Treaty tribe status as a defense to state fishing regulations; Three-prong test; Part of a group of people of Indian ancestry; Descended from a treaty signatory tribe; Maintaining an organized tribal structure

The court held that “defendant presented evidence to support the district court’s conclusion that the Mackinac Tribe was a group of citizens of Indian ancestry that is descended from a treaty signatory and that has maintained an organized tribal structure.” And, because the circuit court did not err in affirming the district court’s order dismissing his “charges of spear fishing in a closed stream in violation of MCL 324.48711 and” 324.48715, the court affirmed the circuit court’s order. The prosecution argued “the documentary evidence necessary to establish treaty-tribe status is similar to the documentary evidence necessary to support federal tribal recognition.” The court disagreed, finding that “the type and amount of evidence needed for defendant’s affirmative defense need not be the same as for federal recognition.” Rather, he was “required to submit enough evidence that ‘when weighed with that opposed to it, has more convincing force and the greater probability of truth.’” However, it noted that “the lack of rebuttal evidence from the prosecution is not a silver bullet because defendant still had the burden of proving his affirmative defense.” To do so, he “had to satisfy the three-prong test” the court set forth in its decision in the prior appeal in this case. As to “the first prong, the district court concluded that defendant was part of a group of people of Indian ancestry.” To the extent the prosecution attacked witness-A’s (who identified himself as the “Chairman of the Mackinac Tribe of Odawa”) “testimony for lack of detail or documentation, this attack relates back to the federal recognition standard, which does not apply, as well as to issues of weight and credibility, which are matters that we defer to the trial court.” The court held that “there was evidence showing that the Mackinac Tribe was a group of citizens of Indian ancestry.” The district court found as to the second prong “that defendant was descended from a treaty signatory tribe.” The court concluded that while “one portion of the district court’s rationale was problematic, the remainder of its rationale was sound because it addressed the group as a whole rather than just defendant,” A, and A’s relatives. As to the third prong, maintaining an organized tribal structure, the court held that while “the nature of the Mackinac Bands may have evolved over time, there were nonetheless defining characteristics—the kinship-based structure, connection to the Mackinac region, fishing, powwows—as well as less modern political structures that survived from 1836 until the present day. The circuit court recognized this in its decision, and we are not left with a firm conviction that the district court’s findings were mistaken.”