Chippewa Ottawa Resource Authority

The Treaties

1836 Treaty tribes' right to conduct fishing activities is derived from the terms of the 1836 Treaty between the United States government and Ottawa and Chippewa Indians. The treaty gave up land but retained the right to hunt and fish in the treaty-ceded territory. These rights were reaffirmed in court cases during the 1970s.

What is a Treaty?

A treaty is a mechanism used by the United States government to give its word to another government, and that word is not eroded by the passage of time. According to the United States Constitution, treaties are the “supreme law of the land.”

Accurate treaty interpretation is a sophisticated and complex legal issue. The body of treaty law is vast and continues to grow. Federal court involvement is often required to interpret treaties. The courts provide a thorough and well-researched legal interpretation, which serves as a foundation for common understanding of reserved treaty rights. This foundation promotes public understanding and acceptance of reserved rights.

How treaties between the U.S. and Indian tribes came about

Before the arrival of non-Indian people to North America, the landmass of the continent was completely controlled by native tribal entities. Tribes had all the rights of ownership, including the right to use the land and water resources as they desired.

Following European arrival, new settlements were established. These settlements needed land and its resources. Sometimes lands were obtained through warfare, but more often by negotiation or purchase. Treaties were the legal documents used to settle wars or to record the details of negotiation or purchase. Treaties were developed between tribal government and the government of the United States. Land conveyed by tribes in treaties is called "ceded land."

Prior to 1808, tribal groups in Michigan inhabited most of the 57,000 square miles that comprise the state. By 1864, tribal lands amounted to only 32 square miles of Michigan, the rest ceded in treaties with the United States government. Before European occupation, tribes had complete sovereign power over their territory. In many cases, tribes retained some rights of ownership when treaties were negotiated. While tribes might exchange a territory for peaceful relationships, money or other considerations, they might decide to retain certain areas for tribal use, or to retain the right to continue some tribal activities on the ceded land. Fishing or hunting on ceded territory was a right of ownership retained by the tribes, not given up in treaty provisions.

The Nature of Treaty Rights

Treaty rights pertaining to hunting and fishing are very similar to contemporary property rights. Retaining certain rights when land is sold is a common practice in today's land sales. A property owner might decide to sell land, but retain some property right such as an easement or sub-surface mineral rights.

The Canons of Construction: Interpreting Treaty Language

Interpretation of treaty language can be difficult even for skilled attorneys and judges. The United States Supreme Court eventually developed "The Canons of Construction," a set of rules to be used by all courts in the United States when dealing with treaty interpretation issues. The two main points are that treaties are to be interpreted as the Indian participants understood them at the time negotiated; and ambiguities (unclear language) in interpreting treaty language are to be resolved in favor of the Indians.

The federal government negotiated hundreds of treaties with tribes all around the country between 1787 and 1871. Courts use historians, linguists, and other experts in attempting to understand what treaty language written during that time period means. For example, letters written by Henry Schoolcraft, who helped negotiate the 1836 treaty, were examined in United States v. State of Michigan. Expert testimony helped the court understand Schoolcraft's explanation of Article Thirteenth to the Indians and how Indians may have understood it.

U.S. District Judge Noel Fox determined that the canons of treaty construction should be "adhered to rigorously." He wrote, "This court adopts the meaning of the 1836 treaty consistent with the Canons of Construction. Under the 1836 treaty of cession, the Indians granted a large tract of land and water area to the United States. At the same time they reserved the right to fish in the ceded waters of the Great Lakes.

"Because of the documented evidence demonstrating that the Indians were absolutely dependent upon fishing for subsistence and their livelihood, and reading the treaty as the Indians would have understood it, they would not have relinquished their right to fish in the ceded waters of the Great Lakes. Since the treaty does not contain language granting away the prior right to fish, that right remains with the Indians and was confirmed by the 1836 treaty." (United States v. State of Michigan V. Conclusions of the Law B. Canons of Treaty Construction [26].)

The 1836 Treaty

After a series of court cases, both the Michigan State Supreme Court and the federal courts affirmed that the 1836 treaty reserved the right to fish under tribal authority in treaty-ceded Great Lakes waters.

Treaty language from the 1830s and 1840s regarding these rights can seem difficult to interpret in today's terms. A section of the 1836 Treaty of Washington, has the following language:

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.

U.S. District Judge Noel Fox discussed "Article Thirteenth" in the court case United States v. State of Michigan. "The language contained in Article Thirteenth of the Treaty of 1836, by its own terms could not have limited the Indians 'right to fish in the waters of the Great Lakes because these large bodies of water could not possibly be settled by homes, barns and tilled fields. While the Indians might have been willing to give up their right to hunt on various parcels of land as that land became occupied with settlers, the vital right to fish in the Great Lakes was something that the Indians understood would not be taken from them and, indeed, there was no need to do so..."(United States v. State of Michigan V. Conclusions of the Law B. Canons of Treaty Construction [27].)

In People v. LeBlanc, the Michigan Supreme Court came to the same conclusion as Judge Fox: "...the ceded water areas of the Great Lakes have obviously not been required for settlement, and therefore the fishing rights reserved by the Chippewas in these areas have not been terminated." (People v. LeBlanc, supra, 248 N. W. 2d at 207.)