[Policy Documents] [Forensic Intelligence Hub-Page] [Jhéön & Associates, Stephen P. Dresch, Chairman]
SATURDAY, OCTOBER 26, 1996 [Rev. 97.01.15]
A continuing prosecution in Ontonagon County, Michigan, raises interesting questions concerning the extent of Indian usufructuary rights [1] in territories ceded by treaty to the United States, possible conflicts between those usufructuary rights and the rights of private property owners, and the permissible reach of state regulation. Because the opinion of Judge Anders Tingstad, Jr., in the instant case, holding that Indian hunting on private land in the ceded territory is subject to state regulation, has far-reaching implications and will almost certainly be appealed, these issues deserve serious consideration.
The facts of the Ontonagon case are quite simple: Two members of the Keweenaw Bay Indian Community were arrested by agents of the Michigan Department of Natural Resources for, inter alia, shining deer in violation of the state’s Wildlife Conservation Act.[2] Defendants argued that they are exempt from state regulation under the 1842 and 1854 treaties recognizing Indian hunting and fishing rights on “ceded territory.” The prosecution claimed that this exemption applies only on public land, but that the defendants were arrested on privately-owned land.[3] Rejecting the defendants’ motion to dismiss, the court held:
... the Lake Superior Band of Chippewa Indians have no right to exercise usufructuary rights on private property, whether posted, recreational trespass, or otherwise, at the time of the actual or contemplated exercise of those rights. If the Lake Superior Chippewas wish to hunt on private property, they would have to follow the regulations of the state and federal government applicable to citizens of the United States of America or the State of Michigan/Wisconsin.[4]
The most recent U.S. Supreme Court opinion to address issues of usufructuary rights of Indians in ceded territory is Antoine v. Washington [420 U.S. 194, 1975].[5, 6] Forcefully upholding Indian exemption from state regulation of hunting on “public” portions of such lands, the majority opinion devoted a significant footnote to the issue of usufructuary rights on privately-owned land:
“A CLAIM OF ENTITLEMENT TO HUNT ON FENCED OR POSTED PRIVATE LAND WITHOUT PRIOR PERMISSION OF THE OWNER WOULD RAISE SERIOUS QUESTIONS NOT PRESENTED IN THIS CASE.” [Emphasis added.]
By implication, Indian hunting on unfenced and unposted private land or on fenced or posted private land but with the permission of the owner would not “raise serious questions not presented in this case” and would be exempt from state regulation. Further, the majority opinion in Antoine clearly implies that hunting on private property within ceded territory without the owner’s permission would constitute actionable trespass, not a violation of state hunting regulations.[7]
Disagreement with the thrust of this footnote motivated Justice Douglas to author a concurring opinion. With reference to the nature of the issue which would be posed by Indian hunting on private land without the permission of the owner Douglas agreed with the majority that the issue was one of trespass, not state regulation:
WHETHER THE RESULT WOULD BE DIFFERENT IF THE CONTEST WERE BETWEEN THE OWNER OF THE PRIVATE TRACT AND THE INDIAN IS A QUESTION THAT NEED NOT BE REACHED. [Emphasis added.] WE HAVE HERE ONLY AN ISSUE INVOLVING THE POWER OF A STATE TO IMPOSE A REGULATORY RESTRAINT UPON A RIGHT WHICH CONGRESS BESTOWED ON THESE INDIANS. SUCH AN ASSERTION OF STATE POWER MUST FALL BY REASON OF THE SUPREMACY CLAUSE.
If the contest were indeed “between the owner of the private tract and the Indian,” then the issue could only be one of trespass.
However, Douglas strongly dissented from the majority’s suggestion that Indian hunting on private land without permission of the owner would indeed constitute actionable trespass:
AN EFFORT IS MADE TO RESTRICT THESE HUNTING RIGHTS TO PUBLIC LANDS, NOT TO TRACTS CEDED BY THIS AGREEMENT AND TAKEN UP BY PRIVATE PARTIES. THE AGREEMENT, HOWEVER, SPEAKS ONLY OF THE CEDED TRACT, NOT THE ULTIMATE DISPOSITION OF THE SEVERAL PARTS OF IT. [Emphasis added.] WE WOULD STRAIN HARD TO FIND AN IMPLIED EXCEPTION FOR PARCELS IN THE CEDED TRACT THAT ENDED IN PRIVATE OWNERSHIP. THE GENERAL RULE OF CONSTRUCTION GOVERNING CONTRACTS OR AGREEMENTS WITH INDIANS IS APT HERE:
"THE CONSTRUCTION, INSTEAD OF BEING STRICT, IS LIBERAL; DOUBTFUL EXPRESSIONS, INSTEAD OF BEING RESOLVED IN FAVOR OF THE UNITED STATES, ARE TO BE RESOLVED IN FAVOR OF A WEAK AND DEFENSELESS PEOPLE, WHO ARE WARDS OF THE NATION, AND DEPENDENT WHOLLY UPON ITS PROTECTION AND GOOD FAITH. THIS RULE OF CONSTRUCTION HAS BEEN RECOGNIZED, WITHOUT EXCEPTION, FOR MORE THAN A HUNDRED YEARS . . .." CHOATE V. TRAPP, 224 U.S.,AT 675.
Clearly, Douglas is saying that the treaties grant the right to hunt and fish in the entirety of the ceded territories, not on only those portions which happen, at any point in time, not to have yet been converted to private ownership. To hold otherwise would be to condition treaty rights on the subsequent whims of government land agents and private parties in their determinations of those parcels to be offered to and purchased by private owners.
But, again, the disagreement between Douglas and the majority concerns only the protections which may be available to a private property owner who desires to prohibit Indian hunting on his land. For neither Douglas nor the majority is the issue one of state regulation of Indian hunting on private land; both would prohibit that regulation.
As in the case of the agreement at issue in Antoine, the 1842 and 1854 treaties between the United States and the Lake Superior Chippewas are quite clear in their specification of usufructuary rights. Thus, the 1854 treaty states:
... the Indians shall not be required to remove from the homes hereby set apart for them. And such of them as reside in the territory hereby ceded, shall have the right to hunt and fish therein, until otherwise ordered by the President.
Usufructuary rights might be taken by order of the President, but the treaty is silent with reference to the possible transfer of the lands from the federal government to private ownership. Because patenting of the land to private parties must have been anticipated at the time the treaties were negotiated, any intention on the part of the parties to exclude private land from Indian usage would have been incorporated explicitly. And, even if there is doubt on this issue, the “rule of construction” that “doubtful expressions ... are to be resolved in favor of a weak and defenseless people,” as summarized in Choate (and cited by both Douglas and the majority in their Antoine opinions) must apply.
Writing four years before the Antoine court, the Michigan Supreme Court, in People v. Jondreau, 384 Mich. 539 (1971), overruled its prior decision in People v. Chosa, 252 Mich. 154 (1930, which had held that the Chippewa treaties did not exempt Indians from the state’s game regulations.
The Jondreau prosecution involved fishing without benefit of a state license in the waters of Lake Superior’s Keweenaw Bay. However, relying principally on the treaty powers of the federal government and on the language of the treaty, which should “never be construed to their [the Indians’] prejudice,” interpreting “the words of the treaty [as they] were understood by this unlettered people” [Worcester v. Georgia (1832), 31 US (6 Peters) 515 (8 l Ed 483)] the court reached a broad, general conclusion:
We, therefore, overrule People v. Chosa ... and hold that the game regulations are invalid as applied to the defendant Jondreau and other Indians who are protected by the Chippewa Treaty of 1854.
Jondreau involved only fishing in Keweenaw Bay, but the court held all “game regulations” to be invalid in application to Indians “protected by the Chippewa Treaty of 1854,” a treaty embracing the entirety of the ceded territory.
While the Jondreau court did not directly address the issue of the exercise of usufructuary rights on ceded territory which had passed to private ownership, the general terms of its argument and the breadth of its conclusion are not inconsistent with the Douglas position in Antoine, that the rights extend to the entirety of the ceded territory, not merely to any part that may, at any time, remain in public ownership.
This interpretation is reinforced by the Jondreau court’s principal quotation from the Chosa opinion:
The treaties evidently established a servitude of the right to hunt and fish on the ceded land in favor of the Indians and against the exclusive dominion of private ownership, but they provided no immunity from the operation of game laws, as against the State. [Emphasis added.]
Thus, the Chosa court had concluded that the 1842 and 1854 treaties protected the Indians’ right to hunt and fish on private property within the ceded territory but granted no immunity from state regulation (on either public or private land). It was the latter conclusion in favor of state regulation which the Jondreau court overruled, not the former determination “in favor of the Indians and against the exclusive dominion of private ownership.”
And, with reference to this finding “in favor of the Indians and against the exclusive dominion of private ownership” the Chosa court had a strong (and never repudiated) precedent in the U.S. Supreme Court’s decision in United States v. Winans, 198 U.S. 371, 381-382 (1905):
The contingency of the future ownership of the lands, therefore, was foreseen and provided for - in other words, the Indians were given a right in the land - ... - the right to occupy it to the extent and for the purpose mentioned. No other conclusion would give effect to the treaty. And the right was intended to be continuing against the United States and its grantees as well as against the State and its grantees.
In the case of the Chippewa treaties the “extent and ... purpose” of the Indians’ right in the land was hunting and fishing, and that right must be understood to “continu[e] against the United States and its grantees ...”
One question remains: If the Indians’ usufructuary treaty rights on public and private land are as clearcut and unambiguous as argued here, how does one explain the explicitly contrary ruling of the United State Court of Appeals for the Seventh Circuit? In Lac Courte Oreilles Band v. Voigt, 700 F.2d, 341, relied upon by Judge Tingstad in his Koski decision, the court stated, simply, “The exercise of these rights is limited to those portions of the ceded lands that are not privately owned.”
One could recount the confusing history of the Lac Courte decisions by the Seventh Circuit and note that the issue of the extent of usufructuary rights on privately owned land had not been the subject of fact-finding by the trial court. However, the lack of foundation for the Seventh Circuit’s ruling is graphically indicated by the substantive dissatisfaction subsequently expressed by the trial judge, U.S. District Judge James E. Doyle [Lac Courte Oreilles Band v. Wisconsin, 653 F. Supp. 1420, 1432-3 (W. D. Wisc. 1987)]:
Free of any direction by the court of appeals on the point, I would find that in 1837 and 1842 the Chippewa did not understand that their reserved usufructuary rights could be diminished or eliminated lawfully under those treaties unless a removal was properly ordered. In my actual findings, above, I have limited this proposition in an effort to be obedient to the court of appeals, but without excessive violence to the factual record. I have found, and now repeat, that the Chippewa understanding in 1837 and 1842 was that in the absence of a lawful removal order or in the absence of fresh agreement on their part, settlement and private ownership of parcels by non-Indians would not require the Chippewa to forego anywhere or in any degree exercise of their reserved usufructuary rights ... within the entire ceded territory.
... I have made is as plain as I can that there is no evidence to support a finding that the Chippewa understood at treaty time those rights could be diminished -- not by the negotiation and achievement of a new treaty and not by a lawful exercise of the president’s removal power -- but by some amorphous aggregate of sporadic non-governmental decisions by individuals to acquire private ownership of parcels in the ceded territory, or by unilateral choices by the state of Wisconsin and local units of government from time to time, to put parcels of public land to some public use incompatible with the Chippewa’s continued exercise of their usufructuary rights. To construe the treaties as embodying some such potential for de facto diminution in response to non-Indian settlement is totally at odds with the rule that these treaties must be construed consistently with the Chippewa’s understanding of their meaning.
I do not ignore the obvious practical dilemma present in the ceded lands as of 1987. But that dilemma should be responded to by an effort to negotiate a new treaty. If a new treaty is not sought or achieved, then Congress is the branch of the United States government which should address the problem. Whether justified or not, it is by now well-established that Congress enjoys the power to modify Indian treaties unilaterally. If the 1837 and 1842 treaties must be modified to resolve the practical dilemma, and I do not imply that they must, the modification should be accomplished forthrightly by a tour de main by the Congress, and not by the United States courts.
The conclusion of Judge Eugene T. Black, concurring in the Michigan Supreme Court’s ruling, in People v. Jondreau, applies as aptly to the Seventh Circuit’s decision in LCO as to the Michigan Supreme Court’s 1930 decision in People v. Chosa:
Today we find definitely that this same treaty of 1854 [as addressed in People v. Chosa] provided and now provides “a specific condition of enjoyment of the reservation” which to this day tolerates no challenge by Michigan and the courts of Michigan. No like finding, and no opposing finding, was made by the Chosa Court. Irrelevant reasons only were assigned for refusal to support the treaty-stipulated right of Chosa and Attikons to hunt and fish on the reservation. ...
In that setting People v. Chosa was released to our books a little over 40 years ago. This Court attempted then in contravention of the treaty and the supremacy clause to interpose subordinate interests of the State, and the never exercised revocatory power of the President, to block the enforcement of that treaty.
There is no occasion for overrulement or distinguishment of Chosa. It never became law in the first place, both its judgment and the statute applied there having spent their whole force in the utterance of worthless words. People v. Chosa was, when handed down December 2, 1930, like the earth before it was made, “without form, and void.” (Genesis 1:2). [Emphasis added.]
The Seventh Circuit, in asserting that the happenstance of non-Indian purchase of land in the ceded territory voided the treaty-stipulated usufructuary rights of the Indians, “ spent [its] whole force in the utterance of worthless words.”
Is there a conflict between usufructuary rights of Indians and private property rights?
But, if Indian hunting on private lands in the ceded territories is exempt not only from state regulation but also from private action for trespass, does this not create a conflict between the treaty rights of Indians and the property rights of private owners of land in the ceded territory? The answer, simply, is, no.
Title to property is always qualified to a greater or lesser extent. Relevant here are those qualifications imposed by prior owners, which constitute property rights retained by those prior owners or transferred by prior owners to others. Thus, when party “a” sells property to party “b”, use of that property is subject to deed restrictions stipulated by “a”, some of which may have been imposed as a result of agreements between “a” and some third party “c”, as when neighbor “c” pays “a” to impose a deed restriction prohibiting operation of a hog farm on the property of “a”; the deed restriction grants some part of the rights in the property to “a” or “c”, transferring only the remainder of the property rights to buyer “b”. Deed restrictions do not “infringe” the property rights of the buyer; they simply represent rights which the buyer didn’t purchase.
Interestingly, the Michigan Supreme Court, in St. Helen Shooting Club v. Mogle, 234 Mich. 60 (1925), has explicitly recognized that “an owner can convey his premises and reserve to himself the hunting and fowling rights thereon,” characterizing this right as “not a mere license, but ... an interest in the real estate in the nature of an incorporeal hereditament”:
Nor is the right of one person to hunt or fowl on premises owned and in the possession of another an easement, for, strictly speaking, an easement implies that the owner thereof shall take no profit from the soil. The right is more properly termed a profit a prendre.[8, 9]
In the case of the ceded territories, the Indians transferred title to the United States by treaty but imposed a restriction on the federal government’s title, stipulating via a provision of the treaty that Indians would continue to enjoy usufructuary rights on these ceded territories. These usufructuary rights constitute property rights in the ceded territories, rights retained by the Indians. When the federal government patented land in the ceded territories to private owners, the treaty under which the government acquired the property continued in force and constituted a restriction on private title in the land, a profit a prendre retained by the Indians.
In short, there can be no conflict between the usufructuary rights of the Indians in the ceded territories and private property rights of owners of land in those territories, because the first is a property right not acquired by those to whom the United States patented the land or their successors. Title to land in the territories did not include the right to exclude Indians exercising their retained usufructuary rights.
Several classes of possibly permissible limitations on the exercise of Indian usufructuary rights can be identified. First, there are limitations which the Indians may voluntarily place upon themselves, administration of which they either retain or contract to another entity, e.g., state or federal agency. Second, certain limitations are either explicit or implicit in the treaties themselves, foremost among these the President’s express power to amend or revoke the usufructuary rights in the ceded territory. Third, the exercise of certain police powers of the state may serve directly or indirectly to limit the exercise of treaty rights. Finally, fourth, the courts have recognized that Congress, subject to liability under the takings clause of the Fifth Amendment and/or for breach of contract, can unilaterally amend or revoke a treaty.
O’Leary, in his Koski amicus brief, citing the LCO decisions and Settler v. Lameer, 507 F2d 231 (9th Circuit, 1974), notes that “Indian tribes may regulate their members’ exercise of off-reservation treaty rights.” However, the appropriate venue for enforcement of tribal gaming regulations is the tribal court. And, in the absence of cross-deputization agreements with the state or its subdivision, arrests for violation of a tribal code can only be made by tribal law-enforement officers.
Unilaterally or through a negotiated agreement a tribe might voluntarily impose certain state regulations on tribal members. In that situation the tribe could undertake to enforce the regulations on Indians or grant the state enforcement authority. Thus, the Keweenaw Bay Indian Community has voluntarily subjected its members to the requirement of a Michigan license as a condition for fishing on lakes where riparian ownership is entirely private. However, as O’Leary (amicus brief) notes, the tribe did not interpret this provision as a relinquishment of treaty rights, as indicated by the following passage from the tribal code:
§10.511 Special Fishing Restrictions
...
This provision represents the Keweenaw Bay Indian Community’s approval of the State of Michigan’s regulations to protect the unique trophy fishery which exists in these areas, and does not imply any authority over tribal members by the State of Michigan.
The usufructuary articles of the 1842 and 1854 treaties contain a very explicit, even dramatic, potential limitation on the exercise of those treaty-recognized rights: The rights can be revoked or amended on a direct order of the President. Thus, Article 11 of the 1854 Treaty with the Chippewas, granting the right to fish and hunt in the ceded territory, concludes, “until otherwise ordered by the President.”
Apart from the President’s exercise of his power of revocation or amendment, the treaties with the Chippewas do not grant unlimited usufructuary rights in the ceded territory. Rather, the Indians retained the right to “hunt” [1842] and “hunt and fish” [1854]. Thus, Indian rights are explicitly defined and limited by the meanings of the terms “hunting” and “fishing,” specifically as these terms were understood at treaty time.
At the least, these terms would appear to restrict treaty-protected Indian activity to the taking of wild game and fish. The term hunting would not plausibly have extended to domesticated animals. Thus, for example, the taking of a farmer’s cow would appear to be an unprotected action, subjecting the perpetrator, whether Indian or non-Indian, to criminal liability. Similarly, fish raised commercially in tanks would not plausibly be subject to treaty-protected “fishing”; the taking of fish in tanks would be more akin to “harvesting” than “fishing,” and an Indian arrested for theft of fish from tanks would not be able to rely on the treaty for protection.
Several interesting ambiguities do arise here, however. While the treaty would not grant an Indian the right to take fish in commercial tanks, what if fish were raised commercially (a) in a natural lake entirely in private riparian ownership or (b) in an artificial, manmade fish-growing pond?
It has been argued here that the treaty protects Indian access to the entire ceded territory for purposes of fishing. The natural lake was present, presumably, at treaty time and, presumably, contained at least some fish. Therefore, it would appear that the Indian would continue to have access to the lake for purposes of fishing, even if the riparian owner had subsequently stocked the lake for commercial fish production. To find otherwise would be to subject treaty rights to the whims of non-Indians who happen to undertake commercial activity within the ceded territory.
Whether the same would be true of the artificial pond would appear to depend on whether the pond was more plausibly characterized as an “in-ground tank” or a “lake,” i.e., would depend on the characteristics of the pond and its setting.
Commercial game farms and hunting preserves raise similar questions. The treaty clearly grants the Indian a right of access, but what “game” does the treaty permit him to take on a commercial tract of this type? One response would focus on the nature of the game, “wild” or “domesticated.” Thus, deer being raised and fed in a pen would appear more akin to cows and other domesticated animals than to deer in the wild. In contrast, deer permitted to live naturally within the confines of a fenced game farm, even if provided food by the operator, would appear to be available to the Indian hunter. To determine otherwise would render his access to the territory meaningless. There would, of course, remain an ambiguity: When does a fenced tract harboring “wild” animals become a pen containing “domesticated” animals?
It might be argued that the foregoing logic would extend only to indigenous species of game. Consider a game farm on which both deer and boar are raised “in the wild.” Deer are indigenous and therefore are subject to Indian hunting under the treaty. Boar, however, are not indigenous, and therefore it might be argued that the treaty would not protect the Indian’s right to hunt boar. In response, it might be noted that at or prior to the treaty the Indian would have been free to hunt a nonindigenous species which happened to appear within the territory. The Indian’s right is to hunt “game,” and the boar , unless it is a penned, domesticated animal, is game, however it happened to arrive within the ceded territory.
With the proliferation of private game preserves and stocked fishing lakes the foregoing questions are not purely fanciful. Precisely how a court would deal with the issues is, ultimately, arbitrary, but it would appear that the issue is one of drawing an arbitrary line separating “game” from “nongame” animals.
The U.S. Supreme Court and subordinate federal courts have accepted state regulations of Indians’ exercise of usufructuary rights which can be demonstrated to be “necessary” for conservation of fish and game. However, this does not constitute a recognition of the subordination of treaty rights to state police powers generally. Thus, Justice Douglas, in Puyallup Tribe v. Department of Game of Washington, 88 SCt 1725, 20 L Ed 2nd 689 (1968), wrote,
AS TO A "REGULATION" CONCERNING THE TIME AND MANNER OF FISHING OUTSIDE THE RESERVATION (AS OPPOSED TO A "TAX"), WE SAID THAT THE POWER OF THE STATE WAS TO BE MEASURED BY WHETHER IT WAS "NECESSARY FOR THE CONSERVATION OF FISH." TULEE V. WASHINGTON, 315 U.S., AT 684.
THE MEASURE OF THE LEGAL PROPRIETY OF THOSE KINDS OF CONSERVATION MEASURES IS THEREFORE DISTINCT FROM THE FEDERAL CONSTITUTIONAL STANDARD CONCERNING THE SCOPE OF THE POLICE POWER OF A STATE.
Thus, while the U.S. Supreme Court has recognized state regulation necessary for purposes of conservation, the standard it has set is relatively high.
The Michigan Supreme Court has gone further and definitively rejected the argument that Chippewas’ treaty rights can be infringed for purposes of conservation. Thus, the Jondreau court observed:
The people point out the fact that unlimited fishing rights could deplete our limited national resources. They rely on Puyallup, supra, where the court held that the State could provide regulations that were reasonably necessary for the conservation of fish. In an age of growing awareness of the need to preserve and protect our environment, this is an important consideration. However, unlike the treaty of 1855 considered in the Arthur case [State v. Arthur, 74 Idaho 251 (261 P2d) 35 (1953)], the Chippewa Indian Treaty of 1854 does provide a safeguard. Under Article 11, the President may issue an order limiting or extinguishing the hunting and fishing rights of the Indians. The four fish involved in this case will not upset the ecological balance. However, if in the future the number of fish being taken does constitute such a threat, we are convinced that the President would take appropriate action.
Thus, in Michigan (and also in Idaho, under that state’s supreme court ruling in Arthur), the state has no authority to infringe treaty rights through exercise of its police powers, even for purposes of conservation.
However, other exercises of police power may well be legitimate, notwithstanding indirect or coincidental consequences for the Indians’ exercise of treaty rights. For example, beyond the confines of a reservation Indians are subject to the general criminal laws of the state, at least to the extent that these do not criminalize the Indians’ treaty-protected activity per se.
Because the Indians’ rights to hunt and fish extend to the entire ceded territory, state or municipal laws prohibiting hunting in incorporated or other places would appear not to apply to Indians, because such a prohibition would indeed constitute a per se infringement of treaty rights.
However, if, in the course of engaging in treaty-protected hunting, an Indian were to kill, harm or threaten another, the treaty would not appear to offer protection against prosecution under the applicable criminal law (manslaughter, assault, reckless endangerment). Thus, prohibitory laws notwithstanding, an Indian would have the right to hunt in a business or residential district of a city, but he would exercise that right at substantial risk to others, and thus at substantial legal risk (and risk of imprisonment) to himself.
As Judge Doyle noted, “Whether justified or not, it is by now well-established that Congress enjoys the power to modify Indian treaties unilaterally.” Thus, even in the absence of a presidential order revoking or amending these treaty rights, Congress can legislate limitations, e.g., prohibit hunting in areas of commercial or residential settlement. Of course, were Congress to do so, it would be liable to the Indians for compensation under the takings clause of the Fifth Amendment and/or for breach of contract:
A treaty is essentially a contract between two sovereign powers ... It is not surprising, therefore, that the rule we find emerging from prior cases dealing with Indian rights is a rather straightforward statement of contract law. If the Government explicitly promised the Indians a property right in land, the Government would be subject to a claim for compensation if it breached the terms of the agreement. Lac Courte Oreilles Band v. Voigt, 700 F.2d, 357 (7th Circuit, 1983).
Thus, there exist various actual or potential limitations or restrictions on the usufructuary treaty rights of Indians. However, the treaty provides the Indians the protections of contract law, in addition to the protections afforded all property owners by the “takings” clause of the Fifth Amendment.
One cannot defend the property rights of private owners (including those within the ceded territory) without defending the prior property rights of Indians in the ceded territory, as stipulated by treaty. Like it or not, we cannot “pick and choose” those rights which we respect; if some rights can be trampled, so can others, i.e., rights cease to be “rights” and become mere “concessions” granted, for longer or shorter periods, by government, and we all become beholden to government, its bureaucrats, police, prosecutors and judges for any “rights” which they happen, today, to extend to us.[10]
TREATY WITH THE CHIPPEWA, OCTOBER 4, 1842
ARTICLE II. The Indians stipulate for the right of hunting on the ceded territory, with the other usual privileges of occupancy, until required to remove by the President of the United States, and that the laws of the United States shall be continued in force, in respect to their trade and intercourse with the whites, until otherwise ordered by Congress.TREATY WITH THE CHIPPEWA, SEPTEMBER 30, 1854.
ARTICLE 11. All annuity payments to the Chippewas of Lake Superior, shall hereafter be made at L'Anse, La Pointe, Grand Portage, and on the St. Louis River, and the Indians shall not be required to remove from the homes hereby set apart for them. And such of them as reside in the territory hereby ceded, shall have the right to hunt and fish therein, until otherwise ordered by the President.
1 Bouvier’s Law Dictionary (1856 Edition) provides the following definition :
“USUFRUCT, civil law. The right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantage which it may produce, provided it be without altering the substance of the thing.”
The treaties at issue here, in exchange for the ceding of Indian territories, granted some but not all usufructuary rights, specifically the right to hunt and fish. [Return to text.]
2 People of the State of Michigan vs. Daniel Larry Koski and Donald Larry Koski, File Nos. 95-103SM and 95-104SM, 98th Judicial District, Judge Anders B. Tingstad, Jr. Other charges lodged against the Indians in this case are unrelated to the issues discussed here. [Return to text.]
3 The issue of public versus private ownership of land is, in fact somewhat more complex than it might appear. First, complexities arise with reference to land owned by certain corporations created or caused to be created by public bodies. For example, the nonprofit Educational Support Institute [ESI] was created by the Board of Control of Michigan Technological University [MTU], a public agency. On its creation the University transferred to ESI, in addition to other assets constituting virtually the entirety of its “endowment and funds functioning as endowment,” substantial tracts of land. ESI simultaneously created the for-profit Ventures Group as a wholly-owned subsidiary, to which it transferred ownership of the land and other assets. From that point on MTU, ESI and Ventures contended that ESI and Ventures were not public agencies and that their property and assets were was not public. Thus, the three parties have consistently denied access by the state’s auditor general to the financial records of ESI and Ventures. These parties similarly denied public access to the records and meetings of ESI and Ventures, contending that these were not public bodies subject to the Michigan Freedom of Information and Open Meetings Acts. In a subsequent 30th Circuit Court action by the Detroit Free Press against MTU, ESI and Ventures, alleging violation of these acts, Judge James Giddings ruled that the creation of ESI as a private body was a subterfuge and that ESI was bound by the acts. However, the extent of the subterfuge was never fully resolved, leaving some question as to the public or private status of Ventures-owned property, all of which, incidentally, lies within the ceded territory at issue in Koski.
A further complexity concerns private lands enrolled as commercial forest reserves [CFRs] under Michigan’s Commercial Forest Act. Under the Act, in exchange for certain tax concessions, the private owner is required to permit public access to his CFR land. Because the public is permitted to take game on CFR land, the quid pro quo for the tax concession is more than an easement, taking the form of a profit a prendre, as discussed further below. Because CFR lands are private lands opened to public access and use only as a result of state action and at state expense, one would expect the state to contend that its right to regulate Indian hunting on CFR land is, if anything, greater and more extensive than its right to regulate Indian hunting on other private land. Inconsistently, the prosecution renounces state jurisdiction over Indian hunting on CFR land, conjoining it with purely public land for purposes of Indian exercise of usufructuary treaty rights. But, under this characterization, Indian hunting should be exempt from state regulation on any land opened by the private owner for public hunting, since the only distinction between CFR and other open private land is the state tax concession on the former, a distinction with no substantive relationship to Indian usufructuary rights.[Return to text.]
4 Opinion and Order of the Court (October 24, 1996). [Return to text.]
5 The 1892 agreement at issue in Antoine, under which the Indians ceded a major portion of a previously-established reservation in exchange for, inter alia, usufructuary rights in the ceded territory, differs in substance from the 1842 and 1854 treaties at issue in Koski primarily in that the former was an agreement, negotiated by the President and ratified by Congress, while the latter were treaties negotiated by the President and ratified by the Senate. Unhappy with its exclusion from direct influence on proposed Indian treaties, the U.S. House of Representatives insisted in 1871 on a statutory prohibition of recognition of Indian tribes and nations as sovereign and independent nations (16 STAT. 544, 566), subsequent to which contractual agreements were utilized to achieve ends previously achieved by treaty. In Antoine the Supreme Court held that there exists no substantive distinction between pre-1871 treaties and post-1871 agreements; both represent the supreme law of the land, and neither can be violated by states under the color of exercising their police powers.[Return to text.]
6 Interestingly, neither the opinion of the court, the amicus briefs of the Keweenaw Bay Indian Community nor, apparently, the briefs of defendants’ counsel referenced the Antoine decision of the U.S. Supreme Court.
Judge Tingstad relied on LCO v. Wisconsin (Judge Crabb, 1989) and LCO Band v. Voigt (Circuit Court, 1983), both 7th Circuit decisions. But, Michigan is in 6th Circuit. Thus, binding precedent in this Circuit is the latest relevant decision of Michigan Supreme Court, the 6th Circuit or the U.S. Supreme Court. That one of the members of the 7th Circuit panel was a 6th Circuit judge sitting by designation “intrigued” Judge Tingstad; however, this fact does not render the decision binding in the 6th Circuit, relieving the judge of the obligation to review the matter in light of binding Michigan, 6th Circuit and Supreme Court precedent. Judge Tingstad also notes that “rehearing was denied in this [LCO] case, as was certiorari”; however, the failure of the Supreme Court to grant certiorari may have been motivated by any number of considerations unrelated to the substance of the decision and hardly renders it binding precedent outside of the 7th Circuit (and even within that Circuit its force may well be questioned, as will be discussed further below). Thus., Judge Tingstad’s decision is required to conform to Antoine (Supreme Court, 1975) unless there have been subsequent relevant decisions, which there have not; unfortunately, it does not conform. [Return to text.]
7 The 7th Circuit decision contradicts the implication of the Antoine majority by subjecting hunting on private land to state regulation rather than trespass action. [Return to text.]
8 Again consulting Bouvier’s Law Dictionary (1856 Edition):
“PRENDER or PRENDRE. To take. This word is used to signify the right of taking a thing before it is offered; hence the phrase of law, it lies in render, but not in prender. Vide A prendre; and Gale and Whatley on Easements, 1.”
Also:
“A PRENDRE, French, to take, to seize, in contracts, as profits a prendre. Ham. N. P. 184; or a right to take something out of the soil. 5 Ad. & Ell. 764; 1 N. & P. 172 it differs from a right of way, which is simply an easement or interest which confers no interest in the land. 5 B. & C. 221.” [Return to text.]
9 In St. Helen the court went further and addressed the question of “[w]hether such a conveyance is against public policy, and, therefore, void,” finding that this disentangling and separation of property rights was not contrary to public policy. Id, 234 Mich. 72. O’Leary, amicus, notes that “these property rights are recognized by a great many jurisdictions nationwide,” citing Annotation: Right created by private grant or reservation to hunt or fish on another’s land, 49 A.L.R. 2d 1935. [Return to text.]
10 Of course, by the very terms of the treaties involved here the usufructuary rights of the Indians are concessionary. However, the party empowered by treaty to withdraw the concession is the President of the United States, not a federal or state judge. If private property owners, or others, object to the usufructuary rights of Indians, the correct course of action is to petition the President to exercise his powers under the treaties and revoke or restrict those rights. [Return to text.]
11 Preparation of this note was stimulated by discussions with Bud Sargeant of the Marquette Mining Journal., who requested my reactions, as a well-known “private-property-rights advocate,” to Judge Tingstad’s decision in the Koski case. In response to an earlier draft Joseph O’Leary, attorney to the Keweenaw Bay Indian Community, provided useful comments and copies of his amicus briefs which suggested certain extensions of the argument. I also enjoyed a lengthy telephone conversation with Judge Tingstad, whose knowledge of the history of the Chippewa treaties was impressive, although he could not convince me of the rightness of his decision. The advice, criticism and assistance of attorney Alan W. Clarke is gratefully acknowledged. Of course, I alone am responsible for the views expressed. [Return to text.]
12 The author, Stephen P. Dresch, a political economist (Ph.D., Yale), has served on the staffs of the National Bureau of Economic Research, the Ford Foundation, Yale University’s Institution for Social and Policy Studies (director, Research in the Economics of Higher Education), the Institute for Demographic and Economic Studies (chairman), the International Institute for Applied Systems Analysis, and Michigan Technological University (professor and dean, Business and Engineering Administration). In 1991-2 he was an elected member of the Michigan House of Representatives. He is currently cochairman of Jhéön & Associates and president of the Great Lakes Property Rights League. [Return to text.]