The feds didn’t recognize his tribe. The court said that’s not the point.
Walter Caswell was spear fishing in a Mackinac County stream in October 2018 when a conservation officer handed him a citation. Fishing out of season. Illegal method. Two violations.
Caswell had a state fishing license. It didn’t cover spear fishing. He also had a tribal fishing card from the Mackinac Tribe. That one did.
His defense was elegant: My ancestors signed a treaty in 1836. That treaty preserved their fishing rights. Those rights are mine now. Your regulations don’t apply.
The prosecution’s counter was blunt: The Mackinac Tribe isn’t federally recognized. No recognition, no rights.
Wrong question.
Federal Recognition Is a Red Herring
Here’s what the Michigan Court of Appeals understood in this week’s published opinion that the prosecution didn’t: federal recognition and treaty rights are two completely different animals.
Federal recognition is bureaucratic. It’s an administrative status. Treaty rights? Those are contractual. Sovereignty-based. They flow from agreements between nations—agreements that predate Michigan statehood by a comfortable margin.
Mixing them up is a category error. The Court of Appeals said so in 2021. It said so again now.
The Real Test
What matters is whether a tribe is a treaty tribe—a political successor to the people who actually inked the deal in 1836. The test has three parts:
- A group of citizens of Indian ancestry
- Descended from a treaty signatory
- That maintained an organized tribal structure
That third prong sounds demanding. It isn’t—at least not in the way the prosecution wanted.
“Organized tribal structure” doesn’t mean bureaucracy. It doesn’t mean org charts and department heads. It means some defining characteristic of the original tribe persists in an evolving tribal community.
Tribes adapt. They’ve had to. Federal policy toward Native Americans has been a pendulum for two centuries—sometimes hands-off, sometimes actively destructive. Survival required flexibility. The law accounts for that.
The Evidence
Barry Adams, former tribal chairman, testified about years of detective work. He and a colleague hunted down descendants of the Mackinac Bands using census rolls, church records, and genealogical databases. They cross-referenced everything. They verified lineages. They enrolled 468 members.
The tribe had a constitution. Rules. A conservation chairman. A system for fining violators. Powwows and gatherings stretching back generations. Involvement with state and regional indigenous organizations for decades.
Was any of this identical to 1836? No. But the kinship structure persisted. The connection to the Straits of Mackinac persisted. The fishing traditions persisted. The community persisted.
That’s the ballgame.
The Prosecution’s Mistake
The state wanted federal-recognition-level documentation. Reams of paper. Ironclad proof.
But that’s not the standard. The standard is preponderance of the evidence. More likely than not.
And here’s the kicker: the prosecution offered almost nothing in rebuttal. No competing genealogical evidence. No expert to contradict the historical testimony. Just the repeated insistence that the bar should be higher.
The Court of Appeals wasn’t impressed. The bar is what it is. Caswell cleared it.
The Bottom Line
Treaty rights don’t vanish because Washington hasn’t stamped a tribe’s paperwork. Those treaties were signed between sovereigns. The rights they created belong to the descendants—provided they can show they’ve kept their tribal identity alive in some real way.
That’s not a free pass. You can’t just declare yourself a treaty tribe and ignore the DNR. The three-prong test demands actual evidence of ancestry, lineage, and continuity.
But it’s a test grounded in how tribes actually exist. How they actually survived. How they actually persist.
The Mackinac Tribe members are Indians. They descend from treaty signatories. They never stopped being a community.
Under the law, that’s enough.
Walter Caswell walks. The charges are dismissed.
The fish remain on notice.