Tribal defense to spear fishing in a closed stream in violation of MCL 324.48715 & MCL 324.48711; The proper legal framework for assessing whether a defendant is entitled to assert tribal status as a defense to state fishing regulations; Mackinac Tribe v Jewell; Whether the Mackinac Tribe is a political successor in interest to a “signatory” tribe to the 1836 & 1855 treaties; United States v State of Washington (9th Cir.) (Washington I & II); Whether a tribe constitutes a treaty-tribe; Treaty-tribe status; Department of Natural Resources (DNR)

In an issue of first impression in Michigan as to the proper legal framework for assessing "whether a defendant is entitled to assert his tribal status as a defense to state fishing regulations,” the court held that “whether the Mackinac Tribe is federally recognized has no bearing on whether it is entitled to treaty fishing rights.” Further, “membership in a modern-day tribe whose members descend from a signatory tribe" does not automatically entitle the modern-day tribe to treaty rights. Thus, the circuit court erred when conditioning defendant’s potential treaty rights on whether his tribe is federally recognized, and the court vacated that order. But because the district court did not evaluate the case under the proper legal framework, which the court adopted in its ruling, it remanded for an evidentiary hearing to allow him “an opportunity to establish by a preponderance of the evidence that his Tribe is a political successor in interest to a signatory tribe of the 1836 treaty.” Defendant is a member of the Mackinac Tribe. In 2018, a DNR “conservation officer cited defendant for spear fishing in a closed stream in violation of MCL 324.48715 and MCL 324.48711.” Defendant claimed that “he was a member of an Indian tribe or band granted hunting and fishing rights by 1836 and 1855 treaties with” the U.S. government. The Mackinac County district court granted his motion upon holding that the Mackinac Tribe was entitled to rights under the relevant treaties. On appeal from the prosecution, “the Mackinac County circuit court reversed on the ground that the Mackinac Tribe was not federally recognized and that federal tribal recognition is a matter for initial determination by the United States Department of the Interior.” The court held that “the Mackinac Tribe is not a ‘signatory’ to the 1836 and 1855 treaties, even though some of its members appear to be descendants of a signatory tribe.” The issue was whether it qualified as a treaty tribe. The court found that whether the “Tribe is federally recognized has no bearing on whether it is entitled to treaty fishing rights.” However, it did not agree that “membership in a modern-day tribe whose members descend from a signatory tribe automatically entitles the modern-day tribe to treaty rights.” The dispositive issue was whether the “Tribe is a political successor in interest to a signatory tribe, entitling defendant to an affirmative defense based on his tribal status.” However, neither lower court addressed this issue. Vacated and remanded.