Grand Traverse Band, Three Other Michigan Tribes Prevail Over Fishing Decree Challengers

Nineteen months after it was adopted, a Great Lakes fishery management decree struck in 2023 by the State of Michigan and four of its five Native American tribes is finally in the clear. The decree, which involves the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), drew strong opposition from both a fifth Michigan tribe and a sport fishing coalition. But courts ruled this month against appeals from both challengers – decisions GTB attorney Bill Rastetter hopes will bring some clarity to the long-muddied waters around tribal fishing rights in Michigan.

The 2023 agreement is the latest in a series of consent decrees between the tribes and the state, each relating back to a lawsuit – United States v. State of Michigan – that began in the 1970s and was never firmly settled. In 1979, a federal judge ruled that the tribes had treaty rights to fishing in the Great Lakes, but left it up to the state and the tribes to determine precisely how those rights should be observed, limited, or enforced.

A long back-and-forth between the tribes and the state followed, leading to the Sault Ste. Marie agreement, a 1985 consent decree that took the sections of lakes Michigan, Huron and Superior covered in the 1836 Treaty of Washington and divided them into zones. Some zones had rules more favorable to sport fishing interests; others favored native tribes.

The 1985 agreement remained in place until a new decree was adopted in 2000, which remained in effect until the latest version was approved by U.S. District Judge Paul Maloney in August 2023. Each decree has taken a slightly different approach to apportioning the lakes into zones, setting catch limits and reporting requirements for certain fish, and limiting the types of fishing gear commercial tribal fishers are allowed to use.

While the judge’s approval formally put the 2023 decree into effect until 2047, the agreement has been under fire ever since from two different factions.

One opposing party is the Sault Ste. Marie Tribe of Chippewa Indians, the only one of Michigan’s five tribes that did not sign the 2023 decree. The Sault tribe raised more than 130 objections to the decree even before Maloney approved it, claiming the new harvest reporting requirements, fishing zone boundaries, gear restrictions, and other regulations all amount to violations of tribal treaty rights.

Maloney overruled all those objections, and the Sault tribe subsequently appealed, arguing that the district court “lacked the jurisdiction to enter the 2023 Decree without its consent” and had “failed to evaluate the decree’s tribal fishing regulations based on the rigorous standard set out in People v. LeBlanc,” a landmark Michigan Supreme Court ruling from 1976 that favored tribal fishing rights over state regulations.

Now, an appellate panel has ruled against the Sault tribe.

“We conclude that the lack of unanimous consent does not preclude the district court from entering new fishing regulations,” the court wrote. “Although consensus among the parties is preferable, the overriding priority is protecting the treaty right for all five tribes and preserving the fishery resource for all parties.”

The court also reaffirmed the need for decrees between the tribes and the state, noting: “If left unregulated, tribal fishing in the Great Lakes would become an unchecked, all-against-all race to the bottom... The Sault Tribe’s argument that the Tribe should be able to self-regulate their fishing activities on an individual basis ignores the shared nature of the treaty right.”

The same appellate court also dismissed an appeal brought against the 2023 decree by the Coalition to Protect Michigan Resources (CPMR), described in court documents as “a nonprofit organization representing Michigan-based recreational fishing and conservancy groups.” That group has argued that the latest decree puts the long-term health and preservation of the Great Lakes fishery at risk.

Speaking to the Leelanau Ticker in December 2023, CPMR President Tony Radjenovich – who also captains Reelin Leland Fishing Charters in Leelanau County – raised concerns particularly with the decree’s rollback of restrictions on tribal use of gillnets. Gillnets, also at the center of the aforementioned People v. LeBlanc case from 1973, are controversial due to their ability to catch large quantities of fish quickly and because they have higher fish mortality rates than other harvest methods.

“This appeal is specifically about protecting the resource, and by that, we mean the abundance of fish in the Great Lakes,” Radjenovich told the Leelanau Ticker. “It’s not about ‘their fish,’ ‘our fish,’ ‘someone else’s fish.’ It’s about how there are less fish now than there were in 2000. Whitefish, for instance, are down to maybe 10-15 percent of what they were back then. And if there’s only 15 percent of the whitefish left, it doesn’t make a lot of sense to put more gillnets in the water.”

Two years ago, in consideration of the new decree, Judge Maloney allowed the CPMR to file findings of fact and raise objections with the court. The judge overruled those objections, writing in his 139-page opinion that “whether they meet that harvest limit quickly by using the efficient method of gillnets, or whether they meet that harvest limit over time by using less efficient means of fishing, the tribes are still subject to the same harvest limits regardless of gear used.”

CPMR subsequently appealed the judge’s decision, but the court has now dismissed that appeal “for lack of appellate jurisdiction.” In the decision, the court reasoned that CPMR was never a formal party to the case. Rather, CPMR is considered an “amicus curiae” or “friend of the court,” defined as “someone who is not a party to a case but who provides information or expertise to the court that can help clarify the issues in the case,” per LegalDictionary.net.

“For this court to have jurisdiction to hear the Coalition’s appeal, the Coalition must have properly become a party to this suit,” the appellate court ruled, noting that CPMR had never sought or been granted intervenor status in the matter.

In a written statement provided to The Ticker, Rastetter expressed hope that these rulings will help create clearer precedent around tribal fishing decrees in Michigan going forward.

“These decrees governing Great Lakes ‘treaty-fishing’ activities are temporal agreements,” Rastetter wrote. “The appellate court’s decision upholding Judge Maloney's August 24, 2023 ruling provides guidance that might preclude some of the misguided positions staked out several years ago by other tribal representatives. But two decades from now, there will be different elected leaders who may lack any sense of institutional memory. So, who knows?”