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Grand Traverse Band of Ottawa & Chippewa Indians v. Director

ELR Citation: 28 ELR 21171
Nos. 96-1168, 141 F.3d 635/(6th Cir., 04/15/1998)

The court holds that a band of Native Americans has the right to moor commercial fishing vessels at two municipally owned marinas on Lake Michigan. The court first holds that treaties signed in 1836 and 1855 provided for an easement of access to reach traditional fishing grounds, which includes the right of transient mooring in the municipalities' marinas. Courts are bound to construe treaties not only liberally in favor of Native Americans but also in a way to reserve to the band all rights necessary to effectuate the treaty. In the present case, the scope of the treaty right of access to traditional fishing grounds includes transient mooring on the public property of the municipalities because not only would a contrary result frustrate the purpose of the treaties, but also such a result would simply destroy all rights to fish commercially that were conveyed by them. In addition, traditional property-law concepts do not prohibit the use of improvements on an easement when necessary for the effectuation of the easement's purpose. The scope of the easement must include mooring access to the marinas in order to permit use and enjoyment of the easement. Otherwise, an easement of access over the land where the marinas are situated would be meaningless. Moreover, there was no express easement in this case that was limited to its specific terms but rather an easement by reservation or necessity, the purpose of which was access to fishing grounds. The court next holds that the district court correctly granted declarative relief pursuant to the 1985 consent order between the band and the state environmental agency that provided the band the right to fish in its traditional fishing grounds. Although the municipalities were not parties to the order, it is well-settled that third parties who interfere with a court order may be enjoined from doing so.

A dissenting judge would hold that the band is not entitled to moor its fishing vessels at the marinas either by virtue of the treaties or by virtue of the consent order. The band's need of a marina does not give rise to an obligation on the part of the municipalities to provide one.

Counsel for Plaintiff
William Rastetter
Law Offices of William Rastetter
6700 S. French Rd., Cedar MI 49621
(616) 228-6276

Counsel for Defendant
Stephen O. Schultz
Foster, Swift, Collins & Smith
313 S. Washington Sq., Lansing MI 48933
(517) 371-8100

Before Nelson, J.