Ottawa Tribe Loses Grip On Erie

Judge dismisses Ottawa's claim on Erie
By Frank Hinchey
Contributing Writer
Thursday, May 8, 2008 10:11 AM CDT
Toledo, Ohio - A judge's decision that rejects a bid by the Ottawa Tribe of Oklahoma to establish a commercial fishery on Lake Erie will be appealed, one of the tribe's attorneys said.

The Ottawas filed suit against the DNR in 2005, seeking to exercise treaty rights to hunt and fish without restriction. The Ohio Attorney General's office at the time claimed the suit was a veiled ploy to bring casino gambling to the state. The tribe has denied this notion.

In his dismissal of the Ottawa's suit, federal Judge Jack Zouhary said a review of Indian treaties, including the Treaty of 1831, “extinguished any treaty-based right for the Ottawa Tribe to fish in Lake Erie.”

The judge issued a 23-page decision in federal court in Toledo in favor of the DNR.

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Zouhary also said that the Ottawa Tribe, which left northwest Ohio after the Treaty of 1831, waited too many decades to assert its claims, according to The (Toledo) Blade.

The judge also ruled that the treaties' language was explicit and unambiguous in terminating the tribe's “privilege” to fish Lake Erie, and he disagreed with the tribe's arguments that financial, legal, and other factors prevented it from laying claim to fishing rights any earlier.

But Zouhary disagreed with the DNR that to allow Ottawas to fish Lake Erie without state regulation would jeopardize the recreational fishing industry and Ohio's sovereignty rights.

While acknowledging the state's legitimate concern to maintain commercial and sport fishing on Lake Erie, the judge also said that “(The Ottawa Tribe's) interest in protecting and maintaining its commercial and sport fishing industries is also a legitimate concern.

“Ohio's sovereign interest in managing its natural resources is significant, . . . but allowing (the Ottawa Tribe) to fish on Lake Erie may not destroy all means of regulation,” Zouhary wrote.

Columbus attorney Richard Rogovin, who represents the tribe, said that an appeal to Cincinnati-based U.S. 6th Circuit Court of Appeals could take more than a year to resolve how to interpret several old Indian treaties negotiated with the Ottawas and other tribes that he described as Ohio's original inhabitants.

“The court of appeals has a lot of historical case knowledge,” Rogovin said, alluding to Michigan fishing cases settled by the court.

The state said it will continue to defend its stance in the case.

“If they do appeal, we will continue to defend the DNR,” said Michelle Gatchell, spokeswoman for the Ohio Attorney General's office.

Rogovin, though, said he is still optimistic about the Ottawas' pursuing their treaty claims in the appeals court.

“The U.S. Supreme Court established over 100 years ago that any doubt what a treaty means has to be found in favor of the Indians . . . because the Indians who signed the treaties did not read, write, or understand English. You have to find in favor of what the Indians thought it meant,” he said.

“The government provided interpreters, and God knows how the interpreters explained the treaties to the Indians,” Rogovin said.

In the early 19th century, several bands of Ottawas and other tribes signed treaties with the United States, including the Treaty of Greenville, The Treaty of Fort Industry, the Treaty of Detroit, the Treaty of Maumee Rapids and the Treaty of 1831.

In a separate yet related matter, Rogovin said the Ottawa Tribe believes it has a rightful claim to the 677-acre North Bass Island in Lake Erie, which also is known as the Isle of St. George, according to The Blade.

Once the fishing rights lawsuit is resolved, Rogovin said “we'll go after the island.”