424 F.3d 438 (6th Cir. 2005), 04-1864, United States v. Michigan

Docket Nº:04-1864.
Citation:424 F.3d 438
Party Name:UNITED STATES of America, Plaintiff-Appellee, Bay Mills Indian Community; Sault Ste. Marie Tribe of Chippewa Indians; Grand Traverse Band of Ottawa & Chippewa Indians; Little River Band of Ottawa Indians; Little Traverse Bay Band of Odawa Indians, Plaintiffs/Intervenors-Appellees, v. State of MICHIGAN, et al., Defendants-Appellees, Michigan Fisheri
Case Date:August 24, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 438

424 F.3d 438 (6th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

Bay Mills Indian Community; Sault Ste. Marie Tribe of Chippewa Indians; Grand Traverse Band of Ottawa & Chippewa Indians; Little River Band of Ottawa Indians; Little Traverse Bay Band of Odawa Indians, Plaintiffs/Intervenors-Appellees,

v.

State of MICHIGAN, et al., Defendants-Appellees,

Michigan Fisheries Resource Conservation Coalition; Stuart Cheney; Robert Andrus; Walloon Lake Trust and Conservancy, Proposed Defendants-Intervenors-Appellants.

No. 04-1864.

United States Court of Appeals, Sixth Circuit.

August 24, 2005 [*]

Argued: April 18, 2005

Appeal from the United States District Court for the Western District of Michigan at Kalamazoo. No. 73-00026—Richard A. Enslen, District Judge.

Page 439

COUNSEL

ARGUED:

Stephen O. Schultz, FOSTER, SWIFT, COLLINS & SMITH, Lansing, Michigan, for Appellants.

Kathryn E. Kovacs, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Marc D. Slonim, ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLOMIN, Seattle, Washington, for Appellees.

ON BRIEF:

Peter R. Albertins, FOSTER, SWIFT, COLLINS & SMITH, Lansing, Michigan, for Appellants.

Kathryn E. Kovacs, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Marc D. Slonim, Brian C. Gruber, ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLOMIN, Seattle, Washington, Kathryn L. Tierney, BAY MILLS INDIAN COMMUNITY, Brimley, Michigan, Aaron C. Schlehuber, Sault Ste. Marie, Michigan, Bruce R. Greene, GREENE, MEYER & McELROY, Boulder, Colorado, John F. Petoskey, GRAND TRAVERSE BAND OF OTTAWA & CHIPPEWA INDIANS, Peshawbestown, Michigan, William Rastetter, OLSON, BZDOK & HOWARD, Traverse City, Michigan, William J. Brooks, Manistee, Michigan, James A. Bransky, Traverse City, Michigan, Allie Greenleaf Maldonado, Harbor Springs, Michigan, Marie Shamraj, Christopher D. Dobyns,

Page 440

OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for Appellees.

Before: BOGGS, Chief Judge; RYAN and ROGERS, Circuit Judges.

OPINION

RYAN, Circuit Judge.

This appeal is the latest episode in a 32-year-old dispute between the United States and the State of Michigan regarding the interpretation and enforcement of the 1836 Treaty of Washington, 7 Stat. 491. The appellants, Michigan Fisheries Resource Conservation Coalition (MFRCC), Stuart Cheney, Robert Andrus, and the Walloon Lake Trust and Conservancy, comprise a group of proposed intervenors who appeal from the district court's order denying their motion to intervene in the current phase of this case to determine the usufructuary rights of five Indian tribes under the Treaty. For the following reasons, we will affirm.

I.

This litigation has a lengthy history which is only briefly reviewed here. In 1836, the Ottawa and Chippewa Indian Nations and the United States government signed the Treaty of Washington. Under the terms of the Treaty, the Indians ceded some of their lands and waters, encompassing large portions of what is now the State of Michigan and the Great Lakes, to the United States government while reserving certain rights in the ceded territory. Article 13 of the Treaty provides, in part: "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." 7 Stat. 491. The interpretation of the latter clause, and its application to modern circumstances, are in dispute in this litigation.

A. The Tribes' Treaty Right to Fish in the Great Lakes

The United States brought this lawsuit against the State of Michigan in 1973, on its own behalf and on behalf of the Bay Mills Indian Community, "to protect the tribe's rights to fish in certain waters of the Great Lakes" under the Treaty and to enjoin the State of Michigan's alleged interference with those rights. United States v. Michigan, 471 F . Supp. 192, 203 (W.D. Mich. 1979), modified in part, 653 F.2d 277 (6th Cir. 1981). Thereafter, the Bay Mills Indian Community and the Sault Ste. Marie Tribe of Chippewa Indians successfully moved to intervene as plaintiffs and added certain state officials as defendants. Id. at 203-04. The Michigan United Conservation Clubs (MUCC), a sportsman's group, also filed a motion to intervene as a defendant. Id. at 204.

Pursuant to a motion filed by the plaintiffs, the district court, in a written opinion, bifurcated the case into a declaratory phase and a remedial phase. The court planned to consider in the first phase "[w]hether the Indians reserved or retained fishing rights in the Great Lakes waters purportedly ceded by them under the Treaty of 1836," and whether the State of Michigan had "jurisdiction to regulate the exercise of those rights by treaty tribe members." The court declared that if such rights were found to exist and could be regulated by the State of Michigan, the court would proceed to the second phase to determine "which, if any, State regulations may be applied to the Indians in the exercise of their reserved rights."

In the same opinion, the district court denied MUCC's motion to intervene, noting that its decision was "based largely upon the fact that there will be separate trials as to the declaratory and remedial aspects of this case." The court explained

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that, although MUCC had an interest in the case, it had failed to meet its burden of demonstrating that the State of Michigan would not adequately represent its interest with respect to the issues to be decided in the declaratory phase. The court permitted MUCC to participate as amicus...

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