Treaties and the Nature of Treaty Rights

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. The United States Constitution calls treaties the supreme law of the land:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (U.S. Constitution, Art. VI, Sec. 2)

Accurate treaty interpretation is a sophisticated and complex legal issue. The body of treaty law is vast and federal court involvement is often required to interpret treaties. 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.

Before the arrival of non-natives to North America, the landmass was 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 European settlements were established. These settlements needed land and its resources. Sometimes lands were obtained through warfare and sometimes 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. In the 1836 Treaty alone, 13,837,207 acres—21,621 square miles—were ceded, enabling Michigan territories to become a state the following year.

So, prior to 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 certain tribal activities on the ceded land. Fishing or hunting on ceded territory was a right of ownership often retained by the tribes.

In today’s terms, reserved treaty rights are very similar to 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 United States Supreme Court 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 treaties are to be interpreted as the Indian participants understood them at the time negotiated; and ambiguous language is to be resolved in favor of the tribes, for a number of reasons—treaties were written in English and their terms not well understood, plus the American Indian signatories were often chosen by federal government negotiators.

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 by historians and linguists helped the court understand Schoolcraft’s explanation of Article Thirteenth to the Anishinaabeg of that time and how they may have understood it.

In the 1979 Fox Decision, 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 treaty language in question is Article Thirteenth of the 1836 treaty: “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.”

Judge 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.)