Washington III was a claim to enforce their well-delineated

rights. Unlike those cases, GTB did specifically allege that

the defendants were violating the treaties, and their right to

B-8

by the district court in this case, that the unaddressed §

1983 claim brought in the suit may serve as a basis for

awarding fees.”

It is well settled that if a party prevails on a non-fee

generating claim that is pendent to a fee-generating § 1983

claim, fees may be awarded for the entire action if the non-

fee—generating claim is “substantial” and both claims arose

out of a common nucleus of operative fact. See Maher v.

Gagne, 448 U.S. 122, 132-33 n.15 (1980) (‘The legislative

history makes it clear that Congress intended -fees to be

awarded where a pendent constitutional claim is involved,

even if the [other] claim on which the plaintiff prevailed in

one for which fees cannot be awarded... [I]f the claim for

which fees may be awarded meets the ‘substantiality test...

attorney’s fees may be allowed even though the court

declines to enter judgment for the plaintiff on that claim, so

fish and for access to their fishing grounds had been well

established since the litigation in United Slates v. Michigan,

471 F.Supp. 192 (W.D. Mich. 1979), modified in part, 653

F.2d 277 (6th cir. 1981) and the subsequent consent

judgment in that case.

SThe district court acknowledged that GTB’s alternative

basis for seeking attorney’s fees was that time treaty claim

itself could have been expressed as a § 1983 claim, but

found that no purpose would be served by ruling on that

basis. J.A. at 58.

B-9

lomg as the plaintiff prevails on the non-fee claim arising

out. of a ‘common nucleus of operative fact.’”) (citations

omitted); see also Seaway Drive-In, Inc. v. Township of

Clay, 791 F.2d 417, 451—52 (6th Cir. 1986), Carreras, v.

City of Anaheim, 768 F.2d 1039, 1050 (9th Cir. 1985);

Williams v. Thomas, 692 F.2d 1032, 1036 (Sth Cir. 1982);

Lund v. Affleck, 587 F.2d 75, 77 (1st Cir. 1978); Seals v.

Quarterly County Court of Madison County, Tennessee, 562

F.2d 390, 393-94 (6th Cir. 1977).

The test for substantiality is quite liberal and does

not even require that the claim be supported by the

evidence. Seaway, 791 F.2d at 452—53. Indeed, “a claim

is insubstantial [only] if it is ‘obviously without merit’ or if

‘its unsoundness so clearly results from the previous

decisions of [the Supreme Court] as to foreclose the subject

and leave no room for the inference that the question sought

to be raised can be the subject of controversy....““ Jd. at

452 (citation omitted). Thus, “[t]he claim must be ‘so

insubstantial, implausible, foreclosed by prior decisions of

[the Supreme Court] or otherwise completely devoid of

merit as not to involve a federal controversy....““ Jd.

(citation omitted)..

We find, as did the district court, that the

unaddressed § 1983 due process claim was substantial.°

*We do not rely on GTB’s § 1983 equal protection

claim as a basis for an award of fees because the district

B- 10

GTB argued that the municipalities deprived GTB and its

tribally licensed fishers of their treaty reserved property

rights in the fisheries’ resources, and deprived its members

of entitlement to a protected liberty interest when they were

jailed for mooring at the marinas and prevented from

pursuing their occupations. The district court upon initial

review declined to grant summary judgment and dismiss the

claim on the merits although it could have done so, finding

that the resolution of the claim was not clear, and it needed

further briefing. The district court then determined with

regard to the issue of attorney’s fees, that the claim was

substantial-to the extent it claimed deprivation of procedural

due process by the municipal defendants. Upon review we

agree. Although there is dearly insufficient evidence to

support a judgment on the claim, it is not so wholly without

merit as to be insubstantial and completely implausible. The

district court in granting summary judgment on the treaty-

based claim noted that GTB’s fishers were bcing

unreasonably deprived of their ability to commercially

harvest fish from traditional fishing areas by the denial of

mooring at the marinas, an interest which may serve as a

basis for constitutional relief. Cf Wilkerson v. Johnson,

court granted summary judgment to the municipalities on

that claim, and accordingly it should not be used as a basis

for fees. See McDonald v. Doe, 748 F.2d 1055, 1057 (Sth

Cir. 1984) (finding that an award of attorney’s fees could

not be based On a failed civil rights claim).

B- Il

699 F.2d 325, 328 (6th Cir. 1983) (finding that plaintiff

was unconstituticnally deprived of liberty interest when

prevented from pursuing business); cf also Greene v.

McElroy, 360 U.S. 474, 492 (1959) (noting that the right to

employment and to follow a chosen profession free from

unreasonable governmental interference were liberty and

property rights protected by the Constitution); Schware v.

Bd. of Bar Examiners, 353 U.S. 232, 238 (1957) (same).

We also conclude that the district court correctly

determined that the claim was reasonably related and based

on a common core of operative facts as the treaty-based

claims. Essentially, all of the claims advanced by GTB

were based on the fact that the municipalities refused to

allow GTB to moor its commercial fishing vessels at the

marinas, and simply were alternative arguments for

challenging the commercial use restrictions. Thus, the

district court did not err by finding that GTB may be

awarded attorney’s fees for this case.

III. Reasonable Fees

The ‘nunicipalities contend that even if GTB was

properly found to be entitled to fees, the amount of the fees

was not reasonable. The municipalities challenge both the

$175 per hour rate of GTB’s attorney William Rastetter,

and the number of hours charged by him. The

municipalities further contend that the district court should

have reduced the fee award to take into account the

B- 12

IOI E LEE POLI EOP LIP ES! VL LEED

eee Rep SHES

“limited” success of GTB and should have apportioned fees

against the state defendant, MDNR.

A. Hourly Rate

When considering a petition for attorney’s fees the

starting point is the lodestar calculation, which is calculated

by multiplying the number of hours reasonably spent on the

litigation by a reasonable hourly rate. Wayne v. Village of

Sebring, 36 F.3d 517, 531 (6th Cir. 1994) (citing Hensley,

461 U.S. at 433). The district court has broad discretion to

determine a reasonable hourly rate. /d at 533. A

reasonable rate should be based on prevailing market rates

in the community for the services rendered by similar

attorneys of comparable skill, experience and reputation.

Hadix, 65 F.3d at 536 (citation omitted). The district court

determined that GTB’s request for attorney’s fees at a rate

of $175 per hour was reasonable and we agree. William

Rastetter, the attorney who represented GTB, has been

practicing law for more than 25 years, has represented GTB

for several years in this litigation, and has special expertise

in federal and Indian law. The district court, which is very

familiar with this litigation, having continuing supervisory

authority over the 1985 consent judgment regarding GTB’s

right to fish, recognized the specialized practice in federal

and Indian law that this work required, and noted that the

defendants ther. elves had initially conceded that the $175

per hour rate sought by GTB was reasonable. J.A. at 44-

B - 13

45. GTB also submitted several affidavits from attorneys

in the Traverse City area providing that the rate for

attorneys with special expertise was $175 per hour or more.

J.A. at 645, 650, 654. Thus, we find that the district court

did not abuse its discretion in determining that a rate of

$175 was reasonable based on the experience and expertise

of GTB’s attorney and the prevailing market rate in the

community.

B. Hours Expended

The next issue is whether the amount of hours

charge by GTB’s counsel were reasonable. In determining

whether the hours requested are reasonable, this court uses

a three-tiered approach. The first step is to review the

district court’s determination that the party has actually

worked the hours set forth in the bill of costs for clear

error. Wooldrige, 898 F.2d at 1176. We then determine

whether the district court erred in determining legal

questions concerning the relationship between the hours

billed and the point on which the party prevailed. /d.

Finally, we determine whether the district court misapplied

reasonable practices of the profession when billed the

opposing party for the hours spent. Jd. The municipalities

argue that GTB’s attorney listed various task performed

each day, but offered only a total number of hours worked

per day without separating hours by subject matter or task,

which they argue made it impossible to estimate the amount

B- 14

of time spent on any individual tasks and to determine

whether that time was reasonable. They also argue that fee

entries were excessive, redundant or otherwise unnecessary.

We reemphasize that it is the district court, with its

“superior understanding of the litigation,” that is best suited

for determination of the reasonableness of the fees.

Hensley, 461 U.S. at 437. Additionally, GTB’s counsel, is

of course “not required to record in great detail how each

minute of his time was expended....[It is enough that

counsel]...identify the general subject matter of his time

expenditures.” /d at 437 n. 12. GTB’s attorney requested

fees for time involving this litigation encompassing more

than two years, documenting each activity expended in the

litigation. J.A. at 587-617, 704-07. The district court

provided a concise and clear explanation as to why it felt

that the hours requested were reasonable, noting that the

extensive legal briefings filed in the case illustrated the

complex issues involved and supported the amount of time

billed by GTB‘s attorney. It concluded that the total hours

of 552.59, for more than two years worth of work, was

reasonable given the large demands of the litigation. J.A.

at 46. While GTB’s attorney did not specify in minute

detail the amounts of time each separate activity required,

it is apparent that the district court did not clearly err by

finding that GTB’s counsel in fact performed the services

listed on his billing statements on a given day and for the

number of hours provided. Moreover, the municipalities

B - 15

make only generalized objections to the number of hours on

appeal, and only directly challenge work done with respect

to the ancillary proceedings (work which the disirict court

declined to award fees for).

C. Reduction for “Limited” Success :

The municipalities argue that the fee award should

be reduced based on the “limited” success of GTB, because

it was granted transient mooring access as opposed to a

permanent right to moor at their marinas. This argument is

wholly without merit and borders on the frivolous. GTB

never requested a right of permanent mooring, but simply

that the commercial use restrictions be declared

unenforceable against it. J.A. at 24. This relief is precisely

what the district court ordered. The fact that the district

court granted a transient right to access the marinas, in

common with the recreational public, does not in any way

obviate the degree of success obtained by GTB. In fact,

GTB “has obtained excellent results....[and its] attorney

should recover a fully compensatory fee...encompass[ing] all

hours reasonably expended on the litigation....” Hensley,

461 U.S. at 435. :

D. Apportionment

Finally, the municipalities argue that the district

court should have apportioned fees against defendant

MDNR. They maintain that MDNR is the more culpable

B - 16

defendant because the agreements restricting the commercial

use of their marinas were drafted by MDNR, and GTB

initially filed suit only against MDNR and later joined the

municipalities as defendants.

GTB, however, did not request fees from MDNR

because MDNR assisted GTB in its assertion of a right to

moor at the marinas. The Joint Status Report filed

February 5, 1995, observed: “the [MDNR] has indicated a

willingness to relieve the municipal government defendants

of the contractual obligation prohibiting commercial! use if

requested to do so by these defendants.” J.A. at 82. In

addition, MDNR filed a memorandum supporting GTB’s

motion for summary judgment. /d at 405—16.

Specifically, MDNR argued that GTB’s use of the mooring

slips did not violate the commercial use contained in the

agreements; maintained that the municipalities had

obstructed the 1985 consent order: and requested that the

district court enter an order requiring the municipalities to

permit GTB to moor. It is within the district court’s

discretion to apportion fee among defendants. Anderson v.

Flexel Inc., 47 F.3d 243, 251 (7th Cir. 1995); Koster v.

Perales, 903 F.2d 131, 139 (2d Cir. 1990). The court-may

consider the relative culpability of the parties against whom

fees are awarded and the proportion of time spent litigating

against each of those parties. Koster, 903 F.2d at 139.

Taking those factors into consideration, we find that the

B- 17

district court properly declined to apportion fees against

MDNR.

IV.

In the cross—appeal, GTB maintains that the district

court erred in denying its request for attorney’s fees for

ancillary proceedings in the United Sates v. Michigan

litigation, as well as the state court civil and criminal

litigation involving GTB member, George Duhamel. An

award of fees for ancillary proceedings is proper if the work

was “useful and of a type ordinarily necessary” to secure

the relief requested in the primary proceeding. Webb v.

Dyer Cty. Bd. of Ed. 471 U.S. 234, 243 (1985). It is

within the discretion of the district court to decide whether

ancillary fees are appropriate. Jd at 243—44; see also

Pennsylvania v. Delaware Valley Citizens’ Council, 478

U.S. 546, 561 (1986),

The district court found that although some of the

legal work performed in the United States v. Michigan case

may have aided in the subsequent action against the

municipalities, it would be patently unfair and contrary to

established to assess these defendants for such fees since

neither defendant appeared as a party in the earlier matter.

It further concluded that it was doubtful that the hours were

necessary or useful to the resolution of this litigation. Wee

agree. The district court was within its discretion to deny

fees for the ancillary proceeding where neither of the

B- 18

municipalities were parties to that litigation and indeed were

informed by the district court that they would not be

permitted to file pleadings in that litigation. J.A. at 42.

Moreover, there is no evidence that the work done in the

United States v. Michigan proceeding was necessary to the

primary litigation. Similarly, the district court did not err

by declining to award attorney’s fees for the state court

ancillary proceedings. GTB was never a named party of

those criminal proceedings and the work, as the district

court noted, was performed largely on behalf of someone

other than GTB. Moreover, we generally do not grant

attorneys fees when a party chooses to defend criminal

proceedings before instituting civil rights litigation relating

to the matter. See Greer v. Holt, 718 F.2d 206, 208 (6th

Cir. 1983).

We AFFIRM.

B- 19

RYAN, Circuit Judge, concurring. In my

a. — in Tag oN

Neturif Teleniiehen: 141 F.3d 635 (6th Cir. 1998), I stated:

In my judgment, the Grand Traverse Band of

Ottawa & Chippewa Indians is not entitled

to moor its fishing vessels at the marinas at

Leland or Northport either by virtue of the

Treaties of 1836 and 1855, or my virtue of

the consent judgment between the tribe and

the State of Michigan.

I explained my reasons for that view, but my colleagues

were not persuaded and held otherwise.

Consequently, for the reasons explained in my

brother’s opinion in this case, I agree that the plaintiff's

unaddressed but not insubstantial 42 U.S.C. § 1983 claim

justifies an award of attorney fees under § 1988.

96-1168

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Grand Traverse Band of

Ottawa and Chippewa Indians,

Plaintiff-Appellee,

Director, Michigan Department

of Natura’ Resources,

Defendant,

Township of Leland, et al

)

Defendants-Appellants. )

BEFORE: JONES, NELSON, and RYAN, Circuit Judges.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a

vote on the suggestion for rehearing en banc, the petition

for rehearing has been referred to the original panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the petition

were fully considered upon the original submission and

decision of the case. Accordingly, the petition is denied.

Judge Ryan would grant rehearing for the reasons stated in

his dissent.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green ___

Leonard Green, Clerk

TREATY WITH THE OTTAWAS, ETC. 1836.

Mes-quaw-buck, Was-baw-que-ke-aw,

Mess-Sett, Naush-waw-pi-tant,

Muck-kose, Che-qua-sau-quah.

C. Carter, Secretary. Edward McCartney, Enteprt.

To the Indian names are subjoined marks.

ARTICLES OF A TREATY

Made and concluded at the city of Washington in the

District of Columbia, between Henry R. Schoolcraf,

commissioner on the part of the United States, and the

Ottawa and Chippewa nations of Indians, by their chiefs

and delegates.

March 28, 1836.

Proclamation,

May 27, 1836.

Cession of Land

to the U.S.

ARTICLE FIRST. The Ottawa and Chippewa

nations of Indians cede to the United States all the tract of

country within the following boundaries: Beginning at the

mouth of Grand river of Lake Michigan on the noth bank

thereof, and following up the same to the line called for, in

the first article of the treaty of Chicago of the 29th of

August 1821, Ante, p. 218 thence, in a direct line, to the head

D-1

of Thunder-bay river, thence with the line established by the

treaty of Saganaw of the 24th of September 1819, to the

mouth of said river, thence northeast to the boundary line

in Lake Huron between the United States and the British

province of Upper Canada, thence northwestwardly,

following the said line, as established by the commissioners

acting under the treaty of Ghent, through the straits, and

river St. Mary’s, to a point in Lake Superior north of the

mouth of Gitchy Seebing, or Chocolate river, thence south

to the mouth of said river and up its channel to the source

thereof, thence, in a direct line to the head of the Skonawba

river of Green bay, thence down the south bank of said

river to its mouth, thence, in a direct line, through the ship

channel into Green bay, to the outer part thereof, thence

south to a point in Lake Michigan west of the north cape,

or entrance of Grand river, and thence east to the place of

beginning, at the cape aforesaid, comprehending all the

lands and islands, within these limits, not hereinafter

reserved.

Reservations

in common.

ARTICLE SECOND. — From the cession aforesaid

the tribes reserve for their own use, to be held in common

the following tracts, namely: One tract of fifty thousand

acres to be located on Little Traverse bay: one tract of

twenty thousand acres to be located on the north shore of

Grand Traverse bay, one tract of seventy thousand acres to

D-2

be located on, or, north of the Pieire Marquetta river, one

tract of one thousand acres to be located by Chingassanoo,--

—or time Big Sail, on the Cheboigan. One tract of one

thousand acres, to be located by Mujeekewis, on Thunder-

bay river.

Reservations

for Chippewas.

ARTICLE THIRD. There shall also be reserved for

the use of the Chippewas living north of the straits of

Michilimackinac, the following tracts, that is to say: Two

tracts of three miles square each, on the north shores of the

said straits, between Point-au-Barbe and Mille Coquin river,

including the fishing grounds in front of such reservations,

to be located by a council of the chiefs. The Beaver islands

of Lake Michigan for the use of the Beaver-island Indians.

Round island, opposite Michilimackinac, as a place of

encampment for the Indians, to be under the charge of the

Indian department. The islands of time Chenos, with a part

of the adjacent north coast of Lake Huron, corresponding in

length, and one mile in depth. Sugar island, with its islets,

in the river of St. Mary’s. Six hundred and forty acres, at

the mission of the Little Rapids. A tract commencing at the

mouth of Pississowining river, south of Point Iroquois,

thence running up said stream to its forks, thence westward,

in a direct line to the Red water lakes, thence across the

portage to the Tacquimenon river, and down the same to its

mouth, including the small islands and fishing grounds, in

D - 3

het

front of this reservation. Six hundred and forty acres, on

Grand island, and two thousand acres, on the main land

south of it. Two sections, on the northern extremity of

Green bay, to be located by a council of the chiefs. All the

locations, left indefinite by this, and the preceding articles,

shall be made by the proper chiefs, under the direction of

the President. It is understood that the reservation for a

place of fishing and encampment, made under the treaty of

St. Mary’s o the 16th of June 1820 (Ante, p.206), remains

unaffected by this treaty.

Payments to be made

te the Indians.

ARTICLE FOURTH. In consideration of the foregoing

cessions, the United States engage to pay the Ottawa and

Chippewa nations, the following sums, namely. Ist. An

annuity of thirty thousand dollars per annum, in specie, for

twenty years; eighteen thousand dollars, to be paid to the

Indians between Grand river and the Cheboigun; three

thousand six hundred dollars, tot he Indians on the Huron

shore, between Cheboigan and Thunder-bay river; and seven

thousand four hundred dollars, to the Chippewas north of

the straits, as far as the cession extends; the remaining one

thousand dollars, to be invested in stock by the Treasury

Department and to remain incapable of being sold, without

the consent of the President and Senate, which may,

however, be given, after the expiration of twenty-one years.

2nd. Five thousand dollars per annum, for the purposes of

D-4

education, teachers, school-houses, and books in taeir own

language, to be continued twenty years, and as long

thereafter as Congress may appropriate for the object. 3rd.

Three thousand dollars for missions, subject to the

conditions mentioned in the second clause of this article.

4th. Ten thousand dollars for agricultural implements,

cattle, mechanics’ tools, and such other objects as the

President may deem proper. 5th. Three hundred dollars

per annum for vaccine matter, medicine, and the services of

physicians, to be continued while the Indians remain on

their reservations. 6th. Provisions to the amount of two

thousand dollars; six thousarid five hundred pounds tobacco;

one hundred barrels of salt, and five hundred fish barrels,

annually, for twenty years. 7th. One hundred and fifty

thousand dollars, in goods end provisions, on the ratification

of this treaty, to be delivered at Michilimackinac.

Payments of claims

against the Indians.

ARTICLE FouRTH. The sum of three hundred

thousand dollars shall be set apart for the payment of just

debts against the said Indians. All clai1s for such debts

shall be examined by a co..missione to be appointed by

the President and Senate, who shail act under such

instructions as may be given to him, by the order of the

President, for the purpose of preventing the allowance of

unjust claims. The investigation shall be made at

Michilimackinac, and no claims shall be allowed, excerpt

D-5

such as were contracted by Indians living within the district

of country hereby ceded, and to citizens or residents of the

United States. No claim shall be paid out of this fund

unless the claimant will receive the sum allowed to him, as

full payment of all debts, due to him by the said Indians.

If the fund fall short of the full amount of just debts, then

a ratable division shall be made. If it exceeds such amount,

the balance shall be paid over to the Indians, in the same

manner, that annuities are required by law to be paid.

Provision for

half-breeds, & c.

ARTICLE Six. The said Indians being desirous of

making provisions for their half-breed relatives, and the

President having determined, that individual reservations

shall not be granted, it is agreed, that in lieu thereof, the

sum of one hundred and fifty thousand dollars shall be set

apart as a fund for said half-breeds. No personal shall be

entitled to any part of said fund, unless he is of Indian

descent and actually resident within the boundaries

described in the first article of this treaty, nor shall any

thing be allowed to any such person, who may have

received any allowance at any previous Indian treaty. The

following principles, shall regulate the distribution. A

census shall be taken of all the men, women, and children,

coming within this article. As the Indians hold in higher

consideration, some of their half-breeds than others, and as

there is much difference in their capacity to use and take

D - 6

care of property, and, consequently, in their power to aid

their Indian connexions, which furnishes a strong ground

for this claim, it is therefore, agreed, that at the council to

be held upon this subject, the commissioner shall call upon

the Indian chiefs to designate, if they require it, three

classes of these claimants, the first of which, shall receive

one-half more than the second, and the second, double the

third. Each man, woman and child shall be enumerated,

and an equal share, in the respective classes, shall be

allowed to each. If the father is living with the family, he

shall receive the shares of himself, his wife and children.

If the father is dead, or separated from the family, and the

mother is living with the family, she shall have her own

share, and that of the children. If the father and mother are

neither living with the family, or if the children are

orphans, their shall be retained till they are twenty-one

years of age; provided, that such portions of it as may be

necessary may, under the direction of the President be from

time to time applied for their support. All other person as

at the age of twenty-one years, shall receive their shares

agreeably to the proper class. Out of the said fund of one

hundred and fifty thousand dollars, the sum of five thousand

dollars shall be reserved to be applied, under the direction

of the President, to the support of such of the poor half

breeds, as may require assistance, to be expended in annual

installments for the term of ten years, commencing with the

second year. Such of the half-breeds, as may be judged

D-7

incapable of making a proper use of the money, allowed

them by the commissioner, shall receive the same in

installments, as the President may direct.

Two additional

blacksmiths, & c.

ARTICLE SEVENTH. In consideration of the cessions

above made, and as a further earnest of the disposition felt

to do full justice to the Indians, and to further their well

being, the United States engage to keep two additional

blacksmith-shops, one of which, shall be located ont he

reservation north of Grand river, and the other at the Sault

Ste. Marie. A permanent interpreter will be provided at

each of these locations. It is stipulated to renew the present

dilapidated shop at Michilimackinac, and to maintain a

gunsmith, in addition to the present smith’s establishment,

and to build a dormitory for the Indians visiting the post,

and appoint a person to keep it, and supply it with fire-

wood. It is also agreed, to support two farmers and

assistants, and two mechanics, as the President may

designate, to teach and aid the Indians, in agriculture, and

the mechanic arts. The farmers and mechanics, and the

dormitory, will be continued for ten years, and as long

thereafter, as the President may deem this arrangement

useful and necessary; but the benefits of the other

stipulations of this article, shall be continued beyond the

expiration of the annuities, and it is understood that the

whole of this article shall stand in force, and inure to the

D-8

benefit of the Indians, as long after the expiration of the

twenty years as Congress may appropriate for the objects.

Payment for improvements, & c.

ARTICLE EIGHT. It is agreed, that as soon as the

said Indians desire it, a deputation shall be sent to the west

of the Mississippi, and to the country between Lake

Superior and the Mississippi, and a suitable location shall be

provided for them, among the Chippewas, if they desire it,

and it can be purchased upon reasonable terms, and if not,

then in some portion of the country west of the Mississippi,

which is at the disposal of the United States. Such

improvements as add value to the land, hereby ceded, shall

be appraised, and the amount paid to the proper Indian.

But such payment shall, in no case, be assigned to, or paid

to, a white man. If the church on the Cheboigan, should

fall within this cession, the value shall be paid to the band

owning it. The mission establishments upon the Grand

river shall be appraised and the value paid to the proper

boards. When the Indians with it, the United States will

remove them, at their expense, provide them a year’s

subsistence in the country to which they go,, and furnish the

same articles and equipments to each person as are

stipulated to be given to the Pottowatomies (Ante, p. 431.)

in the final treaty of cession concluded at Chicago.

Payment to half-breeds

in leu of reservations.

ARTICLE NINTH. Whereas the Ottawas and

Chippewas, feeling a strong consideration for aid rendered

by certain of their half-breeds on Grand river, and other

parts of the country ceded, and wishing to testify their

gratitude on the present occasion, have assigned such

individuals certain locations of land, and united in a strong

appeal for the allowance of the same in this treaty; and

whereas not such reservations can be permitted in carrying

out the special directions of the President on this subject, it

is agreed, that, in addition to the general fund set apart for

half-breed claims, in the sixth article, the sum of forty-eight

thousand one hundred and forty-eight dollars shall be paid

for the extinguishment of this class of claims, to be divided

in the following manner: To Rix Robinson, in lieu of a

section of land, granted to his Indian family, on the Grand

river rapids, (estimated by good judges to be worth half a

million,) at the rate of thirty-six dollars an acre: To

Leonard Slater, in trust for Chiminonoquat, for a section of

land above said rapids, at the rate of ten dollars an acre:

To John A. Drew, for a tract of one section and three

quarters, to his Indian family, at Cheboigan rapids at the

rate of four dollars; To Edward Biddle, for one section to

his Indian family at the fishing grounds, at the rate of three

dollars: To John Holiday, for five sections of land to five

persons of his Indian family, at the rate of one dollar and

twenty-five cents; To Eliza Cook, Sophia Biddle, and Mary

D- 10

Holiday, one section of land each, at two dollars and fifty

cents: To Augustin Hamelin jr, being of Indian descent,

two sections, at one dollar and twenty-five cents: To

William Lasley, Joseph Daily, Joseph Trotier, Henry A.

Levake, for two sections each, for their Indian families, at

one dollar and twenty-five cents: To Luther Rice, Joseph

Lafrombois, Charles Butterfield, being of Indian descent,

and to George Moran, Louis Moran, G.D. Williams, for

half-breed children under their care, and to Daniel Marsac,

for his Indian child, one section each, at one dollar and

twenty-five cents.

Payments to chiefs.

ARTICLE TENTH. The sum of thirty thousand dollars

shall be paid to the chiefs, on the ratification of this treaty,

to be divided agreeably to a schedule hereunto annexed.

Annuities to

two aged chiefs.

ARTICLE ELEVENTH. The Ottowas having consider-

ation for one of their aged chiefs, who is reduced to

poverty, and it being known that he was a firm friend of the

American Government, in that quarter, during the late ware,

and suffered much in consequence of his sentiments, it is

agreed, that an annuity of one hundred dollars per annum

shall be paid to Nigweegon or the Wing, during his natural

life, in money or goods, as he may choose. Another of the

chiefs of said nation, who attended the treaty of Greenville

D- 11

in 1793, and is now, at a very advanced age, reduced to

extreme want, together with his wife, and the Government

being apprized that he has pleaded a promise of Gen.

Wayne, in his behalf, it is agreed that Cusco of

Michilimackinac shall receive an annuity of fifty dollars per

annum during his natural life.

Expenses of this treaty

to be paid by U.S.

ARTICLE TWELFTH. All expenses attending the

journeys of the Indians form, and to their homes, and their

visit at the seat of Government, together with the expenses

of the treaty, including a proper quantity of clothing to be

given them, will be paid by the United States.

Right of hunting

on the lands ceded.

ARTICLE THIRTEENTH. The Indians stipulate for the

right of hunting on the lands ceded, with the other usual

privileges of occupancy, until the land is required for

settlement.

In testimony whereof, the said Henry R. Schoolcraft,

commissioner on the part of the United States, and the

chiefs and delegates of the Ottawa and Chippewa nations of

Indians have hereunto set their hands, at Washington, the

seat of Government, this twenty-eighth day of March, in the

year one thousand eight hundred and thirty-six.

D - 12

HENRY R. SCHOOLCRAFT.

Oroun Aishkum, of Maskigo Kawgayosh, of Sault Ste. Marie,

Wassangozo, of do. by Maidosagee,

Osawya, of do. Apawkozigun of L’ Arbre Croche,

Wabi Windego, of Grand river Keminitchagun, of do.

Megiss Ininee, of do. § Tawaganee, of do.

Nabun Ageezhig, of do. Kinoshamaig, of do.

Winnimissagee, of do. § Naganigobowa, of do.

Mukutaysee, of do. Oniasino, of do.

Wasaw Bequm, of do. Mukuday Benais of _ do.

Ainse, of Michilimackinac, | Chingassamo, of do.

Chabowaywa, of do. Aishquagonabee, of Grand

Jawba Wadick, of Sault Ste. Marie, —_‘ Traverse,

Waub Ogeeg, of do. Akosa, of do.

Oshawun Epensaysee, do.

John Hulbert, Secretary. Lucius Lyon. R.P. Parrott,

Capt. U.S. Army. W.P.Zantzinger, Purser U.S. Navy. Josiah F.

Pol. John Holiday. John A. Drew. Rix Robinson. Leonard

Slater. Louis Moran. Augustin Hamelin, jr. Henry A. Levake.

William Lasley. George W. Woodward. C.O. Ermatinger.

To the Indian names are subjoined marks.

Schedule referred to, in the tenth article.

Chiefs entitled

to $500 each.

1. The following chiefs constitute the first class,

and are entitled to receive fund hundred dollars each,

namely: On Grand river, Muccutay Osha, Namatippy,

Nawequa Geezhig or Noon Day, Nabun Egeezhig son of

Kewayguabowequa, Wabi Windego or the White Giant,

Cawpemossay or the Walker, Mukutay Oquot or Black

D - 13

Cloud, Megis Ininee or Wampum-man, Winnimissagee: on

the Maskigo, Osawya, and Owun Aishcum; at L’Arbre

Croche, Apawkozigun, or Smoking Weed, Nisowakeout,

Keminechawgun; at Grand Travers, Aishquagonabee, or the

Feather of Honor, Chabwossun, Mikenok: on _ the

Chebiogan, Chigassamo, or the Big Sail; at Thurnder-bay,

Mujeekiwiss; on the Manistic North, Mukons Ewyan; at

Oak Point on the straits, Ains: at the Chenos, Chabowaywa:

at Sault Ste. Marie, lawba Wadick and Kewayzi Shawano;

at Tacquimenon, Kawgayosh; at Grand Island, Oshawun

Epenaysee, or the South Bird.

2. The following chiefs constitute the second class,

and are entitled to receive two hundred dollars each,

namely: On Grand river, Keeshaowash, Nugogikaybee,

Kewaytowaby, Wapoos or the Rabbit, Wabitouguaysay,

Kewatondo, Zhaquinaw, Nawiqua Geezhig of Flat river,

Kenaytinunk, Weenong, Pabawboco, Windecowiss,

Muccutay Penay or Black Patridge, Kaynotin Aishcum,

Boynashing, Shagwabeno son of White Giant, Tushetowun,

Keway Gooshcum the former head chief, Pamossayga; at

L’ Abre Croche, Saitondowa, Ogiman Wininee, Megisawba,

Mukuday Benais; at the Cross, Nishcajininee,

Nawamushcota, Pabamitabi, Kimmewun, Gitchy Mocoman;

at Grand Traverse, Akosa, Nebauquaum, Kabibonocca; at

Little Traverse, Miscomamaingwa or Red Butterfly,

Keezhigo Benais, Pamanikinong, Paimossega; on the

D- i4

Chegoigan, Chonees, or Little John, Shaweenossegay; on

Thunder bay, Suganikwato; on Maskigo, Wassangazo; on

Ossigomico or Platte river, Kaigwaidosay; at Manistee,

Keway Gooshcum: on river Pierre Markette, Saugima: at

Saulte Ste. Marie, Neegaubayun, Mukudaywacquot,

Cheegud; at Carp river west of Grand island, Kaug

Wyanais: at Mille Cocquin on the straits, Aubunway: at

Michilimackinac, Missutigo, Saganosh, Akkukogeesh,

Chebyawboas.

Chiefs entitled

to $100 each.

3. The following persons constitute the third class,

and are entitled to one hundred dollars each, namely:

Kayshewa, Penasee or Gun lake, Kenisoway, Keenabie of

Grand river: Wasso, Mosaniko, Unwatin Oashcum,

Nayogirna, Itawachkochi, Nanaw Orgomoo, Gitchy,

Peendowan or Scabbard, Mukons, Kinochimaig,

Tekamosimo, Pewaywitum, Mudji Keguabi, Kewayaum,

Paushkizigun or Big Gun, Onaausio, Ashquabaywiss,

Negaunigabowi, Petossegay, of L’Arbre Croche: Poiees or

Dwarf and Pamossay of Cheboigan: Gitchy Ganocquot and

Pamossegay of Thunder bay: Tabusshy Geeshick and

Mikenok, of Carp river south of Grand Traverse; Wapooso,,

Kaubinau, and Mudjeekee of river Pierre Markuette:

Pubokway, Manitowaba, and Mishewatig, of White river:

Shawun Epenaysee and Agausgee of Grand Traverse:

Micqumisut, Chusco of Mackinac; Keeskigjiwun, Waub

D - 15

Ojeeg, Aukudo, Winikis, Jaubeens, Maidosagee, Autya,

Ishquagunaby, Shaniwaygwunabi son of Kakakee, Nittum

Egabowi, Magisanikway, Ketekewegauboway, of Sault Ste.

Marie: Chegauzehe and Waubudo of Grand island:

Ashegons, Kinuwais, Misquaonaby and Mongons of Carp

and Chocolate rivers: Gitchy Penaisson of Grosse Tete, and

Waubissaig of Bay de Nocquet: Kainwaybekis and

Pazhikwaywitum of Beaver island: Neezhick Epenais of the

Ance: Ahdanima of Manistic: Mukwyon, Wahzahkoon,

Oshawun, Oneshannocquot of the north shore of Lake

Michigan: Nagauniby and Keway Gooshkum of the Chenos.

HENRY R. SCHOOLCRAFT,

Commissioner.

D - 16

SUPPLEMENTAL ARTICLE

How certain provisions

in preceding articles

are to be construed.

To guard against misconstruction in some of the

foregoing provisions, and to secure, by further limitations,

the just rights of the Indians, it is hereby agreed: that no

claims under the fifth article shall be allowed for any debts

contracted previous to the late war with Great Britain, or

for goods supplied by foreigners to said Indians, or by

citizens, how did not withdraw from the country, during its

temporary occupancy by foreign troops, for any trade

carried on by such persons during the said period. And it

is also agreed: that no person receiving any commutation

for a reservation, or any portion of the fund provided by the

mutation for a reservation, or any portion of the fund

provided by the sixth article of this treaty, shall be entitled

to the benefit of any part of the annuities herein stipulated.

Nor shall any of the half-breeds, or blood relatives of the

said tribes, commuted with, commuted with, under the

provisions of the ninth article, have any further claim on the

general commutation fund, set apart to satisfy reservation

claims, in the said sixth article. It is also understood, that

the personal annuities, stipulated in the eleventh article,

shall be apid in specie in the same manner that other

annuities are paid. Any excess of the funds set apart in the

fifth and sixth articles, shall, in lieu of being paid to the

Indians, be retained and vested by the Government in stock

D-17

under the conditions mentioned in the fourth article of this

treaty.

In testimony whereof, the parties above recited, have

hereunto set their hands, at Washington, the seat of

Government, this thirty-first day of March, in the year one

thousand eight hundred and thirty-six.

HENRY R. SCHOOLCRAFT.

Oroun Aishkum, of Maskigo Kawgayosh, of Sault Ste. Marie,

Wassangozo, of do. by Maidosagee,

Osawya, of do. Apawkozigun of L’ Arbre Croche,

Wabi Windego, of Grand river Keminitchagun, of do.

Megiss Ininee, of do. Tawaganee, of do.

Nabun Ageezhig, of do. Kinoshamaig, of do.

Winnimissagee, of do. Naganigobowa, of do.

Mukutaysee, of do. Oniasino, of do.

Wasaw Bequm, of do. Mukuday Benais of do.

Ainse, of Michilimackinac, Chingassamo, of do.

Chabowaywa, of do. Aishquagonabee, of Grand

Jawba Wadick, of Sault Ste. Marie, Traverse,

Waub Ogeeg, of do. Akosa, of do.

Oshawun Epensaysee, do.

John Hulbert, Secretary. Robert Stewart, Wm. Mitchell,

John A. Drew, Augustin Hamelin, jr., Rix Robinson, C.O.

Ermatinger.

To the Indian names are subjoined marks.

[Note.--The foregoing treaty, and supplementary article,

was ratified and confirmed with the following amendments, as

expressed in the resolution of the Senate:

ARTICLE TWO, line two, after the work, "tracts," insert

the following words to wit: "for the term of five years from the

D - 18

date of the ratification of this treaty, and no longer;" unless the

United States grant them permission to remain on said lands for

a longer period.

- ARTICLE THREE, after the word “tracts,” in the second

line, insert the following words, to wit:

For the term of five years from the date of the ratification

of this treaty, and no longer, unless the United States grant them

permission to remain on said lands for a longer period.

ARTICLE FOUR, --at the close thereof insert these words--

"and also the sum of two hundred thousand dollars, in

consideration of changing the permanent reservations in articles

two and three to reservations for five years only, to be paid

whenever their reservations shall be surrendered, and until that

time the interest on said two hundred thousand dollars shall be

annually paid to the said Indians."

ARTICLE FIVE, --Strike out the whole article and insert

the following: "The sum of three hundred thousand dollars shall

be apid to the said Indians to enable them with the aid and

assistance of their agent, to adjust and pay such debts as they

may justly owe, and the overplus if any to apply to such other

use as they may think proper.

ARTICLE EIGHT, --Strike out after the work "the" where

it first occurs in line two, to the work "States," in the eighth line,

and insert in lieu, thereof these words--"Southwest of the

Missouri river, there to select a suitable place for the final

settlement of said Indians, which country, so selected, and of

reasonable extent, the United States will forever guaranty and

secure to said Indians.

ARTICLE EIGHT, --Strike out all between the word "it" in

the eleventh line, and the word "when" in the thirteenth line, and

D- 19

insert these words: "The net proceeds of the sale of the one

hundred and sixty acres of land, upon the Grand river, upon

which the Missionary Society have erected their buildings, shall

be paid to the said Society in lieu of the value of their said

improvements."}

TREATY WITH THE OTTAWAS AND CHIPPEWAS,

July 31, 1855.

FRANKLIN PIERCE,

President of the United States of America:

July 31, 1855.

To all persons to whom these presents shall come, greeting:

Preamble.

WHEREAS a treaty was made and concluded at the city

of Detroit, in the State of Michigan, on the thirty-first day of

July, eighteen hundred and fifty-five, between George W.

Manypenny and Henry C. Gilbert, commissioners on the part of

the United States, and the Ottowa and Chippewa Indians of

Michigan, parties to the treaty of March twenty-eight, eighteen

hundred and thirty-six, which treaty is in the works and figures _

following to wit:

- Title.

Articles of agreement and convention made and

concluded at the city of Detroit in the State of Michigan this

thirty-first day of July, one thousand eight hundred and fifty-five,

between George W. Manypenny and Henry C. Gilbert,

commissioners on the part of the United States and the Ottowa

and Chippewa Indians of Michigan, parties to the treaty of March

28, 1836.

In view of the existing condition of the Ottowas and

Chippewas, and of their legal and equitable claims against the

United States, it is agreed between the contracting parties as

following:--

Certain lands in

Michigan to be

withdraw from sale.

ARTICLE I. The United States will withdraw from sale

for the benefit of said Indians as hereinafter provided, all the

unsold public lands within the State of Michigan embraced in the

following descriptions to wit:

For the use of the

six bands at and

near Sault Ste. Marie.

First. For the use of the six bands residing at and near

Sault Ste. Marie, sections 13, 14, 23, 24, 25, 26, 27, and 28, in

township 47, north range 5 west; sections 18, 19, and 30 in

township 47, north, range 4 west, and section 11, 12, 13, 14, 15,

22, 23, 25, and 26, in township 47 north, range 3 west, and

section 28 in township 47 north, range 2 west; sections 2, 3, 4,

11, 14, and 15 in township 47 north, range 2 east, and section 34

in township 48 north, range 2 east; sections 6, 7, 18, 19, 20, 28,

29, and 33, in township 45 north, range 2 east; sections 1, 12,

and 13, in township 45 north, range | east, and section 4 in

township 44 north, range 2 east.

For the use of the

bands north of the

Straits of Mackinac.

Second. For the use of the bands who wish to reside

north of the Straits of Mackinac, township 42 north, ranges | and

2 west; township 43 north, range | west, and township 44 north,

range 12 west.

For the Beaver

Island band.

Third. For the Beaver Island band,--High Island, and

Garden Island in Lake Michigan, being fractional townships 38

and 39 north, range 11 west--40 north, range 10 west, and in part

39 north, range 9 and 10 west.

For certain other bands.

Fourth, For the Cross Village, Middle Village,

L’Arbrechroche and Bear Creek bands, and of such Bay du Noc

and Beaver Island Indians as may prefer to live with them,

townships 34 to 39, inclusive north, range 5 west--townships 34

to 38, inclusive north, range 6 west,--townships 34, 36, and 37,

north, range 7 west, and township 34 north, range 8 west.*

For bands who are

usually paid at Grand

Traverse township.

Fifth.* For the bands who usually assemble for payment

at Grand Traverse township 32 north, range 10 west--township 29

to 32, north inclusive, range 11, west--townships 29 to 31, north

inclusive, range 12 west--township 29 north, range 13 west, and

the east half of township 29 north, range 9 west.

For the Grand River

bands, including that

of Me-tay-o-meg.

Sixth.* For the Grand River bands, including the band

of which Me-tay-o-meg is chief--four adjoining townships of land

in the county of Mecosta, and four adjoining townships north of

Muskegon River, and west of range 12 west, which town

locations, of four townships each, are to be selected by said

Grand River Indians within three months from this date and

notice thereof given to their agent.

For the Che-

boygan band.

Seventh.* For the Cheboygan band, one township of land

in Cheboygan county, to be selected and notice given as above

provided.

For the Thunder

Bay band.

Eighth. For the Thunder Bay band, section 25 and 36 in

township 30 north, range 7 east, and section 22 in township 30

north, range 8 east.

Purchase for bands

who wish to locate

near the Missionary

land at Iroquois Point.

Should either of the bands residing near Sault St. Marie

determine to locate near the lands owned by the missionary

society of the Methodist Episcopal church at Iroquois Point, in

addition to those who now reside there, it is agreed that the

United States will purchase as much of said lands for the use of

the Indians as the society may be willing to sell at the usual

government price.

Grant of land

to each Indian.

The United State will give to each Ottowa and Chippewa

Indian being the head of a family, 80 acres of land, and to each

single person over 21 years of age, 40 acres of land, and to each

family of orphan children under 21 years of age containing two

or more persons, 80 acres of land, and to each single orphan

child under 21 years of age, 40 acres of land to selected and

located within the several tracts of land hereinbefore described

under the following rules and regulations:--

D - 24

Selection how made.

Each Indian entitled to land under this article may make

his own selection of any land within the tract reserved herein for

the band to which he may belong--Provided, That in case of two

or more Indians claiming the same lot or tract of land, the matter

shall be referred to the Indian agent, who shall examine the case

and decide between the parties.

List of those entitled

to be prepared.

For the purpose of determining who may be entitled to

land under the provisions of this article, lists shall be prepared by

the Indian agent, which lists shall contain the names of all

persons entitled, designating them in four classes. Class Ist, shall

contain the names of heads of families; class 2d, the names of

single persons over 21 years of age; class 3d, the names of

orphan children under 21 years of age, comprising families of

two or more persons, and class 4th, the names of single orphan

children under 21 years of age, and no person shall be entered in

more than one class. Such lists shall be made and closed by the

first day of July, 1856, and thereafter no applications for the

benefits of this article will be allowed.

Selections may be

made within five years.

At any time within five years after the completion of the

lists, selections of lands may be made by the persons entitled

thereto, and a notice thereof, with a description of the land

selected, filed in the office of the Indian agent in Detroit, to be

by him transmitted to the office of Indian Affairs in Washington

City.

To be according to

usual subdivisions.

All selections of land under this article must be made

according to the usual legal subdivisions; and fractional lots, if

containing less than 60 acres, may be regarded as forty-acre lots,

if over sixty and less than one hundred and twenty acres as

eighty-acre lots. Selections for orphan chiidren may be made by

themselves or their friends, subject to the approval of the agent.

Possession may

be taken at once.

After selections are made, as herein provided, the persons

entitled to the land may take immediate possession thereof, and

the United Stats will thenceforth and until the issuing of patents

as hereinafter provided, hold the same inn trust for such persons,

and certificates shall be issued in a suitable form guaranteeing

and securing to the holders their possession and an ultimate title

to the land.

Sales within ten

years forbidden.

But such certificates shall not be assignable and shall contain a

clause expressly prohibiting the sale or transfer by the holder of

the land described therein.

After ten years a

patent shall issue

and restriction on

sale cease.

After the expiration of ten years, such restriction on the

power of sale shall be withdrawn, and a patent shall be issued in

the usual form, to each original holder of a certificate for the

land described therein, provided that such restriction shall cease

only upon the actual issuing of the patent; and provided further

D - 26

that the President may in his discretion at any time in individual

cases on the recommendation of the Indian agent when it shall

appear prudent and for the welfare of any holder of a certificate,

direct a patent to be issued. And provided also, that after the

expiration of ten years, if individual cases hall be reported to the

President by the Indian agent, of person who may then be

incapable of managing their own affairs from any reason

whatever, he may direct the patents in such cases to be withheld,

and the restrictions provided by the certificate, continued so long

as he may deem necessary and proper.

Provision for case of death.

Should any of the heads of families die before the issuing

of the certificates or patents herein provided for, the same shall

issue to the heirs of such deceased persons.

To whom this

treaty shall extend

The benefits of this article will be extended only to those

Indians who are at this time actual residents of the State of

Michigan, and entitled to participate in the annuities provided by

the treaty of March 28, 1836;

but this provision shall not be construed to exclude any Indian

now belonging to the Garden River Band of Sault Ste. Marie.

After five years the

remaining lands may be

entered in the usual

manner by Indians for

five years, and then

by any one.

All the land embraced within the tracts hereinbefore

described, that shall not have been appropriated or selected within

D - 27

five years, shall remain the property of the United States, and the

same shall thereafter, for the further term of five years, be subject

to entry in the usual manner and at the same rate per acre as

other adjacent pubic lands are then held, by Indians only; and all

lands, so purchased by Indians, shall be sold without restriction,

and certificates and patents shall be issued for the same in the

usual form as in ordinary cases; and all lands remaining

unappropriated by or unsold to the Indians after the expiration of

the last-mentioned term, may be sold or disposed of by the

United States as in the case of all other public lands.

Grants for churches,

schools & c. may be made.

Indians may sell with

President’s consent.

Nothing contained herein shah be so construed as to

prevent the appropriation, by sale, gift, or otherwise, by the

United States, of any tract or tracts of land within the aforesaid

reservations for the location of churches,

school-houses, or for other educational purposes, and for such

purposes purchases of land may likewise be made from the

Indians, the consent of the President of the United States, having,

in every instance, first been obtained therefor.*

Payments to said Indians.

ARTICLE 2. The United States will also pay to the said

Indians the sum of five hundred and thirty-eight thousand and

four hundred dollars, in manner following, to wit:

$80,000 in ten equal

annual instalments.

First. Eighty thousand dollars for educational purposes

to be paid in ten equal annual instalments of eight thousand

D - 28

dollars each, which sum shall be expended under the direction of

the President of the United States; and in the expenditure of the

same, and the appointment of teachers and management of

schools, the Indians shall be consulted, and their views and

wishes adopted so far as they may be just and reasonable.

$75,000 in five equal

annual instalments.

Second. Seventy-five thousand dollars to be paid in five

equal annual instalments of fifteen thousand dollars each in

agricultural implements and carpenters’ tools, household furniture

and building materials, cattle, labor, and all such articles as may

be necessary and useful for them in removing to the homes

herein provided and getting permanently settled thereon.

$42,400 for blacksmith’s shops.

Third. Forty-two thousand and four hundred dollars for

the support of four blacksmith shops for ten years.

$306,000 “to be paid per capita.”

Fourth. The sum of three hundred and six thousand

dollars in coin, as follows:-——ten thousand dollars of the

principal and the interest on the whole of said last—mentioned

sum remaining unpaid at the rate of five percent annually for ten

years, to be distributed per capita in the usual manner for paying

annuities. And the sum of two hundred and six thousand dollars

remaining unpaid at the expiration of ten years, shall be then due

and payable, and if the Indians then require the payment of said

sum in coin, the same shall be distributed per capita in the same

manner as annuities are paid, and in not less than four equal

annual instalments.

$35,000 in ten

annual instalments.

Fifth. Time sum of thirty-five thousand dollars in ten

annual instalments of three thousand and five hundred dollars

each to be paid only to the Grand River Ottawas, which is in lieu

of all permanent annuities to which they may be entitled by

former treaty stipulations, and which sum shall be distributed in

the usual manner per capita.

Liabilities under

former treaties released.

ARTICLE 3. The Ottawa and Chippewa Indians hereby

release and discharge the United States from all liability on

account of former treaty stipulations, it being distinctly

understood and agreed that the grants and payments hereinbefore

provided for are in lieu and satisfaction of all claims, legal and

equitable on the part of said Indians jointly and severally against

the United States, for land, money or other thing guaranteed to

said tribes or either of them by the stipulations of any former

treaty or treaties; excepting, however, the right of fishing and

encampment secured to the Chippewas of Sault Ste. Marie by the

treaty of June 161, 1820.

Interpreters.

ARTICLE 4. The interpreters at Sault St. Marie,

Mackinac, and for the Grand River Indians, shall be continued,

and another provided at Grand Traverse, for the term of five

years, and as much longer as the President may deem necessary.

Tribal organization

dissolved in most respects.

Future treaties to be binding.

ARTICLE 5. The tribal organization of said Ottawa and

Chippewa Indians, except so far as may be necessary for the

purpose of carrying into effect the provisions of this agreement,

is hereby dissolved; and if at any time hereafter, further

negotiations with the United States, in reference to any matters

contained herein, should become necessary, no general

convention of the Indians shall be called; but such as reside in

the vicinity of any usual place of payment, or those only who are

immediately interested in the questions involved, may arrange all

matters between themselves and the United States, without the

concurrence of other portions of their people, and as fully and

conclusively, and with the same effect in every respect, as if all

were represented.

Treaty, when to be binding.

ARTICLE 6. This agreement shall be obligatory and

binding on the contracting parties as soon as the same shall be

ratified by the President and Senate of the United States.

In testimony whereof the said George W. Manypenny and

the said Henry C. Gilbert, commissioners as aforesaid, and the

undersigned chiefs and headmen of the Ottawas and Chippewas,

have hereto set their hands and seals, at the city of Detroit the

day and year first above written.

GEO. W. MANYPENNY, [L.S.]

HENRY C. GILBERT, [L.S.]

Commissioners on the part of the United States

J. LOGAN CHIPMAN, Secretary

RICH’D M. SMITH, Secretary

Sault Ste. Marie Bands.

O-SHAW-WAW-NO-KE-WAIN-ZE, chief, his x mark. [L.S.]

WAW-BO-JIEG, chief, his x mark. [L.S.]

KAY-BAY-NO-DIN, chief, his x mark. [L.S.]

O-MAW-NO-MAW-NE, chief, his x mark. [L.S.]

SHAW-WAN, chief, his x mark. [L.S.]

PI-AW-BE-DAW-SUNG, chief, his x mark. [L.S.]

WAW-WE-GUN, headman, his x mark. [L.S.]

PA-NE-GWON, headman, his x mark. [L.S.]

BWAN, headman, his x mark. [L.S.]

TAW-MEECE, headman, his x mark. [L.S.]

NAW-O-GE-ZHICK, headman, his x mark. [L.S.]

SAW-GA W-GIEW, headman, his x mark. [L.S.]

Grand River Bands.

NE-BAW-NAY-GE-ZHICK, chief, his x mark. [L.S.]

SHAW-GWAW-BAW-‘NO, chief, his x mark. [L.S.]

AISH-KE-BAW-GOSH, 2d chief, his x mark. [L.S.]

NAY-WAW-GOO, chief, his x mark. [L.S.]

NE-BE-NE-SEH, chief, his x mark. [L.S.]

WAW-BE-GAY-KAKE, chief, his x mark. [L.S.]

KE-NE-WE-GE-ZHICK, chief, <— his x mark. [L.S.]

D - 32

MEN-DAW-WAW-BE, chief,

MAISH-KE-AW-SHE, chief,

PAY-SHAW-SE-GAY, chief,

PAY-BAW-ME, headman,

PE-GO, chief,

CHING-GWOSH, chief,

SHAW-BE-QUO-UNG, chief,

ANDREW J. BLACKBIRD, headman,

KE-SIS-SWAW-BAY, headman,

NAW-TE-NAISH-CUM, headman,

Grand Traverse Bands.

AISH-QUAY-GO-NAY-BE, chief,

AH-KO-SAY, chief,

KAY-QUAY-TO-SAY, chief,

O-NAW-MAW-NINCE, chief,

SHAW-BWAW-SUNG, chief,

LOUIS MICK-SAW-BAY, headman,

MAY-DWAY-AW-SHE, headman,

ME-TAY-O-MEIG, chief,

ME-NAW-QUOT, headman,

Little Traverse Bands.

WAW-SO, chief,

MWAW-KE-WE-NAW, chief,

PE-TAW-SE-GAY, headman,

KE-NE-ME-CHAW-GUN, chief,

MAY-TWAY-ON-DAW-GAW-SHE, headman,

ME-GE-SE-MONG, headman,

PI-A-ZHICK-WAY-WE-DONG, headman,

D - 33

his x mark

. (L.S.]

. [L.S.]

. {LSJ

his x mark. [L.S.]

his x mark

. [L.3.]

. {L.S.]

his x mark. [L.S.]

his x mark. [L.S.}

his x mark

his x mark.

. [L.s.]

[L.S.]

his x mark. [L.S.]

his x mark

.{L.S.]

.[L.S.]

KEY-WAY-KEN-DO, headman, his x mark. [L.S.]

Mackinac Bands.

O-SAW-WAW-NE-ME-KE, chief, his x mark. [L.S.]

KE-NO-ZHAY, headman, his x mark. [L.S.]

PETER HANSE, headman, his x mark. [L.S.]

SHA W-BE-CO-SHING, chief, his x mark. [L.S.]

SHAW-BWAY-WAY, chief, his x mark. [L.S.]

PE-ANE, headman, his x mark. [L.S.]

SAW-GAW-NAW-QUAW-DO, headman, his x mark. [L.S.]

NAY-O-GE-MAW, chief, (Little Traverse,) his x mark. [L.S.]

Executed in the presence of

JNO. M.D. JOHNSTON, Interpreter

JOHN F. GODFROY, Interpreter

GBT. JOHNSTON, Interpreter

AUG. HAMLIN, Interpreter

L. CAMPAU,

JOSEPH F. MURSUL,

G.D. WILLIAMS,

P.B. BARBEAU,

A.M. FITCH,

W.H. GODFROY.

And whereas the said treaty having been submitted

to the Senate of the United States for its constitutional

action thereon, the Senate did, on the fifteenth day of April,

eighteen hundred and fifty-six, advise and consent to the

D - 34

ratification of the same, with amendments, by a resolution

in the words and figures following, to wit:

"IN EXECUTIVE SESSION, SENATE OF THE UNITED STATES,

April 15, 1856.

“Resolved, (two thirds of the Senators present

concurring,) That the Senate advise and consent to the

ratification of the treaty made and concluded with the

Ottowas and Chippewas, on the thirty-first day of July,

eighteen hundred and fifty-five; with the following

AMENDMENTS.

Amendments.

Article 1.

ARTICLE 1. At the end of the “Fourth” clause,

strike out the words “township 34 north, range 8 west,” and

insert the words: “all that part of township 34, north range,

8 west, lying north of Pine River.”

SAME ARTICLE. Strike out time “Fifth” clause, in

the following words: "for the bands, who usually assemble

for payment at Grand Traverse, township 32 north, range 10

west; townships 29 to 32 north, inclusive, range 11 west;

townships 29 to 31 north, inclusive, range 12 west; town-

ship 29 north, range 13 west, and the east half of township

29 north, range 9 west,” and insert, in lieu thereof, the

following: “for the bands, who usually assemble for

D - 35

payment at Grand Traverse, townships 29, 30, and 31, north

range 11 west, and townships 29, 30, and 31 north range 12

west, and the east half of township 29, north range, 9 west.”

SAME ARTICLE. Strike out the “Sixth” clause, in the

following words: “for time Grand River bands, including

the band, of which Me-tay-o-meg is chief, four adjoining

townships of land in the county of Mecosta, and four

adjoining townships north of Muskegon River, and west of

range 12 west, which two locations of four townships each,

are to be selected by said Grand River Indians within three

months from this date, and notice thereof given to their

agent,” and insert, in lieu thereof, the following:

“for the Grand River bands, township 12, north range 15

west, and townships 15, 16, 17, and 18, north range, 16,

west.”

SAME ARTICLE. Strike out the "Seventh” clause, in

the following words: “for the Cheboygan band, one

township of land in Cheboygan county, to be selected, and

notice given, as above provided;” and insert, in lieu thereof,

the following: “for the Cheboygan band township 35, and

36, north range, 3 west.

SAME ARTICLE. Add the following at time end

thereof:

Rights of settlers by

preemption, saved.

“It is also agreed that any lands within the aforesaid

tracts now occupied by actual settlers, or by persons entitled

D - 36

to preemption thereon, shall be exempt from the provisions

of this Article; provided, that such preemption claims shall

be proved, as prescribed by law, before the first day of

October next.”

Indian purchasers under

Graduation Act may sell.

“Any Indian, who may have heretofore purchased

land for actual settlement under the act of Congress, known

as the Graduation Act, may sell and dispose of the same;

and in such case, no actual occupancy or residence by such

Indians on land so purchased shall be necessary to enable

him to secure a title thereto.”

Grant to mission of

Presbyterian Church

at $1.25 per acre.

“In consideration of the benefits derived to the

Indians on Grand Traverse Bay by the school and mission

established in 1838, and still continued by the Board of

Foreign Missions of the Presbyterian Church, it is agreed

that the title to three separate pieces of land, being parts of

tracts Nos. 3 and 4, of the west fractional half of section

35, township 30 north, range 10 west, on which are the

mission and school buildings and improvements, not

exceeding in all sixty-three acres, one hundred and twenty-

four perches, shall be vested in the said Board on payment

of $1.25 per acre; and the President of the United States

shall issue a patent for the same to such person as the said

Board shall appoint.”

D - 37

Further payment of

$40,000 to pay debts.

“The United States will also pay the further sum of

forty thousand dollars, or so much thereof as may be

necessary, to be applied in liquidation of the present just

indebtedness of the said Ottawa and Chippewa Indians;

provided, that all claims presented shall be investigated

under the direction of the Secretary of the Interior, who

shall prescribe such rules and regulations for conducting

such investigation, and for testing the validity and justice of

the claims, as he shall deem suitable and proper; and no

claim shall be paid except upon the certificate of the said

Secretary that, in his opinion, the same is justly and

equitably due; and all claimants, who shall not present their

claims within such time as may be limited by said Secretary

within six months from the ratification of the treaty, or

whose claims, having been presented, shall be disallowed by

him, shall be forever precluded from collecting the same, or

maintaining an action thereon in any court whatever; and

provided, also, that no portion of the money due said

Indians for annuities, as herein provided, shall ever be

appropriated to pay their debts under any pretence

Balance to be paid

to the Chippewas.

whatever; provided, that the balance of the amount herein

allowed, as a just increase of the amount due for the

cessions and relinquishments aforesaid, after satisfaction of

the awards of the Secretary of the Interior, shall be paid to

the said Chippewas or expended for their benefit, in such

D - 38

manner as the Secretary shall prescribe, in aid of any of the

objects specified in the second article of this treaty.”

Attest: ASBURY DICKINS, Secretary.

And whereas the said amendments having been

submitted to the chiefs and headmen of the Ottawa and

Chippewa tribes of Indians, the said chiefs and headmen

having heard the same read and explained to them, did

assent to and ratify the same, by an instrument, in the

words and figures following, to wit:

Assent of Indians to

Senate amendments.

We, the undersigned chiefs and headmen of the

Chippewa Indians living near Sault Ste. Marie, Mich.,

having had the amendments adopted by the Senate of the

United States to the treaty concluded at Detroit on the 31st

day of July, 1855, fully explained to us and being satisfied

therewith, do hereby assent to and ratify the same.

In witness whereof we have hereto set our hands this

27th day ot June, A.D. 1856.

PI-AW-BE-DAW-SUNG, his x mark.

TE-GOSE, his x mark.

SAW-GAW-JEW, his x mark.

SHAW-ANO, his x mark.

WAW-BO-JICK, his x mark.

RAY-BAY-NO-DIN, his x mark.

SHAW-WAN, his x mark.

D - 39

O-ME-NO-MEE-NE, his x mark.

PAY-NE-GOWN, his x mark.

WAW-WE-GOWN, his x mark.

MA-NE-DO-SCUNG, his x mark.

NAW-WE-GE-ZHICK, his x mark.

YAW-MENCE, his x mark.

BAWN, his x mark.

Signed in presence of

EBENZR WARNER,

JNO. M. JOHNSTON, U.S. Ind. Interpreter.

PLACIDUS ORD.

We, the undersigned chiefs and headmen of the

Ottowa and Chippewa nation, having heard the foregoing

amendments read and explained to us by our agent, do

hereby assent to and ratify the same.

In witness whereof we have hereto affixed our

signatures this 2d day of July, A. D. 1856, at Little

Traverse, Mich.

WAW-SO, his x mark.

MWAW-KE-WE-NAW, his x mark.

NE-SAW-W

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