Federal appeals court upholds 2023 Great Lakes Fishing Decree
The sun sets over Lake Michigan in October 2023. (Photo: Izzy Ross/IPR News Radio)
This coverage is made possible through a partnership between IPR and Grist, a nonprofit environmental media organization.
A federal appeals court ruling on Thursday means the latest version of the Great Lakes Fishing Decree will stand.
The decree deals with the allocation, management, and regulation of certain parts of the Great Lakes governed by the 1836 Treaty of Washington. Under that treaty, Ottawa and Chippewa nations ceded millions acres of land and water to the United States, which in turn recognized their rights to hunt, fish and gather there.
Seven sovereign governments are subject to the decree: the U.S., the state of Michigan, the Sault Ste. Marie Tribe of Chippewa Indians, Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands of Odawa Indians and Little River Band of Ottawa Indians.
The Sault Ste. Marie Tribe of Chippewa Indians began an appeal of the order and decree in the fall of 2023. The tribe said it had not consented to the deal and had effectively been shut out of negotiations and that the decree violated its treaty rights. Tribal representatives have also said it restricts fishing rights and won't meet the needs of tribal members.
But Bill Rastetter, an attorney with the Grand Traverse Band of Ottawa and Chippewa Indians, applauded the decision from the Sixth U.S. Circuit Court of Appeals.
'I think that we're all living with it and I think we're all working cooperatively,' he said. 'But at the same time, I think it was really important, from the Grand Traverse Band's standpoint, to protect our ability to control access to the natural resources in our area.'
Rastetter said the court's ruling clarifies that while treaties are the law of the land, the decree still stands because it's dealing with a shared fishery.
'We have the ability to withhold our permission if necessary to protect the natural resources,' he said. 'That's essentially the situation we're in today, that there's a scarce resource, and we have to make sure that whatever is there is sustainable, and one way to deal with that is to restrict the folks who have access to it.'
The first Great Lakes Fishing Decree was approved in 1985, followed by a second decree in 2000. After years of negotiations, four tribes, the state and the federal government agreed to the latest version in 2022, and U.S. District Court Judge Paul Maloney issued an opinion approving it in August of 2023.
Ryan Mills, an attorney with the Sault Tribe, said they're disappointed in the decision; they wanted to defend their treaty and fishing rights in a trial.
'This decree is a 24-year decree,' he said. 'We've kind of tied the hands of our legislators here, our board of directors, in what they can do to try to help preserve and regulate their fishery.'
Other concerns include reporting requirements for tribal commercial and subsistence fishers; Mills said state fishers don't face the same restrictions. He also said the tribe hoped certain treaty waters closed under the last decree would be opened up for fishing.
'Although we are able to use a lot of our traditional gear, Sault Tribe was hoping there'd be more flexibility in how the tribes themselves could regulate the type of gear, and the seasons and the amount of harvest,' he said, adding that much 'was still dictated a lot by the state of Michigan in their asks during negotiations.'
The court dismissed a separate appeal from recreational fishing groups earlier this week.
Mills said the tribe's board of directors will discuss next steps, which could include an appeal to the U.S. Supreme Court.
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