Conflicts - past and present - plague Great Lakes fishing rights negotiations
Updated 8:45 AM; Today 8:45 AM
Arnie and Dave Parish fishing on the Great Lakes in the 1970s. (Courtesy | Bay Mills Ojibwe History Department)
Lawrence LeBlanc fishing on the Great Lakes in the 1970s. (Courtesy | Bay Mills Ojibwe History Department)
By Cheyna Roth |
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In 1971, a Chippewa fisherman went out on Lake Superior looking to get arrested. His act of civil disobedience set off a chain of events that forever changed fishing on the Great Lakes.
Fifty years later, the fruits of that labor— a consent decree — is up for renegotiation. That decree, which is between the tribes and the state of Michigan, governs who gets to fish, where, and how often.
The consent decree, and its renegotiation, comes with a lot of baggage. It stems from a violent and racist time when Native Americans were shot, harassed, and threatened for fishing on the five lakes.
But while the contentious history was initially between non-tribal, sports and recreational fishers, this time around there’s also conflict among the tribes themselves. The discussions are at an impasse over whether old fishing zones should be kept – with a lone tribe advocating to allow any tribe to fish anywhere it wants.
The clock is ticking down with a Dec. 31 deadline, and without the consent decree some are worried that fishing on Michigan’s namesake bodies of water could be permanently changed.
Four Tribes Against One
The 2020 Consent Decree should have been finalized by now. It was due to expire on Aug. 8, 2020. Negotiations for the new decree began in September 2019. Those agreements were thrown for a loop in March when the COVID-19 pandemic caused a delay. But that hasn’t been the only potential wrench in the negotiations.
The current deadline for the consent decree is Dec. 31, 2020. A federal judge extended the August deadline back in July and negotiations have been ongoing. But one tribe is working toward a massive change from prior agreements.
The Sault Ste. Marie Tribe of Chippewa Indians wants to get rid of the “exclusive fishing zones.” Those are designated areas where previously all tribes had the rights to fish, but the 2000 Consent Decree allows only one or two tribes to fish.
The five tribes in the consent decrees are tribal signatories and successors of the Treaty of 1836 (also known as the 1836 Treaty of Washington), which gives the tribes the right to fish in the Great Lakes. The first consent decree was finalized in 1985 and governed until 2000. The five tribes, along with the Sault Tribe are the Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little River Band of Ottawa Indians, and the Little Traverse Bay Bands of Odawa Indians.
The terms of the consent decrees lay out in extensive detail regulations and management of different species of fish in the Great Lakes, particularly lake trout and whitefish. It governs how much fish the tribes can catch and from where, along with the commercial and sports fisheries.
In a motion filed with the court in June, the Sault Tribe asked the court to get rid of the exclusive fishing zones provision until the 2020 Consent Decree is finalized – though it’s likely the tribe is also attempting to not include the provision during private, non-public negotiations.
The five tribes and state have agreed to not disclose ongoing negotiations about the decree. But the opinion authored by U.S. District Court Judge Paul Maloney extending the deadline and addressing the Sault Tribe’s request to end the exclusive fishing zones, illustrates contentious negotiations, even among the tribes.
Maloney wrote that negotiations are moving slowly because of the Sault Tribe’s desire to get rid of the exclusive fishing zones. He said that if he were to rule in favor of the tribe then, “breakdown of the negotiations is ‘virtually guarantee[d].’”
The Sault Tribe argued that the exclusive fishing zones need to be agreed to by all five tribes in order to remain in place.
It said in a motion to the court that the exclusive fishing zones were agreed to in the past as a way to help new tribes develop their fishing without competition, but a 1979 ruling gave all the tribes the “collective and indivisible” right to fish anywhere in the previously agreed upon territory.
But now the tribe says the exclusive fishing zones are not necessary. The Sault Tribe said the “preferential treatment is no longer necessary because the more recently federally recognized tribes have had ample time and opportunity to grow their fisheries.”
The tribe also argued in its motion that the 2000 Decree did not “create a precedent” for future decrees.
This move has left the remaining tribes on the defensive, and irritated with the Sault Tribe. In a joint motion, the four other tribes and the state of Michigan accuse the Sault Tribe of essentially making a part of the negotiations public by putting the idea in a filed court document.
“Sault Tribe has taken a substantive goal it has for the new Consent Decree outside of the negotiation process and invites dispositive resolution by this Court in a non-dispositive procedural motion, and in a manner that virtually guarantees the breakdown of the negotiations,” the parties said in their motion.
Judge Maloney pushed off the decision on if the tribes could end the exclusive fishing zone provision simply by not agreeing to it saying, “This question of law will have a cascade of consequences...Therefore, the Court declines to make changes to the consent Decree at this time based on these grounds.”
The tensions as the new decree continues to be negotiated isn’t only among the tribes and the state. There are also the commercial fishers – which brings up a long history of fighting with the tribes when it comes to fishing on the Great Lakes.
A History of Violence
In 1971, Albert LeBlanc, known as Big Abe, went fishing on Lake Superior without a license. He also, as an additional middle finger to the authorities, went fishing with illegal gill nets. He did it in plain sight of the Michigan conservation officers who then arrested him.
Big Abe was a member of the Bay Mills Indian Community, and he was fed up. Sick of the violence and racism that Native Americans had to endure or risk every time they went fishing on the Great Lakes, he wanted his arrest to become about more than a standard ticket for not having a license. It was the start of attempts to reclaim their rights.
“That is where they were going to begin the fight,” said Whitney Gravelle, tribal attorney for the Bay Mills Indian Community, an Ojibwe tribe located on Lake Superior in Michigan’s Upper Peninsula. She’s also a member of the tribe, and Big Abe’s granddaughter.
“He was a firm believer based on his reading of the 1836 Treaty of Washington that we had the right to be out on the water. We had the right to fish. We had the right to use our traditional gear to fish. And ultimately that, through fishing, we had the right to provide for our people.”
When the people of the Bay Mills Indian Tribe and other tribes talk about the Great Lakes, it’s not just recreational. It’s spiritual. It’s representative of a way of life that is ingrained in who they are. It’s ancestral. It’s home.
But for years before Big Abe loaded up his gill net and bait, tribal members fished at their own risk.
“In traditional sportsmen’s fishing areas, meanwhile, some Indians have been beaten up, several Indian boats have been sunk, and one boat was bombed by the bagged contents of a camper’s Port‐a‐Potty dropped from a bridge overhead,” said a New York Times article from June of 1979.
Tribal fishing before the Consent Decrees
Bucko Teeple and Clinton Parish fishing with guns to protect themselves on the Great Lakes in the 1970s. (Courtesy | Bay Mills Ojibwe History Department)
“The State’s Attorney General, Frank J. Kelley...has himself said that he may ask the state to provide protection for fishing Indians, a comment the Indians interpreted as a veiled enticement to violence as the summer fishing season gets under way in Michigan’s troubled fishing grounds,” the article continued.
For Native Americans who fished to feed their families - either by selling it or eating themselves as a primary part of their diet - it was a dangerous way to live.
The tribes believed they were guaranteed fishing rights on the Great Lakes because of treaties signed with the federal government in 1836 and 1855. Eventually, several courts would agree with them, but at the time white people, especially sports and commercial fishers, did not.
To the state, its “constituents” were the the sports and commercial fishers, said Matthew Fletcher, director of the Indigenous Law & Policy Center for Michigan State University.
“Indians where very small outfit. They didn’t pay license fees to the state,” he said. “So they were, you know, more of an annoyance to the state than anything.”
Gravelle grew up with stories of harassment from non-tribal fishers. She said the message was clear - if you go on the lakes, be prepared.
“A fisherman would go out on the water, but his wife would stay in the pickup truck with a shotgun because she had to protect him and make sure that no one would go up and interfere with her husband fishing,” she said.
The Consent Decree Solution
Before the consent decree, there were numerous acts of civil disobedience by Native Americans, like Big Abe.
For years, Native Americans that fished were arrested - sometimes for using their traditional gear, like gill nets, other times for not getting a license or fishing in restricted areas. But it was the gill nets that were the central point of contention, Fletcher said, because Native Americans believed that they could fish however and wherever they wanted. But because of the large amount of fish that could be caught with gill nets, the state and other fishers didn’t like them.
“You had Indian people who would occasionally go out with gill nets, and a lot of the time they would just call the police and say, ‘Hey, we got gill nets. We’re gonna go fishing. You gonna do anything about it?’” said Fletcher.
“And they would often be met at the shore and then arrested or people would see them out there and then when they came back in, they would be arrested.”
This went on for decades, until Big Abe’s case and others that worked their way through state and federal courts.
Tribal fishing before the Consent Decrees
The ticket police wrote Big Abe that kicked off a lawsuit over tribal fishing rights. (Courtesy | Whitney Gravelle)
Judge after judge ruled that the Native Americans had the right to fish on the Great Lakes. But the state kept appealing. Then, in 1979, federal District Court Judge Noel P. Fox ruled that two treaties gave the tribes of Michigan the right to fish unencumbered by the state.
“The Indians have a right to fish today wherever fish are to be found, a New York Times article quoting the ruling said.
Fletcher said after the 1979 ruling, “That sort of said yes, there are treaty rights. Now go negotiate with what it means.”
What happened was par for the course. Major treaty rights cases tend to end up in consent decrees - routinely renegotiated settlements between the tribes, state and federal government
The consent decrees, "have to be have to be done this way otherwise, it’ll be complete chaos,” Fletcher said.
It took years before the first consent decree was finalized, as the tribes had to come to terms with the group that they had been fighting for years - non-tribal sports fishers.
What’s Next for the new Decree
Sports and commercial fishers have feuded with Native American tribes in Michigan for decades. It stems in part from a fear that allowing Native Americans to fish freely on the open waters would be harmful to the ecosystem.
“There was a lot of advocacy against Native Americans so that they could not fish in the Great Lakes," Gravelle said. "And there’s a lot of media out there at that time, that kind of incorrectly and inaccurately described how tribes were fishing at that time, and almost making them out to seem like they were killing all of the fish in the Great Lakes.”
The consent decrees sought to make the rules clear for everyone, while maintaining the rights of the tribes. Where it was once “the Wild West” according to Eade, executive director of the Michigan Steelhead and Salmon Fishermen’s Association, the consent decree now seeks to bring “the principal of shared resource” to the Great Lakes.
But even after decades of fishing and working under a consent decree, there is still tension between commercial fishers and the tribes.
Michigan’s sport fishing industry is huge - some analysis estimate it’s a $2.3 billion enterprise between the boat manufacturers, out-of-state fishing tourism, hotels, restaurants, and the like. Now they’re concerned that the Sault Tribe’s request to get rid of exclusive fishing zones will put the industry in danger.
“We don’t want to endanger that because it makes no economic sense,” Eade said. “The basic economic analysis shows that expanding tribal commercial harvest of game fish is not worth the risk, nor the return on investment.”
The request kicked off a fight between the Sault Tribe and the Michigan United Conservation Clubs (MUCC). The MUCC issued a press release in July saying that the Sault Tribe was putting recreational fishing “in jeopardy.”
The MUCC claims that without the consent decree, tribes would be able to use gill nets. Gill nets are a cultural tool for some Native Americans and allow them to catch a large amount of fish at once, but the nets don’t discriminate on the type of fish caught. The MUCC said tribal fishers would be able to use gill nets to take in as much fish as they want, depleting the stocks of lake trout, whitefish, and other species.
“The tribe’s filing appears to seek 100 percent of the resource with no limitations on gear,” the MUCC said.
“This would likely put state-licensed commercial fishers currently operating in the 1836 Treaty Waters out of business and severely limit the lake trout bag limits for recreational anglers in the state, if not close seasons completely in some areas.”
Under the current decree, the amount of total fish that can be taken from the Great Lakes is divided between the state and the tribes.
The Sault Tribe took offense to the characterization. While parties agree to not speak about ongoing negotiations, the tribe issued its own press release calling the allegations “false and misleading.” The tribe said it does not want to change gear restrictions, or any other restrictions on how the fish are divided among the tribes and the state.
“MUCC is fear mongering and spreading disinformation to raise funds,” the tribe said.
But according to Amy Trotter, executive director of the MUCC, in an interview with MLive, the organization is concerned not just about the exclusive fishing zones provision, but of what could happen if the tribes and state aren’t able to come to an agreement by the deadline, leaving the Great Lakes without a decree.
Trotter said without a regulatory framework, including the exclusive fishing zones, they’re worried individuals or groups will overfish and the populations of trout, whitefish, and others that are part of the Great Lakes would become scarce.
“Without those sideboards, it’s really up to each individual tribe, the sovereign nation and the state, to hopefully still work together,” Trotter said. “But it wouldn’t be bound by any terms, I guess. And that’s our greatest concern is just what each independent group might do that might endanger, you know, sport fishing is really our interest, but the the fisheries in general.”
Trotter said she recognizes the history of racism surrounding fishing rights and the tribes, and wants to ensure that everyone is able to enjoy the resources of the Great Lakes.
“I don’t want to see anyone doing a legal form of hunting and fishing to be worried about going to do that,” she said.
But while the tribes are not all seeing eye-to-eye on the exclusive fishing zones, they are still working together and do believe that even without a decree, they can self-regulate. While Bryan Newland, chair of the Bay Mills tribe declined to be interviewed for this piece, he spoke with the Traverse City Record Eagle shortly after judge Maloney issued his order.
“Tribes across the country regulate the exercise of their own treaty rights all the time,” he said. “Even worse, though, is the MUCC’s suggestion that the only thing holding back the Indians from taking all of the fish is a vigilant State — as if we don’t have a cultural or economic interest in protecting the Great Lakes fishery.”
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