For the purposes of this post, “Indians” and “Native Americans” will be used fairly interchangeably, as is indicative of my region and the history of which I am dealing. Also, “Chippewa” and “Ojibwe” or “Ojibway”, even though that is not always the case. Thanks for your leeway for giving me room to use our own words with our own history.
I love having the opportunity to get my grandfather in a chatty mood about things from my family’s heritage, and tribal fishing rights is as much a part of that as the blood that flows in our veins. It is a tradition that has been notched with contention and surrounded with controversy for literally over a century.
As far as my own tribe is concerned, tribal fishing rights were secured as part of the treaty of 1836, between, among some, the Ojibwe people of the Eastern Upper and Northern Lower Peninsula of Michigan as well as those the First Nations of Ottawa and the United States. A major motivating factor behind this treaty, for the U.S. government was to gain ceded land rights, since it stands obvious in our stellar history that the U.S. could not keep a promise to Native Peoples and First Nations Peoples. “Motivating factor” is less honest than “primary objective” really. They wanted the reserved land back, and it stood to tell what they were going to be willing to do to get it back. The State saw this as a “removal” treaty.
The sovereign nations native to the Great Lakes region secured for themselves rights to the entirety of most of the Great Lakes for fishing (and if I am not mistaken, hunting as well) “with the other usual privileges of occupancy, until the land is needed for settlement”.
Then, in 1971, a member of the Keweenaw Bay Indian Community was cited for pulling up a mere handful of lake trout in his herring nets, because instead of violating what he held sacred and wasting the fish, he kept them. It was said that he violated State fishing regulations, which he said he would not recognize under Treaty Law, which was to be supreme. The State was having none of this, you can be sure, saying that the Chippewas had ceded their sovereign rights to fishing when the land was settled, even though the treaty allowed otherwise, and even though the man in question was in no danger of upsetting the preservation of the lake trout population.
So in April of that year, Albert “Big Abe” LeBlanc, (PDF) a man who is known as a bit of a hero among many Ojibwe people to this day, went out onto Gitcheegumee and laid gill nets, after which he was quickly arrested and tried for fishing without a license and using an “illegal device” (the gill nets). Big Abe had meant to be caught, his setting of the nets an act that was meant to get him noticed by the Michigan Department of Natural Resources. He was initially convicted in 1972. Big Abe never once claimed he was not guilty, but that under the treaty of 1836 he was free from State regulation.
This charge for fishing commercially was reversed in 1974, the Court of Appeals holding that the initial decision conflicted with the Defendant’s treaty rights, and the charge of illegal device was remanded to a district court. If the State could not prove that a prohibition on gill nets was necessary to preserve fish stores then the conviction could not stand. Being that three members of my family currently hold licenses in the State of Michigan for gill net usage, I am going to wager a guess on how that one turned out. But it wasn’t direct.
They did, however, take leave to appeal it to the Michigan Supreme Court, so it went all the way up before it was decided, Big Abe maintaining that even the Court of Appeals had no right to say if the State could determine if the manner in which the fish were extracted under treaty rights.
He used more colorful language, it seems. Knowing what I know of Big Abe, I am hardly surprised, and I probably would have done the same in the same situation. But I make sailors blush.
See, instead of being transplanted to what would, like many Nations discovered was nigh useless land west of the Mississippi, as was the routine at the time, the Ojibwe people decided to cede the land of the Eastern Upper Peninsula and Northern third of the Lower Peninsula of Michigan in exchange for these treaty rights. I know, I know, *gasp* someone trying to take back a deal made with the Natives just seems unheard of, but there it is. Something else you have to understand is that when I was a kid many of us were still living under the stigma of being lazy, making it difficult to find jobs. By the time I was school-aged, a good number of my peers had dirt floors if they weren’t living in trailers — yes, in Northern friggin’ Michigan. We had a lot of poverty. We didn’t have a lot left to us except for these fishing rights, and even those were supposed to only to feed ourselves and not to make a profit with rare exception. A lot of people will rage about how “Indians” get all this special treatment. I remember it quite differently. We ate fish livers growing up because the filets were sold to the white folk because we needed the money to pay for things. So, guts it was for us. So, you will excuse me if I don’t feel like we were treated very special when I remember what I was told Big Abe had to do with all of that. He may have had faults I am sure I don’t know about, but he was a decent man.
The Court’s decision, ultimately, resulted that the 1855 treaty trumped the 1836 treaty, and that all “Indians” had been expected to assimilate into white culture, being that they found a few of us who said they were happier now that they could farm cattle and such instead of having to hunt, or leave, since it was a “removal” treaty. No matter that Native children were doing worse in school on account of them not learning English, and no matter that, well, they just weren’t. No one cared that people were being asked to give up all of their history, their past, everything that meant anything to them, and how can you put a dollar value on a person trading in their right to maintain something which had been sacredly theirs until it was forcefully stripped from them? The Court also found that, hey, that band of Indians was disbanded by the Tribal Realignment Act anyhow, and they aren’t really the ones the treaty affected, so they didn’t have treaty rights to be stamped on, we were trying to take their land anyhow, so there, blah blah blah.
Well, it seems that the United States decided to file on behalf of the Natives in 1978, (PDF) against the State of Michigan (for whatever reasons this happened), and three tribes as well as the DNR (oh I snort sometimes) became defendants in this case. Also, many sports fisherman decided to circulate petitions urging the Court to find against the Indians, which, as you can see, was not going to be tolerated by the Court.
Also, the Court upheld that not all previous treaties were simply wiped out by the 1855 treaty, as Michigan maintained. Rather, the Treaty of Ghent, signed in 1814, and compromised, by Great Britain of all places, just prior to and apparently partially as a stipulation to Michigan receiving its Statehood, was meant to secure back many rights for Britain’s war allies, the Indians. This was not to be cast away so quickly, it seemed.
And, while we are on that point, the Court pointed out, individual states had not the right to be brokering deals with sovereign nations — only the Federal Government had that right. Citing an example where rights over migratory waterfowl were obtained from Great Britain by the Federal Government, the State just couldn’t grasp ahold of that and negotiate that in deals with the Indians.
Much noted is that the Supreme Court points out a laundry list of past atrocities that were poorly handled to say the least in lessons learned and things they have tried to do better, and then shakes its finger and Michigan for attempting to handle it based on an Act of Congress more than 130 years old, where the common handling of Indians was to pack ‘em up and send ‘em West.
Because the “deals” the U.S. made around the time it “requested” that Natives relocate themselves were little more than orders issued by a frustrated President Jackson, who was irritated that not all Indians were easily mowed down, that all Indians were not nomadic, and in fact some were content to live in one place (some were also slaveholders, lest anyone presume I am painting them as innocents in everything, rather, that there is no way to blanket every member of every nation under “Natives”). I mean, who wouldn’t want to trade in their ancestral homes for trade of money they may never receive from people who kept trying to kill them, set off ill-provisioned over hardly hospitable land through winters of cholera and small-pox only to have to try their hand farming hostile land with no money and no supplies? Sounds like a dream to me!
But the U.S. Supreme Court found in favor of the Bay Mills Tribe of Chippewa Indians and the Sault Sainte Marie Tribe of Chippewa Indians, and it was decided that the treaties in no way suggested an expiration date for treaty fishing rights, a time when the Indians were supposed to leave the ceded lands in Michigan, nor that any subsequent treaty erased the rights of the past. Instead, it also held that the current tribes were political successors of the signatories of the previous, and that one can never really “settle” water.
There are still disputes currently in Michigan over what is and is not covered under treaty rights. Who is and isn’t. And, can you believe it, do treaty rights discriminate against non-Native anglers (poor mistreated white doodz).
The most recent decision was a revisit of the 1979 case, some 32 years later, in the MI Supreme Court that upheld that inland areas are not necessarily governed by the treaty, and this was allowed by the U.S. Court as a defendant.
Part of what the most recent decisions say are that gill nets are not allowed (true and not true, like I already said, my family still uses these in part), nor is “snagging”, which just isn’t nice, so you really shouldn’t do it anyhow. It also says that treaty rights don’t allow for commercial sales, that only personal use is allowed. Well, again, true and not true, and I suspect that this was a lot of heavy urging on part of non-Native anglers to insist that someone we were being treated special again. But, I again point to all the years that treaty-right fishers were only able to make a living this way when no one else would employ them and it makes me angry to see this. Tribes should be trusted to regulate their commerce and decide who can and can not run a commercial business, since they would know best the numbers of their members and how to best reconcile that with fish populations. Near my family’s fishery is also a hatchery that re-populates the area of Lake Superior where we fish. There is give and take, which has always been the case for us. Not so with the many of the tourists who roll in try and manipulate the resources we have.
My next post will deal with the idea that there is no oversight to Tribal fishing, or with commercial fishing, ever, which is completely untrue.