Secret negotiations now ongoing between five Michigan Indian tribes, the federal government and the State of Michigan may be at a temporary impasse because of objections raised by one of the tribes – Leelanau County’s own Grand Traverse Band of Ottawa and Chippewa Indians.

Since last year the tribes, the federal government and the state have been operating under a federal court-imposed confidentiality agreement to hammer out a pact that would clarify the rights of tribal members to hunt throughout much of Michigan and fish on inland lakes according to tribal rules – not the rules imposed on everyone else by the Michigan Department of Natural Resources (DNR).

Like other tribes in Michigan, the Grand Traverse Band (GTB) has been issuing its own hunting and fishing licenses to tribal members free of charge since 1996 as part of an effort to assert rights the tribe claims under the historic 1836 Treaty of Washington.

Tribal rules for hunting deer, for example, differ significantly from those promulgated by the Michigan DNR. Tribal members may have greater opportunities to bag larger bucks than non-Indians during a tribal firearm season that runs from Nov. 1 through Dec. 31. All non-Indian deer hunters are limited to a firearm season that runs Nov. 15-30.

Although tribal rules do not recognize quality deer management regulations approved by the DNR within Leelanau County, most GTB members voluntarily follow the practice, according to tribal Natural Resources officials. Of 12 bucks taken early in the 2006 firearms season by GTB members in Leelanau County, tribal officials reported that only three failed to meet the state-approved standard of having at least three points on one antler.

By the time the 2006 tribal deer hunting season was over, GTB hunters had reportedly bagged 19 bucks and 20 does in Leelanau County, representing about 34 percent of the 113 deer harvested by GTB members within the 1836 treaty area.

The 1836 treaty area encompasses some 13.8 million acres or roughly 37 percent of the acreage in the state. It includes the eastern Upper Peninsula and much of the Lower Peninsula north of the Grand River, including all of Leelanau County.

A dispute between the state and the five tribes plus the federal government revolves around language in the historic treaty reserving the right of tribal members to hunt and fish in the area they ceded to the U.S. “until the land is required for settlement.”

The 1836 treaty led to Michigan’s statehood in 1837.

The state is asserting that Michigan has been “settled” for some time and that hunting, fishing and other rights retained by the tribes in the inland areas covered by the treaty have expired in virtually all non-reservation areas.

Litigation over the meaning and effect of the 1836 treaty began in the 1970’s in connection with disputes over tribal members using large mesh gill nets on the Great Lakes. Courts found that the Great Lakes could never be “settled” within the meaning of the treaty and, therefore, the tribes’ right to fish in those waters according to their own regulations and practices would always exist. The courts did not, however, address the question of inland hunting and fishing rights.

Tribal, state and federal officials now manage Great Lakes commercial fishing under a 2000 consent decree that updated a similar agreement adopted in 1985 – all as part of the same federal court case now addressing the inland hunting and fishing issues.

The latest issues of concern in negotiations ongoing since 2003 appear to involve a motion by a coalition of non-governmental sport fishing groups who hope to intervene in the case. A federal appeals court in 2005 upheld a decision by a lower federal court judge to keep the Michigan Fisheries Resources Conservation Coalition and other groups from intervening in the case.

However, a renewed February 2007 motion by the non-governmental coalition to intervene in the case has been met by a negative response from the tribes.
Meanwhile, attorneys associated with the case say that the tribes, the state and the federal government have apparently reached an “agreement in principle” on how a possible Inland Hunting and Fishing Consent Decree should be crafted under the 1836 treaty.

Sources involved in the negotiations say the GTB is the only party involved that is not yet completely satisfied with the “agreement in principle.”

“Because of the confidentiality agreement, I cannot comment on the tribe’s position relative to the agreement in principle,” said Bill Rastetter, an attorney who has been representing the GTB in 1836 Treaty litigation since the 1980s.

Lansing attorney Stephen Schultz represents several of the non-governmental organizations hoping to intervene in the case, including the Grand Traverse Area Sport Fishing Association. Schultz told the Enterprise recently that he and the groups he represents remain frustrated by the lack of “transparency” in the ongoing discussions.

“We wish the public had more access to this process, and it’s important to us that the public understand what is happening,” Schultz said. “Once a decision is made in this case, it will affect every fish and game species in Michigan that the public and tribal members want to hunt and fish.”

Federal court judge Richard A. Enslen in Kalamazoo has scheduled another “status conference” in the case in June. No one knows if any of the issues discussed at the conference will be made public, however.