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Indian Treaty 2.0

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Earlier this week, Indiana's US Senator Evan Bayh spoke up on behalf of American Indians in his state. He highlighted their cultural and economic contributions, in honor of National American Indian Heritage Month, which takes place in November. Bayh said 10,000 American Indians live in the Hoosier State. In neighboring Michigan, an Indian tribe is trying to enforce the rights they won in a treaty with the federal government.

In an 1836 agreement, five tribes claim the right to hunt, fish and gather on lands and lakes they had sold to the federal government. 

But it's been challenged in court by state officials who say those rights expired long ago.

The Environment Report's Bob Allen has the story.

Five Indian tribes claim the right to hunt, fish and gather on lands and lakes they sold to the federal government years ago. Their claim extends back to the Treaty of 1836. But it's been challenged in court by state officials who say those rights expired long ago. As Bob Allen reports, now all the parties have reached an uneasy compromise:

170 years ago, the tribes sold millions of acres to the U.S. government. But they reserved for themselves the right to hunt fish and gather foods and medicines until the land was settled.

Hank Bailey is an elder with the Grand Traverse Band of Ottawa and Chippewa. He's scouting out a favorite fall hunting spot even though it's pelting rain:

BAILEY: I know these hills well all around here just from exploring it...hunting, gathering mushrooms...

Bailey is a direct descendant from a tribal leader who signed the original treaty. He says the exercise of those rights in times past were the difference between survival and starvation. And he doesn't think a new piece of paper can ever erase what his ancestors preserved:

BAILEY: They were told that this treaty was forever. And I know in my heart that's what they believed in. And they thought well as long as we can hunt, fish and gather we will be able to survive as a people. This is what bothers me about is, I'm being told now that when we sign this paper, this is going to be forever and here we go again.

Four years ago, the state of Michigan went to court to argue tribal hunting and fishing rights had expired because the land had been settled long ago.

But then state officials noticed court rulings in other Great Lakes states that upheld treaties and in some case awarded tribes as much as half of the natural resources.

Tribal leaders thought they had a strong case, but they too were leery of how today's courts might interpret the phrase that said their treaty rights exist "until the land is settled," so the parties were motivated to negotiate a deal outside court.

Jim Ekdahl is with the state Department of Natural Resources

EKDAHL: We were in a strange kind of legal limbo where the state wasn't exactly sure what the ground rules should be in light of the fact the federal courts hadn't ruled on the inland rights. The tribes weren't 100% confident that they could advise their membership in terms of what they ought to be doing.

From legal limbo, there are now 130 pages of rules and regulations on how and where the tribes can exercise their rights. There's been some grumbling on both sides.

Some tribal members complain, with some exaggeration, that they have to fill out a form now before they can pick a single blueberry, and there are sportsmen who don't like a special set of rules for Indians.

What the tribes have agreed to is their rights to hunt, fish and gather will only apply on lands open to the public. And they only can take enough for subsistence, not for commercial sale.

Tribal resource managers say what their members take is a drop in the bucket of the overall resource. And Jim Ekdahl with the state says there's still plenty to go around:

EKDAHL: There's sufficient harvestable surpluses of resources available to accommodate tribal interests. There's essentially no effect on harvest by state licensed recreational users. And essentially no changes in state regulations are gonna be required as this thing moves forward.

The parties to the agreement say is it avoids a bitter legal battle that could last a decade or more and cost millions of dollars. Both sides remember an ugly dispute that raged 30 years ago when tribes reasserted their right to fish commercially with nets in the Great Lakes.

Matthew Fletcher is a specialist in tribal law at Michigan State University. As far as he can tell, this is the first time a state has voluntarily recognized tribal treaty rights extending to off- reservation lands without being told to do so by a court:

FLETCHER: There are tribes and there are treaties nationwide that have similar language. And I'm sure they're watching this very carefully. And this kind of consent decree is going to create a kind of precedent for other states that are engaging in similar kinds of negotiations.

The agreement still needs to be accepted by a federal judge before it becomes binding in law. For tribal elder Hank Bailey the deal might chip away some free exercise of historic rights, but it also reasserts that those rights can't ever be taken away:

BAILEY: For me that's... that is about the most powerful part of it is being able to know that I will continue to be an Odawa, black wolf clan, a man... somebody that respects the resources around me. And I'm willing to work with anybody else that feels the same way, whether they're tribal or not.

For the Environment Report, I'm Bob Allen.

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