*1 1971] v. Jondreau
PEOPLE v. JONDREAU Regulations 1. Treaties —Indians—Statutes—State —Constitu- tional Law. Michigan Supreme Judges, judges court, a state are bound, Constitution, by Chippewa under the United States Treaty 1854, and, any Indian to law the extent that state regulation treaty, or regu- conflicts with the the state law or (US Const, 6; is [1854]). lation invalid art Stat 2. Treaties —Construction—Indians. language The used treaties with be the Indians should never prejudice; construed treaty to their how the words of the were people, understood thesе unlettered rather than their critical meaning, should form the rule of construction. Construction—Indians—Pishing. 3. Treaties — right fish, substance in the must right have included the flsh on the Keweenaw Bay, clearly as it right any a valuable other construc- tion right granted would make substance; without knowledge the Indians did not have concerning laws municipal sovereignty disputes boundaries or between governments the Federal and and, they state since living bordering bay, land people” as “unlettered right wоuld assume that the fish meant the bay (10 fish on that [1854]). Stat 1109 4. Treaties —President—States.
Under power, President make determinations power normally affect the (US reserved to the state Const, 2). Am por References Points in Headnotes Jur, 52 Am 4-6] Treaties 18.§ 2d, 2d, 41 Am Jur 41 Am Jur Indians Indians 12.§ '3] 19.§ Concurring Opinion
Black, J. *2 Law —Courts. 5. Treaties —Constitutional supremacy Constitution which- States clause United The along says imperatively with the “all Treaties that made” — supreme Law components be the other therein listed—“shall every Judges provides State” “the the Land” and which Michigan Supreme thereby binding upon shall be is bound (US Const, 6[2]). Court art Interests— Law —State 6. Treaties —Indians—Constitutional Decision. Prior pure nullity, judicial something error, it was than more It was attempted, previously Michigan Supreme Court for Chippewa and the in contravention interpose supremacy Constitution the United States clause of state, re- and the never exercised interests subordinate President, vocatory block enforcement of 6; [1854]). treaty (US Const, Stat art T. Division G. 3, from Court of Appeals, Appeal Elliott, JJ., J., McGregor P. Kavanagh, Condon, D. J. Submitted affirming Baraga, Stephen Term (No. 1971, 12 January 1971. January Rehear- 5,1971. April Decided 52,319.) Docket No. 1971. denied August Mich 169 reversed. App illegal posses- was convicted William Jondreau Court appealed Defendant sion of lake trout. Re- appeals. Affirmed. Defendant Appeals. versed. Robert A. Kelley,
Frank J. General, Attorney Maslow- and Jeromе Derengoski, Solicitor General, Beck, ski G. Attorneys General, and Curtis Assistant for the people. <& McCarthy),
Wisti M. Jaaskelainen John (by defendant. People Jondreau Opinion op the Court J. William Jondreau is a full-blooded Swainson, Indian, living on the L’Anse Indian
Beservation, and a member of the tribal council of reservation.
On June 1965, he was an observed officer the Michigan Department of Conservation to be the waters of the Keweenaw Bay Lake Superior. When he cаme into he was shore, arrested for the possession of four lake illegal trout taken from the Bay.1 Keweenaw He was convicted of this offense in both the Baraga village justice court and in the Circuit Court of Baraga County.
of Appeals affirmed his
conviction
Mich App
169) on the
Chosa authority of
The issues involved are complex. extremely They concern the interrelationship of the of the Federal government make to treaties with the Indian and tribes the of right the set state to up nondis- criminatory game regulations. Both have raised several issues which be summarized follows: Chippewa
Whether the Treaty 1854 Stat 1109 [1854]) gives defendant, the William Jondreau, the right fish Keweenaw with- Bay out regard state fishing regulations?
7. The interpretation of Indian treaties the courts has varied greatly depending upon precise word- treaties. a close examination of Hence, involved in this case is imperative. possession illegal trout out of season has been made pursuant promulgated to a State Conservation Commission order authority under MCLA Rev 13.1568 (Stat 308.201 Ann 1967 § § Mich Federal Under agreed 2: government Article bands, Vieux De Sert the L’Anse and For “1st. townships following in in unsold lands all the the State Township fifty-one Michigan: north township fifty-one north range thirty-three west; township thirty-two range half of east west; thirty-three range fifty west; west half north fifty-north range thirty-two township west; township range thirty-one fifty-one west, north all Bay.” lying Huron west 11 of states: Article * * # “ the terri And of them as reside such in hereby tory hunt and ceded have the shall Presi until ordered therein, otherwise fish dent.” Mr. Jondreau came ashore When on June alleged he he was T 51 RN, within IfW. a line Bay, from extended the boundaries into the
the area where he was would have been people correctly within T 51 RN, 33 W. The con- Michigan tend that under law the boundaries of township do not into the Lakes. extend Great Thus, Bouchard Mich 156. they N, assert, T 51 that not Jondreau was within They R 33 to the waters W. further assert title submerged vested Lakes lands the Great Michigan a State State it became when not did the Indians Thus, contend, 1837. submerged and, lands title to waters States the United therefore, could cede them not *4 government. the title to the waters
Defendant contends that pass submerged to the State lands not did and part Michigan ceded of the 1837 and, thus, in treaty. land job dis- an excellent done
Both Su- States cussing in United detail the numerous v. Jondeeau involving preme submerged Court cases title to beginning (1842), Martin with v. Waddell lands, (16 Peters) (10 997), ending L Ed and with (1947), (67 States United 19US California 1889). 91 L S Ed However, Ct after a analysis thorough of these we cases, believe that interpretation depend does not submerged the title to the waters and lands of Bay. Hence, Keweenaw will not we discuss the question of title these lands waters. §
Under Article of the 2, 2, United States Constitu- President tion, the has the to make treaties, provided that of the two-thirds Senate concur. This, procedure coursе, was followed when Chippewa Treaty Indian of 1854 was made.
Article 6 of the United States Constitution states part: in
“This Constitution, and the Laws of the United
States which shall
in
be made
thereof;
Pursuance
all
made,
Treaties
or which
made,
shall be
Authority
under the
States,
United
shall be
supreme
Judges
Law the Land; and the
every
thereby, any Thing
State shall be bound
Contrary
any
the Constitution or Laws of
State to the
ithstanding.”2
notw
Judges
by
Thus,
of a state court, we are bound
this
of to the
and,
any
extent
regulаtion
state law or
conflicts
treaty,
regulation
with the
the state law or
is in-
valid. We, therefore, must determine what was
meant
statement
“and such territory hereby
them as reside in the
ceded shall
have the
to hunt and fish
until
therein,
other-
wise ordered
the President.”
e.g., Whitney
See,
(1888),
v. Robertson
How the words people, critical rather than their this unlettered meaning, form the rule construction.”
should (1886), States Nation v. United 119 In Choctaw quoting (7 306), after 1 30 L Ed 75, US S Ct 28): (p the court said statement, above equal footing, an and that “The are not on superior good inequality is be made justice only to the substance which looks right, regard to technical rules framed without jurisprudence, municipal system formu- obligations private persons, lating (Emphasis subject equally to the same laws.” added.) (20 (1899), 1 v. Meehan 175 also, Jones US
See, (1905), 49); 44L United v. Winans 1, S Ct Ed States 1089); L49 371, 662, 198 381 Ed 380, US S Ct Kennedy (1916), Becker S 556, v. 1166); L Menominee v. Ct United States Ed Tribe (fn 2) (88 391 US 697). L 2d S Ct Ed right must in- fish The substance Bay. For fish on Keweenaw cluded the (See Map, the L’Anse band of Appendix A), Indians fishing right on Keweenaw Bay clearly right. Any оther con- valuable right granted make the struction would did The Indians substance. without Jondreatj not have knowledge laws concerning munici- pal boundaries or sovereignty disputes between the *6 Federal state governments. and Since they were living land bordering Keweenaw as Bay, “an unlettered people” would assume that to right fish meant the right fish on the Keweenaw Bay.
II. case Worcester Georgia, supra, In the of v. where the court struck down state law which attеmpted certain of regulate actions white and persons Indians, Chief Justice Marshall (p 561): stated whole intercourse between the United States
“The and this is, our nation, [Indian] by constitution in laws, vested the government and the United of States.” (Emphasis added.)
Following case, this the courts retreated from this position almost State laws which century. limited of rights Indians under the various treaties upheld as of police valid exercises in power. recent However, years, the courts have accorded full again Indians under the treaties. Thus, while the court stated in Ward Race Horse (1896), 504, 507, (16 US 509, 513 S Ct L41 Ed 244): of a power “The control State to and regulate * # *
the taking
game
of
cannot
questioned.
be
To suppose that the
words
intended to
give to the Indian the right
already
to enter
into
established States
seek
portion
out
every
unoccupied
land and
government
there exercise
in
hunting,
law,
violation
the municipal
would
presume
be to
wаs so drawn
frustrate
very object
it had in view.
* * * ‘the States have full power
regulate
within their
[*]
#
#
>»
limits matters
internal
police
384 Mich
(1916),
Kennedy
Becker
in
564):
1166) (pp 563,
L
Ct
60 Ed
S
* * *
“
opinion
[are]
clause
that the
we
considering
fully
by
ait
reservation
is
a
satisfied
hunting upon
granted
privilege
grantees, and others to
with the
lands
common
subject
might
privilege
extended,
be
but
whom
nevertheless to that
regulation,
in the
appropriate
necessary
privileged,
inhered
all those
which
as to
soverеignty
the lands where
over
State
privilege
was exercised.”
implica-
limited
these
been
have, however,
views
Supreme
years
tion
recent
United States
Washington
example,
Tulee v.
decisions. For
1115),
L86
Ed
315 US
S Ct
require a
the court held that the
could not
State
*7
violating a
made
license fee without
(12
[1859]). Likewise,
in
951
in Menomi-
1859
Stat
supra,
held
States,
nee Tribe v. United
the court
Congress
an
did
act of
in 1954
not terminate
Treaty
by implication
the Wolf River
of
[1854]). The
court held that valuablе
Stat
hunting
fishing rights
given
a
were
easily
specific
extinguished
not
without a
statement
directly
subject.
on
not
on the
These
while
cases,
point, do
trend in the deci-
decisive
demonstrate
granting Indians
of
sions
the Federal courts toward
expanded See,
various treaties.
under the
Egan (1962),
Community
Indian
also, Metlakatla
562); Makah
L
2d
S Ct
7 Ed
(CA9, 1951), 192 F2d
Indian
Schoettler
Tribe v.
Tribes Umatilla
Maison v.
224, and
Confederated
of
1963),
(CA9,
Indian
314 F2d 169.
Reservation
job
exceedingly fine
Both
an
have done
great
analyzing
cases
of
dealing
numerous
in
detail
are
these cases
with Indian treaties. While
binding for
reasons:
are not
two
instructive,
People
v. Jondreau
First, these cases do not involve construction of the
Chippewa
of 1854. Second, because
judicial
change
past
attitude
over
conflicting
years,
precedent
we have
two lines
that are not
to our
conclusive
determination of this
directly
óne
do, however,
case. We
case
point.
v. Chosa
an identical situation. Chosa and Attikons, members of the L’Anse band of Indians, violating game convicted fish and laws. (p 160): This Court affirmed. The Court stated evidently “The treaties established servitude hunt and fish on the ceded land favor against of the Indians and the exclusive dominion private ownership, they provided immunity but no operation game against laws, as State.” from (Emphasis added.) people cite Chosa as determinative the deci- good sion in this case. If Chosa law, is then un- dоubtedly people are correct. believe We longer applicable Chosa no states the law. When properly Chosa was decided our governing relied on the authorities that date. through passage However, time, founda- upon longer tions which Chosa rested are no sus- tained as valid. premises.
Chosa rested on two basic Defendant argued giving had Chosa that the clause the Presi- *8 power abrogate treaty the only dent to hunting fishing rights. limit on thе and The Court p answered, at 160: operation game
“As a restriction on of State laws, foreign system government it would be our to of providing powers sovereign of control of the State by sovereignty.” an officerof another display does not view, however, proper
This granted for to the power treaty deference Constitu- 2 of the United States by President Article United 6 of the States tion, under Article and aswe, supra, Constitution, as stated State as our rеspect any treaty superior must Judges state laws. conflict between state laws
A similar somewhat arose the case and the Federal Ct Missouri Holland S In Ed ALR United 641, 11 984). 64 L Britian had made a with Great States closed hunt by [1916]) protection, Stat 1702 birds ways, in other of migratory seasons and each Canada. It bound in the United States and carrying take measures for the necessary country prohibited Congress treaty. Thereupon, out [1918]) ch 40 Stat 755 July 3, 1918, (Act of the migratory or capturing, selling any killing, exсept treaty, terms of the designated birds Secretary made permitted by regulations as a bill filed The State Missouri Agriculture. States game United equity Holland, prevent from this act to enforce warden, attempting The state made it. pursuant the regulations interference with it an unconstitutional claimed was Amend the Tenth to the rights reserved state by invaded acts defendant ment that the wild owner powers the state as sovereign Holmes, in upholding birds. Mr. Justice 434): thereto, (p stated passed the act pursuant a State and “No is true that as between doubt it the killing regulate the State its inhabitants follow but it does not birds, and sale such powers. authority paramount its is exclusive * * # ‘are as binding of course Valid treaties the territorial limits the States within *9 Jondreau v. 549 are elsewhere of throughout dominion the United Baldwin Franks [1887], States.’ 120 US great No doubt 683 Ct 30 L Ed [7 S 766]. body control private relations within the usually of fall State, a but override its of power.” (Emphasis added.)
Thus, under the treаty power, the President may make determinations that affect the powers normally reserved to the state.
Second, our Ghosa Court relied on the fact that Indians were United States and, thus, citizens sub- ject to all laws. state The Court 162): stated (p
“When one of States, becomes citizen the United he casts off both the obligations of his former nationality on those pertain and takes which to other citizens of the p C. J. 786. country.
“Both because new citizenship and by express terms of the statute under which the allot- ments were made, became subject defendants to the laws of the State, civil and criminal.”
This contention rejected by the United States Supreme Tribe Puyallup Department v. Game Washington 392 (88 S Ct (1968), L 1725, 20 2d Ed Mr. 689). Justice Douglas, speak- Court, 398): stated (p “The fish ‘at all usual accustomed’ may, course, State, not qualified be places even though all Indians born the United States are now citizens United States.” (Emphasis added.) which Ghosa rеsted
Thus,
foundations
upon
have not
stood the test
time.
think the better
We
in State
Arthur
view is expressed
the court
“If the exists right and unclaimed lands ceded upon killing game open States, it fol the United the Nez Perce Indians to is be exercised under lows that such police power to right stated, рo of this state. Generally system American constitutional lice power ** # the State left to the That has been states. is not power has and exercise such generally * ** . question pursuant state enacted its any statute of “[T]he any which conflicts with treaty police interference with mat- constitutes an United States scope within the of federal ters that are power and, hence, exclusive permitted cannot be stand. 565; the Law, treaty CJS, page § Cоnstitutional law regula- a state and being superior particular is regulation the state law and involved tion, though state, of the legislative power otherwise within the thus under the cannot be rights created destroyed.” further stated: 264, 265,
At court pages in refer licensing of the primary purposes “One life; wild ence to and is conserve fishing hunting than a act rather the law essentially regulatory is * * * and hunting both revenue act. While and fisher sport are recreation most primarily is tо the and not so hunters, respect men Indians; this with hunted to and fished they always Jondreau Opinion op the Court necessary for and fnrs tbeir existence obtain food controlled as to the time when and have been kill the the was more so in and the amount catch or area where exigencies of while no occasion; doubt this now, than it is fact remains today; be that it is to lesser extent also true that may, respect as it their reserved in this should light existing be determined in the conditions at all the time of the contracting and the manifest intent of * *# posi If the at time. given by tion of State is sustained assurance game Governor they pleased could kill when Stevens provision the right of the reserv upon open to them the to hunt un claimed no lands is at all. the solemn Out obligations treaty, express and the reserved property right passed which never from the Indians anyone government to never and which the federal has extinguished exprеssly recognized *11 but has before and after Idaho was admitted to the Union, any the Nez Perce would now have no re spect enjoyed by different than that all ex others, cept perhaps the freedom from the burden of a license fee. This was never intended under the treaty. broad, fair and liberal construction the Supreme recog Court of the United States has expressly treaty nized and the held Indian that fishing provisions rights accorded to them which do # * * not exist for other citizens. What are such rights theory? Perhaps under the State’s to hunt rights without fishing a license. If such exist as assuredly they hunting. most exist as to If the regulate year State they can the time which may they greater rights hunt then are no accorded respect in this than exist for other citizens. are “We not here concerned with the wisdom of provisions present the of under conditions advisability imposing upon nor with the In- obligations regulatory wild dians certain in the interest conserving life; that is for Federal Gov- perhaps ernment, the affected tribe, and the State appropriate negotiations; under to resolve of Idaho to protecting with reference here is only our concern which reserved of the Indians the rights upon and unclaimed open of 1855 to hunt the Treaty or restriction burden.” limitation, land without our binding upon Court, case is not we this While balance between expresses proper believe that it Indians and the rights police 1854. of the state under the powers out the fact that unlimited point fishing The people our limited national resources. deplete could rights Puyallup, supra, where the court held They rely regulations state could provide of fish. necessary the conservation reasonably In an awareness of the need to age growing pre- protect this is im- environment, serve our an portant consideration. unlike the However, the Arthur of 1855 case, considеred the Chippewa of 1854 provide does safeguard. Under Article the President issue an order or limiting hunting extinguishing four fish in this Indians. The involved case will However, not upset ecological balance. if in the future the of fish taken being number does constitute such a we are convinced that threat, President would take action. appropriate Chosa, supra,
We, therefore, overrule and hold that are game regulations invalid In- applied defendant Jondreau other *12 dians protected who are of 1854. reversed.
Judgment M. Kavanagh, C. T. E. J., T. Black, Adams, and Williams, concurred with Swain- JJ., Brennan, son, J. Jondee au Opinion op the Court
APPENDIX A
*13
Black,
J.
agree
(concurring).
I
with and have
J.
Black,
opinion
pre-
Justice Swainson
has
endorsed
step
pared, yet would
farther.
a bit
majestic phrasing
Doxology,
In the
of the
beginning
supremacy
was from the
and is
clause*
regnant.
really
prospective
effect
Its
force and
now
upon
Judges
every State,”
“the
states,
conception
Michigаn
came to
and birth when
was
primeval. Binding
now,
both trackless and
us
People Chosa,
Today definitely we find this same provided provides specific of 1854 “a condi- now enjoyment tion of the reservation” which this day challenge by Michigan tolerates no and the Michigan. finding, oppos- courts of No like and no ing finding, made Ghosa Irrele- Court. only sup- assigned vant reasons for refusal to port treaty-stipulated right Atti- of Ghosa and pages kons to hunt and fish on the See reservation. report. 161 of Ghosa’s setting People In that v. Chosa was released to years ago. our books little over 40 This Court attempted then in contravention and the supremacy interpose clause to subordinate interests revocatory state, and the never exercised power President, to block the enforcement treaty. judicial something This was more than pure nullity. error. It was no
There is occasion for overrulement or distin- guishment of It in the first never became law Ghosa. 6(2),
* Article Constitution of United States. Sleboede v. Sleboede both judgment its and the place, statute applied there whole spent their force in the having utterance of Chosa was, when handed worthless words. *14 December 2, 1930, down like the earth before it was made, (Genesis “without form, void.” ch. 1:2.)
T. G. did not in this J., sit case. Kavanagh,
SLEBOEDE v. SLEBOEDE 1. Courts —Nunc Pro Tunc Order —Function—Omission in Rec- ord. pro an supply
The function of nunc tuno is order an omission previously record action taken a court but not properly recorded; pro an nunc tunc order not be utilized supply previously omitted action. Judgment—Property 2. Divorce — Settlement —Insurance—Nunc Pro Tunc Order. pro order, Nunc incorporating tunc judgment into in- divorce provisions parol surance property settlement between the judgment, to the divorce which were not included judgment years the divorce previously, entered three was er- roneously pro entered as the motion for nunc tunc order clearly sought court, new action merely not in- belated judgment clusion prior action. Appeal from Court of Appeals, Division Lesin- ski, J.,C. and H. J. Gillis T. M. JJ., af- Burns, References for Points in Headnotes 2d, 20 Am Jur [1] [2] Courts 58. § 2d, Judgments 46 Am Jur 195. §