Gongwer News Service
A man cited for illegal spear fishing in a closed stream by the Department of Natural Resources had the right to conduct that activity based on tribal jurisdiction, the Court of Appeals has ruled.
In October 2018, a DNR conservation officer cited Walter Caswell with illegal spear fishing in a closed stream in Mackinac County. Caswell argued the charges should be dismissed because he was a member of an American Indian tribe with hunting and fishing treaty rights.
The district court agreed with Caswell, but the Mackinac Circuit Court reversed. The Court of Appeals directed the lower courts to determine the proper legal framework to assess whether a defendant can assert tribal status as a defense to state fishing regulations.
The district court again dismissed the charges, and the circuit court agreed.
In the Treaty of 1836, a group of Indian tribes ceded 14 million acres to the federal government in what is now the eastern Upper Peninsula and western Lower Peninsula. The treaty preserved the tribes’ right to hunt and fish on ceded lands. In 2007, the DNR signed a consent decree with five federally recognized tribes.
Caswell was spear fishing in a Mackinac County stream within the ceded lands subject to the consent decree. He had a fishing license issued by the state. That license, however, did not permit fishing in a trout stream out-of-season, nor spear fishing. Caswell also had a tribal fishing card issued by the Mackinac Tribe, allowing for spear fishing and no seasonal
limitations.
The DNR argued that the state does not accept the Mackinac Tribe’s assertion of treaty rights because it was not a signatory to the consent decree. However, Barry Adams, testifying as chair of the Mackinac Tribe of Odawa, said the Mackinac Tribe was descended from a band that signed the 1836 treaty.
Judge Kathleen Feeney, writing for a 3-0 majority in People v. Caswell (COA Docket No. 368232), said the prosecution largely failed to offer any evidence to rebut Caswell’s and Adams’ assertions, and a decision is based on the preponderance of the evidence.
Feeney wrote that Caswell met all three requirements: that he was part of a group of people of Indian ancestry, descended from a treaty signatory tribe and part of a tribe that had maintained an organized tribal structure.
The published opinion was signed by Judge Stephen Borrello and Judge Anica Letica.
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