Five Indian tribes claim the right to hunt, fish and gather on lands
and lakes they sold to the federal government years ago. Their
claim extends back to the Treaty of 1836. But it’s been
challenged in court by state officials who say those rights expired
long ago. As Bob Allen reports, now all the parties have reached
an uneasy compromise:
Transcript
Five Indian tribes claim the right to hunt, fish and gather on lands
and lakes they sold to the federal government years ago. Their
claim extends back to the Treaty of 1836. But it’s been
challenged in court by state officials who say those rights expired
long ago. As Bob Allen reports, now all the parties have reached
an uneasy compromise:
170 years ago, the tribes sold millions of acres to the U.S.
government. But they reserved for themselves the right to hunt
fish and gather foods and medicines until the land was settled.
Hank Bailey is an elder with the Grand Traverse Band of Ottawa
and Chippewa. He’s scouting out a favorite fall hunting spot
even though it’s pelting rain:
“I know these hills well all around here just from exploring
it…hunting, gathering mushrooms…”
Bailey is a direct descendant from a tribal leader who signed the
original treaty. He says the exercise of those rights in times past
were the difference between survival and starvation. And he
doesn’t think a new piece of paper can ever erase what his
ancestors preserved:
“They were told that this treaty was forever. And I know in
my heart that’s what they believed in. And they thought well
as long as we can hunt, fish and gather we will be able to
survive as a people. This is what bothers me about is, I’m
being told now that when we sign this paper, this is going to
be forever and here we go again.”
Four years ago, the state of Michigan went to court to argue tribal
hunting and fishing rights had expired because the land had been
settled long ago.
But then state officials noticed court rulings in other Great Lakes
states that upheld treaties and in some case awarded tribes as
much as half of the natural resources.
Tribal leaders thought they had a strong case, but they too were
leery of how today’s courts might interpret the phrase that said
their treaty rights exist “until the land is settled,” so the parties
were motivated to negotiate a deal outside court.
Jim Ekdahl is with the state Department of Natural Resources:
“We were in a strange kind of legal limbo where the state
wasn’t exactly sure what the ground rules should be in
light of the fact the federal courts hadn’t ruled on the inland
rights. The tribes weren’t 100% confident that they could
advise their membership in terms of what they ought to be
doing.”
From legal limbo, there are now 130 pages of rules and
regulations on how and where the tribes can exercise their rights.
There’s been some grumbling on both sides.
Some tribal members complain, with some exaggeration, that they
have to fill out a form now before they can pick a single
blueberry, and there are sportsmen who don’t like a special set of
rules for Indians.
What the tribes have agreed to is their rights to hunt, fish and
gather will only apply on lands open to the public. And they only
can take enough for subsistence, not for commercial sale.
Tribal resource managers say what their members take is a drop
in the bucket of the overall resource. And Jim Ekdahl with the
state says there’s still plenty to go around:
“There’s sufficient harvestable surpluses of resources
available to accommodate tribal interests. There’s essentially
no effect on harvest by state licensed recreational users. And
essentially no changes in state regulations are gonna be required as this
thing moves forward.”
The parties to the agreement say is it avoids a bitter legal battle
that could last a decade or more and cost millions of dollars.
Both sides remember an ugly dispute that raged 30 years ago
when tribes reasserted their right to fish commercially with nets
in the Great Lakes.
Matthew Fletcher is a specialist in tribal law at Michigan State
University. As far as he can tell, this is the first time a state has
voluntarily recognized tribal treaty rights extending to off-
reservation lands without being told to do so by a court:
“There are tribes and there are treaties nationwide that have
similar language. And I’m sure they’re watching this very
carefully. And this kind of consent decree is going to create a
kind of precedent for other states that are engaging in similar
kinds of negotiations.”
The agreement still needs to be accepted by a federal judge
before it becomes binding in law. For tribal elder Hank Bailey
the deal might chip away some free exercise of historic rights,
but it also reasserts that those rights can’t ever be taken away:
“For me that’s… that is about the most powerful part of it is
being able to know that I will continue to be an Odawa, black
wolf clan, a man… somebody that respects the resources
around me. And I’m willing to work with anybody else that
feels the same way, whether they’re tribal or not.”
For the Environment Report, I’m Bob Allen.