If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
February 11, 2021
Plaintiff-Appellee, 9:15 a.m.
v No. 353537
Mackinac Circuit Court
WALTER JOSEPH CASWELL, LC No. 19-008346-AR
Defendant-Appellant.
Before: BECKERING, P.J., and SAWYER and SHAPIRO, JJ.
PER CURIAM.
Defendant, Walter Joseph Caswell, is a member of the Mackinac Tribe of Odawa and
Ojibwa Indians (the “Mackinac Tribe”). In October 2018, a Department of Natural Resources
(DNR) conservation officer cited defendant for spear fishing in a closed stream in violation of
MCL 324.48715 and MCL 324.48711.1 Defendant moved to dismiss the charges on the ground
that he was a member of an Indian tribe or band granted hunting and fishing rights by 1836 and
1855 treaties with the United States federal government. The Mackinac County district court
granted defendant’s motion upon concluding that the Mackinac Tribe was entitled to rights under
the relevant treaties. On appeal from the prosecutor, 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.
We granted defendant’s delayed application for leave to appeal.2 For the reasons explained below,
we vacate the circuit court’s order and remand the case to the district court for an evidentiary
hearing consistent with this opinion.
1
MCL 324.48715 was repealed by 2018 PA 529, effective December 28, 2018. However, at the
time of the offenses, the statute was in effect. MCL 324.48711 was amended by 2018 PA 529 as
well, but the changes were mainly editorial and do not affect this case.
2
People v Caswell, unpublished order of the Court of Appeals, entered May 4, 2020 (Docket
No. 353537).
-1-
I. PERTINENT FACTS AND PROCEEDINGS
In the Treaty of 1836, a group of Indian tribes collectively referred to as the Ottawa (or
Odawa) and Chippewa Nations ceded to the federal government nearly 14 million acres in what is
now Michigan’s eastern Upper Peninsula and western Lower Peninsula. People v LeBlanc, 399
Mich 31, 38; 248 NW2d 199 (1976). The treaty preserved the tribes’ rights to hunt and fish on the
ceded lands. Id. at 38, 41. In the Treaty of 1855, the federal government dissolved the concept of
an Odawa/Chippewa Nation, and addressed reservation boundaries regarding several different
tribes. Mackinac Tribe v Jewell, 829 F3d 754, 755 (2016). The 1855 treaty did not affect the
fishing rights retained in the 1836 treaty. See LeBlanc, 399 Mich at 55-58.
During the next 150 years, disputes arose concerning the hunting and fishing rights under
the treaties. In an attempt to resolve disputes regarding inland treaty rights (as opposed to fishing
rights on the Great Lakes), the Michigan DNR signed a hunting and fishing consent decree in 2007
with five federally-recognized tribes. The decree, known as the 2007 Inland Consent Decree
(“Consent Decree”), defines the extent of inland hunting, fishing, and gathering rights for tribal
members. Under the Consent Decree, the tribes generally regulate hunting and fishing seasons for
their tribal members, and may also regulate hunting and fishing methods, including spear fishing.3
Defendant was spear fishing in a Mackinac County stream within the ceded lands subject
to the 2007 Inland Consent Decree when the conservation officer cited him for fishing in a trout
stream out of season and fishing by illegal means. At the time, defendant had a fishing license
issued by the State of Michigan, but the license did not allow spearfishing or fishing out of season.
Defendant also had a tribal fishing card issued by the Mackinac Tribe, which apparently allowed
spearfishing, and had no seasonal limitation.
As indicated, defendant moved to dismiss the charges on the ground that he is a member
of a tribe with hunting and fishing treaty rights. At the hearing on the motion to dismiss, the DNR
conservation officer testified that the State of Michigan does not accept the Mackinac Tribe’s
assertion of treaty rights because the Mackinac Tribe was not a signatory to the 2007 Inland
Consent Decree. The officer testified that only members of the five tribes that signed the consent
decree could hunt, fish and gather in the area ceded to Michigan in the 1836 treaty, and he did not
believe the Mackinac Tribe was associated with any of those five tribes.
Barry Wallace Adams testified on defendant’s behalf. He identified himself as the
“Chairman of the Mackinac Tribe of Odawa,” which was referred to as the Mackinac Tribe, and
he affirmed that defendant was a member of the tribe. He testified that the Mackinac Tribe was
descended from “Anise Band 15 and 16, Point of St. Ignace, and the Band 16 is Pointe of Aux
Chenes” and was a signatory to the 1836 and 1855 treaties. He indicated that the modern-day
Mackinac Tribe consisted of Ojibwa excluded from the Sault St. Marie Tribe after it closed its
3
See generally “2007 Inland Consent Decree FAQs,”
https://www.michigan.gov/documents/dnr/2007_Inland_Consent_Decree_FAQs_9.28.17_60450
2_7.pdf (accessed February 3, 2021).
-2-
rolls. It is not clear from Adams’s testimony when or under what precise circumstances this
occurred.
Defendant also submitted three documents for admission as exhibits. He first submitted a
copy of his “Tribal Subsistence Harvesting License.” The license was issued by the Mackinac
Tribe of Odawa and Ojibway Indians, with a Durant Census Record number indicating that he was
a member of Band 16. Next, he submitted a “Certificate of Decree of Indian Blood” from the
United States Department of the Interior Bureau of Indian Affairs. This document certified
defendant as “1/64 Mackinac Band Chippewa Indian,” and stated that his “great-great-great-
grandmother, Mrs. Antoine Paquin, is listed as number No. 342 on the 1836 Census Register of
the Ottawa and Chippewa Nations.” The letter also informed defendant that, although the
document verified his Indian descent, verification did not entitle him to tribal membership. Lastly,
defendant submitted his tribal membership card, which identified him as “A Member of The
Mackinac Tribe of Odawa and Ojibwa Indians Bands 11 thru 17 and Cheboygan Bands.”
The district court ruled in defendant’s favor. The court found that “the Mackinac Tribe
was a signatory to [the 1836 and 1855] treaties” because it had not been “disputed either through
testimony or through written briefs that were submitted to the Court.”4 It further found that
defendant had proven he was a member of the Mackinac Tribe and possessed a valid tribal fishing
license. Thus, it framed the controlling legal issue as “whether or not members of a tribe federally
recognized or otherwise can be divested of their hunting, fishing, gathering rights afforded to them
in the 1836 and 1855 treaties with the United States.” Based on its review of United States
Supreme Court decisions governing the interpretation of treaties, the district court rejected the
DNR’s position that the 2007 Inland Consent Decree cut off any treaty rights to which defendant
might be entitled. The court expressed that it was “at a loss as to how the state has authority to
divest members of the tribes that were not signatories to the 2007 [Consent Decree], understanding
that tribal hunting, fishing, gathering rights are given in the 1836 and 1855 treaty.” The court
concluded,
[O]nce tribal members receive hunting, fishing, gathering rights under treaty, they
continue regardless of further state regulation.
Therefore, the Court will concur with the Defendant and dismiss the matter, as the
restriction of hunting, fishing, gathering rights in this case to tribal members who
were not signatories to the 2007 compact violates the essence of the intent of the
signatories in the 1836 and 1855 treaties.
The prosecutor appealed the district court’s ruling. On appeal, the Mackinac County circuit
court ruled in the prosecution’s favor, reversing the district court and reinstating the charges
4
One sentence in the district court decision contains an apparent scrivener’s error. The court found
that the Mackinac Tribe was a signatory to the 1836 and 1855 treaties, but in a scrivener’s error
the court later wrote, “The fact that the Mackinac Tribe of Odawa and Ojibwa Indians was not
[sic] a signatory was not disputed either through testimony or through written briefs that were
submitted to the Court.”
-3-
against defendant. In its opinion, the circuit court opined that “it need not look further than the
most recent case involving the Mackinac Tribe in Mackinac Tribe v Jewell, 829 F3d 754 (2016)
for direction in resolving the matter before the Court.” Relying on Jewell, the circuit court
observed that the Mackinac Tribe was not a federally-recognized tribe and concluded that the
matter of federal tribal recognition is reserved to the United States Department of the Interior. We
granted defendant’s delayed application for leave to appeal.
II. ANALYSIS
As the parties acknowledge, this case presents an issue of first impression in Michigan.
We must ascertain the proper legal framework in which to assess whether a defendant is entitled
to assert his tribal status as a defense to state fishing regulations.
Defendant claims the circuit court erred by relying on Jewell as its legal foundation when
reversing the district court’s order dismissing the charges against him. Jewell involves federal
recognition of the Mackinac Tribe, but according to defendant, whether a tribe is federally
recognized has no bearing on whether the tribe is entitled to exercise treaty rights. Defendant
contends that because there is no dispute that the Mackinac Tribe was a “signatory” to the 1836
and 1855 treaties, and he is a member of the Mackinac Tribe with a valid tribal fishing license, he
is entitled to exercise treaty fishing rights and to assert that fact as an affirmative defense to the
criminal charges filed against him. While defendant concedes Michigan has the power to regulate
fishing, he notes that it may not impose regulations restricting the exercise of treaty fishing rights
absent an established conservational necessity, which has not been established here. Accordingly,
he argues that the circuit court should have affirmed the district court’s dismissal of the charges
against him. The prosecution contends the circuit court properly rejected defendant’s argument
because the Mackinac Tribe is not federally recognized.
As an initial matter, we observe that a modern-day tribe whose members descend from a
tribe that signed a treaty may be, but is not typically, referred to as a “signatory tribe.” That
designation is usually reserved for the historical tribe whose representatives actually signed a
treaty. See e.g., United States v State of Washington, 641 F2d 1368 (CA 9, 1981) (Washington II)
(referring to modern-day tribes whose members indisputably descend from tribes that signed the
relevant treaties as “descendants of treaty-signatory tribes”). A modern-day tribe that has
established its right to exercise the treaty rights of a signatory tribe is often referred to as a “treaty
tribe” (sometimes, “treaty Indians”) See United States v State of Washington, 520 F2d 676, 693
(CA 9, 1975) (Washington I). For purposes of clarity, this is how we will use these terms. In
accordance with this usage, 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 is
whether it qualifies as a treaty tribe.
Having said that, we agree with defendant that whether the Mackinac Tribe is federally
recognized has no bearing on whether it is entitled to treaty fishing rights. However, we disagree
that membership in a modern-day tribe whose members descend from a signatory tribe
-4-
automatically entitles the modern-day tribe to treaty rights.5 As discussed below, we conclude that
the dispositive issue is whether the Mackinac Tribe is a political successor in interest to a signatory
tribe, entitling defendant to an affirmative defense based on his tribal status. Neither the circuit
court nor the district court addressed this issue.
A. STANDARDS OF REVIEW
This Court reviews for an abuse of discretion a trial court’s decision on a motion to dismiss
charges against a defendant. People v Parlovecchio, 319 Mich App 237, 239-240; 900 NW2d 356
(2017). “A trial court abuses its discretion when its decision falls outside the range of reasonable
and principled outcomes.” Id. at 240 (quotation marks and citation omitted). In addition, “[a]n
abuse of discretion occurs when, for example, a trial court premises its decision on an error of
law.” People v Parker, 319 Mich App 664, 669; 903 NW2d 405 (2017). This Court reviews de
novo both questions of law and questions of constitutional law. People v Bensch, 328 Mich App
1, 4 n 2; 935 NW2d 382 (2019); People v Gaines, 306 Mich App 289, 304; 856 NW2d 222 (2014).
Finally, this Court reviews for clear error the trial court’s findings of fact in a motion to dismiss.
See People v Vansickle, 303 Mich App 111, 114; 842 NW2d 289 (2013). Clear error occurs when
the reviewing Court is “left with a firm conviction that the trial court made a mistake.” Id. at 11.
B. FEDERAL RECOGNITION AND ENTITLEMENT TO TREATY RIGHTS
Federal recognition and a tribe’s entitlement to treaty rights are two distinct issues. Federal
recognition of Indian tribes is an administrative process of the United States Department of the
Interior Bureau of Indian Affairs.6 25 CFR 83.1 et seq. The process and criteria are listed in Part
83 of the applicable federal regulations. To be federally recognized, a group must submit a petition
demonstrating various historical and cultural criteria. 25 CFR 83.11. Federal recognition is a
prerequisite to a tribe’s receipt of federal money for tribal programs, it establishes a government-
to-government relationship between the United States and the tribe, and it establishes certain
immunities, privileges, and powers. 25 CFR 83.2.
5
Treaty rights do not belong to individual Indians, even if they are descendants of treaty-signatory
tribes. See Washington v Washington State Commercial Passenger Fishing Vessel Ass’n, 443 US
658, 675, 679; 99 S Ct 3055, 61 L Ed 2d 823 (1979), mod sub nom Washington v United States,
444 US 816; 100 S Ct 34; 62 L Ed 2d 24 (1979). However, treaty rights can be asserted by
individual members of the tribe. United States v Winans, 198 US 371, 381; 25 S Ct 662, 664; 49
L Ed 1089 (1905).
6
In 2009, the regulatory terminology changed, and the term “federal recognition” is now known
as “federal acknowledgment.” 25 CFR 83.1 (2009). The parties and the lower courts in this case
use the term “federal recognition.” For clarity, we will use the term “federal recognition” in this
decision.
-5-
In contrast to the administrative process of federal recognition, an Indian treaty is a binding
“contract between two sovereign nations.” Washington v Washington State Commercial
Passenger Fishing Vessel Ass’n, 443 US 658, 675; 99 S Ct 3055, 3069; 61 L Ed 2d 823, mod sub
nom Washington v United States, 444 US 816; 100 S Ct 34; 62 L Ed 2d 24 (1979). Treaty rights
vest at the time the treaty is signed. Washington I, 520 F2d at 692. Once a treaty is signed, only
Congress has the authority to abrogate the treaty, and only if Congress has stated an unequivocal
intent to abrogate. See United States v Dion, 476 US 734, 738-740; 106 S Ct 2216, 2219; 90 L Ed
2d 767 (1986).
As we already noted, no Michigan appellate court has addressed the issue of the
relationship, if any, between federal tribal recognition and the assertion of treaty rights. However,
a series of decisions from the Ninth Circuit Court of Appeals has established that a tribe’s federal
recognition status and its entitlement to exercise treaty fishing rights are separate issues.7
In Washington I, 520 F2d at 683, 693, the Ninth Circuit affirmed that “the state and its
agencies can regulate off-reservation fishing by treaty Indians at their usual and accustomed
grounds only if the state first satisfies the court that the regulation is reasonable and necessary for
conservation.” Pertinent to the instant case, the Ninth Circuit also affirmed that two tribes (the
Stillaguamish and the Upper Skagit) were entitled to exercise treaty fishing rights, even though
they were not recognized by the federal government as organized tribes. Washington I, 520 F2d
at 692-693. The federal appeals court explained, “[n]onrecognition of the tribe by the federal
government . . . may result in loss of statutory benefits, but can have no impact on vested treaty
rights.” Id. Thus, Washington I established that the questions of whether a tribe is federally
recognized and whether it is entitled to exercise treaty rights are two distinct inquiries, and that a
tribe does not have to be federally recognized to be entitled to exercise treaty rights.
Following the Ninth Circuit’s ruling in Washington I, other tribes that were not federally
recognized intervened in the United States v State of Washington litigation8 to assert treaty fishing
rights. In Washington II, 641 F2d 1368, 1372 (CA 9, 1981), the Ninth Circuit affirmed that five
intervenor tribes were not treaty tribes, but ruled that the fact the intervenors were not federally
recognized was not determinative. Thus, the Ninth Circuit confirmed that whether a tribe was
entitled to exercise treaty rights was unrelated to whether it was federally recognized.
That federal recognition and treaty-tribe status are separate issues was again confirmed in
cases involving the Samish Tribe, one of the five intervenor tribes deemed not to be a treaty tribe
in Washington II. In Greene v United States, 996 F2d 973 (CA 9, 1993) (“Greene I”), the Tulalip
Tribes sought to intervene in an action between the Samish Tribe and the Department of the Interior
7
Although we are not bound by the Ninth Circuit’s decisions, we may consider them as persuasive
authority. See People v Walker, 328 Mich App 429, 444-45; 938 NW2d 31 (2019) (quotation
marks and citation omitted).
8
The Ninth Circuit remanded the litigation to the district court, which had “retained continuing
jurisdiction to provide advance judicial scrutiny of all future state regulations affecting Indian
treaty fishing rights.” Washington I, 520 F2d at 682, 693.
-6-
regarding the Samish Tribe’s effort to obtain federal recognition. Greene I, 996 F2d at 975. The
Tulalip argued that federal recognition of the Samish would lead to claims by the Samish that it
could exercise treaty fishing rights; this, in turn, would lead to the dilution of treaty fishing rights.
Id. at 976. The district court had denied intervention because the action “did not implicate treaty
claims.” Id. at 975. In affirming the district court’s ruling, the Ninth Circuit again stressed that
federal recognition was not a prerequisite to being entitled to exercise treaty fishing rights, and
observed that a number of nonrecognized Washington tribes have treaty rights. Id. at 976-77,
citing Washington I. See also Greene v. Babbitt, 64 F3d 1266 (CA 9, 1995) (“Greene II”) (holding
that recognition of a tribe “for purposes of statutory benefits is a question wholly independent of
treaty fishing rights”).
Finally, in United States v State of Washington, 593 F3d 790 (CA 9, 2010) (“Washington
IV”), the Ninth Circuit en banc addressed the question of whether, after obtaining federal
recognition, the Samish Tribe should be able to re-open the denial of its treaty claims in
Washington II. Washington IV, 593 F3d at 792-793.9 The Ninth Circuit held that it should not,
explaining:
In Greene II, we denied any estoppel effect of Washington II on the Samish Tribe’s
recognition proceeding, because treaty litigation and recognition proceedings were
“fundamentally different” and had no effect on one another. Greene II, 64 F3d at
1270. Our ruling was part of a two-way street: treaty adjudications have no estoppel
effect on recognition proceedings, and recognition has no preclusive effect on treaty
rights litigation. Indeed, to enforce the assurance in Greene II that treaty rights
were “not affected” by recognition proceedings, the fact of recognition cannot be
given even presumptive weight in subsequent treaty litigation. To rule otherwise
would not allow an orderly means of protecting the rights of existing treaty tribes
on the one hand, and groups seeking recognition on the other. [Washington IV, 593
F3d at 800-801.]
These decisions from the Ninth Circuit persuasively distinguish a tribe’s federal
recognition status from its entitlement to exercise treaty rights, as “each determination serves a
different legal purpose and has an independent legal effect.” Washington IV, 593 F3d at 795,
quoting Greene I, 996 F2d at 976. Put simply, federal recognition is not a threshold condition a
tribe must establish in order to exercise treaty fishing rights, nor does treaty-tribe status entitle a
tribe to federal recognition. Washington IV, 593 F3d at 795. While we are not bound by the Ninth
Circuit’s decisions, see People v Walker, 328 Mich App 429, 444-45; 938 NW2d 31 (2019), the
Ninth Circuit has handled far more of these cases than apparently any other federal circuit court in
9
The Ninth Circuit met en banc to resolve a conflict between United States v Washington, 394
F3d 1152 (CA 9, 2005) (Washington III), which held that federal recognition “was an
extraordinary circumstance justifying the reopening of Washington II” and its line of cases holding
that “federal recognition is an independent process that has no effect on treaty rights.” Washington
IV, 593 F3d at 793.
-7-
the country, and its reasoning is sound. We agree with its rationale and conclude that a tribe’s
federal recognition status does not affect its treaty rights.
Given that the Mackinac Tribe’s nonrecognition status has no bearing on whether it is
entitled to exercise treaty fishing rights, and thus on defendant’s affirmative defense, we hold that
the circuit court erred when it relied on Jewell and reinstated the charges against defendant. The
legal issue in Jewell is unrelated to the issue at hand. In Jewell, the Mackinac Tribe sought to
compel the Secretary of the Interior to allow the Tribe to organize under the Indian Reorganization
Act, 25 USC 476(a). When the Secretary rejected the Tribe’s petition, the Tribe filed suit in the
federal district court, asking the court to “declare it a federally recognized Indian tribe and to order
the Secretary to conduct an election under the IRA.” Jewell, 829 F3d at 756-757. The federal
district court denied the request, and the DC circuit appeals court affirmed, concluding that the
tribe must exhaust administrative remedies before seeking judicial review. The court stated, “when
a court is asked to decide whether a group claiming to be a currently recognized tribe is entitled to
be treated as such, the court should for prudential reasons refrain from deciding that question until
the Department has received and evaluated a petition under Part 83.” Jewell, 829 F3d at 757.
The circuit court in the case at bar appears to have determined that, under Jewell, the
administrative concept of federal tribal recognition is equated with the contractual and
sovereignty-based concepts of tribal treaty rights. As already discussed, these are two distinct
concepts; federal recognition has no bearing on treaty-tribe status, and vice versa. However, that
does not mean the district court properly determined that defendant’s membership in the Mackinac
Tribe entitle him dismissal of the charges. The same Ninth Circuit decisions supporting
defendant’s assertion that federal recognition status is irrelevant also lay out the necessary analysis
to determining whether a tribe constitutes a treaty-tribe.
C. TREATY-TRIBE STATUS
That members of a modern-day tribe are found to have descended from members of a
signatory tribe does not, without more, entitle the modern-day tribe to treaty-tribe status. Rather,
“treaty-tribe status is established when a group of citizens of Indian ancestry is descended from a
treaty signatory and has maintained an organized tribal structure.” Washington II, 641 F2d
at 1371, quoting Washington I, 520 F2d at 693. Continually maintaining an organized tribal
structure is the “single necessary and sufficient condition for the exercise of treaty rights by a
group of Indians.” Washington II, 641 F2d at 1372. “This single condition,” explained the Ninth
Circuit,
reflects our determination that the sole purpose of requiring proof of tribal status is
to identify the group asserting treaty rights as the group named in the treaty. For
this purpose, tribal status is preserved if some defining characteristic of the original
tribe persists in an evolving tribal community. [Id. at 1372-1373.]
The preservation of a defining characteristic of the original tribe does not mean the tribe
has to “have acquired organizational characteristics it did not possess when the treaties were
signed.” Id. at 1373. Further, “changes in tribal policy and organization attributable to adaptation
do not destroy tribal status.” Id. Nor does the degree of assimilation inevitable in response to
-8-
shifts in federal policy between favoring tribal autonomy and seeking to destroy it “entail the
abandonment of distinct Indian communities.” Id. Nevertheless, “[t]o warrant special treatment,
tribes must survive as distinct communities.” Id.
These principles are derived from and illustrated in Washington II, which affirmed a federal
district court ruling that five tribes, indisputably descended from treaty-signatory tribes, could not
establish treaty-tribe status. See United States v State of Washington, 476 F Supp. 1101 (WD
Wash, 1979). The federal appeals court noted that the five tribes
point to their management of interim fisheries, pursuit of individual members’
treaty claims, and social activities as evidence of tribal organization. But the district
court specifically found that the appellants had not functioned since treaty times as
“continuous separate, distinct, and cohesive Indian cultural or political
communities.” 476. F. Supp. at 1105, 1106, 1107, 1109, 1110. After close scrutiny,
we conclude that the evidence supports this finding of fact. Although the appellants
now have constitutions and formal governments, the governments have not
controlled the lives of the members. Nor have the appellants clearly established the
continuous informal cultural influence they concede is required. [Id.]
As the foregoing caselaw establishes, a modern-day tribe is not entitled to exercise treaty
rights simply because its members descended from members of a signatory tribe. The dispositive
issue in this case is whether the Mackinac Tribe is the political successor in interest to the signatory
tribe from which it claims descent. To be a political successor in interest requires demonstrating
that “some defining characteristic of the original tribe persists in an evolving tribal community.”
Washington II, 641 F2d at 1373. The district court erred by assuming that the Mackinac Tribe
possessed treaty rights merely because some of its members were descended from signatory tribes
of the relevant treaty, and that defendant’s entitlement to exercise those rights as a member of the
Tribe provided him with a valid affirmative defense to the charges against him.
Most of the prosecution’s arguments in favor of upholding the circuit court’s ruling suffer
from the same infirmity as the court’s ruling: they equate the right to exercise vested treaty rights
with federal recognition. As explained above, these are not the same thing. In addition, the
prosecution argues that only a federal court can determine if the Mackinac Tribe is a political
successor in interest to a treaty-signatory tribe. On that point, we disagree. We conclude that for
the limited purpose of its relevance in this criminal proceeding, the district court can determine
whether a preponderance of the evidence supports defendant’s affirmative defense that he was
exercising treaty fishing rights as a member of a tribe entitled to exercise treaty rights by being a
political successor in interest to a treaty-signatory tribe. See State of Washington v Posenjak, 127
Wash App 41, 49; 111 P3d 1206 (2005) (determining that the defendant could not avoid
prosecution for hunting off-reservation and out of season because he failed to prove that the tribe
of which he was a member was a treaty tribe).
III. CONCLUSION
We conclude that the circuit court erred when conditioning defendant’s potential treaty
rights on whether his tribe is federally recognized, and we vacate the circuit court’s order. But
-9-
because the district court did not evaluate the case under the proper legal framework, which we
adopt in this ruling, we remand the matter to the district court for an evidentiary hearing to allow
defendant 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. This is established when a group of
citizens of Indian ancestry is descended from a treaty signatory and has maintained an organized
tribal structure such that some defining characteristic of the original tribe persists in an evolving
tribal community.
Vacated and remanded to the district court. We do not retain jurisdiction.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Douglas B. Shapiro
-10-