U.S. v. Michigan

• Decision Date: 24 August 2005
• Docket Number: No. 04-1864.,04-1864.
• Citation: 424 F.3d 438
• Parties: 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.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 438

424 F.3d 438

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.

Argued: April 18, 2005.

Decided and Filed: August 24, 2005.^*

ARGUED:

Stephen O. Schultz, Foster, Swift, Collins & Smith, Lansing, Michigan, for Appellants. Kathryn E. Kovacs, U.S. Department of Justice, Washington, DC, Marc D. Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Washington, for Appellees.

ON BRIEF:

Peter R. Albertins, Foster, Swift, Collins & Smith, Lansing, Michigan, for Appellants. Kathryn E. Kovacs, U.S. Department of Justice, Washington, DC, Marc D. Slonim, Brian C. Gruber, Ziontz, Chestnut, Varnell, Berley & Slonim, 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 Office of the Attorney General of Michigan, Lansaing, 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 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 curiae and noted that MUCC could renew its motion to intervene once the status of the Indians' treaty rights had been decided. On appeal, more than 28 years ago, this court affirmed, concluding that the record did not indicate that MUCC was inadequately represented by the State of Michigan. United States v. Michigan United Conservation Clubs, 556 F.2d 583 (6th Cir.1977) (unpublished disposition).

At the conclusion of the declaratory phase, the district court found that the Tribes retained "the right . . . to fish in the waters of the Great Lakes and connecting waters ceded by the Treaty of 1836." United States v. Michigan, 471 F.Supp. at 278. The court also concluded that the Tribes' right to fish in the Great Lakes could not be regulated by the State of Michigan except as authorized by Congress. Id. at 281. On appeal, this court affirmed in part, holding that "[t]he treaty-guaranteed fishing rights preserved to the Indians in the 1836 Treaty . . . continue to the present day as federally created and federally protected rights." United States v. Michigan, 653 F.2d at 278. However, this court also held that the State of Michigan could regulate the Tribes' fishing rights under certain circumstances, and remanded the case to the district court for further proceedings. Id. at 279-80. Meanwhile, during the pendency of the appeal, the district court permitted the Grand Traverse Band of Ottawa and Chippewa Indians to intervene in the case.

During the ensuing district court proceedings, the parties and amici curiae sought to resolve the conflicts between Indian and non-Indian interests regarding the management and allocation of the Great Lakes fishery in view of the Tribes' recognized treaty rights. In 1985, after extensive negotiations, the parties reached a settlement regarding the allocation of the Great Lakes fishery and signed an agreement for entry of a consent judgment, which was adopted by the district court and remained effective for 15 years. In 2000, the parties stipulated to the entry of another consent decree, to remain effective until 2020.

B. The Tribes' Inland Treaty Rights

Before 2003, the parties were litigating claims involving only the Indians' right to fish in the Great Lakes, and did not seek any judicial determination regarding the Tribes' right to hunt and fish on inland lands and waters. In 2001, the United States circulated, but did not file, a draft supplemental complaint seeking declaratory and injunctive relief with respect to the Tribes' inland treaty rights. On September 17, 2003, the State of Michigan formally launched the current phase of the litigation by filing a Motion for Leave to File a Counterclaim against the Tribes. The State of Michigan asserted that the purpose of the counterclaim was "to begin the process of determining whether any Treaty-reserved usufruct[u]ary rights under the 1836 Treaty of Washington outside of the Great Lakes and connecting waters exist." The counterclaim sought "a declaration that [the Tribes] do not retain any off-reservation hunting and/or fishing rights in inland areas under the 1836 Treaty of Washington,. . . except for [sic] on federal lands, that have never passed out of federal control and to [sic] which the exercise of those rights is not inconsistent with the purpose for federal ownership." The district court entered an order granting the motion on November 4, 2003, and the counterclaim was filed the next day.

On January 5, 2004, the Tribes filed a joint reply to the State of Michigan's counterclaim. The Tribes elected not to assert sovereign immunity as a defense, but instead, denied that "the Treaty Right is limited to federal lands that have never passed out of federal control and on which the exercise of the Treaty Right is not inconsistent with the purpose of federal ownership."

In anticipation of a status conference scheduled for February 19, 2004, the parties filed a Joint Status Report in which they jointly proposed a litigation-management schedule premised on a 20-day trial. According to the Report, the parties had agreed that "[d]iscovery and trial in this phase of this litigation [would] be limited to the issues raised by Defendants' counterclaim, the Plaintiff-Intervenors' reply thereto, and the United States['] Supplemental Complaint."

At the status conference, the parties discussed the expected course of the proceedings and the witnesses to be called at trial. Because the State of Michigan had not named the United States as a counter-defendant, believing it to be immune from suit, counsel for the United States informed the court that he would be filing a supplemental complaint so that the...