U.S. v. State of Mich., s. 79-1414
| Decision Date | 10 July 1981 |
| Docket Number | 79-1527 and 79-1528,Nos. 79-1414,s. 79-1414 |
| Citation | 653 F.2d 277 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, Bay Mills Indian Community, Sault Ste. Marie Tribe of Chippewa Indians, Plaintiffs-Intervenors-Appellees, v. STATE OF MICHIGAN, Michigan Natural Resources Commission and its agents, Dr. Howard A. Tanner, Dr. Henry Vondett and George Dahl in their official capacities, Defendants-Appellants, Grand Traverse Area Sport Fishing Association, 13th Judicial Circuit Court of the State of Michigan, Intervenor-Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Frank J. Kelley, Atty. Gen. of Mich., Thomas Casey, Asst. Atty. Gen. of Mich., Robert A. Derengoski, Sol. Gen. of Mich., Lansing, Mich., for State of Michigan et al.
James A. Brady, U. S. Atty., Grand Rapids, Michigan, Edward J. Shawaker, J. Moorman, R. Klarquist, Attys., Dept. of Justice, Washington, D. C., for the U. S.
Bruce R. Greene, Native American Rights Fund, Boulder, Colo., William James, U. P. Legal Services, Sault Ste. Marie, Mich., for Bay Mills Indian Community.
Daniel T. Green, Sault Ste. Marie, Mich., for Chippewa Indians.
Theodore W. Swift, William K. Fahey, Stephen O. Schultz, Foster, Swift, Collins & Coey, Lansing, Mich., for intervenor defendant-appellant Grand Traverse Area etc.
Richard B. Baxter, Hillman, Baxter & Hammond, Grand Rapids, Mich., for intervenor defendant-appellant 13th Judicial Circuit Court etc.
Peter W. Stekette, Grand Rapids, Mich., for amicus curiae Michigan United Conservation Clubs, Inc.
Before MERRITT, MARTIN and JONES, Circuit Judges.
The procedural history of this Indian treaty fishing rights case is recited in our opinion reported at 623 F.2d 448 (6th Cir. 1980), remanding the case to the District Court to determine whether federal regulations governing gill net fishing preempt state regulation. After the remand of the case to the District Court, 471 F.Supp. 192, last summer pursuant to that opinion, the following significant steps have occurred: (1) The District Court began taking proof on the preemptive effect of the regulations of the Secretary of the Interior governing gill net fishing in the Great Lakes issued last year during the pendency of the original appeal in this case, but the District Court has not ruled as yet on the questions referred to it in our opinion. (2) The Secretary of the Interior allowed the regulations in question to expire on May 11 of this year, apparently on grounds that he and the Bureau of Indian Affairs should defer to the states in connection with the regulation of Indian treaty fishing in the Great Lakes. (3) The State of Michigan has issued emergency regulations governing gill net fishing which appear to be less protective of Indian rights than the federal regulations. (4) The State of Michigan has moved that the order of remand be vacated and that the original judgment of the District Court be reversed. (5) This Court heard reargument of the case on June 19, 1981.
In light of these events, this Court concludes as follows:
1. The treaty-guaranteed fishing rights preserved to the Indians in the 1836 Treaty, including the aboriginal rights to engage in gill net fishing, continue to the present day as federally created and federally protected rights. The protection of those rights is the solemn obligation of the federal government, and no principle of federalism requires the federal government to defer to the states in connection with the protection of those rights. The responsibility of the federal government to protect Indian treaty rights from encroachment by state and local governments is an ancient and well-established responsibility of the national government.
2. The right of the Indians to engage in gill net fishing is not absolute, however. It is subject to a rule of reason. In the absence of federal regulation, that right is subject to the type of state regulation outlined by the Michigan Supreme Court in People v. LeBlanc, 399 Mich. 31, 248 N.W.2d 199 (1976), a decision which we believe accurately states the rule of reason and the principles of federal law applicable to this case. As provided in LeBlanc, any such state regulations restricting Indian fishing rights under the 1836 treaty, including gill net fishing, (a) must be a necessary conservation measure, (b) must be the least restrictive alternative method available for preserving fisheries in the Great Lakes from irreparable harm, and (c) must not discriminatorily harm Indian fishing or favor other classes of fishermen.
3. Thus if Indian fishing is not likely to cause irreparable harm to fisheries within the territorial...
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