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Published: Wednesday, 8/19/2009

Indian tribe loses claim it made to Lake Erie fishing rights

BY JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - The Ottawa Tribe's attempt to reclaim unfettered commercial fishing rights on Lake Erie based on treaties more than 200 years old have been dealt a mortal blow by a federal appeals court.

A three-judge panel of the Cincinnati-based 6th U.S. Circuit Court of Appeals unanimously ruled Tuesday that the tribe failed to demonstrate it had retained fishing rights over the years as it repeatedly ceded territory to an expanding United States and was gradually forced west to Kansas and then Oklahoma.

"This is a deceptively straightforward case," wrote Circuit Judge Alan E. Norris. "There are numerous treaties at issue here, but essentially, under the Treaty of Greenville (of 1795), the United States acquired Indian lands south of the treaty's east-west line and relinquished its claims to the Indian lands north of the line.

"By the remaining treaties at issue here, the Ottawas and other Indian tribes ceded that land to the United States in piecemeal fashion," he wrote. The decision upholds a ruling last year by U.S. District Court Judge Jack Zouhary in Toledo.

The Ottawa Tribe maintained that, while it may have surrendered land and eventually left what is now Ohio altogether, it never ceded its rights to hunt and fish Lake Erie and other areas of Ohio without regulation and restriction by the state Department of Natural Resources.

The tribe did not appeal the denial of its hunting rights, but did appeal Judge Zouhary's ruling denying it fishing rights.

The 6th Circuit, however, found that the Treaty of Greenville dealt not with fishing rights but with occupancy of land that was later abandoned by the tribe. The tribe has the option of seeking a further appeal with the U.S. Supreme Court.

The case does not deal with the Ottawa Tribe's broader claims to ownership of North Bass Island, a claim it planned to make after resolving the fishing case. The tribe contends that the 677-acre, largely undeveloped North Bass, also known as the Isle of St. George, was actually on the British side of the U.S.-Canadian border and was, therefore, unaffected when the Treaty of Fort Industry was signed with the United States in 1805.

In that treaty, the Ottawa, Chippewa, Wyandot, and other tribes relinquished their lands to the United States, continuing a process that would force them out of the region entirely three decades later.

Much of the island is owned by the Department of Natural Resources, which plans to preserve it as a largely undeveloped park. The tribe, however, had plans for a fishing village, walleye hatchery, marinas, hotels, condominiums, and tax-free shops.

The Ohio Attorney General's office had contended that all of this was a bid to bring Indian casino gambling to the state.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.



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