LeBlanc and other Indians feared that the state would exploit the
loophole left open in the LeBlanc ruling by convincing the lower courts
that Native American commercial fishing did endanger the fishery.
Because of this fear the Bay Mills Band, in conjunction with the Sault
Ste. Marie Band, chose to pursue the identical claim in federal court.
Later joined by the Grand Traverse Band, the three Native American
communities sought relief in the case U.S. v. Michigan. Begun in 1973, this federal case would not be resolved until 1985. As U.S. v. Michigan slowly wound its way through the courts the Native American claims upon the Great Lakes fisheries remained hotly disputed.
In 1978 the case finally came to trial. At issue were two
questions; did the modern descendants of the tribal communities that
signed nineteenth century treaties still have fishing rights and, if
they did, exactly what did those rights entitle them to? The attorney
representing the Native American plaintiffs clearly presented a very
strong case. In his opening statement he announced his intention to
prove three points: the tribes bringing suit had historically fished the
Great Lakes; they had retained the right to fish under the treaties
signed in 1820, 1836, and 1855; and that the tribes had actively
participated in the commercial fishing that had subsequently occurred in
the Great Lakes and thus had every reason to assume that they should be
allowed to continue to do so. Several expert witnesses persuasively
argued this case.
Although the attorneys representing the Native American bands
argued their case well, their argument was not irrefutable. As Robert
Doherty, a scholar who has written extensively on the fishing rights
controversy, notes that a major problem for the Indians was that the
Treaty of Washington, signed in 1836, included clauses that would allow
the removal of the Native American signators from the state. One could
infer that a group planning to soon leave an area would have little
interest in ensuring their "traditional" rights there. The 1855 treaty
also contained difficult language for the Indians. Article 3 released
"the United States from all liability on account of
former treaty stipulations, it being distinctly understood and agreed
that grants and payments ... are in lieu and satisfaction of all claims,
legal and equitable on the part of said Indians jointly and severally
against the United States, for land, money or other things guaranteed to
said tribes or either of them by the stipulations of any former treaty
or treaties; excepting however the right of fishing and encampment
secured by the Chippewas of Sault Ste. Marie by the Treaty of June 16,
1820." Even worse, article 5 "disbanded... the tribal organizations of said Ottawa and Chippewa Indians."
These clauses were dealt with by the attorneys representing
the Native Americans in several ways. First, expert witnesses were used
to argue that removal was discretionary on the part of the tribes rather
than mandatory. Thus those tribal members who chose to stay retained
their treaty rights.
Scholar Helen Tanner argued that the language found in the
1855 treaty regarding the waiving of past agreements was not related to
giving away rights but rather to clearing up past promises for payment,
goods, and services that the United States had failed to meet. Both
sides simply agreed to renegotiate these provisions.
As to disbanding, Tanner asserted that the tribal groupings as
constructed in the nineteenth century Michigan treaties were artificial
creations of the United States government. The band rather than the
tribe is what mattered to the Indians. If the United States government
wished to create "tribes" for its convenience in 1836, then eliminate
the same tribes in 1855, this mattered not at all to the Indians, who
throughout this process had understood the treaties to be between their
band and the federal government. Despite dissolution of the "tribe" the
band continued to exist and continued to exercise treaty rights.
Although these arguments were credible, Doherty observes that
they were not irrefutable. "Voluntary" removal clauses, for example, are
found in several treaties signed by the federal government during the
1830's. The Creek, for example, had one in their 1832 treaty with the
government. Yet four years after it was signed the Creek were forced
from their lands with their chiefs in chains and guns at their backs.
Clearly there were contemporary examples of how such clauses, despite
their language, were in practice mandatory and thus contradicted
The state might have mounted a reasonable counter-argument.
However, the state's attorney failed to exploit these possible
weaknesses. Funded at a much lower level then the plaintiffs, the
state's attorney brought forward only one expert witness, who the judge
failed to find credible. In the end the state failed to persuade the
judge that the expert witnesses brought forward by the plaintiffs had in
any way erred in their interpretation of the past and the treaties. As a
result, in May 1979 the judge found overwhelmingly in favor of the
Native American plaintiffs.