Lake Orion, Mich. – Negotiations for tribal inland hunting and
fishing rights covered under the Treaty of 1836 could be coming to
a head this summer.
State, federal, and tribal representatives have been trying to
work out a satisfactory agreement since 2000, when tribal fishing
rights on the Great Lakes covered under the same treaty were
resolved through the 2000 consent decree. Since then,
representatives for all stakeholders have been bargaining behind
closed doors and under a gag order imposed by federal Judge Richard
Enslin, who is overseeing the case. Because of that gag order,
details of the negotiations are not available.
‘We’ll be back in court June 28 to meet with the judge to see if
we’re making progress and working together in good faith,’ Jim
Ekdahl, the DNR’s statewide coordinator for Native American issues
told Michigan Outdoor News in a phone interview.
The five tribes affected by the Treaty of 1836 – the Sault Ste.
Marie Tribe of Chippewa Indians of Michigan, the Bay Mills Indian
Community, the Little River Band of Ottawa Indians, the Grand
Traverse Band of Ottawa and Chippewa Indians, and the Little
Traverse Bay Band of Odawa Indians – claim the treaty gives them
the right to fish and hunt inland areas, outside the jurisdiction
of state law.
The Bay Mills Indian Community initiated the litigation on the
interpretation of the Treaty of 1836 in 1973. That treaty covers
northern Michigan, north of a line running northeast from Muskegon
to Alpena, as well as the eastern two-thirds of the Upper
‘The question of if treaty rights remain for inland use is still
in limbo,’ Ekdahl said. ‘We’ve been dealing with that issue
informally ever since,’ the signing of the 2000 consent decree.
The biggest hitch in the negotiations is the interpretation of a
phrase that states tribes have certain rights ‘until the land is
required for settlement.’ Sportsmen and state officials believe the
state has been settled and that all residents should hunt and fish
under the same laws and regulations. Tribal members interpret that
phrase differently and believe they can set their own
The issue was brought to the federal court after the Great Lakes
issue was decided in the 2000 consent decree, which defined tribal
rights in Great Lakes waters covered under the Treaty of 1836.
‘The judge’s feeling at the time was that it would be
advantageous for us to resolve the issue on our own before the
courts take it up,’ Ekdahl said. ‘The states of Wisconsin and
Minnesota thought they had pretty good cases and went to the courts
and lost heavily. What they ended up with was not very acceptable
to the states.’
In Wisconsin, sportsmen have been forced to swallow a bitter
pill, according to Wisconsin Outdoor News Editor Dean Bortz, who
covered the issue in the Badger State while it was unfolding.
A similar treaty rights issue was decided by the federal courts
in Wisconsin in the early 1990s. That decision resulted in changes
in fishing and hunting harvests for Wisconsin sportsmen.
Game and fish harvest on treaty land in Wisconsin is managed on
a lake-by-lake and species-by-species basis. Game and fish managers
(state and tribal) decide on a safe harvest limit – the number of a
species that can be harvested without adversely impacting that
resource. That number is then split between tribal members and
Tribes, however, have the option of spring spearing on many
lakes. Netting is also an option afforded to tribal members, but
not non-tribal fishermen. These changes have led to reduced bag
limits for sportsmen.
‘Let’s say a walleye lake has a limit of five walleyes daily. If
the tribes list that lake for spearing, the non-tribal bag limits
are reduced based on the tribal take,’ Bortz said. ‘The higher the
tribe goes on its 50 percent, the lower the bag limit is for
There are other special regulations, he said.
‘Let’s say a lake has a tribal designation of 15 muskies, and
they take them all in April,’ Bortz said. ‘In December and January
they can go out and take as many as they want because winter
spearing is not included in the annual harvest because of the
agreement they reached. There are some size limits stipulated, but
it’s a very liberal restriction and there is no bag limit.’
There are other issues that may affect Wisconsin sportsmen.
Wisconsin is considering implementing a limited-quota elk season,
and if it does, the harvest quota will be a 50-50 split between
sportsmen and tribal members. Wisconsin trappers have limits on
fishers, otters, and bobcats, but tribal trappers have no
Bortz said the treaty agreement does not have much effect on
Wisconsin’s deer harvest.
‘The number of (deer) tags given to tribal members usually
doesn’t have much effect on non-tribal hunters,’ Bortz said.
Still, some sportsmen in Wisconsin are disappointed with the
results of their treaty interpretations.
‘There is an underlying feeling of disgust among many sportsmen
that the state let the resources down by not pressing the issue
harder,’ Bortz said. ‘Until the appeal date went by, there were a
lot of protests at boat landings when the tribes went out to
‘Now, people in northern Wisconsin have accepted it because they
have to, but no one likes it.’
In Michigan, the behind-closed-doors negotiations continue. The
only thing definite is that there will be changes in the allocation
of Michigan’s game and fish harvests. What those changes will be
are anyone’s guess, but current actions by tribal members are
beginning to create some tension.
Some tribal members are exercising the rights they believe they
have under the Treaty of 1836 and spearing fish in the spring. DNR
Law Enforcement is taking a wait-and-see approach to such
infractions until the issue has been resolved in court.
Tom Durecki, who owns a bait and tackle shop in northern
Michigan, said he has watched tribal members spearing spawning
walleyes for the past three years in Emmet County’s Mini Ha Ha
‘Everyone knows that if you’re taking spawning fish, you won’t
have the reproduction,’ Durecki said. ‘I tell people who come into
my store that if you’re conservation-minded you’ll let the spawners
go, but if you’re spearing them, you can’t let them go. In my mind,
that’s not good conservation.’