Depending upon interest level, a 39-page federal Court of Appeals decision confirming commercial fishing regulations reads like superfluous mumblejumble or a Bible for the 50-plus-year legal battle over Indian fishing rights.
For Centerville Township attorney Bill Rastetter — who has represented Tribal fishermen throughout those decades — the decision might be best described as vindication.
The opinion by the three-judge U.S. Sixth Circuit Court of Appeals, issued earlier this month, confirms the strongly held — and now upheld — position of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB) that it holds sole jurisdiction over Native American commercial fishing in the waters off the Leelanau Peninsula.
Taking an opposing position was the Sault Ste. Marie Tribe of Chippewa Indians, the outcast among five tribes that hold rights to commercially fish Michigan waters of northern lakes Michigan and Huron ceded in a treaty signed in 1836.
The Sault tribe in court-sanctioned negotiations among stakeholders that included four other tribes, the state of Michigan and the U.S. government never ceded the position that it could be forced to share treaty rights with governments or tribes. In court filings, it sought unfettered access for its commercial netters to all Great Lakes waters within the treaty boundary.
The other parties signed onto a decree approved by U.S. District Judge Paul Lewis Maloney on Aug. 24, 2023. The Sault tribe appealed, leaving the outcome in jeopardy.
“Frankly, it’s been a 6 1/2-year ordeal due to the U.P. tribe having unrealistic expectations heading into the discussions about replacing the prior 20-year decree that was set to expire Aug. 8, 2020,” Rastetter wrote in response to a request for comment. “In past settlement discussions prior to the predeces- sor 1985 and 1990 decrees, internal dissension among the tribes prolonged the process and caused a great deal of pressure upon the Grand Traverse Band. (The Sault tribe) sought concessions inconsistent with how the tribal signatories to the 1835 Treaty historically allocated natural resources among themselves.”
The compact retains about the same split between Michigan-licensed sport and commercial fishers of lake trout and whitefish with Tribal fishermen, with some changes. For instance, for the first time since 1985 GTB fishers are allowed to set nets in Grand Traverse Bay. They did so on a limited basis this summer.
The agreement had another notable dissenter in sports fishing interests that organized under the organization Coalition to Protect Natural Resources (CPNR). Its most influential member was the Michigan United Conservation Clubs (MUCC), which had been shut out of the negotiating process.
CPNR filed a brief seeking to enjoin the suit, which was denied by Mahoney. It’s major gripes in closed-door talks were that they failed to require a system to verify catch reporting, offered lenient sanctions for violations, and led to an expansion of gill nets that indiscriminately kill all species of fish.
Tony Radjenovich, a charter captain who resides in Leland Township, is president of the organization.
“Our biggest objection was the biology. The U.S. Fish and Wildlife Service has to agree to continuously stock (lake trout). We presented to the court that the biology in the pact would create an unsustainable fishery … but (the court) said we didn’t have standing because we weren’t a party. Our appeal was never heard by the Appeals Court, and it was never heard in District Court,” Radjenovich said.
The provision allowing expansion of gill nets did not make sense to Radjenovich.
“What we did was approve a political decree, not a biological decree. We’ll continue to work through it. If we don’t take more fish than the lake can give up, we’ll be all right … if the fishery diminishes, they may need to let us in as a full party,” Radjenovich said.
He wishes that the compact emphasized rehabilitation of the whitefish population, which crashed after invasive mussels covered the lake bottom. With more whitefish, less commercial fishing pressure would fall on lake trout — a favorite of sport fishers.
The U.S. Appeals Court wrote that the decree furthers three objectives of the 1836 treaty by curtailing unilateral state regulation, establishing exclusive zones for tribes to fish, and reserving a “substantially greater share of the total annual harvest in whitefish and lake trout — the two primary commercial species harvested in the Great Lakes — for the Tribes than for the State.”
The decree is designed to moderate the Tribal catch, judges wrote in denying the Sault Tribe appeal to control its own destiny.
“If left unregulated, tribal fishing in the Great Lakes would become an unchecked, all-against-all race to the bottom, or, in the words of the court in 1985, a ‘racehorse’ fishery’,” their decision reads.
One outcome of the decree was welcomed by all. Unlike contentious court rulings in the 1970s and 80s upholding the right of Indians to fish, the new decree took effect without reported racial confrontation.
“The tribe is (comprised of) our neighbors and our friends. It’s not about the people. It’s about the fish and biology. We didn’t want social unrest,” Radjenovich said.
By Alan Campbell, Michigan Stories
