Filed APR 5 1971
S T A T E 0 F M I C H I G A N
PEOPLE OF THE STATE OF MICHIGAN,
BEFORE THE ENTIRE BENCH, Except T.G. Kavanagh, J. SWAINSON,
William Jondreau is a full-blooded Chippewa Indian, living on the L'Anse Indian
Reservation, and a member of the tribal council of that reservation.
On June 1, 1965, he was observed by an officer of the Michigan Department
of Conservation to be fishing in the waters of the Keweenaw Bay on Lake Superior.
When he came into shore, he was arrested for the illegal possession of four
lake trout taken from the Keweenaw Bay. He was convicted of this offense in
both the Baraga village justice court and in the circuit
court of Baraga county
. The Court of Appeals affirmed his conviction (15
Mich App 169) on the authority of People v. Chosa (1930), 252 Mich 154. We
granted leave to appeal, 381 Mich 808.
The issues involved are extremely complex. They concern the interrelationship
of the power of the Federal government to make treaties with the Indian tribes
and the right of the State to set up nondiscriminatory game regulations. Both
parties have raised several issues which may be summarized as follows:
Whether the Chippewa Indian Treaty of 1854 (10 Stat 1109) gives the defendant,
William Jondreau, the right to fish on Keweenaw Bay without regard to State
The interpretation of Indian treaties by the courts has varied greatly depending
upon the precise wording of the treaties. Hence, a close examination of the
treaty involved in this case is imperative. Under the Chippewa Treaty of 1854,
the Federal government agreed under Article 2:
"1st. For the L'Anse and Vieux De Sert bands, all the unsold lands in the
following townships in the State of Michigan: Township fifty-one north range
thirty-three west; township fifty-one north range thirty-two west; the east,
half of township fifty north range thirty-three west; the west half of township
fifty-north range thirty-two west; and all of township fifty-one north range
thirty-one west, lying west of Huron Bay."
Article 11 of the treaty states:
"* * * And such of them as reside in the territory hereby ceded shall have
the right to hunt and fish therein, until otherwise ordered by the President."
When Mr. Jondreau came ashore on June 1, 1965, he alleged he was within T
51 N, R 33 W. If a line were extended from the boundaries into the Bay, the
area where he was fishing would have been within T 51 N, R 33 W. The People
correctly contend that under Michigan law the boundaries of the township do
not extend, into the Great Lakes. People v. Bouchard (1890), 82 Mich 156.
Thus, they assert, that Jondreau was not within T 51 N, R 33 W. They further
assert that title to the waters and submerged lands in the Great Lakes vested
in the State of Michigan when it became a State in 1837. Thus, they contend,
that the Indians did not have title to the waters and submerged lands and,
therefore, could, not cede them to the United States government.
Defendant contends that the title to the waters and submerged lands did not
pass to the State of Michigan in 1837 and, thus, were part of the ceded land
under the treaty.
Both parties have done an excellent job of discussing in detail the numerous
United States Supreme Court cases involving title to submerged lands, beginning
with Martin v. Waddell (1842), 41 US (16 Peters) 367 (10 L Ed 997), and ending
with United States v. California (1947), 332 US 19 (67 S Ct 1658, 91 L Ed
1889). However, after a thorough analysis of these cases, we believe that
the interpretation of the treaty does not depend on the title to the waters
and submerged lands of Keweenaw Bay. Hence, we will not discuss the question
of title to these lands and waters.
Under Article 2, section 2, of the US Constitution, the President has the
power to make treaties, provided that two-thirds of the Senate concur. This,
of course, was the procedure that was followed when the Chippewa Indian Treaty
of 1854 was made.
Article 6 of the US Constitution states in part:
"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 not-withstanding."
Thus, as Judges of a State Court, we are bound by this Chippewa Indian Treaty
of 1854, and, to the extent that any State law or regulation conflicts with
the treaty, the State law or regulation is invalid. We, therefore, must determine
what was meant by the statement in the treaty "and such of them as reside
in the territory hereby ceded shall have the right to hunt and fish therein,
until otherwise ordered by the President."
Although there is no legislative history available on the making of this treaty,
we are aided by the fact that the United States Supreme Court has laid down
general rules of construction in cases involving Indian treaties. In Worcester
v. Georgia (1832), 31 US (6 Peters) 515 (8 L Ed 483), Justice McLean stated
"The language used in treaties with the Indians should never be construed
to their prejudice. * * * How the words of the treaty were understood by this
unlettered people, rather than their critical meaning should form the rule
In Choctaw Nation v. United States (1886), 119 US1 (7 S Ct 75, 30 L Ed 306),
after quoting the above statement, the court said (p 28):
"The parties are not on an equal footing, and that inequality is to be made
good by the superior justice which looks only to the substance of the right,
without regard to technical rules framed under a system of municipal jurisprudence,
formulating the rights and obligations of private persons, equally subject
to the same laws." (Emphasis added.)
See, also, Jones v. Meehan (1899), 175 US 1 (20 S Ct 1, 44 L Ed 49); United
States v. Winans (1905), 198 US 371, 380-1 (25 S Ct 662, 49 L Ed 1089); Kennedy
v. Becker (1916), 241US 556, 563 (36 s ct 705, 60 L Ed 1166); and Menominee
Tribe v. United States (1968), 391 US 404, 406 (fn 2) (88 S Ct 1705, 20 L
Ed 2d 697).
The substance of the right to fish must have included the right to fish on
the Keweenaw Bay. For the L'Anse band of Chippewa Indians [See Map, Appendix
A], the fishing right on the Keweenaw Bay was clearly a valuable right. Any
other construction of the treaty would make the right granted by the treaty
without substance. The Indians did not have knowledge of the laws concerning
municipal boundaries or sovereignty disputes between the Federal and State
governments. Since they were living on land bordering the Keweenaw Bay, as
"an unlettered people" they would assume that the right to fish meant the
right to fish on the Keweenaw Bay.
In the case of Worcester v. Georgia, supra, where the court struck down a
State law which attempted to regulate certain actions of white persons and
Indians, Chief Justice Marshall stated (p 561):
"The whole intercourse between the United States and this [Indian] nation,
as, by our constitution and laws, vested in the government of the United States."
(Emphasis added )
Following this case, the courts retreated from this position for almost a
century. State laws which limited the rights of Indians under the various
treaties were upheld as valid exercises of the police power. However, in recent
years, the courts have again accorded Indians full rights under the treaties.
Thus, while the court stated in Ward v. Race Horse (1896), 163 US 504, 507,
509, 513 (16 S Ct 1076, 41 L Ed 244):
"The power of a State to control and regulate the taking of game cannot be
questioned. * * * To suppose that the words of the treaty intended to give
to the Indian the right to enter into already established States and seek
out every portion of unoccupied government land and there exercise the right
of hunting, in violation of the municipal law, would be to presume that the
treaty was so drawn as to frustrate the very object it had in view. * * *
“the States have full power to regulate within their limits matters of internal
police * * *.”
and in Kennedy v. Becker (1916), 241 US 556 (36 S Ct 705 60 L Ed 1166) (pp
"* * * we [are] of the opinion that the clause is fully satisfied by considering
it a reservation of a privilege of fishing and hunting upon the granted lands
in common with the grantees, and others to whom the privilege might be extended,
but subject nevertheless to that necessary power of appropriate regulation,
as to all those privileged, which inhered in the sovereignty of the State
over the lands where the privilege was exercised."
These views have, however, been limited by implication in recent years by
United States Supreme Court decisions.
For example, in Tulee v. Washington (1942), 315 US 681(62 S Ct 862, 86 L Ed
1115), the court held that the State could hot require a fishing license fee
without violating a treaty made in 1859 (12 Stat 951). Likewise, in Menominee
Tribe v. United States, supra, the court held that an act of Congress in 1954
did not terminate by implication the Wolf River Treaty of 1854 (10 Stat 1064).
The court held that valuable hunting and fishing rights given by a treaty
were not easily extinguished without a specific statement on the subject.
These cases, while not. directly on point, do demonstrate a decisive trend
in the decisions of the Federal courts toward granting Indians expanded rights
under the various treaties. See, also, Metlakatla Indian Community v. Egan
(1962), 369 US 45 (82 S Ct 552, 7 L Ed 2d 562), Makah Indian Tribe v. Schoettler
(1951, 9 CA), 192 F2d 224, and Maison v. Confederated Tribes of Umatilla Indian
Reservation (1963, 9CA), 314 F 2d 169.
Both parties have done an exceedingly fine job of analyzing in great detail
the numerous cases dealing with Indian treaties. While these cases are instructive,
they are not binding for two reasons: First, these cases do not involve construction
of the Chippewa Indian Treaty of 1854. Second, because of the change in judicial
attitude over the past: 30 years, we have two lines of conflicting precedent
that are not conclusive to our determination of this case. We do, however,
have one case directly on point.
People v. Chosa (1930), 252 Mich 154, involved an identical fact situation.
Chosa and Attikons, members of the L'Anse band of Chippewa Indians, were convicted
of violating fish and game laws. This Court affirmed. The Court stated (p
"The treaties evidently established a servitude of the right to hunt and fish
on the ceded land in favor of the Indians and against the exclusive dominion
of private ownership, but the provided no immunity from operation of game
laws, as against the State.” (Emphasis added.)
The People cite Chosa as determinative of the decision in this case. If Chosa
is good law, then undoubtedly the People are correct. We believe that Chosa
no longer states the applicable law. When Chosa was decided in 1930, our Court
properly relied on the governing authorities as of that date. However, through
the passage of time, the foundations upon which Chosa rested are no longer
sustained as valid.
Chosa rested on two basic premises. Defendant Chosa had argued that the clause
giving the President the power to abrogate the treaty was the only limit on
the hunting and fishing rights. The Court answered, at p 160:
"As a restriction on operation of State game laws, it would be foreign to
our system of government in providing control of sovereign powers of the State
by an officer of another sovereignty."
This view, however, does not display a proper Deference for the treaty power
granted to the President by Article 2 of the US Constitution, and under Article
6 of theUS Constitution, as stated supra, we, as State Court Judges must respect
any treaty as superior to our State laws.
A somewhat similar conflict between State laws and the Federal treaty power
arose in the case of Missouri v. Holland (1920), 252 US 416 (40 S Ct 382,
64 L Ed 641, 11 ALR 984). In 1916, the United States had made a treaty with
Great Britain (39 Stat 1702) for the protection, by closed hunting seasons
and in other ways, of migratory birds in the United States and Canada. It
bound each country to take the necessary measures for carrying out the treaty.
Thereupon, Congress prohibited (Act of July 3, 1918, ch 128, 40 Stat 755)
killing, capturing, or selling any of the migratory birds designated by the
terms of the treaty, except as permitted by regulations made by the Secretary
of Agriculture. The State of Missouri filed a bill in equity to prevent Holland,
a United States game warden, from attempting to enforce this act and the regulations
made pursuant to it. The State claimed it was an unconstitutional interference
with the rights reserved to the State by theTenth Amendment and that the acts
of the defendant invaded the sovereign powers of the State as owner of the
wild birds. Mr. Justice Holmes, in upholding the treaty and the act passed
pursuant thereto, stated (p 434):
"No doubt it is true that as between a State and its inhabitants the State
may regulate the killing and sale of such birds, but it does not follow that
its authority is exclusive of paramount powers. * * * Valid treaties of course
are as binding within the territorial limits of the States as they are elsewhere
throughout the dominion of the United States. Baldwin v. Franks, 120 US 678,
683. No doubt the great body of private relations usually fall within the
control of the State, but a treaty may override its power.” (Emphasis added.)
Thus, under the treaty power, the President may make determinations that affect
the powers normally reserved to the State.
Second, our Court in Chosa relied on the fact that Indians were United States
citizens and, thus, subject to all State laws. The Court stated (p 162):
"When one becomes a citizen of the United States, he casts off both the rights
and obligations of his former nationality and takes on those which pertain
to other citizens of the country. 11 C.J. p 786.
"Both because of the new citizenship and by the express terms of the statute
under which the allotments were made, defendants became subject to the laws
of the State, civil and criminal."
This contention was rejected by the United States Supreme Court in Puyallup
Tribe v. Department of Game of Washington (1968), 391 vs 392 (88 s Ct 1725,
20 L Ed 2d 689). Mr. Justice Douglas, speaking for the Court, stated (p 398):
"The right to fish 'at all usual and accustomed' places may, of course, not
be qualified by the State, even though all Indians born in the United States
are now citizens of the United States.” (Emphasis added.)
Thus, the foundations upon which Chosa rested have not stood the test of time.
We think the better view is expressed by the court in State v. Arthur (1953),
74 Idaho 251 (261 P2d ]35), which involved the prosecution of members of the
Nez Perce Tribe of Indians for having killed deer cut of season on national
forest lands. The deer were within the exterior boundaries of land ceded to
the Federal government under a treaty of 1855 (12 Stat 957). The State contended
that the game and fish regulations did apply to the ceded land. The district
court sustained defendant's demurrer and entered an order dismissing the action.
The State Supreme Court affirmed. The court pointed out that the holdings
in such cases as Ward v. Race Horse, supra, and Kennedy v. Becker, supra,
have been repudiated by later cases. The court stated (pp 261-262):
"If the right exists in the State to regulate the killing of game upon open
and unclaimed lands ceded by the Nez Perce Indians to the United States, it
follows that such right is to be exercised under the police power of this
state. Generally stated, the police power under the American constitutional
system has been left to the states. * * * That the State has and may exercise
such power generally is not the question. * * *
"The statute of any state enacted pursuant to its police power which conflicts
with any treaty of the United States constitutes an interference with matters
that are within the exclusive scope of federal power and, hence, cannot be
permitted to stand. 16 CJS, Constitutional Law, S 196, page 565, the treaty
being superior to a particular state law and regulation, though the state
law and regulation involved is otherwise within the legislative power of of
the state, the rights created under the treaty cannot thus be destroyed."
At pages 264-5, the court further stated:
“One of the primary purposes of licensing in reference to fishing and hunting
is to conserve wild life; the law is essentially a regulatory act rather than
a revenueact. * * * While both fishing and hunting are primarily sport and
recreation for most fishermen and hunters, this is not so with respect to
the Indians; they have always fished and hunted to obtain food and furs necessary
for their existence and have been controlled as to the time when and the area
where and the amount of catch or kill by the exigencies of the occasion; while
no doubt this was more so in 1855 than it is now, the fact remains that it
is to a lesser extent also true today; be that as it may, their rights reserved
in this respect should be determined in the light of conditions existing at
the time of the treaty and the manifest intent of all contracting parties
at that time. * * * If the position of the State is sustained the assurance
given by Governor Stevens that they could kill game when they pleased and
the provision of the treaty reserving to them the right to hunt upon open
and unclaimed lands is no right at all. Out of the solemn obligations of the
treaty, and the express reserved property right which never passed from the
Indians to anyone and which the federal government has never extinguished
but has expressly recognized before and after Idaho was, admitted to the Union,
the Nez Perce would now have no right in any respect different than that enjoyed
by all others, except: perhaps the freedom from the burden of a license fee.
This was never intended under the broad, fair and liberal construction of
the treaty. The Supreme Court of the United States has recognized and expressly
held that the Indian treaty fishing provisions accorded to them rights which
do not exist for other citizens. * * * What are such rights under the State's
theory? Perhaps to hunt without a license. If such rights exist as to fishing
most assuredly they exist as to hunting. If the State can regulate the time
of year in which they may hunt then they are accorded no greater rights in
this respect than exist for other citizens.
"We are not here concerned with the wisdom of the provisions of the treaty
under present conditions nor with the advisability of imposing upon the Indians
certain regulatory obligations in the interest of conserving wild life; that
is for the Federal Government, the affected tribe, and perhaps the State of
Idaho to resolve under appropriate negotiations; our concern here is only
with reference to protecting the rights of the Indians which they reserved
under the Treaty of 1855 to hunt upon open and unclaimed land without limitation,
restriction or burden."
While this case is not binding upon our Court, we believe that it. expresses
the proper balance between the rights of the Chippewa Indians and the police
powers of the State under the treaty of 1854.
The People point out; the fact that unlimited fishing rights could deplete
our limited national resources. They rely on Puyallup, supra, where the court
held that the State could provide regulations that were reasonably necessary
for the conservation of fish. In an age of growing awareness of the need to
preserve and protect our environment, this is an important consideration.
However, unlike the treaty of 1855 considered in the Arthur Case, the Chippewa
Indian Treaty of 1854 does provide a safeguard. Under Article 11, the President
may issue an order limiting or extinguishing the hunting and fishing rights
of the Indians. The four fish involved in this case will not upset the ecological
balance. However, if in the future the number of fish being taken does constitute
such a threat, we are convinced that the President would take appropriate
We, therefore, overrule People v. Chosa, supra, and hold that the game regulations
are invalid as applied to the defendant Jondreau and other Indians who are
protected by the Chippewa Indian Treaty of 1854.
S T A T E OF M I C H I G A N
PEOPLE OF THE STATE OF MICHIGAN,
BEFORE THE ENTIRE BENCH
BLACK, J. (concurring)
I agree with and have endorsed the opinion Justice Swainson has prepared,
yet would step a bit farther. In the majestic phrasing of the Doxology, the
supremacy clause was from the beginning and is now really regnant. Its prospective
force and effect upon the States, and "the Judges in every State," came to
conception and birth when Michigan was both trackless and primeval. Binding
us now, as in 1930 when People v. Chosa, 252 Mich 154 came to judicial attention,
it says imperatively that "all treaties made" -- along with the other components
thereinlisted -- "shall be the supreme law of the land." Now as in Chosa the
same treaty of 1854 is before us, along with the same appeal to its overriding
Today we find definitely that this same treaty of 1854 provided and now provides
"a specific condition of enjoyment of the reservation" which to this day tolerates
no challenge by Michigan and the courts of Michigan. No like finding, and
no opposing finding, was made by the Chosa Court. Irrelevant reasons only
were assigned for refusal to support the treaty-stipulated right of Chosa
and Attikons to hunt and fish on the reservation. See pages 160 and 161 of
In that setting People v. Chosa was released to our books a little over 40
years ago. This Court attempted then in contravention of the treaty and the
supremacy clause to interpose subordinate interests of the State, and the
never exercised revocatory power of the President, to block the enforcement
of that treaty. This was something more than judicial error. It was pure nullity.
There is no occasion for overrulement or distinguishment of Chosa. It never
became law in the first place, both its judgment and the statute applied there
having spent their whole force in the utterance of worthless words. People
v. Chosa was, when handed down December 2, 1930, like the earth before it
was made, "without form, and void." (Genesis ch. 1:2).
/s/ Eugene T. Black