Treaty Hunting, Fishing, & Gathering

What is the state of treaty fishing and hunting rights in Michigan?

The state of treaty fishing and hunting rights in Michigan is primarily governed by historical treaties and subsequent legal interpretations. Key points include:

1. Treaty of 1836: The Chippewa and Ottawa Indians reserved fishing rights in the waters of the Great Lakes and other ceded territories. These rights were not relinquished by the Treaty of 1855 (People v. LeBlanc, 399 Mich. 31 (1976). 

Reference to the 1836 Treaty-reserved rights to hunt, fish, and gather must include the federal litigation which primarily occurred after LeBlanc was decided in 1976. The most important holding is that the “conservation standard” recognized as a permissible purpose for State regulation of tribal member usufructuary activity was rejected by the Sixth Circuit in 1981 in U.S. v. Michigan,  653 F.2d 277, 279 (6th Cir. 1981):  “Only upon a finding of necessity, irreparable harm and the absence of effective Indian tribal self-regulation should the District Court sanction and permit state regulation of gill net fishing.” (emphasis added) Since that time, the signatory Tribes to the 1836 Treaty jointly regulate the Tribal fishery through the Chippewa Ottawa Resource Authority; in 1981, there were only three Tribes recognized by the U.S., and they jointly regulated through the Chippewa Ottawa Treaty Fishery Management Authority.

2. Treaty of 1854: The 1854 Treaty interpreted in State v. Jondreau (People v. Jondreau, 384 Mich. 539 (1971) established the Keweenaw Bay Reservation; the Court declared that fishing by Tribal members in the Bay was an on-Reservation activity which the State can’t regulate, period. 

However, the off-Reservation rights to hunt, fish and gather were reserved by the Tribal signatories in the Treaty of Oct. 4, 1842, 7 Stat. 491. The continued existence of the right to hunt, fish and gather in the 1842 cession area was litigated from 1973 through 1990 in the U.S. District Court for the Western District of Wisconsin in Lac Courte Oreilles Band of Lake Superior Chippewa v. State of Wisconsin.  

Without any litigation, the Michigan DNR has recognized since 1990 that Keweenaw Bay Indian Community and Lac Vieux Desert Band of Lake Superior Chippewa’s rights continue to exist and that the Tribes are entitled to self-regulate member harvesting activities so long as the provisions are approved by the Wisconsin Court. Those Tribes regulate member conduct through their participation in the Great Lakes Indian Fish & Wildlife Commission.

3. 2007 Inland Consent Decree: This decree, signed by the Michigan Department of Natural Resources and federally recognized tribes. The 2007 Inland Consent Decree is only applicable to the 1836 Treaty cession area. The 1842 cession area is regulated as discussed in §2, above.  No other Treaty cession area has been recognized as continuing to have rights reserved to the ceding Tribes.

The tribes generally regulate hunting and fishing seasons and methods for their members (People v. Caswell, 336 Mich.App. 59 (2021).

5. Recent Legal Interpretations: Courts have upheld that tribal members retain their treaty rights unless explicitly relinquished. For instance, the district court in (People v. Caswell) ruled that the state could not divest members of their treaty rights through the 2007 Consent Decree (People v. Caswell, 336 Mich.App. 59 (2021). The Caswell decision is currently on appeal, as the State is challenging the premise that a State court can determine whether usufructuary rights can be reserved  and regulated by a group which is not a federally recognized Indian Tribe, and even it that can occur, the existence of effective Tribal self-regulation is require in order to balance the State’s claim that its regulation is necessary to prevent irreparable harm to the fishery.

In summary, treaty fishing and hunting rights in Michigan are robust, with significant protections under historical treaties. The state has limited regulatory authority.