United States v. Michigan

Nos. 79-1414, -1527, -1528 (6th Cir. May 28, 1980)

ELR Digest

Per curiam

The Sixth Circuit Court of Appeals remands to the district court a case concerning the regulation of Indian fishing rights. In 1979 the lower court ruled that pursuant to two nineteenth century treaties the plaintiff tribes had an absolute right to engage in gill net fishing in the waters of Lake Michigan free of any restriction by the state, even if such fishing were to exhaust the resource completely. To enforce its mandate the court issued an injunction restraining certain state officials and judges from hampering plaintiffs' exercise of their fishing rights.That order was stayed by a single judge of the Sixth Circuit and stayed again by a full panel of the court pending plenary consideration of the merits. Shortly thereafter, the Secretary of the Interior issued regulations governing virtually all aspects of Indian fishing in the Lake, prompting the tribal and federal parties to contend that notwithstanding the arguable application of state law to Indian fishing rights, the new federal regulations occupy the field and preempt state authority. The Sixth Circuit, conceding that the preemption issue may dispose of the litigation, declines to rule on the matter. It thus remands to the district court with instructions to address (1) whether the federal regulations were intended to and do in fact have preemptive effect; (2) if so, whether the regulations prohibit enforcement by state officials; and (3) if so, whether the regulations oust the jurisdiction of the state courts in this field.

The full text of this opinion is available from ELR (5 pp. $1.00, ELR Order No. C-1216).

Counsel for Appellants
Frank J. Kelley, Attorney General; Thomas Casey, Ass't Attorney General
525 W. Ottawa St., Lansing MI 48913
(517) 373-1124

Counsel for Appellee United States
Edward J. Shawaker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2813

Counsel for Intervenor-Appellee Bay Mills Indian Community
Bruce Green
Native American Rights Fund
1506 Broadway, Boulder CO 80302
(303) 447-8760

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]