Solve 1836 treaty dispute before trouble erupts

Indian Hunting Rights Raise 167-year-old Question: Is Michigan Settled or Still a Bit Wild?

By The Detroit News, Saturday, October 4, 2003

State Attorney General Mike Cox is on the right track in asking a federal court to clarify a 167-year-old treaty with Michigan Indians. He wants a judge to resolve the issue of hunting rights covered in an 1836 pact —rights Cox says expired long ago.

The approach contrasts favorably with tactics in other states that led to police raids, confrontations and scuffles over treaty interpretations.

Hard to believe that the Michigan hunting issue is not settled after all these years.
But it isn’t. The Department of Natural Resources reports numerous incidents of tribe members hunting in ways illegal for non-Indians.

Inter-tribal land disputes were fought long before Columbus landed in the Americas.

But the problem got knottier when European property laws were overlaid on
the continent.

Now the goal should be clear: A single set of hunting and fishing rules for land not clearly and specifically given to Indians in treaties.
In the 1836 treaty, chiefs of the Ottawa and Chippewa nations met in Washington and ceded swaths of land to the United States for money and other considerations.

Article 13 of the deal spawns the modern dispute: “The Indians stipulate for the right of hunting on the lands ceded, with the other usual privileges of occupancy, until the land is required for settlement.”

Arguably, Michigan is now thoroughly settled.

But from another point of view, vacant acreage is not entirely settled and thus open to hunting under the 1836 pact. That will be the issue for the federal court to decide.

Other court decisions show that, even under claims of sovereignty, tribes are subject to federal and state restrictions.

The U.S. Supreme Court, for example, has upheld New York’s right to collect taxes from tribes on sales to non-Indian consumers. Indians resisted paying the tax and forced the case. Similar state-tribe disagreements turned up in Maine and Idaho.

In the 1990s, some tribes got into trouble for religious services that used peyote, an illegal drug. They claimed a right to peyote under self-rule. But it took an act of Congress to end the conflict and make the practice legal from a federal point of view.

The law was hailed as a victory for the tribes. But it also shows that Congress can —and will — assert its overriding power to settle such matters.

Lower federal court rulings also confirm or set limits to rights claimed in 19th century treaties.

In Rhode Island, police this year raided a popular tobacco shop that was selling tax free cigarettes. The raiding party got into a scrape with tribal members and several were injured. Eight Indians were arrested.

That’s the hardball way to settle disputes. Attorney General Cox, in conjunction with the DNR, has a better idea. Settle the issue in court before trouble erupts.