People v. LeBlanc

• Decision Date: 01 March 1976
• Docket Number: 7,Nos. 6,s. 6
• Citation: 399 Mich. 31,248 N.W.2d 199
• Parties: PEOPLE of the State of Michigan, Plaintiff, Appellant and Appellee, v. A. B. LeBLANC, Defendant, Appellee and Appellant. ,
• Court: Michigan Supreme Court

Page 199

248 N.W.2d 199

399 Mich. 31

PEOPLE of the State of Michigan, Plaintiff, Appellant and Appellee, v. A. B. LeBLANC, Defendant, Appellee and Appellant.

Nos. 6, 7, March Term, 1976.

Supreme Court of Michigan.

Dec. 27, 1976.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jerome Maslowski, Stewart H. Freeman, Asst. Attys. Gen., Lansing, for the People.

Kathryn L. Tierney, Bay Mills Indian Community, Brimley, William J. James, Director, Upper Peninsula Legal Services, Inc., Sault Ste. Marie, Bruce R. Greene, Native American Rights Fund, Boulder, Colo., for A. B. LeBlanc.

Freihofer, Hecht, Oosterhouse & DeBoer, P.C. by Peter W. Steketee, Grand Rapids, for amici curiae.

WILLIAMS, Justice.

Defendant A. B. LeBlanc, a Chippewa Indian and an enrolled member of the Bay Mills Indian Community, was arrested on September 28, 1971 in Pendills Bay of Lake Superior about 20 miles west of Sault Ste. Marie by a conservation officer for the Michigan Department of Natural Resources and charged with fishing commercially without a license and with fishing with an illegal device, a gill net. He was convicted of both charges in district court.

Defendant's appeal of these convictions presents complex issues involving, on the one hand, the existence and continued vitality of fishing rights for Chippewa Indians under the Treaty of 1836 and the Treaty of 1855,* and, on the other hand, the authority of the State of Michigan in the conservation of natural resources to regulate the exercise of whatever fishing rights remain reserved by the Chippewas under those treaties.

Specifically, three central issues require resolution:

(1) Did the Chippewa Indians, pursuant to the Treaty of 1836, in ceding their title to the territory involved, reserve the right to fish in the waters where defendant was arrested?

(2) If such fishing rights were reserved by the Chippewas of the Treaty of 1836, were these rights relinquished by the Treaty of 1855?

(3) If the Chippewas continue to possess reserved fishing rights, may the State of Michigan regulate the exercise of those rights, and if so, to what extent?

We hold that the Chippewa Indians did reserve fishing rights in the waters where defendant was arrested pursuant to the Treaty of 1836, that these fishing rights were not relinquished by the Treaty of 1855, and that the State of Michigan has limited authority to regulate those rights, as described below.

Specifically, with regard to the State's authority to regulate off-reservation fishing rights, the state regulation is valid only if:

1) it is necessary for the preservation of the fish protected by the regulation;

2) the application of the regulation to the Indians holding the off-reservation fishing right is necessary for the preservation of the fish protected;

3) and the regulation does not discriminate against the treaty Indians.

Pursuant to these holdings, we affirm the Court of Appeals reversal of defendant LeBlanc's conviction for fishing without a commercial license, and affirm the Court of Appeals remand to the district court on the charge of fishing with an illegal device for a determination of whether the state prohibition of gill nets meets the standards for state regulation of off-reservation fishing rights and whether defendant LeBlanc's second conviction must stand or fall. The standards for these determinations are outlined in this opinion.

I--FACTS

Defendant LeBlanc has not disputed that he was fishing commercially without a license and with a gill net at the time of his arrest.

That arrest took place on September 28, 1971 in Pendills Bay of Lake Superior, a part of Whitefish Bay. (See Appendix--Map I)

At trial before District Court Judge Lambros, defendant's sole defense was that he had a right to fish free from State regulations and control pursuant to the Treaty of 1836.

He was found guilty of engaging in commercial fishing without a license under M.C.L.A. § 308.22; M.S.A. § 13.1513 and of fishing with an illegal device under M.C.L.A. § 302.1; M.S.A. § 13.1602.

These convictions were affirmed by the Circuit Court of Chippewa County on December 27, 1972.

The Court of Appeals, however, granted leave, and in October of 1974 reversed defendant's conviction for fishing commercially without a license, holding that the application of the license requirement conflicted with defendant's treaty rights, and remanded the case to district court for a determination of whether the prohibition of gill nets is necessary to prevent a substantial depletion of the fish supply. Under the Court of Appeals decision, if the State does not meet the burden of proving that the prohibition against gill nets is necessary to prevent a substantial depletion of the fish supply on remand, then the defendant's conviction under M.C.L.A. § 302.1; M.S.A. § 13.1602 must also be reversed.

Both the People and defendant LeBlanc applied for leave to appeal to the Supreme Court, leave being granted on February 26, 1975.

The People appeal the Court of Appeals holding that the Chippewas reserved '* * * fishing rights in all the waters adjoining those lands ceded by the treaty (of 1836) and that such rights were not relinquished by any provision of the Treaty of 1855.'

Defendant LeBlanc challenges the Court of Appeals holding that the State may regulate the manner of taking fish if the regulation is '* * * necessary to prevent a substantial depletion of the fish supply * * *'.

II--RESERVED FISHING RIGHTS UNDER THE TREATY OF 1836

The Treaty of 1836 was negotiated by the United States with the Chippewa and Ottawa Indians in Michigan as part of an official policy of removing Indians from their traditional homelands and resettling them west of the Mississippi, beyond the borders of the rapidly expanding civilization of non-Indian Indian Americans. ¹

In Article First of this particular treaty, the Chippewas and the Ottawas ceded to the United States territory now constituting roughly the northern third of Michigan's Lower Peninsula and the eastern half of its Upper Peninsula. ² (See Appendix--Map II)

In exchange, the Chippewas and Ottawas were to receive certain monetary payment for a period of years, and certain land to the southwest of the Missouri river where they were to find their 'final settlement.'

Under the treaty, the Chippewas reserved certain rights. Defendant LeBlanc based his claim of treaty fishing rights on two alternative grounds arising out of two separate treaty provisions, Article Thirteenth and Article Third.

In Article Thirteenth, the Chippewas retained certain rights in the area ceded pursuant to Article First:

'Article Thirteenth. 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.'

Defendant LeBlanc argues first that rights reserved in Article Thirteenth include the right to fish.

In Article Third, the Chippewas reserved certain areas along the coast of the Great Lakes, including a large area in the Upper Peninsula which encompassed the present day site of the Bay Mills Reservation, home of defendant LeBlanc. It is argued second that Pendills Bay, where defendant was arrested, was included in the area reserved by the Chippewas in Article Third and is part of the present day Bay Mills Reservation. ³

The District Court and the Court of Appeals concluded that defendant LeBlanc did hold off-reservation fishing rights pursuant to Article Thirteenth. ⁴ ] We agree with this conclusion and reject defendant's argument that Pindills Bay is part of the present day Bay Mills Reservation.

A. Article Thirteenth of the Treaty of 1836.

In construing Article Thirteenth of the Treaty of 1836, we are constrained to follow certain well-settled rules of construction for interpretation of Indian treaties established by the United States Supreme Court.

First, the Supreme Court has held that, so far as is possible, Indian treaties must be interpreted as the Indians would have understood them. The foundation of this rule of construction was explained in Jones v. Meehan, 175 U.S. 1, 10--11, 20 S.Ct. 1, 44 L.Ed. 49 (1899), as follows:

'In construing any treaty between the United States and an Indian tribe, it must always * * * be borne in mind that the negotiations for the treaty are conducted, on the part of the United States, an enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all forms of legal expression, and whose only knowledge of the terms in which the treaty is framed is that imparted to them by the interpreter employed by the United States; and that The treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but In the sense in which they would naturally be understood by the Indians.' (Emphasis added.) 175 U.S. 1, 10--11, 20 S.Ct. at 5.

The United States Supreme Court has recently reaffirmed this rule of construction in Choctaw Nation v. Oklahoma, 397 U.S. 620, 631, 90 S.Ct. 1328, 25 L.Ed.2d 615; Reh. den. 398 U.S. 945, 90 S.Ct. 1834, 26 L.Ed.2d 285 (1970).

Second, the United States Supreme Court has directed that ambiguities found in Indian treaties are to be resolved in favor of the Indians. See McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 174, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 74 L.Ed. 478 (1930); Winters v. United States, 207 U.S. 564, 576--577, 28 S.Ct. 207, 52 L.Ed. 340 (1908); People v. Jondreau, 384 Mich. 539, 544, 185 N.W.2d 375 (1971). As explained in these cases, the Indians were an...