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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 1040

## Text

)

Ne, 98 485 SEPa

In The OFFICE OF THE CLERK

Supreme Court of the Anited States

@ctober Term, 1997
2

TOWNSHIP OF LELAND; VILLAGE OF NORTHPORT
Petitioners,
v.

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

VN

as

_ 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.

iV

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

ix

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
: .

; .

:

7

x
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

l
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

3

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.

5

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,”

7

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.

9

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

10

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.

1]

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).

13

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.

——————————

14

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

15

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.

16

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

17

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

18

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.

19

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.

20

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

21

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.

22

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.

23

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

24

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.

25

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.

26
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 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

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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

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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

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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.

x

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

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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

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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
Pe
é

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,

V.

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, Cha

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1622%3A1. Public record. Not legal advice.