STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5712

May 12, 1980

CRIMINAL LAW:

Possession of untagged deer

FISH AND GAME:

Possession of untagged deer

INDIANS:

State prosecution for possession of untagged deer

A member of the Ottawa Tribe of Indians is not exempt from state prosecution for possession of an untagged deer shot on private property.

Mr. James G. Young

Prosecuting Attorney

Antrim County

P.O. Box 552

Bellaire, Michigan 49615

You wrote to request my opinion on a question which may be stated as follows:

You have stated that the defendant, an Ottawa Indian, shot a deer while standing at the edge of a state highway. At the time it was shot, the deer was on privately owned farmland which had been posted with 'For Sale' signs. The defendant did not possess a deer license or tag and was therefore charged with a violation of 1929 PA 286, Sec. 24; MCLA 314.24; MSA 13.1372, which prohibits possession of an untagged deer.

The Treaty upon which the defendant relies is the Treaty of Washington, 7 Stat 491 (March 28, 1836) in which the Ottawa and Chippewa Indians ceded to the United States a vast area of land in both the Upper and Lower Peninsulas, including what is now Antrim county. Article Thirteenth of that Treaty, supra, at 495, contained the following reservation of hunting rights:

In two recent cases Michigan treaty Indians have asserted fishing rights based on the provisions of this article. In each of these cases, the State took the position that the provisions of Article Thirteen have been abrogated and, thus, that the article no longer provides a basis for rights claimed thereunder. This position was rejected by both courts. See, People v LeBlanc, 399 Mich 31; 248 NW2d 199 (1976) and United States v Michigan, 471 F Supp 192 (WD Mich, 1979), appeal pending. The latter case is presently on appeal to the Sixth Circuit. Should the State succeed in obtaining a reversal on this issue, that reversal would be dispositive of the question of fishing rights and may dispose of the hunting rights question as well. Pending resolution of the State's appeal, however, this opinion will assume that Article Thirteenth continues to be valid and will address only the construction of the words 'until required for settlement' used in the article as a limitation on the right to hunt on ceded lands.

In so doing, I am mindful of the well established canons of construction applicable to Indian treaties: (1) Treaties must be interpreted as the Indians would have understood them, Worcester v Georgia, 31 US (6 Pet) 515, 582; 8 L Ed 483 (1832); (2) Treaties must be construed liberally in favor of the Indians, Choctaw Nation v United States, 318 US 423, 431-432; 63 S Ct 672; 87 L Ed 877 (1943); and (3) Doubtful or ambiguous expressions in treaties must be resolved in favor of the Indians, McClanahan v Arizona Tax Commission; 411 US 164, 174; 93 S Ct 1257; 36 L Ed 2d 129 (1973).

The only cases which appear to have considered the present day effect of Article Thirteenth are United States v Michigan, supra, and People v LeBlanc, supra. While these cases were concerned only with the question of fishing rights under the article, and while the court in each case found that the right to fish had not been limited by operation of the article, both cases do indicate that the right to hunt has in fact been limited. In LeBlanc, for example, the court notes that Article Thirteenth '[u]ndoubtedly . . . has limited the rights of the Chippewas to hunt.' 399 Mich at 48; 248 NW2d at 207. Similarly, United States District Judge Noel Fox, in his conclusions of law in United States v Michigan, found that '[t]he Indians understood that they would have to accommodate the exercise of their right to hunt on the ceded lands to the rights of settlers on the ceded land.' 471 F Supp at 279. Thus it is clear that the right to hunt under Article Thirteenth has been limited; the difficulty lies in determining the extent of the limitation.

Although the courts have not directly addressed that problem, it was the subject of an opinion issued by the United States Attorney General only a year after the treaty was signed. In 3 Op Atty Gen 206 (April 20, 1837) Attorney General Butler stated that:

Further guidance is provided by the historical records relating to the negotiation and execution of the treaty; three such documents which may be found in the Records of the Bureau of Indian Affairs, Michigan Superintendency, Record Group 75, National Archives and Record Service, are of particular note. One, an agreement to cede lands, dated December 29, 1835, is signed by 32 'Chiefs & men of the Ottawa & Chippewa tribes' representing various bands of those tribes. It authorizes the chiefs and delegates to effect the cession of the lands subject to various conditions. Among those conditions is the following: 'The privileges of hunting upon the land, and of residing upon it, until it is surveyed & sold by the government, to be secure.' [Emphasis supplied.]

The Indian Agent for the Lake Superior Indians and principal representative of the United States during the treaty negotiations was Henry R. Schoolcraft. Schoolcraft, then acting Superintendent of Indian Affairs for the northern division in Detroit, wrote two letters which are also helpful. Both letters are dated February 27, 1837, shortly after the treaty had gone into effect. In the first of these letters, addressed to three Michigan residents, he advanced the following construction of Article Thirteenth:

Schoolcraft wrote a second letter that same day, advising the Commissioner of Indian Affairs of his communication with the Michigan residents, above. In this letter, he described in detail the understanding he believed had been reached with the Indians during the treaty negotiations as reflected by the language of Article Thirteenth:

However broad or narrow a construction may be placed on Article Thirteenth, it is clear that both the United States and the Indians understood that the rights it preserved were to end, at the very least, as to specific parcels of land when those parcels came to be privately owned.

This conclusion is consistent not only with the cases and documents cited above, but also with reported decisions construing the term 'settlement' as used in other laws and documents relating to public lands during the period when the treaty was negotiated. See, e.g., Great Northern R Co v Reed, 270 US 539; 46 S Ct 380, 382; 70 L Ed 721 (1926); In re Selby, 6 Mich (2 Cooley) 193, 204 (1859); Burleson v Durham, 46 Tex 152, 160 (1876); Zubler v Schrack, 46 PA (10 Wright) 67, 70 (1863); Davis v Young, 32 Ky (2 Dana) 299, 306 (1834).

Finally, while no court appears to have construed the language of Article Thirteenth, as applied to the right to hunt, in this or other treaties, there are reported decisions construing the converse of the language used in Article Thirteenth. The court in State v Arthur, 74 Idaho 251; 261 P2d 135 (1953), cert den, 347 US 937, construed Article III of the Treaty of June 11, 1855 with the Nez Perce tribe, 12 Stat 957 (1855), which guaranteed 'the privilege of hunting . . . upon open and unclaimed land.' In finding that this language gave the Nez Perce Indians a right to hunt in a national forest, the court stated that the treaty language:

74 Idaho at 261; 261 P2d at 141. Accord, Confederated Tribes of the Umatilla Indian Reservation v Maison, 262 F Supp 871 (D Or, 1966), aff'd sub nom Holcomb v Confederated Tribes of the Umatilla Indian Reservation, 382 F2d 1013 (CA9, 1967); State v Stasso, 172 Mont 242; 563 P2d 562 (1977). The Supreme Court of Idaho was subsequently presented with the precise question of whether the treaty right it had found to exist in Arthur also extended to privately owned land. The court concluded that '[l]and which is privately owned is not open and unclaimed.' State v Coffee, 97 Idaho 905, 914; 556 P2d 1185, 1194 (1976).

It is my opinion, therefore, that the provisions of Article Thirteenth of the 1836 Treaty of Washington do not exempt a member of the Ottawa Tribe from state prosecution for possessing an untagged deer which was shot on private property.

Frank J. Kelley