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EVALUATION AND COMPARATIVE ANALYSIS OF FISHERY MANAGEMENT
POLICIES IN THE 1836 TREATY WATERS OF THE GREAT LAKES

By

Laura F aitel Cimo

A THESIS
Submitted to
Michigan State University
in partial fulﬁllment of the requirements
for the degree of

MASTER OF SCIENCE
Department of Fisheries and Wildlife

2002

ABSTRACT
EVALUATION AND COMPARATIVE ANALYSIS
OF F ISHERY MANAGEMENT POLICIES
IN THE 1836 TREATY WATERS OF THE GREAT LAKES
By
Laura Faitel Cimo
Fisheries management in the Laurentian Great Lakes remains a challenge due to the
lack of natural reproduction of native lake trout stocks (Salvelinus namaycush),
invasive aquatic species, social conﬂict between treaty-right Native commercial
ﬁshers and state-licensed sport ﬁshers, and lack of cooperative management between
tribal and state regulatory agencies. Between 1985 and 2000, ﬁsheries management
in the Great Lakes was governed by a court-imposed ﬁsheries management policy,
the 1985 Consent Order, which was created to achieve the following goals: 1)
promote rehabilitation and conservation of lake trout, 2) reduce social conﬂict, and 3)
provide a framework for joint management of the ﬁshery. To assess the effectiveness
of the 1985 Consent Order, individual, in-depth interviews were conducted with
pertinent stakeholder groups. Under this policy, most stakeholders believed that lake
trout abundance increased, social conﬂict was reduced, and management of the Great
Lakes ﬁshery became more cooperative. However, lack of lake trout fry survival and
recruitment remains obstacles for species conservation, and ﬁshing opportunities
diminished for some Native ﬁshers. A comparative analysis was also conducted
between this policy and its replacement, the 2000 Consent Decree. Most believe lake

trout rehabilitation, social conﬂict, and cooperative management will be improved

under the new policy, but the potential for future social conﬂict exists.

Copyright by
LAURA FAITEL CIMO
2002

This is dedicated to Todd A. Cimo, for all his love and support.

iv

ACKNOWLEDGEMENTS

Dr. Tracy Dobson, Department of Fisheries & Wildlife
Dr. James Bence, Department of Fisheries & Wildlife
Dr. George Cornell, Department of History
Dr. Angela Mertig, Department of Sociology, Department of Fisheries & Wildlife
Ken Gebhardt, US. Forest Service (former Fisheries Biologist, Bay Mills Indian Community)
William Rastetter, Attorney for the Grand Traverse Band of Ottawa and Chippewa Indians
Grand Traverse Band of Ottawa and Chippewa Indian Fisheries Management
Jennifer Dale, Editor, Bay Mills News
Dr. James Clifton, History Department
Dr. William Hug, Department of Education
Dr. Kimberly Chung, Department of Resource Development
Department of Fisheries & Wildlife faculty, staff, and students
Dave Dempsey, Michigan Environmental Council
Agriculture Experiment Station, Michigan State University
Dr. Michael Kaplowitz, Resource Development
Dr. Lois Wolfson, Department of Fisheries & Wildlife, Institute of Water Research
Gary Pierce, Pierce Cedar Creek Institute
Michigan Sea Grant College
Ofﬁce of Congressman Ron Kind (D-WI)

Ofﬁce of Congressman Dale Kildee (D-MI)

TABLE OF CONTENTS

INTRODUCTION .................................................................................... 1
CHAPTER 1
LAURENTIAN GREAT LAKES: HISTORY AND RIGHTS TO THE F ISHERY ........ 9
The Historic Great Lakes Fishery ......................................................... 9
Devastation of the Great Lakes Fishery ................................................. 12
Recovery and Rehabilitation of the Great Lakes Fishery ............................. 17
Great Lakes Fishery Management ....................................................... 20
New Vision for Great Lakes Fishery Management .................................... 22
CHAPTER 2
NATIVE FISHING RIGHTS ..................................................................... 27
Legal Rights of Native Americans Under the US. Government .............................. 27
Native Treaty Fishing Rights ............................................................. 37
Social Conﬂict and Litigation over the Great Lakes Fishery ........................ 56
Negotiating an Agreement for Allocation of the Great Lakes Fishery .............. 62
The 1985 Consent Order .................................................................. 65
Negotiating for a New Policy — the 2000 Consent Decree ........................... 70
CHAPTER 3
EVALUATION AND COMPARATIVE ANALYSIS ........................................ 76
Research Focus ............................................................................. 76
Foundations of Research .................................................................. 77
Research Methods .......................................................................... 79
Research Design ............................................................................ 80
Data Collection ............................................................................. 85
Data Analysis ............................................................................... 86
Validity and Trustworthiness ............................................................. 87
Evaluation Results ......................................................................... 89
Summary:
1985 Consent Order as a Management Tool for the Great Lakes Fishery... ......l36
Considerations for the Future Under the 2000 Consent Decree .................... 137
CHAPTER 4
DISCUSSION AND POLICY RECOMMENDATIONS .................................... 143
Social Conﬂict, Native Sovereignty, and Scales of Power .......................... 143
Negotiation Processes .................................................................... 148
Cooperative Fisheries Management ..................................................... 151
Lake Trout Rehabilitation and Conservation .......................................... 154
Allocation, Fishing Opportunities and Communities ................................. 158
Knowledge and Acknowledgement of Native Treaty Fishing Rights .............. 162
Cultural Understanding and Differing Values ........................................ 165

vi

Researcher Reﬂections .................................................................. 167

Research Recommendations ............................................................. 170
Conclusion ................................................................................. 1 70
APPENDICES ..................................................................................... 1 72
BIBLIOGRAPHY ................................................................................. 1 82

vii

Introduction

Fisheries management currently faces enormous challenges in the Laurentian
Great Lakes. The Great Lakes basin covers approximately 754,100 km2 of United
States and Canada.l The basin is composed of 5 lakes that rank among the seventeen
largest lakes in the world.2 Within the northern portions of lakes Michigan, Huron
and Superior, conservation of critical ﬁsh stocks currently poses a signiﬁcant
challenge for ﬁsheries managers within the Great Lakes ecosystem. Lake trout
(Salvelinus namaycush) in particular, which has historically been one of the most
important species in the commercial and sport ﬁsheries of the Great Lakes3, has
suffered a tremendous population decline since the 19503.4 Proposed reasons for its
demise include overﬁshings, predation by the invasive sea lamprey (Petromyzon

marinus),6 and habitat destruction.7

 

' Beeton, A.M., Sellinger, C.E. & D.F. Reid. (1999). An introduction to the Laurentian Great Lakes
Ecosystem. In W.W. Taylor & C.P. Ferreri (Eds), Great Lakes Fisheries Policy and Management: A
Binational Perspective. (pp. 3-54) East Lansing, MI: Michigan State University Press, p. 3.

2 Herdendorf, CE. (1982). Large lakes of the world. Journal of Great Lakes Research: 8(3), 379-412.
3 Smith, SH. (1972). Factors of ecological succession in oligotrophic ﬁsh communities of the
Larentian Great Lakes. Journal of Great Lakes Research: 25, 667-693; Haas, R. C. (1978). Overview
of the Great Lakes Commercial Fishery, With Special Emphasis on the Use of Gill Nets and
Impoundment Gear (Technical Report 78-6). Lansing, MI: Michigan Department of Natural
Resources, Fisheries Division, p. 3; Lawrie, AH. (1978). The ﬁsh community of Lake Superior.
Journal of Great Lakes Research: 4, 513-549.

‘ Selgeby, J .H. (1995). Introduction to the proceedings of the 1994 International Conference on
Restoration of Lake Trout in the Laurentian Great Lakes. Journal of Great Lakes Research: 21(Supp.
I), l.

5 Eschmeyer, PH. (1957). The near extinction of lake trout in Lake Michigan. Transactions of the
American Fisheries Society: 85(1955), 102-119; Christie, WJ. (1974). Changes in the ﬁsh species
composition of the Great Lakes. Journal of the Fisheries Research Board of Canada: 31, 827-854.

6 Lawrie, AH. (1970). The sea lamprey in the Great Lakes. Transactions of the American Fisheries
Society: 99(4), 766; Christie, WJ. (1974). Changes in the ﬁsh species composition of the Great Lakes.
Journal of the Fisheries Research Board of Canada: 3], 827-854; Smith, B.R. & Tibbles, JJ. (I980).
Sea lamprey (Petromyzon marinas) in Lakes Huron, Michigan, and Superior: History of invasion and
control, 1936-1978. Canadian Journal of Fisheries and Aquatic Sciences: 37, 1780-1801.

7 Christie, supra note 6.

Upon the collapse of this Great Lakes ﬁshery, efforts were made at the
international and federal level to address lake trout conservation through control of
the sea lamprey,8 followed by supplementation with hatchery-raised lake trout.
Subsequently, states within the basin began to follow the lead of Michigan’s
Department of Natural Resources (DNR) in its initiation and implementation of a
management plan that emphasized recreational sport ﬁshing while phasing out
commercial ﬁshing.9 This was done through planting of non-native chinook and coho
salmon,10 placing restrictions on commercial harvest, and reducing the number of
commercial licenses.ll The most contentious aspect of these plans, however, was the
DNR’s prohibition on the use of gill nets -— a type of traditional ﬁshing gear used by
non-native and Indian commercial ﬁshers. The DNR believed this type of gear
caused high lake trout mortality. ‘2

Although welcomed by recreational ﬁshers and tourist-dependent industries,
this management plan resulted in protests by commercial ﬁshers, including Native
American ﬁshers whose ancestors signed historic treaties with the US. government
reserving their rights to ﬁsh in the treaty-ceded waters of the Laurentian Great

Lakes. '3 The controversy over state regulation of treaty-right ﬁshing led to litigation

 

' Smith, supra note 6.

9 Tanner, H., Patriarche, M.H. & Mullendore, WJ. (1980). Shaping the World 's Finest Freshwater
Fishery. Lansing, MI: Michigan Department of Natural Resources, p. 33-37.

'° Proliferation of non-native alewife (A losa pseudoharengus) in the Great Lakes resulted from sea
lamprey predation of top predators of the Great Lakes. To restore a predator-prey balance in the
northern Great Lakes, while creating a proﬁtable recreational sport ﬁshery, salmonids were stocked.
Due to the slow growth, late maturity and lack of voracious feeding, lake trout were not considered to
be sufﬁcient species to signiﬁcantly reduce the populations of alewife (Alosa pseudoharengus) in the
Great Lakes. Id. at 37-38.

" Id at 33-37.

'2 Haas, supra note 3, at 7-8.

'3 Tribal ﬁshing rights in the northern Michigan waters of Lakes Michigan, Huron and Superior are
reserved in the Treaty of Washington (between the United States and the Ottawa and Chippewa), 7
Stat. 491 (March 28, 1836).

throughout the 19705 that culminated in the District Court decision in 1979, United
States v. State of Michigan. ‘4 In this case, Judge Fox held that signatory tribes to the
Treaty of Washington in 1836IS had reserved their rights to ﬁsh within the ceded
waters of the upper Great Lakes that preempted state regulation. '6 The outcome of
this court case angered sport ﬁshers who publicly criticized and protested the court
decisions and treaty-right tribal ﬁshing. Their protests intensiﬁed relations between
tribal commercial and non-tribal recreational sport ﬁshers and sparked social conﬂict
and frequent outbreaks of violence.'7
Recognizing that resolution of the conﬂict was needed for management of the
Great Lakes ﬁshery that would preserve lake trout stocks and reduce conﬂict while

providing ﬁshing opportunities for tribes with a treaty right to ﬁsh and state-licensed

ﬁshers,18 the Federal District Court in the State of Michigan appointed a “Special

 

Other treaties reserving tribal ﬁshing rights in parts of Lake Superior within Wisconsin, Minnesota and

Michigan include the Treaty of 1842 with the Chippewa, 7 Stat. 591, and the Treaty of 1854 with the

Chippewa, 10 Stat. 1 109.

" United States v. State ofMichigan, 471 F. Supp. 192 (1979).

'5 In this treaty, the Ottawa and Ojibwa tribes of northern Michigan ceded two-thirds of the territory

that comprises the present-day State of Michigan in exchange for goods, services and a reserved right

to ﬁsh and hunt on ceded land. Treaty of Washington, supra note 13.

'6 United States v. State of Michigan, supra note 14, at 265.

'7 Boats and ﬁshing equipment were damaged and destroyed, physical confrontations occurred, verbal

threats were common and Indian children were harassed at school. Schlender, J.H. ( 1991). Treaty

Rights in Wisconsin: A Review. Northeast Indian Quarterly: 8(1), p. 8, 11; Conners, D. (1997,

February 2). Fishing debate renews tension of years past. Traverse City Record Eagle, p. A 1; A

Timeline of Fisheries in the Region. (1997, February 2). Traverse City Record Eagle, p. A4.

rs In United States v. State of Michigan, District Judge Enslen described social conditions at this time.

He stated,
Since the opinion of Judge Fox in 1979, this court 's principal concern has been one of
preservation: preservation of treaty-reserved rights of the tribal fishers; and preservation of
the resource. The years which followed this opinion have been marred by hard feelings,
social discord, occasional violence, stipulated court-ordered closures of large portions of the
three aﬂected Great Lakes, political posturing, protraction of the instant litigation, some
outward manifestations of racism, and concern over the future of Michigan 's greatest
resources, her people and her bounty.

United States v. State of Michigan (1985 Consent Order), 12 [LR 3079, 3087 (1985).

Master” I 9

to work with the parties and to come up with a settlement on the allocation
and management of the resource. Aﬁer brief negotiations, the parties were unable to
reach a compromise that everyone agreed to, and the court imposed a ﬁsheries
management plan to which all but one party agreed, referred to as the “1985 Consent
Order.”20

This court-imposed ﬁshery management policy governing the treaty-ceded
waters of Lakes Michigan, Huron and Superior established lake trout refugesz' to
promote lake trout rehabilitation and conservation. 22 In order to reduce social
conﬂict and case management of the ﬁsheries within the treaty-ceded waters, the
Order created differential ﬁshing zones for treaty-right tribal commercial ﬁshers
outside of areas that were utilized heavily by state-licensed recreational sport
ﬁshers.23 It also imposed restrictions on the use of gill nets in certain waters in hopes
of reducing lake trout mortality and social conﬂict.24

To protect the Great Lakes ﬁshery and provide a framework for joint

management between state and tribal regulatory agencies, the 1985 Consent Order

 

'9 A special master is a “master appointed to act as the representative of the court in some particular
act or transaction.” Black, H.C., Nolan, J.R., Nolan-Haley, J.M., Connolly, M..l., Hicks, S.C., &
Albrandi, MN. (1991). Black's Law Dictionary. 6'“ ed. St. Paul, MN: West Publishing Company, p.
673.

2° United States v. State of Michigan, Consent Order 1985 Settlement Agreement 520 F. Supp. 207
(W.D. Mich. 1981) (May 31, 1985); United States v. State of Michigan, supra note 18.

2' The 1985 Consent Order created lake trout refuges, priority rehabilitation zones, and deferred zones.
Each of these allowed different levels of lake trout harvest. Use of gill nets or capture of lake trout
was prohibited in the refuges. Lake trout total-allowable catches (TACs) were created for
rehabilitation zones by the Technical Fisheries Review Committee based on 40-45% total annual
mortality; upon attainment of the TACs, all large mesh gill netting and sport ﬁshing had to cease in
those areas. Deferred zones were areas in which no lake trout rehabilitation plan was developed.
United States v. State of Michigan, supra note 18, at 3089.

12 Id. at 3082-3083, 3089.

2’ Id at 3084-3087, 3090.

2‘ Gill net use was restricted in areas based on the US. Fish and Wildlife Service Lake Trout
Rehabilitation Plan (February 8, 1985) and the lake trout rehabilitation plans adopted by the three lake
committees of the Great Lakes Fishery Commission. These areas are considered historic lake trout
spawning grounds to promote lake trout conservation. Gill nets were also restricted in areas with
intense sport ﬁshing activity, such as the Grand Traverse Bay. 1d. at 3083.

called on the Technical Fisheries Review Committee,25 composed of technical
representatives from the Chippewa-Ottawa Treaty Fishery Management Authority,
the Michigan Department of Natural Resources, and the US. Fish and Wildlife
Service’s Great Lakes Fishery Laboratory, to collaboratively establish total-
allowable-catch limits (TACS) for lake trout in certain zones, based upon 40 to 45
percent total annual mortality of lake trout. Additionally, it required the sharing of
data collected by state and tribal regulatory agencies,26 and the parties were required
to establish a Joint Enforcement Committee, with the responsibility of coordinating
and developing law enforcement.

Several provisions were created in the 1985 Consent Order to prevent future
social conﬂict. A Public Information and Education Committee was established to
assist in information dissemination about the Consent Order, to promote
understanding of treaty rights and responsibilities, and to provide a clearinghouse for
pertinent information.27 The Consent Order also established an Executive Council
and a dispute resolution mechanism to resolve any future controversies without
judicial intervention.28 It also called for federal and state funding to assist the tribes
with implementation of the Consent Order.29

Although the 1985 Consent Order was in place as a regulatory framework for

over 15 years and has recently been replaced by a new negotiated agreement — the

 

2’ The Technical Fisheries Review Committee originated from the biological group of the Technical
Working Group, which was renamed from the Ad Hoc Technical Working Group. Formed in 1979,
the Technical Working Group was established to cooperatively assess the status of certain ﬁsh stocks
in the treaty-ceded waters of the Lakes Michigan, Huron and Superior and provide data to be used for
estimation of surplus production and other management decisions.

2‘ United States v. State of Michigan, supra note 18, at 3082, 3091.

’7 Id at 3090-3091.

2‘ Id. at 3091.

’9 1am 3093.

2000 Consent Decree30 — the effectiveness of this ﬁsheries management policy in
attaining its objectives has not been thoroughly assessed.31 Rehabilitation and
conservation of critical lake trout stocks, resolution of conﬂict between state-licensed
recreational ﬁshers and treaty-right Native commercial ﬁshers, and cooperation
between tribal and state regulatory agencies remain critical issues for the success of
any management strategy governing the Great Lakes. Therefore an evaluation of the
1985 Consent Order and a comparative analysis between this policy and the 2000
Consent Decree are important to provide a baseline understanding of past ﬁsheries
management policy and help guide future policy decisions between federal, state, and

tribal governments.32

 

3° United States v. State of Michigan (2000 Consent Decree), No. 2:73 CV 26 (W.D. Mich. August 7,
2000).

3‘ Few investigators have studied the 1985 Consent Decree/Order since its implementation. The focus
of these investigations included an analysis from the court’s perspective and discussions of the impacts
of this arrangement on tribal, small boat ﬁshing. Mr. Francis McGovern, court-appointed Special
Master, offered an evaluation of this arrangement in terms of economic efﬁciency for the court. This
analysis, however, provided little guidance as to how the parties—who are directly affected by
implementation—understood or assessed the Consent Decree/Order. His discussion of complex
litigation theories addressed assessment of this agreement from the perspective of the court.
McGovern, F .E. (1986). Toward a functional approach for managing complex litigation. University
of Chicago Law Review: 53(2), 440-493.

Another study by Sargent and Kibbey provided an evaluation of the Consent Decree/Order’s
impact on tribal, small boat ﬁshermen in the Grand Traverse Bay region of Michigan. According to
this study, a large portion of these ﬁshermen dropped out of the ﬁshery after the 1985 Consent Order
was implemented. Sargent, M. & Kibbey, R. (1997). An Assessment of the Impact of the I985
Consent Decree on Fishing Operations by Grand Traverse Band Members. Kalamazoo, MI:
Community Research and Education Center.

’2 Although this research does not immediately address management within the Wisconsin waters of
the Great Lakes, rulings from the Voigt cases were similar to the case described in Michigan. In 1984,
shortly after the Voigt ruling in 1983, the Great Lakes Indian Fish and Wildlife Commission

(GLIF WC) was formed to implement treaty-right ﬁshing in areas that were ceded by Treaties in 1836,
1837, 1842 and 1854. This intertribal organization represents 11 Ojibwe bands in Minnesota,
Wisconsin and Michigan with treaty rights. The GLIFWC and the Wisconsin Department of Natural
Resources jointly manage resources off-reservation within treaty-ceded territory through technical
working groups (TWGs), committees for speciﬁc species, information sharing with respect to
biological data analysis, and joint projects, such as ﬁshery assessments. Erickson, S. (2000). State
and tribal resource management in Wisconsin: Strong Management for the Future. Great Lakes
Indian Fish & Wildlife Commission.
hgpzllwwwglifwcorgmublications/spring00/resource_m_anage.htm July 14, 2001.

In this study, the 1985 Consent Order was analyzed in terms of its usefulness
as a policy tool for the management of the treaty-ceded waters of the Great Lakes
ﬁshery through an analysis of ﬁfty individual, in-depth, semi-structured interviews
with members of the following stakeholder33 groups:

- Tribal commercial ﬁshers

o State-licensed recreational sport ﬁshers

0 State-licensed charter boat sport ﬁshers

o Tribal biologists

- State biologists (DNR)

o Tribal representatives

0 Sport ﬁshing representatives

0 DNR representatives

0 State of Michigan representatives from the Attorney General’s Ofﬁce.

These same stakeholders were asked to compare this policy to the 2000 Consent
Decree to assess changes in policy, its process, and stakeholder perceptions of both
policies. Additionally, members of the Public Information and Education Committee
and a representative from the Sea Grant College Program were interviewed to assess
their perceptions of the 1985 Consent Order, as well as education and awareness of
this court-ordered policy.

The need for effective cooperative management strategies between tribal and

state regulatory agencies that protect ﬁsh stocks and Native treaty ﬁshing rights,

 

’3 Stakeholders are deﬁned in this research as “individuals, groups, and formal organizations who have
a perceived interest or impact on a particular resource.” Selin, S. & Chavez, D. (1995). Developing
a collaborative model for environmental planning and management. Environmental Management,
19(2): 189-195, p. 190.

while maintaining a recreational state-licensed sport ﬁshery, will only increase with
the growing recognition of treaty ﬁshing, hunting, and gathering rights throughout the
United States. At present, Michigan, Washington, and Wisconsin have tribal and
state cooperative ﬁsheries regulatory regimes in place that originate from Indian
treaty ﬁshing rights litigation.34 Negotiation processes and subsequent policies that
are perceived to be effective by local stakeholders can also provide a model for other
countries, such as Canada and Australia, that are in the process of developing
cooperative management strategies between tribal and governmental agencies.

In this paper, the ﬁrst two chapters provide the historic, legal and social
context for the 1985 Consent Order and the 2000 Consent Decree. Chapter 1 presents
an overview of the history of the Great Lakes ﬁshery and its management, the events
that led to the 1985 Consent Order and its replacement policy — the 2000 Consent
Decree —- and a description of these ﬁshery management policies. Chapter 2 discusses
the legal rights of Native Americans under the US. Government, based upon historic
legislation, case law and treaties. It also presents an overview of treaty ﬁshing right
litigation in the States of Washington and Michigan.

The last two chapters describe and discuss the analysis and evaluation that
were conducted. Chapter 3 explains the methods that were used to evaluate
stakeholder perceptions of the 1985 Consent Order and the 2000 Consent Decree.
The results are also presented in this chapter. Lastly, Chapter 4 provides a discussion
of the results as well as researcher reﬂections and recommendations for future

policies.

 

3‘ Ferguson, K. (1998-1999). Indian ﬁshing rights: Aftermath of the Fox decision and the year 2000.
American Indian Law Review: 23(1), 97-154.

Chapter I :

The Laurentian Great Lakes: History and Rights to the Fishery

The Historic Great Lakes Fishery

Prior to the 18305, several different Native cultures resided in the Great Lakes
region and ﬁshed within its waters. These people included the Ottawa located in the
straits region of northern Lake Huron and Lake Michigan, the Ojibwa communities that
predominantly resided in the territory surrounding Lake Superior, and the Potawatomi
Indians based in southwestern Minnesota.l The Indians of the Great Lakes developed
subsistence patterns that included agriculture, hunting, rice gathering, maple sugar
production and ﬁshing. However, the Ottawa, Ojibwa and some Huron residing near
upper Lakes Michigan and Huron and at the eastern end of Lake Superior relied primarily
on ﬁsh for their subsistence.2

Rostlund referred to the distinctive Native ﬁshery of the upper Great Lakes region
as the “inland shore ﬁshery” to distinguish it from the ocean coastal ﬁsheries, although he

believed that the technology and expertise of these ﬁshers were comparable to ocean

ﬁsheries. Archeologists and anthropologists have often documented the skill and

 

' The Ottawa, Ojibwa, and Potowatomi Indians referred to themselves as the Anishnabeg, spoke the same
dialect of Algonquian, and formed a confederacy, referred to as the “Three Fires.” They shared much of
their culture and customs. Hickerson, H. & Wheeler-Voegelin, E. (1974). History of the Chippewa. In
D.A. Horr (Ed.), Chippewa Indians I—The Red Lake and Pembina Chippewa. New York, NY: Garland
Publishing, p. 21; Tanner, H.H. (1974). Report United States v. State of Michigan No. M 26-73
C.A.,U.S.D.C (Western District of Michigan, Northern Division), p. I; Cleland, CE. (1992). Rites of
Conquest: The History and Culture of Michigan ’3 Native Americans. Ann Arbor, MI: University of
Michigan Press, p. 25; Weeks, G. (1992). Mem-ka-weh: Dawning of the Grand Traverse Band of Ottawa
and Chippewa Indians. Traverse City, MI: Village Press, p. 3.

2 Warren, w.w. (1984). History ofthe Ojibway People. St. Paul, MN: Minnesota Historical Society, p.
40, 97; Tanner, H.H. (1987). Atlas of Great Lakes Indian History. Norman, OK: University of Oklahoma
Press, p. 19.

prominence of ﬁshing among Native peoples in this region.3 Based upon archeological
evidence, nets were ﬁrst used in the lower Great Lakes as early as 2500 BC, and they
were used in the upper Great Lakes between approximately 300 and 200 BC.4 A variety
of species were historically taken from the upper Great Lakes, including lake sturgeon
(A cipenserfulvescens), lake trout (Salvelinus namaycush), lake herring (Coregonus
artedii), shallow-water and deep-water ciscoes (C oregonus spp.), and round Whiteﬁsh
(Prosopium cylindraceum), often referred to as menominee.5 Atticameg, or lake
Whiteﬁsh (Coregonus clupeaformis), however, was the most valued species due to its
taste and abundance,6 and the use of gill nets set on off-shore shoals for the capture of
Whiteﬁsh and lake trout when they spawn in late fall and early winter "constituted the
heart of the ﬁshery" according to historical accounts. 7

With the arrival of the Europeans in the 15003, Michigan’s Indians established

trade relations for fur and other goods, including ﬁsh.8 Europeans expanded into

 

3 Signiﬁcantly, Rostlund - who made an extensive review of the literature pertaining to the upper Great
Lakes — commented,
I submit that as fishermen, these people from the Great Lakes toward Mackenzie Valley were

second to none in aboriginal North America. As a technical achievement, this deep-water gill-net
ﬁshery ranks with the Indian halibut ﬁshery of the northwest coast, both very diﬂerent from the

easy catching of shad or salmon that came pouring up the rivers.
Rostlund, E. (1952). Freshwater ﬁsh and ﬁshing in Native North America. University of California
Publications in Geography, Vol. IX. Berkley, CA: University of California Press, p. 29-30.
’ Cleland, CE. (1982). The inland shore ﬁshery of the northern Great Lakes: its development and
importance in prehistory. Society for American Archeology: 761-783, p. 763, 769.
5 1d at 767.
'6 Tanner, supra note I, at 38, 40, 47; Magnaghi, RM. (1984) A Guide to the Indians of Michigan 's Upper
Peninsula 1621-1900. Marquette, MI: Belle Fontaine Press, p. 8.
7 Rostlund, supra note 3, at 29-30; Cleland, supra note 4, at 763, 777-779; Tanner, supra note 2, at 19, 22.
' French explorer, Samuel de Champlain, arrived in the St. Lawrence valley in 1535. His arrival led to the
exploration of the Great Lakes region by the French and the establishment of relations between the French
and the Indians. As the French settled in the area, fur trading became extensive in the Great Lakes region.
The fur trade led to the trading of other goods, including ﬁsh. Tobacco, corn, meat, bark, twine, animal
skins, baskets, canoes and berries were among the other items that were traded. The arrival of the English
brought competition with the French for the valued trade with the Indians of the Great Lakes, and trade was
expanded between Indians and Europeans. Cleland, supra note I, at 79, 103, 109.

10

commercial ﬁshing operations, however,9 and in 18305, the Great Lakes ﬁshery began to
change dramatically with the organization of European-owned, large-scale commercial
ﬁshing operations, such as the American Fur Companylo and the Hudson’s Bay
Company. ” These business ventures, as well as other engineering and technological
advances that helped ease preservation and transport of ﬁsh,'2 attracted entrepreneurs”
and the commercial ﬁshery of the Great Lakes continued to expand into the late 18005 as
the fur trade signiﬁcantly declined.l4

With the development of the commercial ﬁshery within the Great Lakes, the
potential for overexploitation grew as technological advances were made in ﬁshing gear

that dramatically increased capture efﬁciency.15 The continued expansion of the Great

 

9 Tanner, supra note 2, at 132.

'0 The American Fur Company, whose main station was located on Mackinac Island, was the most
powerful trading entity in the United States, with control over the Upper and Lower Mississippi River
valley, Illinois River, Wabash River, Kankakee River, and parts of Wisconsin and the Great Lakes.
Magnaghi, supra note 6, at 35.

” Bogue, MB. (2000). Fishing the Great Lakes: An Environmental History, 1793-1933. Madison, WI:
University of Wisconsin Press, p. 31.

'2 The openings of various canals to improve navigation, the establishment of the railroad system in the
southern Great Lakes region, improved ﬁsh preservation methods, and the ﬂourishing ﬁsh market in
Detroit also helped stir interest in the commercial ﬁshery of the Great Lakes and allowed easier transport
and a wider market for Great Lakes ﬁsh. Smith, H.M. & Snell, MM. (1891). Review of the ﬁsheries of
the Great Lakes in 1885. In Report of the Commissioner for 1887. (pp. 1-333) Washington, DC: US.
Government Printing Ofﬁce; Id. at 29-31, 34-35.

'3 During the 18705 and 1880s, large numbers of immigrants came to ﬁnd work in the commercial ﬁshery
of the Great Lakes. Smith, supra note 12, at 15.

" Koelz, w. (1926). Fishing industry of the Great Lakes. (pp. 554-617) In Report ofthe U.S.
Commissioner of Fisheries, 1925. Washington, DC: Government Printing Ofﬁce.

'5 1n the early 18005, ﬁshers used haul seines for capture of ﬁsh near shore and twine gill nets to catch
offshore species. By 1860, pound nets were increasingly used for the harvest of migrating ﬁsh, and by
1885, trap nets were used that allowed ﬁshing in deeper waters. Fishing efﬁciency further increased as
ﬁshers began to use steam-tug boats and steam-net lifters in the 18905. Harvest efﬁciency continued to
increase with the introduction of the highly efﬁcient deep trap net in the 19205, which could be set at even
greater depths and on a wider variety of surfaces, and was constructed with smaller mesh sizes than gill
nets, leading to the capture of undersized lake Whiteﬁsh. Although this gear was banned soon after its
introduction, it caused the collapse of whiteﬁsh stocks in Lake Huron after 1932. Van Oosten, J., Hile, R.,
& Jobes, F.W. (1946). The whiteﬁsh ﬁshery of Lakes Huron and Michigan with special reference to the
deep trapnet ﬁshery. US. Fish and Wildlife Service Bulletin: 40, 297-394; Brown, R.W., Ebener, M. &
Gorenﬂo, T. (1999). Great Lakes commercial ﬁsheries: Historical overview and prognosis for the future.
In W.W. Taylor & C. P. F erreri (Eds), Great Lakes Fisheries Policy and Management, A Binational
Perspective. (pp. 307-354) East Lansing, MI: Michigan State University Press, p. 308-309.

11

Lakes commercial ﬁshery and development of highly efﬁcient gear led to overﬁshing of
various ﬁsh species. In combination with the introductions of non-indigenous species
and environmental degradation, the Great Lakes ﬁshery suffered severe consequences, as
the abundance of ﬁsh species failed to reach their historic yields and several ﬁsh

populations collapsed. '6
Devastation of the Great Lakes Fishery

Although commercial harvest within the Great Lakes contributed to the reduction
in abundance of ﬁsh species in the Great Lakes ﬁshery during the late 18005, land-use
changes in the Great Lakes region, due to agricultural development and the timber
industry, had profound and detrimental impacts on the water quality of the Great Lakes
and its ﬁsh habitat. Water quality became impaired through increased sedimentation and
eutrophication as forests were clear-cut and wetlands were drained. '7 The timber
industry also caused a diminution in water quality as sawdust pollution was washed into
the lakes, and the “driving” of logs in rivers to downstream sawmills scoured streambeds,
adversely impacting spawning grounds, hindering ﬁsh passage, and degrading ﬁsh

habitat.‘8 These modiﬁcations led to the decline of stream-spawning ﬁsh stocks in the

 

'6 Christie, WJ. (1974). Changes in the ﬁsh species composition of the Great Lakes. Journal of the
Fisheries Research Board of Canada: 31: 827-854.

'7 Prior to the mid-18005, there was a tremendous amount of diverse woodlands and wetlands in the Great
Lakes region. However, as human populations grew, forests were clear-cut for homes and agricultural
cultivation. In the 18805 and 18905, wetlands were increasingly drained in order to establish farms on these
lands. These changes to the landscape resulted in increased erosion, sedimentation and an inﬂux of
nutrients and pesticides into streams that fed into the Great Lakes. Water quality diminished as the
availability of oxygen for aquatic life declined. Tiner, R.W., Jr. (1984). Wetlands of the United States:
Current Status and Recent Trends. Washington, DC: Government Printing Ofﬁce, p. 13; Bogue, supra
note 12, at 116-117.

" The timber industry constructed dams for sawmills, which blocked ﬁsh migration in tributary streams to
the Great Lakes. Smith, supra note 12; Beeton, A.M., Sellinger, C.E. & Reid, DP. (1999). An
introduction to the Laurentian Great Lakes ecosystem. In W.W. Taylor & C.P. Ferreri (Eds). Great Lakes
Fisheries Policy and Management, A Binational Perspective. (pp. 3-54) East Lansing, MI: Michigan State
University Press, p. 46.

12

Great Lakes, including ciscoes, lake trout, lake Whiteﬁsh and burbot.19 The introduction
of invasive species, however, had more harmful impacts on the Great Lakes ﬁshery.

One invasive species that had extensive and destructive impacts on the Great
Lakes was the parasitic sea lamprey (Petromyzon marinus).20 Upon completion of the
Welland Canal, this species was able to migrate from the Atlantic Ocean to Lake Erie.21
Once observed in Lake Erie in 1921, the sea lamprey spread quickly to the other Great
Lakes.22 The sea lamprey’s introduction to the upper Great Lakes had detrimental effects
on the ﬁshery, as this species attached itself to deepwater ﬁsh, sucking on its host’s blood
and body ﬂuids. Populations of this species were able to increase rapidly in abundance in
the Great Lakes because food and habitat were plentiful and there was a lack of predators
in these lakes.23 Additionally, the tributaries to the Great Lakes provided the critical
habitat that the sea lamprey needs for spawning.24

The sea lamprey upset the prey-predator relationship of the northern Great Lakes

by attacking top predators, particularly lake trout (Salvelinus namaycush) and burbot

 

'9 Berst, A.H. & Spangler, GR. (1973). Lake Huron: the ecology of the ﬁsh community and man’s effects
on it. Great Lakes Fishery Commission Technical Report 2]. Ann Arbor, MI: Great Lakes Fishery
Commission; Lawrie, A.H. & Rahrer, J .F . (1973). Lake Superior: a case history of the lake and its
ﬁsheries. Great Lakes Fishery Commission Technical Report I 9. Ann Arbor, MI: Great Lakes Fishery
Commission; Wells, L. & McLain, AL. (1973). Lake Michigan: man’s effects on native ﬁsh stocks and
other biota. Great Lakes Fishery Commission Technical Report 20. Ann Arbor, MI: Great Lakes Fishery
Commission.
2° In its adult form, the parasitic sea lamprey has large, sharp teeth in a circular, disc-shaped mouth which is
used to cut into prey ﬁsh, attach to the prey, and suck their blood and body ﬂuids. Page, L.M. & Burr,
BM. (1991). A Field Guide to Freshwater Fishes. Boston, Massachusetts: Houghton Mifﬂin Company,

. 14-15.
ii The sea lamprey migrated to Lake Ontario from the Atlantic Ocean where it remained until the creation
of the Welland Canal between Lakes Erie and Ontario in 1833. This canal bypassed Niagara Falls, a
natural barrier for ﬁsh passage, and allowed the sea lamprey to emigrate from Lake Ontario to Lake Eric.
Smith, B.R. & Tibbles, 1.1. (1980). Sea lamprey (Petromyzon marinas) in Lakes Huron, Michigan, and
Superior: history of invasion and control, 1936-1978. Canadian Journal of Fisheries and Aquatic
Sciences: 3 7, 1 780-1 801 .
i: It was discovered in Lake Michigan in 1936, Lake Huron in 1937, and Lake Superior in 1938. Id.

Id.

2‘ Mature sea lampreys enter the tributaries of the Great Lakes during the spring and spawn in gravel beds.
Manion, PJ. & Hanson, L.H. (1980). Spawning behavior and fecundity of lampreys from the upper three
Great Lakes. Canadian Journal of Fisheries and Aquatic Sciences: 37, 1635-1640.

13

(Lota Iota) and lake Whiteﬁsh (Coregonus clupeaformis). 25 Prior to the sea lamprey
invasion, lake trout was relatively abundant in the Great Lakes. This species, which was
commercially exploited in Lakes Huron and Michigan since approximately the 18305 and
in Lake Superior since the 18705, continued to provide relatively stable landings for
commercial harvest throughout the early 19005.26 In combination with overﬁshing27 and
habitat degradation,28 however, invasion of the parasitic sea lamprey devastated lake trout
populations in all three upper Great Lakes, and lake trout populations collapsed in Lakes
Michigan and Huron by the mid-19505 and in Lake Superior by the late 1950s.29

With the loss of lake trout in the Great Lakes, non-native ﬁsh were able to

successfully invade the Great Lakes and disrupt the ecological balance of the Great

 

25 Lawrie, AH. (1970). The sea lamprey in the Great Lakes. Transactions of the American Fisheries
Society, 99(4), 766-774, p. 767-768; Christie, supra note 16; Smith, supra note 21.

2" Jensen, AL. (1978), Assessment of the lake trout ﬁshery in Lake Superior, 1929-1950. Transactions of
the American Fisheries Society: 107, 543-549; Eshenroder, R.L, Payne, N.R, Johnson, J .E., Bowen 11, C.,
& Ebener, MP. (1995). Lake trout rehabiliation in Lake Huron. Journal of Great Lakes Research:
21(Supp. 1), 108-127; Holey, M.E., Rybicki, R.W., Eek, G.W., Brown, Jr., E.H., Marsden, J.E., Lavis,
D.S., Toneys, M.L, Trudeau, T.N., & Horrall, RM. (1995). Progress toward lake trout restoration in Lake
Michigan. Journal of Great Lakes Research: 2] (Supp. 1), 128-151.

27 The relative contribution of overﬁshing and sea lamprey predation to the devastation of lake trout
populations in the Great Lakes has been the source of much debate. According to Pycha and King (1975),
the decline of lake trout stocks in the early 19505 could be attributed primarily to “intensive ﬁshing.” In
contrast, Coble et a1. (1990) provided evidence for sea lamprey predation as the main source of lake trout
mortality. However, evidence by Eshenroder (1992) and Hansen (1999) suggests that the analysis by Coble
et a1. (1990) was erroneous, and the decline in lake trout abundance preceded sea lamprey establishment in
the Great Lakes. Furthermore, Hansen (1999) provides evidence that ﬁshing pressure on lake trout stocks
increased once lake whiteﬁsh stocks collapsed in the upper Great Lakes. Pycha, R.L.& King, GR. (1975).
Changes in the lake trout population of southern Lake Superior in relation to the ﬁshery, the sea lamprey,
and stocking, 1950-1970. Great Lakes Fishery Commission Technical Report 28. Ann Arbor, MI: Great
Lakes Fishery Commission, p. 29; Coble, D.W., Bruesewitz, R.E., Fratt, T.W., & Scheirer, J .W. (1990).
Lake trout, sea lampreys, and overﬁshing in the upper Great Lakes: 8 review and reanalysis. Transactions
of the American Fisheries Society: I 19, 985-995; Eshenroder, R.L. (1992). Decline of lake trout in Lake
Huron. Transactions of the American Fisheries Society: 121, 548-550; Hansen, MJ. (1999). Lake trout in
the Great Lakes: Basinwide stock collapse and binational restoration. In Taylor, W.W. & Ferreri, C. P.
(Eds), Great Lakes Fisheries Policy and Management: A Binational Perspective. (pp. 417-453) East
Lansing, MI: Michigan State University Press, p. 429-430.

2' Although the relative contribution of habitat degradation has been difﬁcult to assess, there is evidence
that it was less signiﬁcant than overﬁshing and sea lamprey predation. Yet, it has played a role in
decreases in lake trout abundance. Christie, supra note 16.

’9 Lawrie, supra note 25, at 767; Baldwin, N.S., Saalﬁeld, R.W., Ross, M.A. & Buettner, H.J. (1979).
Commercial ﬁsh production in the Great Lakes 1867-1977. Great Lakes F ishery Commission Technical
Report 3. Ann Arbor, MI: Great Lakes Fishery Commission; Smith, supra note 21.

14

Lakes. In particular, the exotic alewife (Alosa pseudoharengus) proliferated in Lakes
Michigan and Huron.30 Prior to the mid-19405, the profusion of large piscivorous ﬁsh
controlled alewife abundance and prevented them from becoming established.31
However, after populations of lake trout and other large piscivores declined in the upper
Great Lakes, there was an explosion in alewife abundance32 and they were able to
establish populations in these lakes.33 The alewife reduced zooplankton populations34
that many native ﬁsh depend on for food, contributing to the decline of several native ﬁsh
populations.3 5

In addition to the sea lamprey and the alewife, introduced rainbow smelt
(Osmerus mordax) negatively impacted the Great Lakes ﬁshery. Intentionally

introduced in Lake Michigan in 1912, the rainbow smelt became established in most of

 

3° The alewife entered Lake Ontario from the Atlantic Ocean via the Erie Canal, where it was observed in
abundance in 1873. From Lake Ontario, the alewife migrated into Lake Erie via the Welland Canal and
continued into the upper Great Lakes. Koelz, supra note 14; Smith, SH. (1970). Species interactions of
the alewife in the Great Lakes. Transactions of the American Fisheries Society: 99(4), 754-765.

3' Alewives did not become abundant in Lake Huron until after the mid-19405 when lake trout populations
had diminished substantially due to sea lamprey predation. Similarly in Lake Michigan, alewives did not
appear until 1949. Alewives were commonly found during experimental trawling in 1963, after lake trout
abundance had diminished from 1960 to 1962. In contrast, after chemical treatments were applied to
control sea lamprey populations in 1962, lake trout abundance increased and alewife populations declined
after 1963. Hile, R. (1949). Trends in the lake trout ﬁshery of Lake Huron through 1946. Transactions of
the American Fisheries Society: 76, 121-147; Miller, RR. (1957). Origin and dispersal of the alewife,
Alosa pseuduoharengus, and the gizzard shad, Dorosoma cepedianum, in the Great Lakes. Transactions of
the American Fisheries Society: 86, 97-1 1 1; Smith, supra note 30.

32 By 1964, alewife became so abundant that they made up to 90% of the total ﬁsh biomass by weight in
Lakes Michigan and Huron. Tanner, H.A., Patriarche, M.H. & Mullendore, W.J (April 1980). Shaping the
World 's Finest Freshwater Fishery. Lansing, MI: Michigan Department of Natural Resources, p. 22.

’3 Alewives appeared in Lake Superior in 1954, and evidence demonstrates that alewife abundance
increased after inshore lake trout populations were diminished by the sea lamprey. Notably, it has been
hypothesized that the alewife could not become established in Lake Superior due to the cold temperature of
this lake, which is below the thermal tolerance of this species. Bronte, C.R., Selgeby, J .H., & Curtis, G.L.
(1991). Distribution, abundance, and biology of the alewife in US. waters of Lake Superior. Journal of
Great Lakes Research: I 7, 304-313.

3’ Wells, L. (1970). Effects of alewife predation on zooplankton populations in Lake Michigan.

Limnology and Oceanography: 15(4): 556-565.

3’ As the alewife abundance increased in Lakes Michigan and Huron, these lakes experienced decreases in
the abundance of yellow perch (Percaﬂavescens) and dramatic declines in lake herring (Coregonus artedt),
a shallow-water planktivore, during the 19505. Miller, supra note 31; Smith, supra note 30; Christie, supra
note 16.

15

the Great Lakes during the 19205 and 19305,36 and it became abundant in Lake Superior
by the early 1950s.37 The abundance of smelt particularly affected lake herring
populations in the Great Lakes. Populations of this valued commercial species crashed in
Lakes Michigan and Huron during the late 19505 due to overﬁshing and displacement by
the smelt and alewife.38 Similarly, lake herring populations plummeted in Lake Superior
in the 19705 due to overﬁshing and possible competition with smelt.”

Overﬁshing and the introduction of non-indigenous species also affected lake
Whiteﬁsh populations in the Great Lakes. Whiteﬁsh populations drastically declined in
northern Lake Huron and Lake Michigan during the 18005, and in Lake Superior during
the early 19005.40 Populations recovered, but sea lamprey predation and overﬁshing

caused Whiteﬁsh stocks to decline again in the late 19505."l

 

3‘ Van Oosten, J. (1937). The dispersal of smelt, Osmerus mordax (Mitchill) in the Great Lakes region.
Transactions of the American Fisheries Society: 66(1936): 160-161.

37 Lawrie, A.H. & Rahrer, J.F. (1972). Lake Superior: effects of exploitation and introductions on the
salmonid community. Journal of the Fisheries Research Board of Canada: 29, 765-776; Christie, supra
note 16.

3' Smith, supra note 30, at 743-765; Berst, A.H. & Spangler, GR. (1972). Lake Huron: effects of
exploitation, introductions and eutrophication on the salmonid community. Journal of the Fisheries
Research Board of Canada: 29:877-887.

39 Brown, supra note 15, at 332-333.

‘° In US. waters, Whiteﬁsh landings went from 1,225 metric tons in 1880 to 270 metric tons in 1899 in
northern Lake Huron. In Lake Superior, Whiteﬁsh harvest also diminished, from 2300 metric tons in 1885
to 172 metric tons in 1922. Historical catch record for Lake Michigan indicates that alter an initial
decrease in yield, there were ﬂuctuations in yield. Areas of Lake Michigan were depleted of lake whiteﬁsh
by the 18605 due both to overﬁshing and the detrimental affects of the forest product industries that
developed along its shores. Smith, supra note 12; Koelz, supra note 14; Jensen, AL. (1976). Assessment
of the United States lake whiteﬁsh (Coregonus clupeaformis) ﬁsheries of Lake Superior, Lake Michigan
and Lake Huron. Journal of the Fisheries Research Board of Canada: 33(4):747-759, p. 758; Kuchenberg,
T. (1978). Reﬂections in a Tarnished Mirror: The Use and Abuse of the Great Lakes. Sturgeon Bay, WI:
Golden Glow Publishers, p. 28, 31-32, 35-36, 41; Beeton, supra note 18.

" According to Jensen, whiteﬁsh stocks were overexploited in the three upper Great Lakes during the
19505. In Lake Superior, whiteﬁsh were less prone to sea lamprey predation than in Lakes Michigan and
Huron due to the availability of preferred prey species, such as lake trout, burbot and large chubs. In
contrast, in northern Lake Michigan, sea lamprey predation accounted for a much more dramatic reduction
in whiteﬁsh biomass than commercial harvest during the 19505. As lamprey predation caused a decline in
lake trout abundance in northern Lake Michigan, the sea lamprey preycd on lake whiteﬁsh, causing
decreases in their abundance. Once sea lamprey controls were put in place, lake whiteﬁsh populations
were able to recover. Smith, SH. (1968). Species succession and ﬁshery exploitation in the Great Lakes.

16

Other species that suffered declines in the Great Lakes were the deepwater
ciscoes, often referred to as chubs. Historically comprised of a diverse assemblage of
related species,42 the deepwater ciscoes experienced tremendous mortality due to a
combination of sea lamprey predation, overﬁshing,43 and increased abundances of non-
native ﬁsh species.44 Although the abundance of chubs increased during the 19505 in
Lakes Michigan, Huron and Superior, these species experienced a dramatic decline in
Lake Superior by 1990, and several species of chubs have been extirpated from Lakes
Michigan and Huron.45

Although there have been other introductions of non-indigenous species in the
Great Lakes, the sea lamprey, the alewife and the rainbow smelt had the most signiﬁcant,
adverse impacts on the Great Lakes ﬁshery during the 19005. Together with overﬁshing
and environmental degradation, these introductions left ﬁsh populations that once seemed

limitless in a degraded state, and the future of the Great Lakes ﬁshery uncertain.
Recovery and Rehabilitation of the Great Lakes Fishery

As the harvest of commercially valued species declined in the early 19005,
ﬁshermen responded by increasing their ﬁshing effort. Yet, increases in ﬁshing effort led

to an escalation in the percentage of less desirable species that were harvested and a

reduction in total harvest.46 As the abundance of valued commercial species diminished

 

Journal of the Fisheries Research Board of Canada: 25, 667-693; Jensen, supra note 40, at 756-757;
Brown, supra note 15, at 333, 337, 339.

‘2 Coon, T. (1999). lchthyofauna of the Great Lakes basin. In W.W. Taylor & C.P. Ferreri (Eds), Great
Lakes Fisheries Policy and Management: A Binational Perspective. (pp. 55-71). East Lansing, MI:
Michigan State University Press, p. 59.

‘3 Blackﬁn ciscoes (Coregonus nigripinnis) in particular were intensively ﬁshed, resulting in their depletion
in Lake Michigan by the late 18805 and in Lake Superior by 1907. Koelz, supra note 14.

44 Smith, supra note 41.

‘5 Brown, supra note 15, at 333, 335, 337, 339.

‘6 The percentage of less desirable species rose from approximately 20 percent of the total harvest in the
18005 to greater than 50 percent of the total harvest in 1930. Milner stated that, “More labor, more

17

and investment in ﬁshing effort increased, the number of commercial ﬁshers declined.47
Concerned about the detrimental impacts of the sea lamprey on the Great Lakes ﬁshery,
federal, state and provincial governments began an assessment of control options.48 With
research efforts underway, the Canadian and United States government signed the
Convention on Great Lakes Fisheries in 1954 to primarily address the problem of sea
lamprey infestation. With the ratiﬁcation of this convention, the Great Lakes Fishery
Commission was established to facilitate cooperation and collaboration between the two
countries49 on sea lamprey control strategies50 and the protection of the Great Lakes
ﬁshery.5 ' As a result of these efforts, an effective lampricide, TF M (3-triﬂouromethyl-4-

nitrophenol), was discovered in 1956. After ﬁeld-testing in 1957 and 1958, the Great

 

expense, and more skill in the construction and use of nets are required now than formerly, and for the
capture of a less quantity of fish.” Milner, J .W. (1873). Report on the Fisheries of the Great Lakes.
Washington, DC: Government Printing Ofﬁce, p. 14-15; Baldwin, supra note 29.

‘7 Koelz, W. supra note 14, at 591; Baldwin, supra note 29; Bogue, supra note 11, at 262.

‘8 Weirs were initially constructed to trap lamprey, and electric volts were used to kill them. According to
Lawrie, the construction and operation of weirs and electrical barriers in the upper Great Lakes was
ineffective for sea lamprey control since weirs were not kept in consistent operation and were wholly
inadequate for blocking a majority of the streams that were utilized by lamprey. As these limitations were
recognized and the urgency of the problem increased due to the collapse of lake trout in Lake Michigan and
infestation of Lake Superior, intense experimentation was initiated by the US. Fish and Wildlife Service in
January of 1950 to explore a variety of different ways to control sea lamprey populations, including the use
of a selective chemical treatment that would kill lamprey larvae, but was benign to other forms of aquatic
life. This research was based at laboratory facilities in Hammond Bay, Michigan, under the guidance of
Director James Moffett and Dr. Vernon Applegate. At the Hammond Bay laboratory, approximately a
hundred tests were run everyday using 6,000 different chemicals to analyze their effect on the sea lamprey
and a sought after ﬁsh species. It is estimated that 60,000 individual tests were conducted in search of an
effective and selective chemical to target lamprey larvae. Lawrie, supra note 25, at 769-770; Kuchenberg,
supra note 40, at 62-63, 67.

‘9 Under the authority of the Great Lakes Fishery Commission, lake committees for each of the Great Lakes
facilitate coordination and management activities between the provincial, state and federal governments of
Canada and the United States.

5° Sea lamprey control and research is funding by both countries, although their share of the funding is
apportioned based on the historic value of each country’s commercial harvest of lake trout and whiteﬁsh
and area of water over which each country has jurisdiction in the Great Lakes. Currently, approximately
69% of sea lamprey control and research is paid for by the United States and 31% is paid for by Canada.
Great Lakes Fishery Commission (2000). The Great Lakes Fishery Commission: Established by Treaty to
Protect Our Fishery. Ann Arbor, MI, Fact Sheet, p. l.

5 ' The Great Lakes Fishery Commission is comprised of four appointed Canadian commissioners, four
appointed American commissioners and one alternate commissioner. Id.

18

Lakes Fishery Commission began a chemical control program using TFM in Lake
Superior in 1958, followed by treatment in Lakes Michigan and Huron in the 19605.52
With sea lamprey controls in place, rehabilitation efforts, such as hatchery
supplementation, began for lake trout.53 However, these efforts did not signiﬁcantly
increase lake trout propagation,S4 with the exception of some areas of Lake Superior55
and one area in Lake Huron.56 Thus, despite some progress on sea lamprey control and
lake trout rehabilitation in the Great Lakes ﬁshery, sea lamprey predation continued to
plague the ﬁshery. Alewife abundance was a particular nuisance to the public since this

species experienced massive die-offs in the fall, leaving millions of dead alewife in the

Great Lakes to wash ashore, fouling public beaches.57 Predation by alewives on eggs

 

’2 Fetterolf, CM. (1980). Why a Great Lakes Fishery Commission and why a sea lamprey international
symposium? Canadian Journal of Aquatic Sciences: 37, 1588-1593; Smith, supra note 21.

5 Stocking for lake trout began shortly after the collapse of the inshore lake trout stocks in Lake Superior.
Stocking began in Michigan and Wisconsin in 1952, in Ontario in 1958 and in Minnesota in 1962.
According to Hansen, more than 27 million lake trout were stocked by 1970, and more than 90 million
were stocked by 1992. Hansen, M.J., Ebener, M.P., Shively, J .D. & Swanson, B.L. (1994). Lake trout. In
Hansen, M.J. (Ed.) The state of Lake Superior in I 992. Great Lakes Fishery Commission Special
Publication: 94-]. (pp. 13-34). Ann Arbor, MI: Great Lakes Fishery Commission, p. 15.

5’ In the late 19705, lake trout natural reproduction was inadequate to maintain stocks, and stocking was
necessary to support lake trout yield, due in part to the high rate of sea lamprey predation on lake trout.
Since 1986, sea lamprey wounding on lake trout has increased slowly in American and Canadian waters of
the Great Lakes. Based upon statistical analyses of sea lamprey wounding, the probability of lake trout
survival from a sea lamprey attack, and a model estimating interaction between lake trout and sea lamprey,
the average death rate for lake trout due to sea lamprey predation is 50,000 annually in the United States
waters of the Great Lakes since 1981, compared to an estimated average death rate of 10,000 annually
between 1980 and 1981. Idat 27-28, 30.

5’ Lake trout abundance did increase in Lake Superior during the 19505 and 19605 in areas where stocking
occurred or where native populations survived. Lawrie, supra note 25, at 774; Hansen, M.J. (Ed) (1994).
The state of Lake Superior in 1992. Great Lakes Fishery Commission Special Publication: 94-], p. 3.

’6 Despite signiﬁcant declines in lake trout harvest after 1940, a small remnant population survived in Parry
Sound within Georgia Bay. Recently, this population has been recovering, and natural reproduction has
been sufﬁcient to sustain this lake trout population. Johnson, J .E. & VanAmberg, J. (1995). Evidence of
natural reproduction in western Lake Huron. Journal of Great Lakes Research, 2] (Supp. 1): 253-259;
Ebener, M.P. (Ed). (1998). Lake Trout Rehabilitation Guide for Lake Huron. Great Lakes Fishery
Commission: Ann Arbor, MI, p. 3.

’7 Tanner, supra note 32, at 27-29.

and fry may have also caused signiﬁcant lake trout mortality.58 Additionally, toxic
substances may also have prevented lake trout rehabilitation.” Furthermore, despite the
decline in the number of commercial ﬁshers, the opportunity for overexploitation loomed
large due to the lack of comprehensive regulatory oversight of the US. waters of the

Great Lakes commercial ﬁshery prior to the 19605.60
Great Lakes Fishery Management

Since the 18005, management of the Great Lakes ﬁshery has confronted the
difﬁculties of having a variety of jurisdictions with regulatory authority over its waters6|
and with different management philosophies. In response to the deterioration of the
Great Lakes ﬁshery, the provincial and federal governments in Canada enacted stringent
regulations to conserve ﬁsh stocks, while the state and federal governments of the United
States focused on artiﬁcial propagation of ﬁsh stocks through hatcheries and stocking
programs.62 Thus, management of the Great Lakes ﬁshery has been an amalgamation of
various disparate - and sometimes conﬂicting — policies and regulations since the

18005.63

 

5' Krueger, C.C., Perkins, D.L., Mills, E.L. & Marsden, J.E. (1995). Predation by alewives on lake trout
fry in Lake Ontario: role of an exotic species in preventing restoration of a native species. Journal of Great
Lakes Research, 21 (Supp. 1): 458-469, p. 464-467.

’9 Zint, M.T., Taylor, W.W., Carl, L., Edsall, C.C., Heinrich, J., Sippel, A., Lavis, D., & Schaner, T.
(1995). Do toxic substances pose a threat to rehabilitation of lake trout in the Great Lakes? A review of
the literature. Journal of Great Lakes Research 21 (Supp. 1): 530-546, p. 539-540.

6° Tanner, supra note 32, at 53.

6' Within Canadian waters of the Great Lakes, the federal government exercises management authority over
conservation and protection of ﬁsh stocks, and the provincial governments have management authority
over the commercial ﬁshery. In contrast, eight state governments with riparian access to the US. waters of
the Great Lakes maintain jurisdiction over the ﬁshery. Brown, supra note 15, at 320.

‘2 Milner, J. W. (1872). Report on the ﬁsheries of the Great Lakes: The result of inquiries prosecuted in
1871 and 1872. In Report for the US. Commission of Fish and Fisheries. Washington, DC: Government
Printing Ofﬁce, Appendix A, 42"d Congress, 3rd session, 8. Misc. Doc. 74, 20-34; McCullough, AB.
(1989). The Commercial Fishery of the Canadian Great Lakes. Ottawa, Canada: Environment Canada, p.
19-21; Bogue, supra note 11, at 182, 204.

‘3 Tanner, supra note 32, at 11; McCullough, supra note 62.

20

To resolve the difﬁculties of inconsistent regulations governing the Great Lakes
ﬁshery, representatives of the US. states with jurisdiction over the Great Lakes -—
Michigan, Minnesota, Ohio, and Wisconsin — met with the US. Fish and Game
Commission in 1883 to reach a consensus on uniform regulations. Although thirteen
recommendations were adopted and agreed upon at this meeting, none of them were
implemented in any of the states. Unfortunately, this pattern of meeting without success
continued until 1954. During this time, twenty-seven interstate or international
conferences were held that failed to result in the adoption of consistent regulations.64

Although attempts to promulgate standard regulations were unsuccessful, several
international commissions were created to facilitate cooperation and coordination in
management of the Great Lakes. In 1892, the governments of Canada and the United
States established an international commission to investigate management issues of the
Great Lakes ﬁshery. The recommendation was made to establish a joint commission
with the authority to promulgate regulations for both Canadian and US. waters of the
Great Lakes. 65 After the failure of the US. and Canada to implement this
recommendation, a treaty was developed for the joint regulation of the Great Lakes
ﬁshery in shared boundary waters. Ratiﬁed by both nations in 1908, this treaty called for
the creation of the International Fisheries Commission to prepare uniform regulations.

Although this treaty was never enacted, the International Joint Commission was

 

6‘ True, F .W. (1887). The ﬁsheries of the Great Lakes. In Goode, G.B. (Ed), The Fisheries and Fishing
Industries of the United States. (pp. 631-673) Washington, DC: US. Commission on Fish and Fisheries.
‘5 Piper, DC. (1967). The International Law of the Great Lakes: A Study of Canadian- United States
Cooperation. Durham, NC: Commonwealth Studies Center, Duke University Press.

21

subsequently established in the International Boundary Waters Treaty in 1909 to deal
primarily with water quality and quantity issues.66
As efforts to coordinate management continued, the State of Michigan was in the
process of devising a new management plan for the Great Lakes ﬁshery. The Michigan
DNR was concerned that the commercial ﬁshery within the Great Lakes lacked sufﬁcient
regulation, resulting in a ﬁshery vulnerable to overexploitation. In the 19605, Howard
Tanner, then Director of the Michigan DNR, expressed anxiety over the increasing
abundance of alewife in the Great Lakes and doubt over the success of planted lake trout
in the presence of so many alewives. Thus, the DNR recognized the need for alewife
control in the Great Lakes.67 Another issue the DNR raised during this time was the
declining commercial ﬁshery and its failure to provide high economic returns to the
state.68 As a result, this agency sought to make dramatic management changes that would

have signiﬁcant impacts on the biological, economic and social dynamics of the Great

Lakes ﬁshery.
New Vision for Great Lakes Fishery Management

In 1964, the Michigan DNR revealed a new management, strategy for the Great
Lakes ﬁshery. This new vision, outlined by DNR Director Tanner, emphasized
recreational ﬁshing in the Michigan waters of the Great Lakes through the introduction of
non-native Paciﬁc salmonids. Although commercial ﬁshing was not prohibited under
this new management scheme, establishment of a recreational ﬁshery became the top
priority for most Great Lakes ﬁshery managers, and the commercial ﬁshery was only

allowed to harvest surplus ﬁsh beyond what was caught by state-licensed recreational

 

‘6 Id; Bogue, supra note 1 1, at 312-313.
‘7 Kuchenberg, supra note 40, at 79.
6' Tanner, supra note 32.

22

sport ﬁshers. The DNR hoped this plan would control alewife abundance in the Great
Lakes through predation by the large, predatory salmonids and convert alewife biomass
to productive use.69 Furthermore, the DNR believed the best allocation of the Great
Lakes ﬁshery resource would be for recreational ﬁshing since the economic value of
sport ﬁshing outweighed the value of commercial ﬁshing for the State of Michigan.70
They argued that commercial ﬁshers in the upper Great Lakes were reaping the beneﬁts
from a publicly owned resource, and that the commercial ﬁshery should be regulated to
protect the Great Lakes ﬁshery from further damage. However, this contradicted the
management goals of the US. Bureau of Commercial Fisheries, which had federal
oversight over the Great Lakes ﬁshery. Their goals were to control the sea lamprey,
restore native lake trout populations, and work to restore the commercial ﬁshery in the
Great Lakes.71 Thus, the new management strategy of the Michigan DNR resulted in
interjurisdictional tension over the management of the Great Lakes ﬁshery.

The new strategy led to the enactment of a new set of regulations on the
commercial ﬁshery aimed at reducing their ﬁshing effort. The ﬁrst restriction limited
entry into the commercial ﬁshery of the Great Lakes by requiring that ﬁshers have 50
ﬁshing days in two of the preceding three years in order to obtain a commercial license.
This regulation eliminated part-time ﬁshers from participating in the ﬁshery and reduced

the number of commercial licenses from 1,100 in 1940 to 300 in 1968.72

 

‘9 According to Howard Tanner, former Director of Michigan’s DNR, “Management of ﬁsh stocks [under
the new management plan] would (avor the sport [when whenever and wherever a choice rm be mgg.”
Id. at 32, 35-56.

7° Talhelm, D. (1979). Current Estimates of Great Lakes Fisheries Values: 1979 Status Report. Ann
Arbor, MI: Great Lakes Fishery Commission; Talhelm, D. (Winter 1979). Fisheries: Dollars & cents.
Water Spectrum, p. 9.

7' Tanner, supra note 32, at 51, 56.

7’ Id. at 53-54.

23

The next regulation in Michigan divided the Great Lakes ﬁshery into recreational
ﬁshing zones, commercial ﬁshing zones, and rehabilitation zones - where gill net use
was prohibited. Since most of the Great Lakes waters were designated as recreational or
rehabilitation zones, commercial ﬁshing was greatly restricted in the Great Lakes.73 This
regulation was protested by commercial ﬁshers who believed that they were being forced
into narrow, conﬁned areas where harvest pressure would extirpate ﬁsh stocks within the
commercial zones and create conﬂict among ﬁshers.74

The third restriction that was placed on commercial ﬁshing in the Great Lakes
was a limit on the species that could be harvested commercially. Coho salmon and perch
were prohibited from commercial harvest during 1970, and walleye was prohibited in
1973.75

The last - and most controversial - restriction on the Great Lakes commercial
ﬁshery was the ban on gill net use in 1972, with a four-year time frame for conversion to
other commercial ﬁshing gear.76 Sport ﬁshers and the Michigan DNR argued that gill
nets are unselective, highly efﬁcient gear that kills captured ﬁsh and interferes with the
recreational sport ﬁshery.77 In contrast, commercial ﬁshers argued that gill nets are
extremely selective gear and are used by biologists and researchers since they allow

capture of live ﬁsh. Commercial ﬁshers abhorred this ban since they considered gill nets

 

’3 Id. at 55.

7’ Kuchenberg, supra note 40, at 89-90.

7’ Tanner, supra note 32, at 55.

7" Opre, T. (1980, June 5). Tribal permits not valid: state to enforce Indian netting ban. Detroit Free Press,
. 6D.

% Gill nets: they could seriously deplete the lakes before a court ruling. (1980, July 21). Detroit Free

Press, p. 4; Connors, P.G. (1999). Michigan Indian Fishing Rights Controversy, (Research Report vol. 19,

no. 3). Lansing, MI: Michigan Legislative Service Bureau, Legislative Research Division, p. 3.

24

to be the most versatile, lightweight, and affordable type of ﬁshing gear available, and it
is the only type of ﬁshing net that can be used in most of the waters of the Great Lakes.78
As the controversy mounted surrounding increased restriction of the commercial
ﬁshery in the Great Lakes, the DNR began to stock Paciﬁc chinook salmon
(Oncorhynchus tshawytscha)79 and other game species to develop the state’s recreational
ﬁshery.80 The stocking of chinook salmon brought a ﬁshing frenzy to the Great Lakes as
recreational ﬁshers sought the opportunity to catch salmon, and other Great Lakes states
followed Michigan’s management strategy of developing and prioritizing a recreational
ﬁshery, including Ohio, Indiana, Illinois, and Wisconsin. 8' As recreational ﬁshing
became the new focus of ﬁsheries managers in the US. waters of the Great Lakes,
commercial ﬁshers lacked the political organization to take action to stop further
83

restrictions on their harvest.82 With the notable exception of the State of Wisconsin,

commercial ﬁshers within the Great Lakes confronted a powerful coalition and a ﬁght for

 

7‘ Gill nets can be created in different mesh sizes to speciﬁcally target various species. In addition, gill nets
do not require large, powerful boats or a large workforce. Kuchenberg, supra note 40, at 90-91;
Sadewasser, S. (personal communication, November 16, 1998).

79 The introduction of salmonid species was favored by the DNR since they could be hatchery-raised so
they would not compete with other species for spawning habitat in inland streams. Other desirable
characteristics of Paciﬁc salmonids were their brief life cycle, rapid growth, and their voracious appetite.
Tanner, supra note 32, at 38-40.

‘0 The game species that were stocked between 1966 and 1978 by the Michigan DNR included coho
salmon, chinook salmon, lake trout, steelhead, brown trout, splake, and Atlantic salmon. One enormous
hurdle to the development of the recreational ﬁshery was the cost of raising ﬁsh to be planted in the Great
Lakes. However, passage of the Anadromous Fish Act by the US. Congress in 1965, which allowed for
50/50 cost sharing between states and the federal government for anadromous ﬁsh programs, and the
collection of license fees starting in 1969, provided funding for the State of Michigan’s recreational ﬁshery.
Between 1966 and 1978, among the game species that were planted in the Michigan waters of the Great
Lakes, there was approximately 39 million coho and 32 million chinook salmonids planted by the DNR.

Id. at 58-59, 82.

" Id. at 47, 52.

'2 Kuchenberg, supra note 40, at 102-103; Bogue, supra note 11.

'3 The State of Wisconsin shifted its management policy towards maintenance of a commercial ﬁshery in
the mid-19705 in an effort to accommodate recreational and commercial ﬁshing interests in its waters of the
Great Lakes. Fisheries of the Great Lakes. (1988). Madison, WI: University of Wisconsin Sea Grant
Institute.

25

their survival as state regulatory agencies and sport ﬁshing groups were joined by the
tourism industry in opposing commercial ﬁshing.84

Tribal and non-tribal commercial ﬁshers alike opposed the increased restrictions
on the commercial ﬁshery and gill net use in the Great Lakes. Signiﬁcantly, since the
ancestors of Ottawa and Ojibwa ﬁshers in the upper Great Lakes reserved the right to ﬁsh
in historic land cession treaties with the United States government, some Native ﬁshers
sought to challenge state regulation of tribal commercial ﬁshing on these grounds.
Additionally, Native commercial ﬁshers valued use of the gill net for ﬁshing since it had
cultural signiﬁcance for tribal commercial ﬁshers whose ancestors used gill nets for
centuries.85 Awareness grew among the Native Americans of northern Michigan that
federal recognition of their tribes86 and of their treaty rights was necessary to protect
them.” This realization brought the issue of state regulation of tribal ﬁshing to the

United States judicial system.

 

u Kuchenberg, supra note 40, at 102-103.

‘5 Tanner, supra note 2; Cleland, supra note 1.

'6 Restrictions on treaty right tribal ﬁshing led the Sault Ste. Marie band and the Grand Traverse band to
seek federal recognition. Weeks, supra note 1, at 41.

'7 Indians will keep ﬁshing. (1980, June 5). Detroit Free Press, p. 6D; Bielski, V., Cornell, G. 8c White,
R. (1980, July 21). Indians only ask to keep their age-old right to ﬁsh. Detroit Free Press, p. 5-6.

26

Chapter 2: Native Fishing Rights

Legal Rights of Native Americans under the US. Government

As growing numbers of settlers in tribal territories increased pressure on the
United States government to gain eastern lands from the Indians during the 17005 and
18005, the legal rights of Native Americans under the US. government became a critical
issue. Conﬁscation of tribal lands and fraudulent land deals by white settlers led to
various outbreaks of violence between Indians and non-Indians throughout this time.1
Although the US. government treated Indian nations as independent sovereigns in its
formulation of international treaties with European nations,2 federal Indian policy moved
towards guardianship of the tribes with the signing of the Treaty of Hopewell in 1785.3
Acting in trust for the Indians, the US. Congress sought to protect Native Americans
through the passage of two bills.4 The ﬁrst piece of legislation, the Northwest Ordinance
of 1787 (ratiﬁed by Congress in 1789),5 sought to increase individual ownership of land
for Native Americans, subsidize their public education, and secure legal rights and
protections of non-Indian citizens who moved to new territories.6 This act also protected

Indian property from being taken without tribal consent and clariﬁed the role of the

 

' Morison, SE. (1965). Oxford History of the American People. Oxford University Press: New York, NY,
p. 445-446; Hyman, HM. (1986). American Singularity: The I787 Northwest Ordinance, the I 862
Homestead and Morrill Acts, and the 1944 GI. Bill. University of Georgia Press: Athens, GA, p. 22.

2 American Jurisprudence, vol. 27. (1940). Jurisprudence Publishers: San Francisco, CA, p. 547; O’Brien,
S. (1985). Federal Indian policies and international protection of human rights. In Deloria, V. (Ed.),
American Indian Policy in the Twentieth Century. (pp. 35-61). University of Oklahoma Press: Norman,
OK, p. 43.

3 This treaty states, “The said Indians for themselves and their respective tribes and towns do acknowledge
all the Cherokees to be under the protection of the United States of America, and of no other sovereign
whosoever.” Treaty of Hopewell 7 Stat. l8, 19 (1785).

4 Hyman, supra note 1, at 28; O’Brien, S. (1989). American Indian Tribal Governments. University of
Oklahoma Press: Norman, OK, p. 258-259.

5 Northwest Ordinance of 1787, 1 Stat. 50; 5 use. See. 479.

6 Hyman, supra note 1, at 23-24.

27

United States government as a protector of Native property and rights.7 The second law
that helped deﬁne the role of the United States government towards Native peoples was
the Trade and Intercourse Act of 1790.8 This law was supposed to protect Indian land
from being purchased by any entity other than the United States9 and made it a crime to
trespass on Indian lands.'0 Yet, at the same time that the US. Congress sought to enact
legislation that would protect Native Americans on their lands, the principle of “ﬁrst
discovery” erased Native rights to the lands upon which they had resided since 900 BC.
when it emerged from the historic case decision of Johnson v. McIntosh (1823).ll

In Johnson, Justice Marshall held that “the exclusive right of the United States to
extinguish [Native] title, ...has never. . .been doubted”.l2 In this case, he also decided that
ggly Europeans could “discover” land; therefore, the United States owned lands occupied

by Indians because these Native peoples were “ﬁerce savages.”l3 Other judges supported

 

7 The Northwest Ordinance stated,
The utmost good faith shall always be observed towards the Indians; their land and property shall
never be taken from them without their consent; and in their property, rights and liberty, they
shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but
laws found justice and humanity shall from time to time be made, for preventing wrongs being
done to them, and for preserving peace and friendship with them.

Northwest Ordinance, supra note 5, at 52.

' Trade and Intercourse Act of 1790, 1 Stat. 137.

9 This law stated,
That no person shall be permitted to carry on any trade or intercourse with the Indian tribes,
without a license for that purpose... for the use of the United States, conditioned for the true and
faithful observance of such rules, regulations and restrictions, as now are. or hereafter shall be
made for the government of trade and intercourse with the Indian tribes... That no sale of lands
made by any Indians or any nation or tribe of Indians within the United States , shall be valid to
any person or persons, or to any state.

Id. at 137.

‘0 This act also stated,
Such offender or offenders shall be subject to the same punishment, and shall be proceeded
against in the same manner as if the offense had been committed within the jurisdiction of the state
or district to which he or they may belong, against a citizen or white inhabitant thereof

Id at 138.

” Johnson v. McIntosh, 21 us. (8 Wheat) 543 (1823).

‘2 Id at 585.

'3 According to Jennings, “ﬁrst discovery” was one of ﬁve principles used by Europeans in their assertion

of sovereignty over American territory and its people. Jennings, F. (1975). The Invasion of America:

28

this idea of “ﬁrst discovery” and the taking of land from Indians since they believed that
Christians could rightfully dominate over non-Christians. '4 As their rights to land were
eroded under the principle of “ﬁrst discovery,” Native rights to self-governance were also
challenged on other bases in the courts.

In the decision Cherokee Nation v. Georgia (1831),15 Indians asked the Supreme
Court for injunctive relief from laws enacted by the State of Georgia that eliminated all
their rights based upon the ﬁrst article of the United States Constitution.16 They argued
that the relation of Indians to the United States government under this section of the
Constitution grants them rights to self-governance without interference by state law.
Justice Marshall, however, decided that since the Cherokee Indian tribe was not
considered foreign nations,17 they were not granted standing to bring a suit against the
State of Georgia under the US. Constitution.18

Chief Justice Marshall did, however, somewhat contradict this opinion the

following year in Worcester v. Georgia (1832)19 where he recognized Native sovereignty

 

Indians, Colonialism, and the Cant of Conquest. University of North Carolina Press: Chapel Hill, NC, p.
105-106, 127.
'4 Johnson v. Mc'Intosh, supra note 11, at 573-574; Caldwell-Hill, IL. (1996). Environment, regulations,
and Native Americans. Northern Kentucky Law Review, 24(1-2), p. 84-85.
‘5 Cherokee Nation v. Georgia, 30 us. (5 Pet.) 1 (1831).
'6 The ﬁrst article states, “The Congress shall have power... to regulate commerce with foreign nations, and
among the several States, and with the Indian tribes.” US. Constitution, Article 1, Sect. 8, clause 3 (1787).
'7 Justice Marshall declared that,
[Indians are]. . .denominated domestic dependent nationsl... they are in a state of pupilage. Their
relation to the United States resembles that of a ward to his guardian... They and their country are
considered by foreign nations, as well as by ourselves, as being... completely under the sovereignty
and dominion of the United States.
Cherokee Nation v. Georgia, supra note 15, at 17.
n In his decision, Marshall held, “[T]he majority is of opinion that an Indian tribe or nation within the
United States is not a foreign state in the sense of the constitution, and cannot maintain an action in the
courts of the United States. " Cherokee Nation v. Georgia, supra note 15, at 20; Lyons. O. (1992). Exiled
in the Land of the Free: Democracy, Indian Nations and the U. S. Constitution. Clear Light Publishing:
Santa Fe, CA, p. 288.
'9 Worcester v. Georgia, 31 us. (6 Pet.) 515 (1832).

29

as a legitimate right.20 In this decision, he stated that Indians were independent nations
with exclusive authority over their territory.” Furthermore, Justice Marshall emphasized
that the role of the US. government was to protect the land and rights of Native
Americans, based upon historic treaties — particularly the Treaty of Hopewell.22 Thus, he
declared Georgia’s laws that erased Indian rights null and void.23

The decision Worcester v. Georgia was critical to Indian rights since it was not
distinguished from Johnson v. McIntosh or Cherokee Nation v. Georgia, and it essentially
recognized the rights of Native Americans to their lands and protection of the United

States government.24 Importantly, as subsequent court decisions recognized the rights of

 

2° Cohen, F. (1942). Handbook of Federal Indian Law. University of New Mexico Press: Albuquerque,

NM, p. XXIV; Prucha, PP. (1994). American Indian Treaties: The History of a Political Anomaly.

University of California Press: Berkley, CA, p. 167.

2' In Worcester (1832), a Caucasian minister was prosecuted and jailed under Georgia’s law that made it

illegal for any non-Indian to live on Indian land without permission from Georgia’s governor and without

taking an oath of allegiance to the State of Georgia. His defense was similar to that of the Cherokee

Indians in the Cherokee Nation case a year earlier. In his decision, Justice Marshall stated, “. . .Indian

nations had always been considered as distinct, independent political communities, retaining their original

natural rights, as the undisputed possessors of the soil, ﬁom time immemorial, with the single exception of

that imposed by irresistible power.” Worcester v. Georgia, supra note 19, at 559.

22 By placing themselves under the protection of the stronger US. government, Justice Marshall decided

that the Indian nations did not surrender their independence and right to self-governance. He stated,
[T]he settled doctrine of the law of nations is, that a weaker power does not surrender its
independence - its right to self-government — by associating with a stronger, and taking its
protection... [Upon signing the Treaty of Hopewell] the strong hand of government was interposed
to restrain the disorderly and licentious from intrusions into their country, from encroachments on
their lands, and ﬁom those acts of violence which were often attended by reciprocal murder. The
Indians perceived in this protection only what was beneficial to themselves — an engagement to
punish aggressions on them. It involved, practically, no claim to their lands, no dominion over
their persons. It merely bound the nation to the British crown, as a dependent ally, claiming the
protection of a powerful friend and neighbour, and receiving the advantages of that protection,
without involving a surrender of their national character. [Emphasis added]

Id. at 562-563; O’Brien, S. (1991). Tribes and Indians: With whom does the United States maintain a

relationship? Notre Dame Law Review, 66(5), p. 1464.

23 This decision angered the State of Georgia, and it was not implemented or enforced. Andrew Jackson —

Governor of the State of Georgia at that time — declared, “John Marshall has made his decision. Now let

him enforce it.” Georgia promptly held a lottery to distribute the Cherokee lands, and these Indians were

forced to leave their lands. Morison, supra note 1, at 450.

2‘ Chaudhuri, J. (1985). American Indian policy: An overview. In Deloria, V. (Ed.), American Indian

Policy in the Twentieth Century. (pp. 15-33). University of Oklahoma Press: Norman, OK, p. 23-25.

30

Indians to regulate their own affairs25 — regardless of their protection under the US.
government26 — they also emphasized the plenary power of the US. Congress over Native
Americans.27

As the court system deﬁned the legal rights of Indians, the demand for tribal lands
continued to increase, and the government sought ways of peaceﬁrlly compelling Indians
to leave the eastern United States.28 With treaties and other documents establishing their
guardianship role towards the Indians, the US. government began to formulate plans
during President Monroe’s administration for concentrating Indians west of the
Mississippi into the unsettled territory of the Louisiana Purchase.29 In the 18205,
piecemeal removal of Indians began when tribes in the Old Northwest and southern

territories were given the choice of removal from their lands or remaining on their lands

 

25 Although Indian tribes are not recognized as foreign nations or states, they are considered distinct
political entities. The court held in United States v. Kagama (1887), “The Indians have always been
recognized as having a semi-independent position... as a separate people, with the power of regulating their
own internal and social relations.” 118 US. 375; American Jurisprudence, supra note 2, at 546-547.
26 Worcester v. Georgia, supra note 19, at 559.
2’ In United States v. Kagama (1887), Justice Miller stated,
[T]hese Indians are within the geographical limits of the United States. The soil and the people
within these limits are under the political control of the Government of the United States... The
territorial governments owe all their powers to the statutes of the United States, conferring on
them the powers which they exercise, and which are liable to be withdrawn, modified or repealed
at any time by Congress.
United States v. Kagama, supra note 25, at 379.
Furthermore, the court held in Lone Wolf v. Hitchcock (1903) that although the Indian right of
occupancy of tribal lands is sacred,
When... treaties were entered into between the United States and a tribe of Indians it was never
doubted that the power to abrogate existed in Congress, and that in a contingency such power
might be availed of from considerations of governmental policy, particularly if consistent with
perfect good faith towards the Indians.
187 US. 553, 565-566.
2’ The government could not forcibly remove these Native people from their land, and was bound to protect
the Indians by law and previously signed treaties, such as the Treaty of Ghent. The United States entered
into the Treaty of 1814 with Great Britain to end hostilities of the War of 1812. In the Treaty of Ghent, the
United States agreed to honor all rights of Indians. Speciﬁcally, the United States agreed in the Treaty of
Ghent to “restore to such tribes or nations, respectively, all the possessions, rights, and privileges, which
they may have enjoyed or been entitled... previous to such hostilities.” 8 Stat. 218, p. 222-223; Updyke,
F.A. (1915). The Diplomacy of the War of1812. John Hopkins Press: Glouchester, MA, p. 226-227;
Prucha, supra note 20, at 132.
29 Morison, supra note 1, at 445; Pevar, S.L. (1992). The Rights of Indians and Tribes. (2"’1 ed). Southern
Illinois University Press: Edwardsville, IL, p. 4.

31

and becoming United States citizens. Those who chose to leave were promised new
lands in exchange for their land, along with payments for travel expenses and
improvements that were necessary on their new land.30

Indian removal escalated under President Jackson, a strong proponent of Indian
removal, after he encouraged Congress to enact the Indian Removal Act in 1830.3 ' This
act allowed eastern lands to be exchanged with the Indians residing in states or territories
for their voluntary removal west of the Mississippi River, and it promised Indians
protection on their new lands.32 Although the Removal Act was intended to encourage
removal of Indians from eastern lands, many were forced to leave their lands, while
others chose not to leave.33 At this time, the US. government also began initiating land
cession treaties to gain Native lands peacefully and satisfy the desire and increasing
demand of settlers for additional land.34 Thus, the period from the 18305 until the 18705

was a time of Indian removal from their lands.35

 

3° Morison, supra note 1, at 446.

3' Indian Removal Act, 4 Stat. 411 (1830).

’2 The Removal Act stated,
[Ijt shall and may be lawful for the President of the United States to cause so much of any
territory belonging to the United States, west of the river Mississippi... to be divided into a suitable
number of districts, for the reception of such tribes or nations of Indians as may choose to
exchange the lands where they now reside, and remove there. That it shall and may be lawful to
cause such tribe or nation to be protected, at their new residence... and to have the same
superintendence and care over any tribe or nation in the country to which they may remove, as
contemplated by this act... Provided that nothing in this act contained shall be construed as
authorizing or directing the violation of any existing treaty between the United States and any of
the Indian tribes.

Id. at 41 1-412. This act also provided payment for removal, one year’s subsistence, and compensation for

improvements to the lands.

33 Prucha, supra note 20, at 198.

3‘ Federal commissioners bribed chiefs and usually intoxicated Indian representatives to obtain their

signatures on treaties. Indians were also persuaded to sign by federal ofﬁcials that urged Indians to sell

improvements for cash to pay oﬁ‘ their debts with white settlers. Morison, supra note 1, at 445.

3’ Besides land cession treaties, Indians lost their lands to speculators through fraudulent land deals.

Rubenstein, BA. (1976). Justice denied: Indian land frauds in Michigan: 1855-1900. 01d Northwest 2(2),

p. 133-139; Prucha, supra note 20, at 53, 63-64.

32

As Native Americans were uprooted from their lands and moved onto
reservations, some activists and religious leaders became increasingly critical of the
Indian policies of the US. Government and demanded change to help assimilate Indians
into mainstream culture.36 In 1871, the US. Congress passed a statute dissolving the
ability of the United States to make any future treaties with the Native Americans,37 and
the General Allotment Act (Dawes Act) was passed in 1887, which sought to transform
Indians into individual landowners, as an alternative to living on reservations.38 One
purpose of this act was to promote assimilation of Indians into “American society” by
dividing up reservations into individually owned settlements. In addition, the Dawes Act
sought to open up more Indian land to settlement by whites through the sale of “surplus”
land — Indian land that was leftover after allotments were complete — to be sold to the
United States at a reduced rate.39 Therefore, these policies failed to promote land

ownership among American Indians.40 Additionally, they perpetuated acquisition of tribal

 

3° Some pro-Indian organizations believed that Indians would beneﬁt through assimilation under US.
culture and a land allotment system, which provided individual parcels of land. Cohen, supra note 20, at
208.

’7 25 use. §7l (1871).

3‘ General Allotment Act, 24 Stat. 388 (1887).

39 Rapid settlement and development of the Western US. occurred during the 18805, leading to continued
demand for acquisition of tribal lands. The theory of tribal assimilation into civilized society was one
justiﬁcation for conﬁscating communal tribal lands and allotting smaller individual parcels of lands to
Indians. In 1881, President Chester Arthur introduced the idea of assimilation of Indians into American
society in his ﬁrst annual address to Congress. In his address to the nation, President Arthur proposed a
plan to bring Indians into the mainstream of American life by introducing the Indians to “the customs and
pursuits of civilized life and gradually to absorb them into the mass of our citizens. ” Senator Henry Dawes
of Massachusetts agreed with the President’s plan, and he sought to make assimilation and Native land
allotment a national policy, while continuing acquisition of Native land for settlement. American Friends
Service Committee (1970). Uncommon Controversy: Fishing Rights of the Muckleshoot, Puyallup and
Nisqually Indians. University of Washington Press: Seattle, WA, p. 45-46; Cohen, supra note 20, at 78;
Deloria, V. & Lytle, CM. (1983). American Indians, American Justice. University of Texas Press:
Austin, TX, p. 8-9.

4° The failure of this policy stemmed from the failure of the US. government to recognize that Indian ideas
of land ownership differed radically from Western ideas of ownership. Indian “ownership” was communal,
not individual, and alter Indian lands were held in trust by the US. government for 25 years, Indians did
not seek to receive the land title in fee simple under the General Allotment Act. Morison, supra note 1, at
753.

33

lands by the US. government and white settlers and extinguished the rights of Native
Americans to their own lands.“ Thus, the rights of Native Americans to their lands
continued to erode throughout the 18005 and into the early 19005 under the assimilation
policies of the US. government.42

These policies came under assault, however, as the poverty and destitute
conditions of Indian reservations became known in the 19305.43 As the Commissioner of
the Bureau of Indian Affairs sought to restore tribal self-governance, Congress responded
through passage of the Indian Reorganization Act (IRA), or the Wheeler-Howard Act, in
1934.44 Among its provisions, this legislation put a halt to allotment of Indian lands,
authorized any remaining surplus reservation lands to revert to tribal ownership,45 and
allowed greater self-governance through establishment of tribal governments and

courts.46 Importantly, this law was upheld by the judicial system despite various legal

 

" In 1881, the land holdings of Native Americans were approximately 155,632,312 acres, and by 1889,
these holdings were reduced to 104,314,349 acres. By 1934, two-thirds of tribal lands had been transferred
to non-Native ownership. Fey, H. & McNickle, D. (1959). Indians and Other Americans. Harper &
Brothers: New York, NY, p. 70-79; O’Brien, supra note 2.

‘2 For example, in 1885, the US. Congress passed the Seven Major Crimes Act, which extended federal
jurisdiction to seven speciﬁc crimes on Indian reservations. This act also granted the US. government
jurisdiction over crimes occurring between Indians for the ﬁrst time. In addition, Indian children were
removed from their parents’ care and sent to boarding schools where they were taught in English. The
purpose of these boarding schools was to help assimilate Indian children into society. Act of March 3,
1885, 23 Stat. 362, 376; O’Brien, supra note 22, at 1465; Lyons, supra note 18, at 319.

‘3 In 1928, the Brookings Institution published a report entitled, “The Problem of Indian Administration,”
on the substandard living conditions of Native Americans. This report - referred to as the “Meriam
Report” due to its direction by Lewis Meriam — provided a thorough analysis of the economic and social
environments of Native Americans and offered guidance on how to improve their conditions. American
Friends Service Committee, supra note 39, at 48; Prueha, F .P. (1975). Documents of United States Indian
Policy. University of Nebraska Press: Lincoln, NE, p. 219-221; Deloria, supra note 39, at 12-13.

“ Indian Reorganization Act, 48 Stat. 984 (1934).

‘5 After 40 years of implementation of the Indian Reorganization Act, approximately 595,000 acres were
purchased for tribal use; in contrast, Indian nations had lost approximately 90 million acres between 1887
and 1934. Thus, this policy was unsuccessful in restoring lands to tribal ownership. Caldwell-Hill, supra
note 14, at 93-94.

‘6 Under this law, no powers vested in tribes under past laws and treaties could be diminished without tribal
consent. American Friends Service Committee, supra note 39, at 48-49; Cohen, supra note 20, at 86;
Deloria, supra note 39, at 13-14.

34

challenges to its separate treatment of Native Americans under the equal protection
clause of the US. Constitution.47

As demonstrated by this chronology of legislative action, the status of tribes in the
US. changed from that of independent sovereigns to domestic dependent nations, and
federal tribal policy evolved from removal and establishment of reservations, to
attempted assimilation in mainstream American culture, to promotion of tribal self-
governance.48 In the late 19405 through the 19605, a fundamental shift occurred in
federal Indian policy towards forced assimilation through the termination of relationships
between the US. government and the tribes,49 making Indians subject to the same laws as
other US. citizens.50 To facilitate termination, Congress created the Indian Claims
Commission (ICC)51 in 1946 to expedite all outstanding claims with the tribes and
provide some just compensation for Indians who were precluded from bringing claims

before existing courts.52 This shift in federal Indian policy towards termination was also

 

’7 In the case of Morton v. Mancari (1974), for example, the courts upheld the legality of the Indian
preference provision of the 1934 Indian Reorganization Act. 417 US. 535; O’Brien, supra note 22, at
1467.

4’ O’Brien, supra note 4, at 258.

‘9 By 1961, the US. Congress terminated its relationship with 109 Indian bands and tribes. O’Brien, supra
note 2, at 44.

5° House Concurrent Resolution 108, 83" Congress, 1st session, passed August 1, 1953. US. Statutes at
Large 67:13 132; O’Brien, supra note 4, at 258.

5' Act of August 11, 1946. 60 Stat. 1049.

’2 In 1863, the US. Congress prohibited the Court of Claims from hearing any suits involving Indian treaty
claims without a special jurisdictional act admitting the Indian nation into court. Therefore, prior to
creation of the ICC, there was little resolution for tribes seeking retribution for injustices, including
underevaluation of their land and lack of government compliance with treaty provisions. The ICC was
authorized to award monetary compensation to the tribes, but it could not return land, to the dismay of
many tribes who sought to have their land returned. Act of March 3, 1863, supra note 42, at 767;
American Friends Service Committee, supra note 39, at 49; Washbum, W.E. (1985). Land claims in the
mainstream. In Sutton, 1. (Ed) Irredeemable America. University of New Mexico: Albuquerque, NW, p.
23-24; Rosenthal, H.D. (1990). Their Day in Court: A History of the Indian Claims Commission. Garland
Press: New York, NY, p. 170; Lyons, supra note 18, at 288.

35

illustrated by enactment of Public Law 280, which gave certain states permission to
assume jurisdiction over Indian reservations.53
The outcry that resulted from the termination policies and the refusal of tribes to
surrender their right to self-governance led to a critical development in federal Indian
policy under President Nixon towards tribal self-determination during the late 19605 and
19705.54 This shift in federal Indian policy led to the passage and enactment of several
laws by Congress that promoted self-determination and economic development.55 Yet, as
the US. Government sought to encourage greater tribal self-governance, state regulatory
agencies desired to maintain their jurisdiction over hunting and ﬁshing rights on Native
American lands.56 The assertion of regulatory authority by some states over tribal
hunting and ﬁshing resulted in litigation in various parts of the nation, and tribes fought

to protect hunting and ﬁshing rights that had been reserved in historic land cession

treaties.

 

’3 Public Law 280. 83rd Congress, 1" session, passed August 15, 1953. US. Statutes at Large 67: 588-90.

5‘ In his Special Message on Indian Affairs on July 8, 1970, President Nixon stated,
It is long past time that the Indians policies of the Federal government began to recognize and
build upon the capacities and insights of the Indian people. Both as a matter of j ustice and as a
matter of enlightened social policy, we must begin to act on the basis of what the Indians
themselves have long been telling us. The time has come to break decisively with the past and to
create the conditions for a new era in which the Indian future is determined by Indian acts and
Indian decisions.

In his conclusion, he emphasized,
As recently as August of I 953, in House Concurrent Resolution I 08, the Congress declared that
termination was the long-range goal of its Indian policies. This would mean that Indians would
eventually lose any special standing they had under Federal Iaw...[ and] be assimilated into the
society at large....ln short, the fear of one extreme policy, forced termination, has often worked to
produce the opposite extreme: excessive dependence on the Federal government.... This, then,
must be the goal of any new national policy toward the Indian people: to strengthen the Indian ’5
sense of autonomy without threatening his sense of community.

Message From the President of the United States Transmitting Recommendations for Indian Policy. H. R.

Doc. No. 363, 91‘" Congress, 2’"I session (1970).

55 These laws included the Indian Civil Rights Act of 1968, the Indian Self Determination Act of 1975, the

Indian Child Welfare Act of 1978, the Indian Tribal Government Tax Status Act of 1982, the Indian

Religious Freedom Act of 1978, and the Indian Gaming Regulatory Act of 1988. O’Brien, supra note 4, at

258; Pevar, supra note 29, at 8-9.

5‘ McCorquodale, SM. (1999). Historical and contemporary policies regarding off-reservation hunting by

Native Americans. Wildlife Society Bulletin, 27(2), 446-455, p. 451.

36

Native Treaty Fishing Rights

When the US. government sought to gain Indian lands through land cession
treaties during the 18005, the reservation of rights within these documents often included
the rights to ﬁsh and hunt in traditional locations.57 Treaties with Indian nations have the
same force and effect as treaties with foreign nations,58 are considered the supreme law of
the land,59 and can only be abrogated by an Act of Congress.‘50 Therefore, these historic
documents remain an important source of Indian ﬁshing and hunting rights."l However,
the extent of these rights has been called into question as various states sought to exert
regulatory power over ﬁsh and game management.

Signiﬁcantly, state laws cannot be applied to Indian tribes if they interfere with
tribal rights to self-governance, or if they are preempted by treaties or federal law.62
Tribal members cannot be restricted from crossing private land to access treaty-protected
traditional ﬁshing locations};3 and they cannot be charged a license fee to exercise their
treaty rights.64 Yet, if state interests are affected sufﬁciently, some courts have

determined that they may override tribal self-governance, and the states may regulate

 

’7 In United States v. Winans (1905), Justice McKenna held that treaty rights are not rights that have been

given t_o the Indians, “but a grant of rights from them — a reservation of those not granted. ” 198 US. 371,

381.

58 Worcester v. Georgia, supra note 19, at 515.

59 Article VI, clause 2 of the US. Constitution states,
This constitution, and the laws of the United States shall be made in pursuant thereof; and all
treaties made, or which shall be made, under the authority of the United States, shall be the
supreme law of the land; and the judges in every state Shall be bound thereby, any thing in the
constitution or laws of any state to the contrary notwithstanding.

6° Lone Wolf v. Hitchcock, supra note 27, at 553.

6' Signiﬁcantly, a reservation of hunting and ﬁshing rights is not necessary on tribal lands since they are

part of the tribe’s larger set of rights bestowed upon them with ownership of the land. Cohen, supra note

20, at 285-286.

‘2 Missouri v. Holland, 252 us. 416 (1920); Williams v. Lee, 358 0.5. 217, 220 (1959).

63 United States v. Winans, supra note 57, at 384.

“ Tulee v. Washington, 315 US. 681, 685 (1942).

37

treaty-right tribal ﬁshing. However, the extent of this regulation was unclear.65 Some of
the ﬁrst and most inﬂuential cases that sought to deﬁne Native treaty ﬁshing rights and
determine the extent of permissible state regulation of these rights originated from the
State of Washington.
Native Treaty Fishing Rights: State of Washington

Conﬂict over state regulation of treaty right tribal ﬁshing erupted in Washington
during the late 19605 as the Department of Game banned the use of nets to harvest
anadromous salmon and steelhead trout in the Puyallup and Nisqually Rivers,66 due to
dramatic declines in these ﬁsh stocks.67 This ban extended over treaty-protected rights of
the Puyallup and Nisqually Indians to net ﬁsh for subsistence and commercial purposes
within these waters where they had been ﬁshing for centuries, and their ancestors had
reserved this right in the Treaty of Medicine Creek of 1854.68 This treaty contained the

following important clause, “The right of taking ﬁsh, at all usual and accustomed

 

6’ State regulation of tribal treaty ﬁshing rights was ﬁrst discussed in the decisions of United States v.
Winans (1905). In Winans, the court held, “[S]urely it was within the competency of the Nation to secure to
the Indians such a remnant of the great rights they possessed as “taking/ish at all usual and accustomed
places. " Nor does it restrain the State unreasonably, if at all, in the regulation of the right. ” United States
v. Winans, supra note 57, at 384. In New Mexico v. Mescalero Apache Tribe, the Court also held, “State
jurisdiction is preempted by the operation of federal law if it interferes with federal and tribal interests
reﬂected in federal law, unless the state interests at stake are suﬂicient to justiﬁi the assertion of state
authority.” 462 US. 324, 334 (I983); Canby, WC. (1998). American Indian Law in a Nutshell (3rd ed).
West Group: St. Paul, MN, p. 82-83.

‘56 Puyallup Tribe v. Department of Game of Washington, 391 US. 392, 395-396 (1968); Canby, supra note
65, at 429-430.

‘7 Several factors have been cited for the demise of the salmonid stocks in these rivers, including signiﬁcant
increases in non-Indian commercial and recreational harvest. In 1969, Indians harvested approximately 5%
of salmon harvested in the States of Oregon and Washington, as the sportﬁshing harvest of chinook salmon
increased from 84,400 in 1946 to 267,000 in 1969 and the number of non-Indian commercial ﬁshing
licenses increased from 1,822 trollers in the State of Washington in 1965 to 3,232 in 1977. The
Washington Department of Fisheries also blamed environmental degradation - resulting from increased
development in the Paciﬁc Northwest — for salmon depletion. Dams have blocked ﬁsh passage; water
quality has diminished due to agricultural, industrial and sewage disposal and runoff; riverbank vegetation
were also reduced, causing greater sedimentation; and water has been withdrawn for irrigation, leading to
increased water temperatures. American Friends Service Committee, supra note 39, at 165; House of
Representatives Report No. 1243, 96‘h Congress, 2d. Session I, 34 (1980).

6‘ Treaty with the Nisquallys, 10 Stat. 1132 (1855).

38

grounds and stations, is ﬁlrther secured to said Indians, in common with all citizens of

”69 As the regulatory agency in the State of Washington exerted jurisdiction

the Territory.
over the exercise and management of treaty-right tribal ﬁshing, Indians in this region and
around the country started becoming more active in ﬁghting violations of their treaty
rights through demonstrations and protests.70 Litigation ensued as the State of
Washington sought an injunction against the tribes, and the case of Puyallup Tribe v.
Department of Game of Washington reached the US. Supreme Court in 1968.7‘ In its
decision, the Court afﬁrmed the decision of the Washington State Supreme Court,
granting the Indians the right to ﬁsh off-reservation at accustomed sites72 that were
protected under the Treaty of Medicine Creek.73 The Court held that the tribes could hunt

and ﬁsh off-reservation without state regulation, unless the state regulation is in the

interest of conservation and does not discriminate against the Indians.74 This decision,

 

691d. at 1132-1133.

7° In response to encroachment on their treaty rights. activist Indian organizations were formed, such as the

National Indian Youth Council (NIYC) and the American Indian Movement (AIM). “Fish-ins” were held

in the State of Washington to publicize tribal treaty rights, as well as the “Trail of Broken Tears,” which

resulted in the seizure of the Bureau of Indian Affairs headquarters. Hearings Before the Subcommittee on

Indian Affairs of the Committee on Interior and Insular Aﬂairs. House of Representatives, 92"d Congress,

2d session, (1972), p. 162-171; Deloria, V. (1974). Behind the Trail of Broken Treaties. Delacorte Press:

New York, NY, p. 25-27; Prucha, supra note 20, at 410-415.

7' Puyallup v. Department of Game, supra note 66.

72 As Indians surrendered greater amounts of land and became concentrated within smaller reservations,

off-reservation ﬁshing remained critical for subsistence and ceremonial practices. Hornstein, D.T. (1982).

Indian ﬁshing rights return to spawn: Toward environmental protection of treaty ﬁsheries. Oregon Law

Review, 61(1), p. 102-103.

73 Puyallup v. Department of Game, supra note 66, at 402-403.

7‘ The Court held,
The treaty right is in terms the right to ﬁsh "at all usual and accustomed places. " We assume that
fishing by nets was customary at the time of the Treaty; and we also assume that there were
commercial aspects to that ﬁshing as there are at present. But the manner in which the ﬁshing
may be done and its purpose, whether or not commercial, are not mentioned in the Treaty. We
would have quite a diﬂerent case if the Treaty had preserved the right to ﬁsh at the "usual and
accustomed places " in the “usual and accustomed ” manner. But the Treaty is silent as to the
mode or modes of fishing that are guaranteed....the manner of ﬁshing, the size of take, the
restriction of commercial fishing, and the like may be regulated by the State in the interest of
conservation, provided the regulation meets the appropriate standards and does not discriminate
against the Indians.

Id. at 398.

39

referred to as Puyallup I, was signiﬁcant because it allowed some state regulation of
treaty right tribal ﬁshing7S under “appropriate standards.”76

Subsequent to this ruling, Washington State’s Department of Game banned all
tribal net ﬁshing of steelhead trout in order to provide sufﬁcient harvest for the sport
ﬁshery, and the case returned to the US. Supreme Court.77 In this ruling, the Supreme
Court held that the conservation measures implemented by the Washington Department

of Game discriminated against the Indians,78 and that accommodation had to made for

 

7’ Signiﬁcantly, Johnson (1972) pointed out that there is no valid legal basis for state power over treaty-
right tribal ﬁshing as the Court determined in Puyallup 1, since treaties are the supreme law of the land
under the supremacy clause of the US. Constitution, and the US. Congress has not authorized state
regulation of these rights. He argued that although the treaty phrase, “in common with all citizens of the
Territory” is often cited as the source of states’ rights to regulate tribal ﬁshing, this phrase should be
interpreted to permit non-tribal harvest in addition to tribal harvest of the ﬁshery, as the Court held in State
v. Satiacum. In this case, the Washington State Supreme Court concluded that off-reservation ﬁshing was
not subject to state regulation as long as the US. government has not abrogated the right. 314 P.2d 400,
406 (1957); Johnson, R.W. (I972). The states versus Indian off-reservation ﬁshing: A United States
Supreme Court error. Washington Law Review, 47(2), p. 207-209.
76 In the decision, Puyallup v. Department of Game, Justice Douglas held that,
The treaty right is in terms the right to ﬁsh "at all usual and accustomed places. " We assume that
ﬁshing by nets was customary at the time of the Treaty; and we also assume that there were
commercial aspects to that ﬁshing as there are at present. But the manner in which the fishing
may be done and its purpose, whether or not commercial, are not mentioned in the Treaty... But
the Treaty is silent as to the mode or modes of ﬁshing that are guaranteed. Moreover, the right to
ﬁsh at those respective places is not an exclusive one. Rather, it is one “in common with all
citizens of the Territory. " Certainly the right of the latter may be regulated. And we see no
reason why the right of the Indians may not also be regulated by an appropriate exercise of the
policy power of the State. The right to fish “at all usual and accustomed” places may, of course,
not be qualified by the State, even though all Indians born in the United States are now citizens of
the United States...But the manner of fishing, the size of the take, the restriction of commercial
ﬁshing, and the like may be regulated by the State in the interest of conservation, provided the
regulation meets the appropriate standards and does not discriminate against the Indians.
Puyallup Tribe v. Department of Game, supra note 66, at 398.
These “appropriate standards” in Puyallup were later deﬁned by the US. Supreme Court:
[T]he “appropriate standards" requirement means that the State must demonstrate that its
regulation is a reasonable and necessary conservation measure, ...and that its application to the
Indians is necessary in the interests of conservation.
Antoine v. Washington, 420 US. 194, 207 (1975).
77 Department of Game of Washington v. Puyallup Tribe (Puyallup II), 414 US. 44 (I973).
7' According to Justice Douglas of the US. Supreme Court, the Supreme Court of Washington upheld the
Department of Game of Washington’s prohibition on tribal netting of steelhead trout since “the catch of the
steelhead sports ﬁshery alone in the Puyallup River leaves no more than a suﬂicient number of steelhead
for escapement necessary for the conservation of the steelheadﬁshery in that river [quoting 80 Wash. 2d.
573].” However, Justice Douglas reversed this ban on the condition that it was discriminatory against the
Indians. He held,

40

Indian treaty right ﬁshing and non-Indian ﬁshing. Thus, ﬁshing opportunities must
extend to both user groups. The Court remanded the case to the lower court for a
determination of a fair apportionment of the steelhead catch between the Indian net
ﬁshers and non-Indian sports ﬁshers.79 Notably, the Court clariﬁed that if a ban on
ﬁshing is needed to save a species from extirpation, then the ban should apply to Indians
and non-Indians alike.80

Changing circumstances resulted in the usual ﬁshing locations of the Puyallup

and Nisqually Indians being designated as on-reservation, instead of off-reservation sites.

 

Among the issues considered when the Puyallup case returned to the US. Supreme Court
for the third time in 1976,81 the tribes asserted that the State of Washington could not
regulate tribal on-reservation ﬁshing, and therefore could not regulate ﬁshing at the
tribes’ usual and accustomed sites in the Puyallup and Nisqually Rivers.82 The Court

disagreed, stating that the tribes’ right to ﬁsh was not an exclusive one and that a fair

 

There is discrimination here because all Indian net fishing is barred and only hook-and-Iine
fishing entirely pre-empted by non-Indians, is allowed... If hook-and-line fishermen now catch all
the steelhead which can be caught within the limits needed for escapement, then that number must
in some manner be fairly apportioned between Indian net fishing and non-Indian sports fishing so
far as that particular species is concerned... The aim is to accommodate the rights of Indians
under the Treaty and the rights of other people.

Id. at 48-49.

79 Puyallup Tribe v. Department of Game of Washington (Puyallup III), 433 US 175 (I976).

’° The Court stated,
We do not imply that these ﬁshing rights persist down to the very last steelhead in the river... The
police power of the State is adequate to prevent the steelhead from following the fate of the
passenger pigeon, and the Treaty does not give the Indians 0 federal right to pursue the last living
steelhead until it enters their net.

Puyallup II, supra note 77, at 49.

8' Puyallup III, supra note 79, at 165.

'2 Many of the “accustomed grounds and stations” where the tribes ﬁshed were determined in 1974 to be

on—reservation sites, although these lands were no longer owned by the tribes. Therefore, the tribes sought

to have the court determine the extent of state jurisdiction over these on-reservation sites that were

previously thought to be off-reservation sites. United States v. State of Washington, 496 F.2d 620 (9” Cir.)

(1974).

41

allocation of the ﬁshery would be impossible if the tribes had unlimited harvest of the
ﬁshery.83

The Puyallup decisions of the Supreme Court were signiﬁcant because they
demonstrated a shift in judicial interpretation of treaty ﬁshing rights towards allowing
state regulation of these rights when there is a demonstrated need for conservation — both
off-reservation and on-reservation -— so long as the regulation does not discriminate
against the Indians.84 These decisions are also important because they eroded treaty
rights and tribal sovereignty.

As the Puyallup cases were in litigation, the United States brought suit in Federal
District Court on behalf of seven Indian tribes85 seeking an interpretation of treaties86 and
an injunction requiring the State of Washington to protect the Indians’ share of the
anadromous ﬁsh runs." After studying the complex issues surrounding this case for
three and a half years, District Court Judge Boldt provided an extended opinion outlining
the principles for regulation of treaty right tribal ﬁshing.88 He distinguished federally

protected treaty ﬁshing rights of Indians, from the privilege of citizens within the State of

 

‘3 Puyallup III, supra note 79.

“ lrnportantly, state regulation of on-reservation treaty ﬁshing rights is rare, as this decision was overturned
by the Supreme Court in Washington v. Washington State Commercial Passenger Fishing Vessel
Association, 443 U.S. 658, 683-684 (1979).

'5 The plaintiff tribes included the Hoh Tribe, Lummi Tribe, Makah Tribe, Muckleshoot Tribe, Nisqually
Tribe, Puyallup Tribe, Quileute Tribe, Quinault Tribe, Sauk-Suiattle Tribe, Skokomish Tribe, Squaxin
Island Tribe, Stillaguamish Tribe, Upper Skagit River Tribe and Yakima Nation. United States v. State of
Washington, 384 F .Supp. 312, 326-327 (W.D.Wash. 1974), aﬂd, 520 F.2d. 676 (9th Cir. 1975), cert.
denied, 423 U.S. 1086 (I976).

’6 Nearly identical language to the important phrase within the Treaty of Medicine Creek with the Puyallup
and Nisqually Indians is also found in the other treaties with Indians within the State of Washington,
including the Treaty of Point Elliot, 12 Stat. 927 (1863); and the Treaty with the Yakima, 23 Stat. 951
(1863).

’7 United States v. State of Washington, supra note 85.

“ Prucha, supra note 20, at 404405.

42

Washington to ﬁsh under state regulation.89 The “Boldt decision,” as it was referred to,
was signiﬁcant since it was one of the ﬁrst cases to consider allocation of a treaty ﬁshery.
In his opinion, Judge Boldt examined a ﬁrst federal district court decision in which the
court held that the state has a responsibility to regulate its ﬁshery so Indians have an
opportunity for a fair and equitable share of the harvest.90 He decided that the Indians
were entitled to between 45% and 50% of the harvestable run of ﬁsh — in addition to the
ﬁsh caught on reservations for ceremonial and subsistence purposes, and Judge Boldt
entered an injunction that required regulations to be adopted by the State that protected
Indian treaty ﬁshing rights.91 The U.S. Supreme Court upheld this decision in 1979.92
This decision sparked protests and confrontations in Washington, including
vandalism of tribal ﬁshing equipment and shootings.93 Non-Indian ﬁshers argued against

”94 which led to litigation in state

tribal treaty ﬁshing rights as unfair “superior rights,
court.95 Social tension and turmoil became so great that the Congressional delegation
from the State of Washington asked President Carter to appoint a federal task force to

resolve the controversy.96 Deﬁance of the District court’s ruling97 led to supervision of

 

'9 McMinds, GR. (1979). The Northwest ﬁshing rights controversy: An Indian perspective. North
American Wildlife Conference Transactions. No. 44, p. 605-606.
9° Sohappy v. Smith, 302 F. Supp. 899 (1969). In U. S. v. Washington, the formula Judge Boldt used for
allocation of the ﬁshery was based on calculations that were conducted for each river and each run of ﬁsh.
sUnited States v. Washington, supra note 85, at 416-417.

Id.
92 Washington v. Washington State Commercial Passenger Fishing Vessel Association, supra note 84, at
65 8-708.
9’ Deloria, supra note 70; McMinds, supra note 89, at 605-608, 612-613; Senate Report No. 667, 96‘“
Congress, 2d. Session, 1-2 (1980).
94 Williams (1986) purports in his essay that non-conservationist Indians abuse of treaty rights are to blame
for the overharvest of species. Williams, T. (1986). Don ’t Blame the Indians: Native Americans and the
Mechanized Destruction of Fish and Wildlife. GSJ Press: South Hamilton, MA.
95 The District Court decision was challenged on the basis that treaty interpretation in favor of the Indians
violated the Equal Protection Clause under the fourteenth Amendment of the U.S. Constitution. Puget
Sound Gillnetters Association v. Moos, 565 P.2d I 151 (1977); Washington State Commercial Passenger
Fishing Vessel Association v. Tollefson, 571 P.2d 1373 (I977).
9" The Task Force was appointed, and the report was completed in June of 1978. In its report, the Task
Force recommended that there is an increase in the available ﬁsh for harvest, a reduction in the ﬁshing

43

the state ﬁshery by the Federal District Court,98 and collective review of Judge Boldt’s
decision and several state court decisions by the U.S. Supreme Court in 1979. In this
case, Washington v. Washington State Commercial Passenger Fishing Vessel
Association,99 the Supreme Court determined that Indian an_d non-Indian ﬁshers must be
granted a share of the ﬁshery.loo Importantly, the Court held that the maximum allowable
tribal harvest of the total available ﬁsh runs is 50%.l0' In subsequent decisions
surrounding these issues, the Supreme Court has applied, clariﬁed and developed these

judicial principles guiding state regulation of treaty right tribal ﬁshing. '02

 

effort of non-Indian ﬁshers, and an increase in harvest opportunities for treaty-right tribal ﬁshers. Senate

Report, supra note 93, at 3.

97 The State of Washington was adamantly opposed to this ruling and refused to enforce it. Prucha, supra

note 20, at 405.

9' United States v. Washington, 459 F.Supp. 1020 (W.D.Wash), aff’d, 573 F.2d 1123 (9* Cir. 1978).

99 Washington v. Washington State Commercial Passenger Fishing Vessel Association, supra note 84, at

672-673.

'°° The Court held,
The purport of our cases is clear. Non-treatyﬁshermen may not rely on property law concepts,
devices such as the fish wheel, license fees, or general regulations to deprive the Indians of a fair
share of the relevant runs of anadromous fish in the case area. Nor may treaty fishermen rely on
their exclusive right of access to the reservations to destroy the rights of other “citizens of the
Territory. " Both sides have a right, secured by treaty, to take a fair share of the available fish.
That, we think, is what the parties to the treaty intended when they secured to the Indians the right
of taking fish in common with other citizens.

Id. at 684-685.

'0' The Court explained,
It bears repeating, however, that the 50% figure imposes a maximum but not a minimum
allocation... the central principle here must be that Indian treaty rights to a natural resource that
once was thoroughly and exclusively exploited by the Indians secures so much as, but no more
than, is necessary to provide the Indians with a livelihood — that is to say, a moderate living.
Accordingly, while the maximum possible allocation to the Indians is ﬁxed at 50%, the minimum is
not.

Id. at 686-687.

"’2 For example, it determined that the state cannot limit Indian rights to harvest ﬁsh and game that remain

on-reservation, the tribes’ share of 50% of the ﬁshery includes state-raised hatchery ﬁsh and applies to the

total harvestable run of ﬁsh. State regulation of treaty ﬁshing must be the least restrictive method

necessary, maintain treaty rights as co-equal to other uses of the ﬁshery, and provide fair opportunities to

the tribes to take a fair portion of ﬁsh from each run. United States v. State of Washington, 694 F .2d 188

(9m Cir. 1982), cert. denied, 463 U.S. I207 (1983); United States v. State of Washington, 759 F .2d 1353 (9‘h

Cir. 1985); United States v. State of Washington, 774 F.2d 1470 (9” Cir. 1985); United States v. State of

Oregon, 769 F.2d 1410 (9* Cir. 1985).

44

Beyond their important contribution to the ﬁelds of Indian law and Native treaty
ﬁshing rights, the Washington cases were signiﬁcant in laying a foundation for litigation
of treaty ﬁshing in other parts of the country, including the State of Michigan.

Native T reaty Fishing Rights: State of Michigan

In 1930, the ﬁrst court case was brought forth in the State of Michigan over state
regulation of tribal treaty ﬁshing rights. In this case, People v. Chosa, '03 members of the
L’Anse Band in Baraga County were convicted of violating state ﬁshing laws in the
Keweenaw Bay of Lake Superior. Since Keweenaw Bay within the L’Anse Reservation
was set aside by treaties, the defendants argued that the Chippewa retained the right to
ﬁsh and hunt off-reservation in these waters.104 Upon appeal to the Michigan Supreme
Court, the court held that although Indians retained the rights to hunt and ﬁsh on their
reservation under historic treaties, the Indians were not immune from state laws off-
reservation. '05

This decision deﬁned the relationship of Indian treaty ﬁshing under Michigan law
until 1965, when William Jondreau, a Chippewa Indian, brought another challenge to
state regulation of treaty protected ﬁshing rights after being arrested for illegal possession
of four lake trout. Upon appeal of this case to the Michigan Supreme Court in 1971,106
Jondreau argued that he had the right to ﬁsh in treaty-ceded waters without state

regulation'07 based upon Articles 2 and 11 of the Treaty of September 30, 1854.108

Although the Michigan Supreme Court unanimously overruled People v. Chosa and

 

'°’ People v. Chosa, 252 Mich 160; 233 NW. 205 (1930).

'°‘ In the Treaty of July 29, 1837 and the Treaty of October 4, 1842, the Chippewa Indians ceded western
Michigan, northern Wisconsin and eastem Minnesota. Kappler, C.J. (l940-1941). Indian Affairs: Laws
and Treaties. Washington, DC: Government Printing Ofﬁce, p. 491-493, 542-545.

'05 People v. Chosa, supra note 103.

'°° People v. Jondreau, 384 Mich. 539 (1971).

‘°’ 1d. at 541-542.

'°' Treaty of September 30, 1854, 10 Stat. 1 109.

45

agreed with J ondreau, ' 09

the implications of this decision were not clear since the court
limited its ruling to the Ottawa and Chippewa bands of the L’Anse Reservation and the
Bay Mills Indian Community, and it did not address the distinction between state
regulation of on-reservation or off-reservation ﬁshing.I '0 Even though this case decision
was narrow in its holding, it represented a pivotal shift away from state regulation of
treaty-protected ﬁshing rights within the State of Michigan.1 H

In a Similar case in 1971 , Albert LeBlanc, a Bay Mills Chippewa, challenged the
state’s authority to issue regulations over tribal ﬁshing with the assistance of the Upper

Peninsula Legal Services.l ‘2

LeBlanc had been arrested for commercial ﬁshing without a
state license and ﬁshing with gill nets in Lake Superior. The Michigan DNR had
prohibited use of gill nets Since they believed these nets caused high ﬁsh mortality.l '3
LeBlanc asserted that Ottawa and Chippewa Indians maintained off-reservation ﬁshing
rights under Article XIII of the Treaty of Washington — often referred to as the 1836

”4 This particular treaty was extremely signiﬁcant since under its terms Ottawa

Treaty.
and Chippewa bands ceded most of northwestern Michigan in the Lower Peninsula and
most of the Upper Peninsula of Michigan to the United States government.| '5 In

exchange for the land granted to the United States government, the Ottawa and Chippewa

 

'09 People v. Jondreau, supra note 106, at 552.

”° Brandimore, K. (1978). Indian law - treaty ﬁshing rights - the Michigan position. Wayne Law
Review, 24(3): 1187-1204, p. 1196; Connors, P.G. (l 999). Michigan Indian Fishing Rights Controversy.
(Research Report vol. 19, no. 3). Lansing, MI: Michigan Legislative Service Bureau, Legislative Research
Division, p. 5.

111 Importantly, the Michigan Supreme Court in the case of Jondreau rejected the assertion made in
Puyallup I that state regulation of treaty right ﬁshing is permissible for purposes of conservation. People v.
Jondreau, supra note 106, at 552.

”2 People v. LeBlanc, 55 Mich. App. 684 (1974), 399 Mich. 31 (1976).

”3 Tanner, H.A., Patriarche, M.H., & Mullendore, W.J. (1980). Shaping the World 's Finest Freshwater
Fishery. Lansing, MI: Michigan Department of Natural Resources, p. 55.

"‘ Treaty of Washington, 7 Stat. 491 (1836).

"5 1d,; Tanner, H.H. (1974). Report United States v. State ofMichigan No. M 26-73 C.A.,U.S.D.C
(Western District of Michigan, Northern Division), p. 12.

46

Indians reserved in the treaty, “. . .the right of hunting on the land ceded, with the other
usual privileges of occupancy, until the land is required for settlement.”l ‘6 AS a
descendant of Chippewa ancestors that were signatories to the 1836 Treaty, LeBlanc was
granted the right to ﬁsh without a state license by the Michigan Court of Appeals.
However, the Court remanded the case to the circuit court to determine if the State of
Michigan’s prohibition on gill net use was necessary to prevent depletion of ﬁsh
stocks,1 '7 based upon the ruling of the U.S. Supreme Court in the 1968 case of Puyallup
Tribe v. Department of Game. ' '8 In this case, the Supreme Court ruled that although state
law cannot qualify Indian ﬁshing rights protected by treaty, states could regulate aspects
of ﬁshing as long as the regulations are nondiscriminatory to the Indians and are
necessary for the conservation of ﬁsh.l '9

Upon appeal of this case, the Michigan Supreme Court ruled in favor of LeBlanc
in 1976.120 Justice Williams held that descendants of Ottawa and Chippewa Indian bands
maintained ﬁshing rights under the 1836 Treaty that could only be restricted by state
regulations that meet the standards established in the Puyallup case. Thus, the Michigan
Supreme Court afﬁrmed the Michigan Court of Appeals decision and remanded the case

to the circuit court for a determination of whether or not the State of Michigan’s

 

”6 Treaty of Washington, supra note 1 l4.
”7 People v. LeBlanc, supra note 112, at 691-693.
m Puyallup v. Department of Game, supra note 66.
"9 In People v. LeBlanc, the Michigan Court of Appeals based its arguments on the precedence of the U.S.
Supreme Court decision of Tulee v. State of Washington, 315 U.S. 681, 684-685 (1942). In this decision,
Justice Black stated that state regulation of treaty right Indian ﬁshing may be necessary for conservation
purposes, although imposition of license fees on Indians for treaty right ﬁshing is not permissible. He
stated,
while the treaty [Treaty with the Nisqually and Other Indians, I 0 Stat. 1132, 1133 (I 854)]
leaves the state with power to impose on Indians, equally with others, such restrictions of a purely
regulatory nature concerning the time and manner of fishing outside the reservation as are
necessary for the conservation of fish, it forecloses the state from charging the Indians a fee.
ﬁgople v. LeBlanc, supra note 1 12, at 691-693.
Id.

47

prohibition on gill net use: 1) was necessary for preservation of the ﬁsh stocks protected
by the regulation; 2) must be applied to Chippewas for preservation of the ﬁsh stocks;
and 3) was not discriminatory.‘2| Importantly, although the 1836 Treaty did not contain
the same provision as the Treaty of Medicine Creek, in which Washington tribes reserved
ﬁshing rights, “at all usual and accustomed grounds and stations...in common with all

”122 the Michigan Supreme Court determined

citizens of the territory [Emphasis added],
that the reserved treaty rights of the Michigan tribes were not exclusive rights.123

As LeBlanc was in remand, two other important cases were litigated that affected
Native rights in the State of Michigan. The ﬁrst case was resolution of a dispute by the
Indian Claims Commission between the Bay Mills Indian Community, the Sault Ste.
Marie Band of Chippewa Indians, and the Grand Traverse Band of Ottawa and Chippewa
Indians against the U.S. Department of Interior. This case was brought by the tribes who
sought fair compensation when they ceded over twelve million acres of northern
Michigan lands to the U.S. government under the 1836 Treaty. The Commission ruled

that the tribes had retained “aboriginal title” over the ceded lands. At the time of land

cession, the U.S. only paid the Indians twelve cents per acre, although the lands had been

 

'2' Id. at 64.
'22 Treaty of Medicine Creek, 10 Stat. 1132 (1855).
'23 Justice Williams held that based on Article 13 in the Treaty of Washington which states, “The Indians
stipulate for the right of hunting on the lands ceded, with the other usual privileges of occupancy, until the
land is required for settlement,” must be interpreted to indicate that “. . .the interests and rights of the other
citizens of the territory were to be taken into account.” Although Justice Williams stated that Indians are
granted rights different from the citizens of Michigan, he interpreted Article 13 of the Treaty of
Washington to mean that “...as in Puyallup Tribe, supra, the Indians hold their off-reservation ﬁshing
rights in common with the citizens of the State of Michigan.” People v. LeBlanc, supra note I 12, at 60-61.
Brandimore (I978) disputes this interpretation of the court under the canons of treaty
interpretation that requires the court system to base their interpretation of treaties on how the Indians would
have understood them at the time of signing. Since the waters of the Great Lakes could never be settled,
Brandimore argues that the court misconstrued the Treaty of Washington in its interpretation. Brandimore,
supra note 110, at 1198.

48

worth ninety cents per acre. Thus, the Commission awarded compensation to the tribes
for the value of these lands. '24
The second signiﬁcant pending case involved a case over state regulation of tribal
treaty ﬁshing rights in federal court in the western district of Michigan. Due to the state’s
resistance to treaty-right ﬁshing, the United States Departments of Justice and the Interior
sought to fulﬁll their trustee responsibilities with respect to the tribes of northern
Michigan by bringing a suit against the State of Michigan on April 9, 1973 on behalf of
the Bay Mills Indian Community and itself to protect the tribe’s rights to ﬁsh in certain
waters of the Great Lakes. They argued that these rights were obtained by aboriginal
occupation and use of these waters and by various treaties, including the Treaty of Ghent
of 1814, and the 1836 Treaty. In this case, the United States asked that the State of
Michigan be enjoined from restricting the Indians’ treaty ﬁshing rights in the Great
Lakes.125 The Bay Mills Indian Community intervened in this action on December 12,
1974, and named individual ofﬁcials of the Michigan Department of Natural Resources
(DNR) as defendants in its complaint. Bay Mills alleged that they had a reserved
exclusive ﬁshing right in Whiteﬁsh Bay of Lake Superior without state regulation, and
they sought declaratory and injunctive relief from state interference with its ﬁshing
rights. On October 28, 1975, the Bay Mills Indian Community added the DNR as a

defendant and alleged a treaty protected right to ﬁsh in all ceded areas of the Great Lakes

under the 1836 Treaty without state regulation. Later, the Sault Ste. Marie tribe of

 

'2‘ Bay Mills Indian Community v. U.S., 26 Indian Claims Commission 538 (1972).
'25 United States v. State of Michigan, 471 F. Sup . 192, 203-204 (W.D. Mich. 1979). remanded, 623 F.2d
448 (6'h Cir. 1980), as modified, 653 F .2d 277 (6 Cir. 1981), cert. denied, 454 U.S. 1 124 (1981).

49

Chippewa Indians and the Grand Traverse Band of Ottawa and Chippewa Indians

intervened in this action as plaintiffs.‘26
In their response to these claims, the State of Michigan, representing itself and the

DNR, alleged that the Ottawa and Chippewa Indians of northern Michigan gave up their

127 The state also

treaty ﬁshing rights when they ceded territory under the 1836 Treaty.
claimed that the federal Removal Act of 1830128 forced the displacement of the Indians
from northern Michigan and an abandonment of their ﬁshing rights. Furthermore, the
State of Michigan alleged that tribal ﬁshing rights under the 1836 Treaty were abrogated
in the Treaty of 1855, in which the Ottawa and Chippewa Indians released the United
States from its legal and equitable claims to the tribes under previous treaties.129 From
the suit brought by the United States and the defenses raised by the State of Michigan,
three issues were examined by federal district court Judge Fox in this trial: 1) did Indians
reserve ﬁshing rights in the ceded waters of the Great Lakes under the 1836 Treaty;130 2)
if these rights were retained, were they given up or diminished by the subsequent Treaty
of 1855;'31 and 3) if these reserved ﬁshing rights were given up or diminished by the
Treaty of 1855, does the State of Michigan have jurisdiction to regulate treaty right
ﬁshing by the Indians?‘32
Judge Fox determined that the burden of proof for the tribes to establish that they

reserved ﬁshing rights in the treaty-ceded waters of the Great Lakes was to demonstrate

historic use and dependence upon the ﬁshery. To meet this burden of proof, historic

 

'26 Id. at 204.

127 Treaty of Washington, supra note 1 14.

m Indian Removal Act, supra note 31.

"9 Treaty of 1855, 1 1 Stat. 624.

130 Treaty of Washington, supra note 1 14.

'3' Treaty of 1855, supra note 129.

132 United States v. State of Michigan, supra note 125, at 218.

50

records of the upper Great Lakes were presented by several anthropologists that revealed
an increasing signiﬁcance of the Great Lakes ﬁshery over time to the Indian people of the
treaty ceded area within the upper Great Lakes for subsistence and commercial ﬁshing.
During the trial, historians provided evidence that ﬁshing remained an important source
of food and income after European settlement. '33

In his determination of whether or not the tribes reserved ﬁshing rights in the
ceded waters of the Great Lakes, Judge Fox also analyzed the 1836 Treaty while adhering
to a set of legal principles, referred to as the "Canons of Treaty Interpretation." ‘34 These
canons result from the particular circumstances of treaty negotiations, in which Indians
did not Speak English, they were reliant upon translators who stood to gain from the
treaties, and they were under the protection of the United States government. '35 One of
these fundamental canons for such cases is that treaties should be construed as Indians

136

would have understood them. The second canon is that ambiguous expressions must

 

'33 1d. at 221-225.

'3’ Fishing rights of Native Americans are deﬁned by the interpretation of the land secession treaties that

were signed during the 1800s. However, the U.S. court system lacked legislative guidelines to follow in

treaty interpretation, and it looked to historic decisions to serve as guiding principles. These decisions, or

“Canons of Treaty Interpretation,” provide the criteria to be used by the courts when interpreting treaties

between Indians and the U.S. government. Cohen, supra note 20; Hunt, J .D.L. (1984). The canons of

Indian treaty and statutory construction: a proposal for codiﬁcation. University of Michigan Journal of

Law Reform, 17(3): 681-713; Bederman, DJ. (1994). Revivalist canons and treaty interpretation. UCLA

Law Review 903: 953-1034.

'3’ Jones v. Meehan, 175 U.S. 1, 10-11 (1899).

'36 In Jones v. Meehan, Justice Gray declared,
In construing any treaty between the United States and an Indian tribe, it must always... be borne
in mind that the negotiations for the treaty are conducted, on the part of the United States, an
enlightened and powerful nation, by representatives skilled in diplomacy... [and] that the Indians,
on the other hand are a weak and dependent people, who have no written language and are
wholly unfamiliar with all the forms of legal expression, and whose only knowledge of the terms in
which the treaty is framed was imparted to them by the interpreter employed by the United States;
and that the treaty must therefore be construed, not according to the technical meaning of its
words to leaned lawyers, but in the sense in which they would naturally be understood by the
Indians [Emphasis added].

Id. Also see: Worcester v. Georgia, supra note 19, at 581; 1d; U.S. v. Shoshone Tribe 304 U.S. 11 1,1 16

(I938); Choctaw Nation v. Oklahoma , 397 U.S. 620, 631 (1970).

51

be resolved in favor of the Indians. '37 The third canon of treaty interpretation is that
treaties must be liberally construed in good faith towards the Indians.'38 Importantly, any
abrogation or modiﬁcation of treaty rights must be explicit,139 and the tribe reserves any
rights not expressly granted to the U.S. government.‘40 Adherence to these canons led
Judge Fox to decide that the Ottawa and Chippewa tribes would n_ot have interpreted the
1836 Treaty as a relinquishment of their right to ﬁsh, since ﬁshing was critical to their
existence.141 Thus, Judge Fox held that the Ottawa and Chippewa Indians did not give up
their ﬁshing rights in the 1836 Treaty, and these rights were reserved.142

In contrast to the claims made by the State of Michigan that the removal of tribes
from their lands in northern Michigan — under the 1836 Treaty and the Removal Act of
1830 — terminated their treaty ﬁshing rights, Judge Fox held that the Indians did not

relinquish their rights since they were never removed from their lands. He stated that the

 

”7 Winters v. United States, 207 U.S. 564, 576-577 (1908); McClanahan v. Arizona Tax Commission 41 1
U.S. I64, 174 (1973); Bederrnan, supra note 134, at 966-967.
'3' Choctaw Nation v. United States, 318 U.S. 431 (1943).
'39 In Menominee v. United States, the court disagreed with an interpretation of the Termination Act, 18
U.S.C. §I 162 (1970), which abrogated treaty rights of the Menominee Tribe. The court stated,
We decline to construe the Termination Act as a backhanded way of abrogating the hunting and
fishing rights of these Indians. While the power to abrogate these rights exists...the intention to
abrogate or modify a treaty is not to be lightly imputed to Congress.
Menominee v. United States, 391 U.S. 404, 412-413 (1968).
140 Treaties were “not a grant of right to the Indians, but a grant of a right from them - a reservation of
those not granted.” United States v. Winans, supra note 57, at 381.
'4' Judge Fox declared,
Because of documented evidence demonstrating that Indians were absolutely dependent upon
fishing for subsistence and their livelihood, and reading the treaty as the Indians must have
understood it, they would not have relinquished their right to fish in the ceded waters of the Great
Lakes. Since the treaty does not contain language granting away the prior right to fish, the right
remains with the Indians and was confirmed by the I836 treaty.
United States v. Michigan, supra note 125, at 253.
"2 In his opinion, Judge Fox held,
The right [to ﬁsh] is implied because it was never explicitly ceded away by the Indians; thus, they
retained it. The reason it was not granted was because the Indians were too heavily dependent
upon fish as a source of food and for their livelihood to ever relinquish this right.
Id. at 259.

52

1836 Treaty was not an obligatory removal treaty,I43 and that Indian removal was not
required from northern Michigan under the Removal Act of 1830.144 Therefore, the
Ottawa and Chippewa Indians of northern Michigan were not forced from their lands,I45
and their treaty ﬁshing rights were not lost.I46

To address the issue raised by the state that the rights of the Ottawa and Chippewa
Indians to ﬁsh ceded waters of the Great Lakes under the 1836 Treaty were abrogated by
the 1855 Treaty, the minutes of meetings leading to the creation of this treaty were
reviewed by Judge Fox. The minutes failed to mention ﬁshing or ﬁshing rights, and
instead demonstrated a consolidation of U.S. govemment debts to the Indians of northern

Michigan, 147 including compensation for damage to Sault Ste. Marie’s ﬁshery at St.

 

"’3 In his opinion, Judge Fox discussed three classiﬁcations for treaties of the 18305: 1) land base reduction
treaties; 2) permissive removal treaties; and 3) obligatory removal treaties. Upon analysis of
correspondence of treaty delegates, treaty minutes and treaty instructions, Judge Fox held that the 1836
Treaty was a land base reduction treaty in part, and a permissive removal treaty in part. In contrast to other
obligatory removal treaties in the southeastern United States - where removal pressure was greatest - the
1836 Treaty failed to state that Indian removal out west was necessary due to population pressures. Id. at
239-240.
“4 This legislation merely provided the President of the U.S. with authorization to offer Indians an
exchange of their homelands for lands west of the Mississippi River. Judge Fox described the voluntary
nature of the 1836 Treaty towards Indian removal:
The language of the I 83 6 treaty does not mandate removal of the Indians. It stated that, as
soon as the said Indians desire it... ”and later in the Article When the Indians wish it, the
United States will remove them... " To argue that this language mandates removal is patently
absurd
Id. at 260.
"5 Judge Fox held that the failure of Indians to leave their lands in northern Michigan provides evidence
that their reserved rights were not abrogated. He stated,
The fact that the Indians stayed in Michigan expresses their intentions more eloquently than any
other fact which has been presented to the court. The Indians did not remove. Because the
Indians stayed in Michigan and it has been previously determined that they retained their
aboriginal rights and Treaty of Ghent rights to fish in the Great Lakes, they retain the right to fish
in the waters of the Great Lakes today.
Id. at 261.
”6 The State of Michigan argued that the phrase “...until the land is required for settlement" in Article 8 of
the Treaty of Washington meant that the Indians temporarily stipulated for the usual privileges of
occupancy, such as hunting and ﬁshing rights. Judge Fox held that since the ceded waters of the Great
Lakes were not required for settlement, the tribes retained their treaty ﬁshing rights. Id. at 259.
"7 Judge Fox held,
In summary, then, the I 855 treaty was negotiated to address two principal issues: first, the
provision of permanent homes for the Ottawa and Chippewa in Michigan; and second, the

53

'48 Thus, he decided the Treaty of 1855 did not remove ﬁshing rights that

Mary’s rapids.
were previously reserved under the 1836 Treaty.I49

In resolving the ﬁnal issue of whether the state has authority to regulate treaty-
right ﬁshing, Judge Fox looked at principles of Indian law and the U.S. Constitution.
According to the Supremacy Clause of the U.S. ConstitutionISO and the preemption
doctrine within federal areas of authority, federal laws supercede all state regulations.
Hence, state ﬁsh and game management is preempted when a federal treaty or statute
addresses the same subject, even where Congress has explicitly granted states power.151
Under federal law, Indian tribes have the right to regulate and enforce the internal affairs
of their tribal members, including hunting and ﬁshing rights.152 Therefore, Judge F ox
held that the tribes of northern Michigan have the right to regulate off-reservation treaty

ﬁshing of their members, '53 and state authority to regulate the ﬁshing of these tribes has

been preempted by tribal regulations.154 Reﬂecting upon Judge Boldt’s decision in

 

settlement and consolidation of monies and services owed to the Indians under previous treaties

and in particular the Treaty of March 28, I 836.
Id at 242-246.
”8 Under a treaty in 1820, Chippewas ceded certain lands at Sault Ste. Marie to the United States and
secured a perpetual right of ﬁshing and encampment along the St. Mary’s River. When construction of a
canal and locks at the St. Mary’s River displaced Indians encamped at their ﬁshing locations and destroyed
their ﬁshing areas, these Indians sought compensation from the federal government in the Treaty of 1855
for the loss of their secured rights under the Treaty of 1820. Treaty of 1820, 7 Stat. 206 (1821); Treaty of
1855, supra note 129.
”9 Even as Article 5 of the Treaty of 1855 dissolved the Ottawa and Chippewa Nation, Judge Fox
determined that treaty rights of these tribes were not affected. The only impact this dissolution had on
federal and tribal relations was that the Indian tribes were no longer treated as a single entity. His decision
was based upon the fact that the Ottawa and Chippewa Nation was created by the United States to facilitate
land cession in 1836. United States v. State of Michigan, supra note 125.
"° U.S. Constitution, supra note 59. ,
'5' Despite the regulatory power of the state over ﬁsh and game management, the federal government may
preempt state control over this management through legislation or a treaty. U.S. Constitution, supra note
16; Geer v. Connecticut, 161 U.S. 519 (1896); Missouri v. Holland, supra note 62, at 432.
"2 U.S. Constitution, supra note 16.
'53 Treaty of Washington, supra note 114; U.S. Constitution, supra note 16.
'5‘ Under 25 C.F.R. §256.46 (subpart D), the Secretary of the Interior offered implementation of a federal
plan for states to participate in treaty-right ﬁshing regulations and preempted state regulation of tribal

54

United States v. Washington,155 he also distinguished the treaty ﬁshing rights of Indians
and the privilege of other citizens in the State of Michigan to ﬁsh.l56

The decision of United States v. Michigan had far-reaching implications for tribal
treaty-right ﬁshers, because it granted them self-regulation without interference by the
DNR in the species that are harvested, the purpose for which they are harvested, and the
time and manner in which they are harvested. '57 The 1979 decision of United States v.
Michigan, or the “Fox” decision, heated the emotions of stakeholders in the Great Lakes
ﬁshery. As Native ﬁshers rejoiced at the judicial recognition of their treaty ﬁshing rights,
non-Native commercial and recreational ﬁshers were outraged, and the State of Michigan
faced mounting social conﬂict between Native and non-Native ﬁshers. Across Lake
Michigan, tension and violence was also increasing between Native and non-Native

ﬁshers in Wisconsin, as treaty-ﬁshing rights were being litigated.158 Similar to the

 

ﬁshing. This regulation, passed in 1967, provided a way for off-reservation ﬁshing rights to be regulated to
meet conservation goals while giving deference to tribal ﬁshing rights.
'55 Based upon Judge Boldt’s ﬁnding in United States v. State of Washington, Judge Fox stated, “The
Treaty of March 28, I 83 6 guarantees a right to fish which is distinct from the privilege to ﬁsh enjoyed by
other citizens of the State of Michigan. ” United States v. State of Michigan, supra note 125, at 266.
'56 There has been some debate over whether or not Judge Fox correctly applied the Canons of Treaty
Interpretation to the case of United States v. State of Michigan. According to Covington & Pittman (1992),
this decision unjustly beneﬁts a “most favorite minority.” They were also critical of the historic analysis
conducted by Judge Fox. In contrast, Deleckta (1980) argues that Judge Fox’s interpretation is correct,
since it was based upon the intent of the Indians, not the white men who negotiated the treaties. Covington,
G.M. & Pittman, P.M. (1992). Don ’t Blame the Treaties: Native American Rights and the Michigan
Indian Treaties. Altwerger and Mandel Publishing: West Bloomﬁeld, MI, p. 10-11, 151-158; Deleckta,
DH. (1980). State regulation of treaty Indians: hunting and ﬁshing rights in Michigan. Detroit College
Law Review p. 1097, 1118.
"7 Judge Fox ruled,
The mere passage of time has not eroded, and cannot erode the rights guaranteed by solemn
treaties that both sides pledged on their honor to uphold The Indians have a right to fish today
wherever fish are to be found within the area of cession — as they had at the time of cession - a
right established by aboriginal right and confirmed by the Treaty of Ghent, and the Treaty of
I 836. The right is not a static right anymore that it was during treaty times. The right is not
limited as to the species of fish, origin of fish, the purpose of use or the time or manner of taking.
It may be exercised utilizing improvements in fishing techniques, methods and gear.
United States v. State of Michigan, supra note 125, at 280-281.
'5' After Chippewa Indians were arrested for spearﬁshing in treaty-ceded territory within the State of
Wisconsin, the Lac Courte Oreilles Band sued the Secretary of the Wisconsin Department of Natural
Resources for interfering with its treaty ﬁshing rights under treaties in 1837 and 1842. In this case, Judge

55

ﬁshery of the Paciﬁc Northwest, the Great Lakes ﬁshery became a focal point for social
conﬂict as Native ﬁshers sought to exercise their legally recognized treaty rights despite
strong opposition from state regulatory agencies and powerful Sport ﬁshing

constituencies.

Social Conﬂict and Litigation over the Great Lakes Fishery

After the Jondreau decision in 1971,'59

the DNR and sport ﬁshing organizations
reported that the use of large-mesh nylon gill nets by Indian ﬁshers threatened to deplete
the Great Lakes ﬁshery, especially in Grand Traverse Bay and Sault Ste. Marie, and
devastate the local tourist economy. '60 The Michigan DNR had previously banned gill
nets since they believed this type of ﬁshing gear failed to discriminate between target and

161

nontarget Species. Threats were made by sport ﬁshers to destroy Indian ﬁshing

equipment and shoot netters. '62 Relations surrounding Lake Michigan, particularly in the

 

James Doyle of the federal district court of western Wisconsin ruled against the tribe on the grounds that
their treaty rights were extinguished by a subsequent treaty in 1854. Upon appeal, the U.S. Court of
Appeals (7‘h Circuit) reversed this decision, in 1983 and restored the tribe’s treaty rights. Lac Courte
Orielles Band of Lake Superior Chippewa Indians v. Voigt (LCO I), 700 F.2d 341(1983), cert. denied, 464
U.S. 805 (1983).

Opposition to tribal harvest and joint management of walleye, muskellunge and other ﬁsheries
was strong and bitter. “Treaty Beer” - whose proceeds were used to ﬁght Chippewa treaty ﬁshing rights in
court, was one of the best-selling beers for a time in northern Wisconsin. Social tension mounted as
protests against Chippewa Spearﬁshing were held; racially motivated insults were frequently displayed at
these gatherings, including, “Save a walleye, spear an Indian,” and “Save two walleyes, spear a pregnant
squaw.” Violence was triggered and intensiﬁed at rallies hosted by anti-Indian organizations, including
“Protect Americans’ Rights and Resources” (PARR) and “Stop Treaty Abuse-Wisconsin.” In March 1991,
Judge Crabb of the federal district court of western Wisconsin issued an injunction against “Stop Treaty
Abuse-Wisconsin” to stop assault, battery, and obstruction of treaty right ﬁshing. Cleland, CE. (1990).
Indian treaties and American myths: roots of social conﬂict over treaty rights. Native Studies Review, 6(2),
81-87; Lac du F lambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse- Wisconsin, Inc.
Opinion and Order No. 91-C-117-C (W.D. Wis. 1991); Schlender, J .H. (1991). Treaty rights in
Wisconsin: a review. Northeast Indian Quarterly, 8(1): 4-16, p. 4; Wilkinson, CF. (1991). To feel the
summer in the Spring: the treaty ﬁshing rights of the Wisconsin Chippewa. Wisconsin Law Review,
(3):375-414, p. 376; Prucha, supra note 20, at 400.

"9 People v. Jondreau, supra note 106.

'°° Helmbrecht, 11.x, Mackety, s., & MacMullan, RA. (1971, July 16). Report ofthe Governor ’s Special
Task Force on Indian Fishing Rights. Lansing, MI, p. 1-2; Editorial. (1980, July 21). Gill nets: they could
seriously deplete the lakes before a court ruling. Detroit Free Press, p. A14.

'6' MICH. COMP. LAWS ANN. §302.1 (Supp. 1977); Tanner, supra note 113, at 55.

"2 Editorial (1971, June 30). North Woods Call, p. 6.

56

I)"-

“I
if,

11;;
1101

Grand Traverse Bay area, were already tense and ﬁlled with animosity163 due to declines
in Whiteﬁsh and lake trout populations in Whiteﬁsh Bay within Lake Superior.I64 Tribes
were blocked from entering the Great Lakes at access points, and boats, nets and vehicles
were vandalized.“55 Sportsmen’s organizations, Sport editorial writers and state officials
helped fan the ﬂames of protest against tribal ﬁshing and gill net use through various
editorials, media publications, and rallies that incited anger. '66 Threats and
confrontations continued throughout the 19705, and the Fox decision in 1979 sparked
even greater hostility and violence between tribal and non-tribal ﬁshers. '67
The Michigan DNR and sport ﬁshing organizations were infuriated by the Fox
decision because the authority of the state to regulate the exercise of treaty ﬁshing rights

was preempted, and a seemingly endless trail of litigation ensued to challenge this

decision.”8 A motion was ﬁled in October 1979 by the state with the Sixth Circuit U.S.

 

"’3 Even Indian children were subjected to threats and name-calling, thus perpetuating anti-Indian
sentiment. Cleland, supra note 158.
'6’ Indian ﬁshing rules protested. (June 1980). Michigan Out-of-Doors, p. 11-12.
'65 Helmbrecht, supra note I60; Indians resume gill net ﬁshing. (September 1979). Michigan Out-of-
Doors, p. 103; Bielski, V., Cornell, G. and White, R. (1980, July 21). Indians only ask to keep their age-
old right to ﬁsh. Detroit Free Press, p. 5-6.
'66 Editorial, supra note 162; Williams, C.H. & Neubrech, W. (1976). Indian Treaties — American
Nightmare. Outdoor Empire Publishing: Seattle, WA, p. 1-2 (inﬂammatory rhetoric is found throughout
the text); Fishermen look to Congress alter Indian rights ruling: Judge Fox’s far-reaching decision
heightens concern over future of Great Lakes ﬁshery resource. (July 1979). Michigan Out-of-Doors, p.
32-35.
“7 Blanchard, 3. (Producer& Director). (1982). Difference ofRights. [Film]. Available from Lansing
Community College. In addition, the Michigan Department of Civil Rights documented a widespread
pattern of discrimination and harassment against Indians in northern Michigan in the years following the
Fox decision.
'6' As appeals were ﬁled in the U.S. Court of Appeals for the Sixth Circuit, the federal district court and the
U.S. Supreme Court, the Grand Traverse Area Sports Fishing Association petitioned a state circuit court to
enjoin gill net ﬁshers from ﬁshing in state statistical zone MM-4 without a state license. As a result of this
motion, Judge Forester, of the Thirteenth Judicial Circuit of the State of Michigan, issued a temporary
restraining order banning gill net ﬁshing in these waters. Grand Traverse Area Sports Fishing Association
v. Clarence Maudrie et al. File No. 79-7510 (13” Circuit Court, Grand Traverse County). This decision
was in direct conﬂict with the decision of Judge Fox and was overturned. United States v. State of
Michigan, 508 F.Supp. 480, 493 (W.D. Mich. 1980).

The Michigan United Conservation Clubs (MUCC) brought an action against members of the Bay
Mills Indian Community under Michigan’s Environmental Protection Act to enjoin all Indians from
violating state ﬁshing regulations since MUCC alleged that their ﬁshing activities would likely impair and

57

Court of Appeals for a stay of judgmentI69 pending the state’s appeal.170 Michigan
claimed that since the Fox decision, irreparable harm had been done to lake Whiteﬁsh and
lake trout stocks in the Great Lakes due to unregulated tribal ﬁshing. The U.S. Court of
Appeals agreed with the concerns of the State of Michigan and granted a stay of Judge
Fox’s decision.l7l Upon issuance of comprehensive, interim regulations governing off-
reservation treaty ﬁshing in the Great Lakes by the Secretary of Interior on November 15,
1979,’72 and its amended interim rules on April 28, 1980,I73 the U.S. Court of Appeals

found that these federal regulations were sufﬁciently comprehensive to protect the Great

 

destroy the ﬁsh population of the Michigan waters of the Great Lakes. A permanent injunction was
ordered by the court from commercial ﬁshing in the Michigan waters in the Great Lakes without
compliance with state regulations. The court held that the tribe had no treaty right to harvest ﬁsh planted in
the Great Lakes. Michigan United Conservation Clubs v. Anthony, 90 Mich. App. 99, l 10, 1 13-1 14
(1979); Firestone, J. (1979, May 9). State court rule on ﬁshing rights contradicts feds. State News, p. 12-
13. '

'69 A “stay” refers to the act of arresting a judicial proceeding by the order of the court. Thus, a “stay of
judgment” refers to arresting execution of the court’s ruling. Black, H.C., Nolan, J.R., Nolan-Haley, J .M.,
Connolly, M.J., Hicks, S.C., & Albrandi, MN. (1991). Black '3 Law Dictionary. 6"I ed. St. Paul, MN:
West Publishing Company, p. 983.

'70 Judge Fox denied the request for a stay of judgment since the state failed to demonstrate its regulations
were necessary or nondiscriminatory. United States v. State of Michigan, 505 F. Supp. 467, 491-496 (W.D.
Mich. 1980). On September 21, 1979, Michigan Attorney General Frank Kelley petitioned the U.S. Court
of Appeals for the Sixth Circuit in Cincinnati, Ohio, to stop implementation of the Fox decision until the
State of Michigan’s appeal was decided. Case No. 79-1414, United States Court of Appeals, 6‘“ Cir.,
Memorandum and Opinion of the Honorable Albert J. Engel (September 21, 1979).

171 Honorable Albert Engel stayed the judgment due to concern that unless gill net ﬁshing was stopped in
state statistical zone MM-4, the area would be depleted of ﬁsh. On October 19,1979, a three-judge panel
continued the stay pending appeal to the federal district court. Case No. 79-1527, United States Court of
Appeals, 6‘" Cir., Circuit Judges Weick, Celebrezze and Merritt (October 19, 1979).

'7 The Department of Interior (DOI), Bay Mills Indian Community, and Sault Ste. Marie tribe entered into
a Memorandum of Understanding (MOU) governing regulation of treaty ﬁshing. After receiving federal
recognition in 1980, the Grand Traverse Band of Ottawa and Chippewa Indians became a party to the
MOU as well. Under this agreement, the tribes were charged with development of a joint, comprehensive
set of regulations governing ﬁshing of their members. These regulations were developed in consultation
with the U.S. Fish and Wildlife Service and the Michigan DNR, and upon determination by the DOI that
these regulations met conservation needs of the Great Lakes ﬁshery, they were published as an interim rule
on November 15, 1979. 25 OF. R. §256.46, supra note 154; 44 Federal Register 65747 (1979); Weeks, G.
(1992). Mem-ka-weh: Dawning of the Grand Traverse Band of Ottawa and Chippewa Indians. Village
Press: Traverse City, MI, p. 19.

"3 Although the Department of the Interior recognized the necessity of amending the interim regulations
for protection of the ﬁshery, it was unable to publish ﬁnal regulations governing off-reservation ﬁshing in
the Great Lakes after review of the comments and testimony. 25 C.F.R. §256,46, supra note 154; 45
Federal Register 28100 (April 28, 1980).

58

Lakes ﬁshery.I74 After this Court remanded the caseI75 to see if the rules met the
standards of People v. LeBlanc,I76 and the federal district court determined that ﬁshing
regulations issued by the State of Michigan were preempted by the federal Secretary of
Interior regulations. 177

As the case of United States v. Michigan continued through the appeals process,
the Secretary of Interior’s federal regulations over Great Lakes ﬁshing were allowed to

expire on May 11, 1981.'78 This was done to give deference to the State of Michigan

 

'74 To promote lake trout reproduction, the regulations closed grids 513, 514, 613 and 614, which includes
the Fox Island and South Fox Island Shoal of the Lake Michigan statistical district MM-3, to treaty ﬁshing
by any method contingent upon the State of Michigan designating these areas as ﬁsh sanctuaries. The
regulations disallowed target ﬁshing for lake trout, but did permit some incidental catch subject to
regulations. The tribes agreed to limit their total-allowable-catch (TAC) limits of lake trout as presented by
the Ad Hoc Technical Working Group. Under the regulations, each treaty commercial ﬁsher was required
to cany a tribal commercial ﬁshing identiﬁcation card or helpers card. Commercial ﬁshing nets were
required to be clearly marked with a buoy showing the identiﬁcation card number of the user, and a report
had to be submitted to the Michigan DNR, Bureau of Indian Affairs, and the Great Lakes Fishery
Laboratory of the U.S. Fish and Wildlife Service detailing monthly catch, including the kind and amount,
the gear ﬁshed, the species and amount harvested, and ﬁshing location. Tribal ﬁshing activities were
limited under these new regulations to eliminate gill net ﬁshing south of 45 degrees North latitude in Grand
Traverse Bay and Little Traverse Bay of Lake Michigan. Lastly, waters connecting Lakes Superior and
Huron were closed to treaty commercial ﬁshing, including St. Mary’s River. 25 C.F.R. 256.46; United
States v. State of Michigan, supra note 170, at 492-493.

"5 A “remand” is to send back (usually to a lower court) for conduct of new hearings of a limited nature, an

entirely new trial, or for further action. Black, supra note 169, at 896.

'76 Under People v. LeBlanc, any state regulation that restricts Indian ﬁshing rights under the 1836 treaty,
(a) must be a necessary conservation measure, (b) must be the least restrictive alternative method
available for preserving fisheries in the Great Lakes from irreparable harm, and (c) must not
discriminatorily harm Indian fishing or favor other classes of fishermen.

People v. LeBlanc, supra note 112. The U.S. Court of Appeals, Sixth District Court stated that,

People v. LeBlanc... appears to correctly state the law applicable to gill net treaty fishing by
Indians in the Great Lakes. That case held that the State may regulate gill net fishing if necessary
to preserve fish from extinction or prevent irreparable damage to fish supplies or destruction of
fisheries. . . [W]e remand the case to the District Court for consideration of the preemptive eﬂect of
the new federal regulations [issued by the Secretary of the Interior].

United States v. State of Michigan, 623 F .2d 448, 449-450 (6th Cir. 1980).

177 On May 28, 1980, the Court of Appeals remanded Case 79-1414 to the federal district court to

determine if the amended interim regulations issued by the Secretary of Interior preempted state

regulations. On May 30, 1980, the Circuit Court Judge Merritt stayed the district court’s decision pending
appeal Since there was concern over irreparable damage to the ﬁshery. The plaintiff tribes sought to have
the Circuit Court’s motion vacated since the Secretary of Interior’s regulations were adequate to protect
species of concern. The Circuit Court three-judge panel on July 16, 1980 modiﬁed its ruling that tribal
treaty right ﬁshing be regulated by the Secretary of the Interior regulations. Case No. 79-1414, supra note

170; Case No. 79-1528, United States Court of Appeals, 6th Cir. (July 16, 1980).

'7' United States v. State ofMichigan, 653 F.2d 277, 278 (6th Cir. 1981).

59

over regulation of Indian treaty right ﬁshing in the Great Lakes.179

As a result, the State
of Michigan issued emergency regulations governing gill net ﬁshing that were less
protective of Indian treaty rights than the expired Secretary of Interior regulations.‘80
With the expiration of federal regulations and issuance of emergency state regulations,
the State of Michigan asked for a reversal of the district court’s rulingm so it could
impose and enforce its regulations on treaty-right tribal ﬁshers.I82 The U.S. Court of
Appeals concluded that Since treaty rights are federally protected rights, the federal
government is responsible for their protection. Therefore, the Court of Appeals held,
[11f Indian fishing is not likely to cause irreparable harm to fisheries within the
territorial jurisdiction of the State of Michigan, the state may not regulate it.
The state bears the burden of persuasion to show by clear and convincing
evidence that it is highly probable that irreparable harm will occur and that the
need for regulation exists. In the absence of such a showing, the state may not
restrict Indian treaty ﬁshing, including gill net fishing. I 83
As a result of this reasoning, the Court of Appeals determined that the previously enacted
comprehensive rules governing gill net ﬁshing by the Secretary of Interior Should remain

in effect as interim rules, instead of imposing more restrictive state regulations, since the

state failed to meet the burden of proof outlined by the Court. '84

 

179 It is suggested that the change in Administrations from President Carter to President Reagan put political

pressure on the Department of Interior to give the State of Michigan control over treaty-right ﬁshing.

Milliken asks Reagan to rescind federal Indian ﬁshing regulations. (January 28, 1981). State News, p. 2;

Connors, supra note I 10, at 9.

"’0 United States v. State of Michigan, supra note 178.

m United States v. State of Michigan, supra note 170.

"2 United States v. State of Michigan, supra note I78.

"3 The U.S. Court of Appeals also stated,
The treaty-guaranteed ﬁshing rights preserved to the Indians in the 1836 Treaty, including the
aboriginal rights to engage in gill net ﬁshing, continue to the present day as federally created and
federally protected rights. The protection of those rights is the solemn obligation of the federal
government, and no principle of federalism requires the federal government to defer to the states
in connection with the protection of those rights.

United States v. State of Michigan, supra note 178, at 279.

"'4 Another reason why the Court of Appeals was unwilling to impose the State of Michigan’s emergency

regulations on gill net ﬁshing was that the District Court had not made its ﬁnal determination regarding the

preemptive nature of the Secretary of Interior’s regulations. The District Court decided on August 18,

60

While treaty-right tribal ﬁshing rights were being litigated in the judicial system,
ﬁshers on the waters were experiencing economic hardship and continued social conﬂict.
Large-scale, state-licensed commercial producers were forcing small-scale Native
producers in northern Michigan out of the ﬁshery. These producers ﬁshed with trap nets
during the spring and early months and were able to out compete Native gill net ﬁshers
early in the ﬁshing season.‘85 In addition, late-season closures for conservation purposes
hurt Native ﬁshing operations since this was the time when gill net operations were not
competing with trap net operators, and prices for ﬁsh were higher.'86

Social conﬂict persisted in and out of the waters of the Great Lakes during the
19805,187 and vandalism to ﬁshing nets and boats caused severe capital losses for Indian
operators.‘88 In response to the threats of diminishing economic opportunities and
continuance of violence, the tribes brought a motion to allocate the treaty waters between
the tribes and the state. ”’9 Adjudication on these issues was scheduled for April 22,

1985.190 In the interim, the tribes’ legal position had been strengthened by denial of the

 

1891, that the preemptive issue was a moot point. Since the tribes of northern Michigan had already
adopted the Secretary of Interior’s regulations as part of their Conservation Codes when the Secretary
allowed its regulations to lapse, the District Court argued that the Court of Appeals has already sanctioned
these regulations. Therefore, no further consideration is necessary. United States v. State of Michigan, 520
F. Supp. 207, 210-211 (W.D. Mich. 1981).

"5 Bishop, R.C. & Cleland, CE. (1984). An Assessment of the Economic Conditions of the Bay Mills
Indian Community, Sault Ste. Marie Tribe of Chippewa Indians, and Grand Traverse Band of Ottawa and
Chippewa Indians, and a Cost-Return Analysis of Treaty Commercial F ishermen—I98] . Manuscript, p.
16-17.

"’6 According to Bishop and Cleland, prices for lake whiteﬁsh were highest during two periods of peak
demand. The ﬁrst period was during March and April, when the Michigan wholesale price averaged $1.38
per pound in 1981, and the second period occurred during September and October, when the price averaged
$0.80 per pound. Throughout the year, lake whiteﬁsh prices varied from $0.35 per pound in early summer
to $2.00 in late winter. Id at 14-17.

"7 State of Michigan Attorney General Frank Kelley asked the federal government to assist Michigan in
protecting citizens from acts of violence. F ishennen, supra note 166; Weeks, supra note 172, at 56-57.

3' Bishop, supra note 185, at 16.

"9 Indian Tribes' Amended Motion to Allocate Resource, United States v. Michigan, Civil Action No.
M26-72 (W.D. Mich. April 25, 1984).

'90 United States v. State of Michigan (1985 Consent Order), 12 ILR 3079, 3088. (1985).

61

U.S. Supreme Court to grant certiorari,'9' which allowed the F ox decision, as amended,

to stand.192

Negotiating an Agreement for Allocation of the Great Lakes Fishery

In October of 1983, the State of Michigan changed its position on Indian treaty
ﬁshing rights, and acknowledged the existence of these rights.‘93 They began to host
meetings with various stakeholder groups to try to reach a negotiated allocation
agreement. Unfortunately, these attempts failed to generate a settlement, and Judge
Enslen, Judge Fox’s successor in the federal District Court, was forced to intervene in the
process and attempt to ﬁnd a resolution.194 This task was challenged by the lack of legal
standards for the court to follow in allocating the Great Lakes ﬁshery between competing
users. Judge Enslen also realized the potential for future conﬂict if a solution was
imposed.’95 More Signiﬁcantly, he was being forced to make complicated management
decisions that would affect the sustainability of the Great Lakes, the livelihood of tribal
commercial ﬁshers and the lucrative Michigan sport ﬁshery. Based upon these

conditions and the failure to resolve these issues through previous litigation, he decided

 

'9' Certiorari means “to be informed of.” The Supreme Court of the United States uses this common law
principle to issue a written judicial order to lower courts so that they may inspect judicial proceedings and
determine if any irregularities exist. To deny certiorari means that the U.S. Supreme Court does not wish
to hear a case, and the ruling of the lower court stands. Black, supra note 169, at 156.

'92 United States v. State of Michigan, supra note 125.

'93 Although it is unclear why the State of Michigan changed its position on treaty-right tribal ﬁshing,
Doherty offers several hypotheses. One idea is that as Governor Milliken and Howard Tanner left their
roles in 1982, when Milliken decided not to run for reelection, and as Judge Noel Fox leﬁ the bench in
1983, the state was released from its entrenched position in adamant opposition to treaty-right tribal ﬁshing.
Another is that Deputy Undersecretary of the Interior, William Horn, under Secretary of the Interior, James
Watt, was instructed to try and achieve a settlement while under the Reagan Administration. Although the
proposal that Horn established was rejected by the State of Michigan, these events may have encouraged
the State of Michigan to try and reach a negotiated settlement. Lastly, the State of Michigan may have
recognized that they stood a strong likelihood of being defeated at trial. Doherty, R. (1990). Disputed
Waters: Native Americans and the Great Lakes Fishery. Lexington, KY: University of Kentucky, p. 116-
120.

'9‘ Connors, supra note 110, at 11.

'95 McGovern, PE. (1986). Toward a functional approach for complex litigation. University of Chicago
Law Review, 53(2): 440-493.

62

that the parties themselves Should develop a management plan through alternative dispute
resolution (ADR) techniques, rather than litigation. ‘96

A special master197 was appointed by Judge Enslen to prepare the case for trial
while exploring possibilities for a settlement by both sides. The special master, Francis
McGovern, was given the responsibility of negotiating, mediating, and facilitating a
resolution of the management and allocation issues surrounding the Great Lakes ﬁshery
between the parties and stakeholder groups of recreational and commercial ﬁshers. '98
The parties included the State of Michigan, the U.S. Government, Bay Mills Indian
Community, Sault Ste. Marie Tribe of Chippewa Indians, and the Grand Traverse Band
of Ottawa and Chippewa Indians. Although various recreational sport-ﬁshing and state-
licensed commercial ﬁshers were denied the right to intervene as a party to the litigation
of United States v. Michigan,199 they were able to participate in the proceedings as
litigating amici curiae,200 and were allowed to participate in the court-supervised
negotiations for an agreement over allocation of the Great Lakes ﬁshery. The litigating
amici groups included the Michigan United Conservation Clubs (MUCC), Grand
Traverse Area Sport Fishing Association (GTASF A), Michigan Charterboat Association,

the Michigan Steelhead and Salmon Fisherman’s Association, and a group of individual

state-licensed commercial ﬁshers?“

 

'96 United States v. State of Michigan, supra note 190, at 3079-3080.

197 A special master is a “master appointed to act as the representative of the court in some particular act
or transaction.” Black, supra note 169, at 673.

m United States v. State of Michigan, supra note 190, at 3079-3080.

'99 United States v. State of Michigan, 89 F RD. 307, 308-314 (W.D. Mich. 1980); Id at 3088.

2°° Amicus curiae means “friend of the court.” A person or organization with a strong interest in the matter
of a judicial action, but is not a party to the action, may petition the court for permission to ﬁle a brief
“ostensibly on behalf of a party but actually to suggest a rationale consistent with its own views.” Black,
su ra note 169, at 54.

20 United States v. State of Michigan, supra note 190, at 3088.

63

McGovern determined that the best method for distribution of the common
resources of the Great Lakes ﬁshery among competing users was through "integrative
bargaining," where negotiators attempt to ﬁnd a settlement that reconciles or 'integrates'
the needs of both parties.202 The Court hoped this approach would achieve an optimal
solution that offered equitable allocation and a reduction in conﬂict.203 However, the
representatives participating in the negotiations were put on an intense and Shortened
discovery schedule of several months during which McGovern met with the party
representatives separately to determine their interests. During this process, special master
McGovern also utilized “computer-assisted negotiation,” in which computer models were
used to examine hypothetical solutions and assess if these solutions met the inconsistent
interests of the parties.204

When the expedited discovery process was completed, representatives and
interested parties were asked to meet in Sault Ste. Marie on March 25, 1985 to participate

205

in an intense negotiation session. With the pending trial date set for April 22, the

parties were under tremendous pressure to reach an agreement. The representatives

 

202 According to McGovern, this technique would allow the parties to identify their interests, share their
interests and try to determine which allocation plans would maximize the interests of the parties and reduce
conﬂicts of interest based on an economic analysis of integrative bargaining. McGovern, supra note 195,
at 459.

203 United States v. State of Michigan, supra note 190.

204 According to McGovern, one tribe valued the “traditional cultural values of Indian fishing, another
desired to maximize the tribes’ overall economic benefit, and the third valued accommodation consistent
with limited tribal fishing in one area of Lake Michigan.” The United States represented the interests of the
tribes, who sought to maximize their harvest opportunities, as well as the U.S. Fish and Wildlife Service,
who was interested in restoration of the Great Lakes ﬁshery and reductions in harvest, if necessary to
accomplish these goals. The State of Michigan also represented a variety of competing interests, including
those of the Michigan DNR, sport ﬁshing organizations, the tourism industry, the state-licensed
commercial ﬁshers and the general public. McGovern, supra note 195, at 462-465.

20’ Representatives at the negotiations included William Horn, United States; Elizabeth Valentine and
Ronald Skoog, State of Michigan; Bruce Greene, Arnie Parrish, Jr., and Irma Parrish, Bay Mills Indian
Community; Joseph Lumsden, Sault Ste. Marie Tribe of Chippewa Indians; and Greg Bailey and Joseph
Raphael, Grand Traverse Band of Ottawa and Chippewas Indians.

64

worked continuously for three days,206 and a ﬁfteen-year management plan was
completed on March 28, 1985.207 The management plan was approved by the District
Court on April 10, 1985.208 However, on May 6, 1985, the Bay Mills Indian Community
objected to the agreement and submitted to the District Court an alternative allocation
plan for its consideration. Judge Enslen rejected this alternative plan and ordered entry of

the negotiated plan, referred to as the 1985 Consent Order.209
The 1985 Consent Order

The court-imposed ﬁshery management policy governing the treaty-ceded waters
of Lakes Michigan, Huron and Superior established lake trout refuges, priority
rehabilitation zones, and deferred zones to promote lake trout rehabilitation and
conservation. Each of these zones allowed different levels of lake trout harvest. Use of
gill nets or capture of lake trout was prohibited in the refuges. In contrast, lake trout
harvest was managed in the rehabilitation zones using total-allowable catches (TACS).
TACS were created based on 40-45% total annual mortality of lake trout. Upon
attainment of the TACS, all large mesh gill netting and sport ﬁshing was prohibited in the
rehabilitation zones. Deferred zones were areas in which lake trout rehabilitation plans

were not developed.”0

 

20" According to one of the participants, the representatives worked until after midnight during the ﬁrst two
days of negotiations, and on the third night, the representatives worked through the night to complete a
document by the following morning. Hicks, W. (1985, March 22). Grand Traverse Area Sport Fishing
Association Newsletter, p. 1; Hicks, W. ( 1985, April 18). Grand Traverse Area Sport Fishing Association
Newsletter, p. 1-2; Weeks, supra note 172, at 47.

207 Michigan Department of Natural Resources. (May 1985). Treaty ﬁshing agreement heralds new era.
Natural Resources Register, p. 4-7.

20' United States v. State of Michigan, supra note 190.

209 United States v. State of Michigan, Consent Order 1985 Agreement, 520 F.Supp. 207 (W.D. Mich.
1981)(May 31, 1985); United States v. State of Michigan, supra note 190, at 3088.

210 TACS were established by the Technical Fisheries Review Committee, which was created under the
Order. United States v. State of Michigan, supra note 190, at 3082-3083, 3089.

65

In order to reduce social conﬂict and ease management of the ﬁsheries within the
treaty-ceded waters, the 1985 Consent Order created different ﬁshing zones for treaty-
right tribal commercial ﬁshers outside of areas that were utilized heavily by state-licensed
recreational sport ﬁshers.“ It imposed restrictions on the use of gill nets in certain
waters in hopes of reducing lake trout mortality and social conﬂict.”2 Additionally, an
Information and Education Committee was created to “to promote greater understanding
among the stakeholders” regarding the agreement. The committee was also given the
responsibilities of assisting in information dissemination about the Consent Order,
promoting understanding of treaty rights and responsibilities, and providing a
clearinghouse for pertinent infon'nation.213 Furthermore, the Consent Order established
an Executive Council and a dispute resolution mechanism to resolve any future
controversies without judicial intervention?”

To protect the Great Lakes ﬁshery and provide a framework for joint
management, the 1985 Consent Order called on the Technical Fisheries Review
Committee,215 composed of technical representatives from the Chippewa-Ottawa Treaty

Fishery Management Authority, the Michigan Department of Natural Resources, and the

U.S. Fish and Wildlife Service’s Great Lakes Fishery Laboratory, to collaboratively

 

2" ld. at 3084-3087, 3090.

212 Gill net use was restricted in areas based on the U.S. Fish and Wildlife Service Lake Trout
Rehabilitation Plan (February 8, 1985) and the lake trout rehabilitation plans adopted by the three lake
committees of the Great Lakes Fishery Commission. These areas are considered historic lake trout
spawning grounds to promote lake trout conservation. Gill nets were also restricted in areas with intense
S ort ﬁshing activity, such as the Grand Traverse Bay. Id at 3083.

2 3 The Information and Education Committee was composed of a representative from each tribe, the
Michigan DNR, and the federal Bureau of Indian Affairs. Id at 3090-3091.

2" ld. at 3091.

2'5 The Technical Fisheries Review Committee originated from the biological group of the Technical
Working Group, which was renamed from the Ad Hoc Technical Working Group. Formed in 1979, the
Technical Working Group was established to cooperatively assess the status of certain ﬁsh stocks in the
treaty-ceded waters of the Lakes Michigan, Huron and Superior and provide data to be used for estimation
of surplus production and other management decisions.

66

establish the TACS for lake trout in rehabilitation zones, based upon 40 to 45 percent total
annual mortality. It also required the Sharing of data collected by state and tribal

2'6 The parties were also required to establish a Joint Enforcement

regulatory agencies.
Committee, with the responsibility of coordinating and developing law enforcement.217
Lastly, the 1985 Consent Order called for federal and state funding to assist the
tribes with implementation of the Consent Order. Among other requests, the Court asked
the federal government to assist the tribes with ﬁsh marketing, law enforcement, and
stock assessments, and the state was asked to provide funding for technical assistance for
conversion of tribal ﬁshers from gill nets to impoundment gear.218
The 1985 Consent Order remained in place as a management framework for the
Great Lakes ﬁshery over the following ﬁfteen years. Throughout this time, the 1985
Consent Order continued to be litigated as controversies arose. The Grand Traverse Band
contested the closure of two of the most productive grids in Grand Traverse Bay within

Lake Michiganm, and the Bay Mills Indian Community protested closure of Hammond

Bay in Lake Huron.220 When the State of Michigan sought to have the court enforce

 

2 '6 United States v. State of Michigan supra note 190, at 3082, 3091.
2” Id at 3090-3091.
2" The Court also called for federal funding to assist the tribes with renovation of a Treaty Water
Conservation Ofﬁce in Sault Ste. Marie, and technical assistance. State funding was also requested for
assistance in tribal ﬁsh market development and lake trout plantings in Whiteﬁsh Bay. Id at 3093.
219 Grids 616 and 716 were closed to Grand Traverse Band tribal ﬁshers by January 1, 1988, on the
condition that impoundment gear and technical assistance — to help convert tribal ﬁshers from gill nets to
impoundment gear — be provided. According to the 1985 Consent Order,
In grids 6 I 6 and 716, only the Grand Traverse Band may fish commercially subject to seasonal
spawning closures and other agreed conservation measures. However, the parties further agree
that the Grand Traverse Band shall be limited to commercial fishing with impoundment gear in
these grids after January I, I 988, provided that impoundment gear and technical assistance is
made available to the Grand Traverse Band
Id at 3090.
22° By January 1, 1990, tribal ﬁshers from Bay Mills Indian Community were scheduled to stop ﬁshing in
Hammond Bay. United States v. State of Michigan, No. M26-73 (W.D. Mich. October 15, I992); Weeks,
supra note 172, at 46-47; Ferguson, K. (1998-1999). Indian ﬁshing rights: Aftermath of the Fox decision
and the year 2000. American Indian Law Review, 23(1): 97-154, p. 134-137.

67

closures that were mandated in the 1985 Consent Order, Judge Enslen granted the state’s
motion, but he ordered the DNR to promptly develop a cooperative experimental
program to help the Grand Traverse Band develop a small boat impoundment ﬁshery as
an alternative to gill net ﬁshing.22| Failure of the experimental program to establish a
viable small boat impoundment ﬁshery led to litigation over the loss of small boat ﬁshing
opportunities for the Grand Traverse Band.222 Adjudication and tension between Native
and non-Native ﬁshers continued as tribal ﬁshers were prevented from mooring their
commercial ﬁshing vessels at public marinas in the cities of Northport and Leland,223 and
when the state sought an injunction against the Grand Traverse Band for the harvest of
salmon.224 The state also asked the court to enjoin federal and tribal biologists from

conducting a gill net assessment in Lake Huron under the 1985 Consent Order.225

 

22' United States v. State of Michigan, supra note 220.

222 According to the State of Michigan, over $600,000 was spent to provide trap nets and other costs for the
conversion experiment of ﬁshers from gill nets to trap nets. They argued that impoundment gear is still a
viable option. Grand Traverse Band’s Motion Requesting Modiﬁcations of the 1985 Consent Judgment,
United States v. State of Michigan, No. 2:73-CV-26 (M26-73)(W.D.Mich. January 15, 1997), p. 2;
Response to Informational Filing by the Grand Traverse Band of Ottawa and Chippewa Indians, United
States v. State of Michigan, No. 2:73-CV-26 (M26-73)(W.D. Mich. 1997), p. 4-5; Ferguson, supra 220, at
135-138.

223 The federal district court and the U.S. Court of Appeals for the Sixth Circuit held that the 1985 Consent
Order provided Grand Traverse Band with the right to ﬁsh in its traditional ﬁshing grounds, and these
rights include mooring access to marinas. Grand Traverse Band of Chippewa and Ottawa Indians v.
Director of Michigan Department of Natural Resources, Township of Leland and Village of Northport, 971
F. Supp. 282 (W.D. Mich. 1995), aﬂ‘d, Case No. 96-1168, 6th Cir. (April 15, 1998).

22‘ Another important dispute over the 1985 Consent Order occurred when the Grand Traverse Band began
to harvest salmon within Grand Traverse Bay. Sport ﬁshers were enraged, and they asked the State to stop
the tribe’s salmon harvest. When State of Michigan sought an injunction against the tribe, Judge Enslen
ruled that a limited salmon ﬁshery was permitted near Belanger Creek in Grand Traverse Bay, Lake
Michigan. Conners, D. (1996, August 23). New dispute ﬂares over ﬁshing rights. Traverse City Record
Eagle, p. A1; Conners, D. (1997, August 28). Court won’t hear gill-net dispute until December. Traverse
City Record Eagle, p. Al; State of Michigan’s Brief in Support of Defendant’s Motion for a Preliminary
Injunction, United States v. State of Michigan, No. 2:73-CV-26 (M26-73)(W.D. Mich. Filed August 29,
1997), p. 6; Judge Enslen decided that two tribal ﬁshers could be licensed to ﬁsh for salmon, and their nets
were required to be set at eight feet below the surface of the water. United States v. State of Michigan, No.
2:73-CV-26 (M26-73)(W.D. Mich. September 11, 1997), p. 1-2.

22’ In May 1998, federal and tribal biologists began a research gill net assessment between Hammond Bay
and Alpena, Lake Huron. The State of Michigan and DNR objected to the assessment as a violation of the
terms of the 1985 Consent Order. Upon ﬁling a motion for an injunction, the federal district court enjoined
the tribes ﬁ'om continuing the research and ordered biologists from all the parties to review the tribal

68

With the expiration of the 1985 Consent Order pending on May 31, 2000, the
parties recognized the need for a new ﬁsheries management policy within the treaty-
ceded Michigan waters of the Great Lakes. The stakeholders desired a more ﬂexible
agreement that would prevent the continuous social conﬂict and need for litigation as
experienced under the 1985 Order. They also hoped to rehabilitate lake trout under a new
policy. Despite the conservation measures of the 1985 Consent Order, lake trout
rehabilitation remained an elusive goal for Great Lakes ﬁshery management.
Furthermore, two additional tribes had gained federal recognition as signatory tribes to
the 1836 Treaty since the 1985 Order. These two tribes, the Little River Band of Ottawa
Indians near Manistee, Michigan and the Little Traverse Band of Odawa Indians located
near Petoskey, Michigan, expressed interest in pursuing a share of the Great Lakes treaty
ﬁshery.226 Recognizing these challenges of the 1985 Consent Order and the difﬁculty of
having two additional parties interested in an allocation of the ﬁshery resource,
representatives from Michigan’s Attorney General ofﬁce, DNR, Bay Mills Indian
Community, Sault Ste. Marie Band, Grand Traverse Band, Little River Band, Little
Traverse Band, various sport ﬁshing organizations — including MUCC, Hammond Bay
Area Association, Michigan Fish Producers Association and Grand Traverse Area Sport
Fishing Associationm — met with Judge Enslen on October 15, 1998, at a status

conference hearing to formally begin the negotiation process for a new policy.228

 

research proposal to come to a consensus on how the research could be conducted. Grinold, D. (Ed.)
(1998). Letter from Michigan Governor John Engler to Denny Grinold, Michigan Charter Boat
Association. In Grand Traverse Area Sport Fishing Association Newsletter, [(3 ), p. 1,3.

225 United States’ Request for Relief. United States v. State of Michigan, No. 2:73-CV-26 (M26-73)(W.D.
Mich. September 20, 1999), p. 2; Shulz, S. (2001). United States v. Michigan: Treaty Fishing Rights in the
Great Lakes. Presentation for a seminar in the Department of Fisheries & Wildlife, Michigan State
University, East Lansing, MI.

221 Together with the Michigan Chamber of Commerce, Michigan Council of Trout Unlimited, Michigan
Steelhead and Salmon Fishing Association, Blue Water Sport Fishing Association and Burt Lake

69

Negotiating For a New Policy — The 2000 Consent Decree

With the formal initiation of negotiations for a new ﬁsheries management policy,
representatives from the parties began to meet to discuss initial proposals submitted by
the tribes and the State of Michigan.229 During negotiation sessions in 1999, the party
representatives sought resolution of their differences on these proposals, and chose John
Bickerman as a mediator to assist the parties in negotiations?”

In contrast to the negotiation process of the 1985 Consent Order, the parties
conducted the negotiations under a conﬁdentiality agreement over more than two years.
The parties met separately and jointly with mediator Bickerman in an effort to reach a
ﬁnal agreement.231

During these negotiations, the State of Michigan advocated a modiﬁed zonal
approach, similar to that used in the 1985 Consent Order; on the contrary, the tribes
sought less of a zonal approach. They preferred greater ﬂexibility and an expansion of

tribal ﬁshing waters.232 All parties agreed that lake trout rehabilitation was one of the

most critical goals, yet they disagreed as to what strategies should be adopted.

 

Preservation Association, the Hammond Bay Area Association and Grand Traverse Area Sport Fishing
Association formed the Michigan Fisheries Resource Conservation Coalition in 2000. This organization
was created in response to the pending expiration of the 1985 Consent Order. Great Lakes Sport Fishing
Council. (2000, January 23). Coalition formed to protect Michigan’s Great Lakes ﬁsheries. Weekly News:
Fishery News of the Great Lakes Basin, p. 2; Schultz, supra note 226.

’2' Joint Status Report. United States v. State of Michigan, Case No. 2:73-CV-26 (M26-73)(W.D.Mich.
September I, 1999), p. I; Springstead, B. (1998). Making progress. Grand Traverse Area Sport Fishing
Association Newsletter, 1(3), p. 2.

229 An initial tribal proposal for the new ﬁsheries policy was submitted on January 29, 1999, the ﬁrst state
pr0posal was offered on March 31, 1999, and the ﬁrst full negotiation session began on April 21, 1999.
Shulz, supra note 226.

23° The parties met formally for negotiation sessions in Sault Ste. Marie on July 26-27 and August 24-25,
1999. On August 24, 1999, Mr. John G. Bickerman, Founder and President of the Bickerman Dispute
Resolution Group, was conﬁrmed as the chosen mediator for this case. Joint Status Report, supra note 228,
at 2-5.

2" Tribes, state reach ﬁshing agreement. (2000, July 14). Detroit Free Press, p. 3B; Ekdahl, J. (personal
communication, August 29, 2000).

232 Joint Status Report, supra note 228.

70

«I. &u

Usi:

Elimination of gill net use — or a signiﬁcant reduction, at minimum — was a priority for
the State of Michigan and the sport ﬁshing organizations. In contrast, it was important
for the tribes to maintain and enhance ﬁshing opportunities.

These challenges seemed insurmountable to reaching a ﬁnal agreement until a
breakthrough occurred in negotiations as state-licensed trap net ﬁshermen in the Bay de
Noc region of Lake Michigan offered to sell their commercial ﬁshing operations.233 This
offer provided the potential reduction in non-tribal ﬁshing effort necessary to allow an
expansion of tribal ﬁshing opportunities, while reducing the amount of gill net in the
Great Lakes ﬁshery by at least 14 miles?” Signiﬁcant progress was made in the
negotiations, and by July 13, 2000, John Bickerman announced that an “agreement in
principle” was reached.235

As the parties came closer to reaching an agreement, however, the Grand Traverse
Band continued to dispute proposals for its ﬁshing waters.236 In July of 2000, members
of this band faced an alleged threat made by Governor Engler that if the band did not sign

the agreement, it would face litigation over its “Turtle Creek Casino” land.237 Litigation

 

2” Michigan Department of Natural Resources. (August/September 2000). A new beginning: Historic
Great Lakes ﬁshery agreement signed August 7. Natural Inquirer, Special Edition, p. 3.

23’ Under the buy-out plan that was accepted, tribal commercial ﬁshers are expected to convert from gill
nets to trap net operations that previously belonged to nine state-licensed ﬁshers in the Bay de Noc region.
At least eight of these ﬁshers will be from the Sault Ste. Marie Band and up to two ﬁshers from the Grand
Traverse Band. Under the ﬁnal plan, these ﬁshers agree to relinquish their rights to gill net and release all
lake trout that is incidentally harvested. United States v. State of Michigan (referred to as “2000 Consent
Decree”), Case No. 2:73-CV-26 (M26 73) (W.D. Mich. August 7, 2000), p. 78-79; Dale, J. (October
2000). Seven sovereigns sign 2000 Consent Decree. Tribal Fishing, 3(4), p. 1,4.

2” According to the DNR, a conceptual agreement was reached by the parties at midnight on April 27,
2000. Cool, K. (2000, April 28). The State of Michigan and Native American Tribes Announce Major
Breakthrough in Settlement Negotiations. Department of Natural Resources: Lansing, MI, p. 1.

23‘ Carlson, E. (2000, July 20). Duhamel nix treaty: Native ﬁsherman says Band would compromise
rights. The Leelanau Enterprise, 123(43), p. l, 15.

23 An attempt to place conditions upon tribal treaty ﬁshing rights was attempted in the State of Michigan
was made in 1997 when state Senator David Jaye (R-Macomb County) proposed a “No Fish, No Chips”
amendment to HE. 4767, casino approval legislation. This resolution would have prevented tribes from
using gill nets or “face the loss of their casino ‘poker chips’ privileges.” Jaye, D. (1997, June 4). No F ish,

7l

over the land on which the casino sits would be harmful to the tribe since its proﬁts are
used to provide social services and educational funds for the Grand Traverse Band.238
After the media brought attention to this issue, a spokesman for the Governor denied
these allegations.239
In the midst of this controversy, however, a ﬁnal agreement was reached in
August of 2000. The Bay Mills Indian Community hosted an ofﬁcial signing ceremony
on August 7, 2000 for this document, referred to as the “2000 Consent Decree.”240
Importantly, it was signed by all the parties241 and was supported by a number of sport
ﬁshing organizations.242
The 2000 Consent Decree differs from the 1985 Consent Order in a variety of
important ways. First, its duration is twenty years, rather than ﬁfteen. Compared to the
1985 Consent Order, it is lengthy and complex.243 According to the parties, the goals of

this agreement are dissimilar to the 1985 plan’s goals. Instead of focusing on ﬁsheries

allocation and reduction of social conﬂict, the new agreement focuses more on lake trout

 

No Chips. State of Michigan House of Representatives, Press release, p. I; Kellman, S. (1997, November
8). Panel hears protests over gill netting. Traverse City Record Eagle, p. Al, A2.

23: Carlson, E. (2000, July 13). Turtle Creek enters ﬁsh talks. The Leelanau Enterprise, 123(42), p. 1, 16.
This information was also provided through conversations with several members from the Grand Traverse
Band during and members of the local community during July of 2000.

2” Spokeman John Truscott for Governor Engler responded to the question of whether the State of
Michigan is trying to link the negotiations for the new ﬁsheries management agreement with litigation over
the lands on which the Turtle Creek casino sits: “The only thing the ﬁshing treaty negotiations and the
Turtle Creek issue have in common is that they are going on at roughly the same time... The two issues are,
and have been, entirely separate.” Carlson, E. (2000, July 20). Fishing for a gill-net solution: Band
negotiators reach “agreement in principle.” The Leelanau Enterprise, 123(43), p. 15.

2’0 2000 Consent Decree, supra note 24; Dale, supra note 234.

2" Bradsher, K. (2000, August 8). Michigan pact resolves battle over limits on Indian ﬁshing. New York
Times, p. 12A; Michigan Department of Natural Resources, supra note 233; Dale, supra note 234.

242 For example, the newsletter of the Grand Traverse Area Sport Fishing Association stated, “To answer
the question that everyone is asking." is this [the 2000 Consent Decree] a good agreement for sport
ﬁshers?’ YES.” Springstead, B. (2000, August 25). The agreement. Grand Traverse Area Sport Fishing
Association, [(7), p. 1; Michigan Department of Natural Resources, supra note 233.

243 The 1985 Consent Order is 36 pages in length, and the 2000 Consent Decree is 120 pages in length.
United States v. State of Michigan, supra note 190, at 3088; 2000 Consent Decree, supra note 234.

72

rehabilitation and resource protection. Reportedly, it is based more on science,244 while
considering economic and social issues, such as ﬁshing opportunities and social
conﬂict.245

Lake trout rehabilitation should be promoted under the 2000 Consent Decree
since lake trout harvest in deferred zones (under the 1985 Order) will now be strictly
regulated, and penalties are enacted for overexploitation.246 Temporal and spatial gear
restrictions under the new agreement should offer greater protection for lake trout, as well
as the reduction in gill net use as some tribal ﬁshers convert to trap nets. The parties
agreed to remove at least 14 million feet of gill net from the Great Lakes ﬁshery.247 In
northern Lake Huron alone, lake trout mortality is expected to be reduced from 80% to a
maximum of 45%.248 Refuges and restrictions on lake trout harvest should result in
greater biomass. Lake trout catch limits and maintenance of crucial sea lamprey control
measures will also help in lake trout recovery.249

In contrast to the 1985 Consent Decree, allocation of the ﬁshery under the 2000

Consent Decree is based upon allocation of species, rather than zones. Under this

 

2“ In northern Lake Huron, for example, a limited gill net ﬁshery for whiteﬁsh is allowed during the fall
under the 2000 Consent Decree. This ﬁshery resulted from a scientiﬁc assessment that was conducted in
1999, which demonstrated that a gill net ﬁshery could be conducted which allows minimum incidental
catch of lake trout. Ebener, M.P., Gebhardt, K., & Johnson, J. (2001). Final Interim Report Summarizing
the Spatial, Temporal, and Bathymetric Distribution of Lake Trout and Lake Whiteﬁsh in Northern Lake
Huron in I 998 and 1999. Report Prepared by the Lake Huron Technical Subcommittee of the Technical
Fisheries Committee.

2’5 Michigan Department of Natural Resources, supra note 233, at 1-5; Dale, supra note 234; Smith, K.
(2001). Treaty Fishing in the Great Lakes: Year 2000 Consent Decree. Presentation for a seminar in the
Department of Fisheries & Wildlife, Michigan State University, East Lansing, MI.

2“ 2000 Consent Decree, supra note 234, at. 101-107.

2’7 The elimination of 14 million feet of gill nets was calculated based upon the reduction in ﬁshing effort
necessary to achieve the target total annual mortality rate of 45% for lake trout and the number of tribal
commercial ﬁshers that would be willing to convert from gill nets to trap nets. Bence, J. (personal
communication, May 31, 2002).

24: Cool, supra note 235.

249 2000 Consent Decree, supra note 234, at 40-49; Sharp, E. ( 1998, July 30). Commission targets lamprey
source. Detroit Free Press, p. 1-4.

73

allocation regime, the tribes are allocated harvest of “commercial” species and the State
of Michigan’s sport ﬁshery is allocated “sport” species.250

The parties have stated that the 2000 Consent Decree will expand ﬁshing
opportunities for tribal commercial and sport ﬁshers. Fishing opportunities are expected
to increase for tribal ﬁshers through the availability of trap net operations from the buy-
out of Bay de Noc ﬁshers, reduction of competition with existing gill net ﬁshers, and
opening of previously closed waters. It is anticipated that sport-ﬁshing opportunities will
increase as tribal gill net use is signiﬁcantly reduced, more lake trout are protected, and
sport species are allocated solely for the state’s recreational ﬁshery.25 '

Similar to the 1985 Consent Order, under the new agreement ﬁsheries
management should be a cooperative effort through data sharing and interj urisdictional
organizations. These organizations include the newly created Chippewa Ottawa
Resource Authority (CORA),252 Technical Fisheries Committee (TFC),253 and Joint
Modeling Committee. An important feature of the 2000 Consent Decree will be the

establishment of lake trout harvest limits through mutual agreement.254 This measure

should not only foster continued cooperation, but facilitate lake trout management efforts.

 

25° Lake Whiteﬁsh, round whiteﬁsh, bloater chubs, and burbot are some of the species designated as
“commercial” species for tribal harvest. Species such as chinook salmon, coho salmon, steelhead, and
brown trout are designated as “sport” species for recreational harvest. Harvest of lake trout, lake herring,
walleye and perch - considered both a commercial and sport species —- will be equally divided among the
tribes and the State of Michigan. 2000 Consent Decree, supra note 234.

25' Id; Michigan Department of Natural Resources, supra note 233, at 1-3, 5; Dale, supra note 234.

2” CORA was previously identiﬁed under the 1985 Consent Order as the Chippewa Ottawa Treaty Fishery
Management Authority (COTF MA). Chippewa Ottawa Resource Authority Charter and Rules of
Procedure of the Ottawa Resource Authority (C ORA Charter). In United States v. State of Michigan,
(2000 Consent Decree.) Case No. 2:73-CV-26 (M26 73) (W.D. Mich. August 7, 2000), APPENDIX A.

2” The TFC is an intergovernmental body comprised of biologists seeking to resolve ﬁsheries management
issues in the Great Lakes based upon the best available science and consensus. Bickerman, J. (2000,
August 7). Parties in United States v. Michigan, I 836 Treaty Great Lakes Fishing Issue, Agree to 20 Year
Settlement. Press release. Department of Natural Resources: Lansing, MI, p. 2.

25’ 2000 Consent Decree, supra note 234, at 40-49.

74

Other interj urisdictional organizations with responsibilities under this agreement
include the Law Enforcement Committee and Executive Council that were created by the
1985 Consent Order. In contrast to the 1985 Consent Order, the Law Enforcement
Committee under the 2000 Consent Decree will jointly enforce provisions of the
agreement.255

Notably, the Public Information and Education provision of the 1985 Consent
Order was not included within the 2000 Consent Decree. However, the new ﬁsheries
policy does have a public education component. In particular, the tribes will be
responsible for hosting community meetings to provide information and discuss issues
related to the 2000 Consent Decree upon request from members of the sport ﬁshing
community or the DNR.256

Lastly, the 2000 Consent Decree includes a conﬂict resolution mechanism to help
avoid litigation over issues that arise under the agreement. Unlike the dispute resolution
mechanism of the 1985 Consent Order, emphasis in the mechanism of the new policy is
placed on intergovernmental consultation between the tribes and the State of Michigan.
Only once consultations fail can a party petition to the court for relief. Under this new
system, the parties anticipate that there will be fewer court interventions than under the

1985 Consent Order.257

 

255 Id.
256 Id
257 Bickerman, supra note 253, at 2; 2000 Consent Decree, supra note 234.

75

Chapter 3: Evaluation and Comparative Analysis

Research Focus

The 1985 Consent Order set forth a number of goals for ﬁshery management
within the treaty-ceded waters of the upper Great Lakes, including rehabilitation and
conservation of lake trout stocks, resolution of social conﬂict between state-licensed
recreational ﬁshers and tribal commercial ﬁshers, cooperation in the joint management of
the Great Lakes ﬁshery between tribal and state regulatory agencies and protection of
treaty-right tribal ﬁshing.1 The Consent Order was signiﬁcant since it had critically
important goals that would be difﬁcult to achieve. It was also the ﬁrst time that the court
created and imposed a ﬁshery management policy in the State of Michigan. Yet, a
comprehensive evaluation of this court-imposed ﬁsheries management policy governing
the treaty-ceded waters of the upper Great Lakes has not been conducted, giving rise to
this study.

The 1985 Consent Order was evaluated using qualitative research methods.
Additionally, a comparative analysis was done between this policy and its replacement, a
recently negotiated court-supervised policy, referred to as the 2000 Consent Decree. The
goal of the study was to provide an understanding of the perceived effectiveness of
ﬁsheries management under the 1985 Consent Order, an examination of perceived
changes and perceptions of the 2000 Consent Decree and recommendations for future

ﬁsheries management policies between state and tribal governments.

 

' United States v.State of Michigan (1985 Consent Order), 12 ILR 3079, 3083-3088 (W.D. Mich. 1985).

76

Foundations of Research

The theoretical perspective - which inﬂuenced the study’s focus, methods, and
analysis — was interpretivism.2 Founded on the view that different people construct
meaning or understanding of the same phenomena in different ways,3 interpretivism
examines understanding of social reality.4 Interpretive policy analysis focuses on the
meanings of policies, values, or beliefs of affected policymakers and stakeholders.5

The type of interpretivism used in this policy evaluation research was
phenomenology. This theoretical ﬁ'amework is based in philosophy and sociology, and it
examines how social phenomena are understood, experienced and perceived by their
participants.6 Researchers conducting studies from a phenomenological perspective do
not assume that they understand what phenomena mean to respondents.7 Prejudice is
avoided in this type of research by “giving voice” to the respondents through

representation of their responses as accurately as possible.8

 

2 Patton, M.Q. (1990). Qualitative Evaluation and Research Methods. (2" ed.). Newbury Park, CA: Sage
Publications, p. 87; Crotty, M. (1998). The Foundations of Social Research: Meaning and Perspective in
the Research Process. Sage Publications: Thousand Oaks, CA, p. 3, 7-8, 17.

3 The epistemology, or theory of knowledge that is inherent in this theoretical perspective, is
constructivisrn. Constructivism reﬂects the view that individuals socially construct meaning. Crotty, supra
note 2, at 3, 8-9.

‘ Schwandt, T.A. (1994). Constructivist, interpretivist approaches to human inquiry. In Denzin, N.K. and
Lincoln, Y.S. (Eds), Handbook of Qualitative Research. (pp. I 18-137) Sage Publications: Thousand Oaks,
CA, p. 125; Fischer, F. (1995). Evaluating Public Policy. Nelson-Hall: Chicago, IL, p. 2; Crotty, supra
note 2, at 66-67.

’ Yanow, o. (2000). Conducting Interpretive Policy Analysis. Sage Publications: thousand Oaks, CA, p.
9-10, 14-22.

6 Geertz, C. (1973). The Interpretation of Cultures. New York, NY: Basic Books; Taylor, S. J. & Bogdan,
a (1984). Introduction to Qualitative Research Methods: The Search for Meaning. (2" ed.) New York,
NY: John Wiley Press, p. 1-2; Patton, supra note 2, at 69—7 1.

7 Crotty, supra note 2, at 78-80.

' Strauss, AL. and Corbin, J. (1998). Basics of Qualitative Research Techniques and Procedures for
Developing Grounded Theory. (2"‘1 ed.) Sage Publications: Thousand Oaks, CA, p. 43-44.

77

The study was premised upon Patton’s utilization-based, formative evaluation.9
The focus of utilization-based evaluation is on “intended use by intended users;” thus, the
stakeholders play an active role in deﬁning the criteria for policy or program evaluation,
as well as the evaluation itself. ‘0 The researcher facilitates stakeholder assessment of the
policy to ensure that the results and policy recommendations are meaningﬁrl and
applicable to decision-makers.ll Formative evaluation serves the purpose of improving a
speciﬁc policy for a certain group of people. This type of evaluation often uses
qualitative methods, since it is limited in its scope as applied research, and it is not
generalizable beyond the setting under study.12 This study was based upon Patton’s
utilization-based formative evaluation since consideration of the site-speciﬁc history and
social conditions was considered important for evaluating these complex ﬁsheries
management policies and making useful recommendations.

Bobrow and Dryzek suggest that policy analysis from the perspective of policy
makers alone fails to produce new or challenging information. Information provided by
policy-makers has the outcome of “serving power —- not dispersing it, or countervailing it,
or criticizing it.”’3 Yet, decision-makers must be involved in policy analysis so results
will be pertinent and useful. '4 To provide a pragmatic evaluation of the 1985 Consent
Order and comparative analysis with the 2000 Consent Decree, this research was

conducted from the perspective of its affected stakeholders, including policy makers.

 

’ Patton, M.Q. (1997). Utilization-Focused Evaluation: The New Century Text. (3ml ed.) Sage
Publications: Thousand Oaks, CA.

‘° Id at 20, 241-247.

" 1d. at 21-24, 237.

'2 Id at 68-69, 76, 79; Strauss, supra note 8, at 214; Herman, J.L., Morris, L.L. & Fritz-gibbon, CT.
(1987). Evaluator ’s Handbook Newbury Park, CA: Sage Publications; Patton, supra note 2, at 156.
'3 Bobrow, on. & Dryzek, J.S. (1937). Policy Analysis by Design Pittsburg, PA: University of
Pittsburgh Press, p. 168.

" Patton, supra note 9, at 48.

78

Research Methods

Qualitative research methods are usually described as “naturalistic” or
“interpretive” inquiry Since the researcher does not manipulate the research setting while
trying to understand concepts, explanations or actions.15 Another important characteristic
of qualitative research methods is that they use inductive reasoning, which can elucidate a
deeper understanding of social phenomena, compared with quantitative research. '6
Although qualitative research does not provide a statistical measure of the causal
relationships between variables, it is rich in description'7 and allows the researcher to
identify and understand how phenomena occur.18 A qualitative approach to evaluating
natural resource use - which considers historical, social, political, contexts as well as
environmental conditions — can provide a more insightful and effective evaluation.l9
Importantly, the overarching research question involved complex, interrelated concepts.
Qualitative research methods provided detailed and descriptive data that was necessary
for evaluating stakeholder perceptions of the 1985 Consent Order and making
comparisons to the 2000 Consent Decree.

An analysis of stakeholder perceptions of the 1985 Consent Order and the 2000

Consent Decree would not have been feasible using quantitative survey methods since the

 

'5 Patton, supra note 2, at 39; Bogdan, R. & Bilkm, S. (1992). Qualitative Research for Education: An
Introduction to Theory and Methods. Boston, MA: Allyn & Bacon, p. 29-30; Lin, A.C. (1998). Bridging
positivist and interpretivist approaches to qualitative methods. Policy Studies Journal, 26(1): 162-180, p.
162.

’6 Strauss, A.L. & Corbin, J. (1990). Basics of Qualitative Research: Grounded Theory Procedures and
Techniques. Newbury Park, CA: Sage Publications, p. 23; Bogdan, supra note 15, at 21-32; Maxwell, J.A.
(1996). Qualitative research design: an interactive approach. Applied Social Research Methods Series, vol.
41. Thousand Oaks, CA: Sage Publications, p. 17.

'7 Bogdan, supra note 15, at 1-21, 31.

" Lin offers a compelling argument for the use of both quantitative and qualitative techniques in policy
analysis. Lin suggests using quantitative analysis for idaltiﬁcation of causal relationships between
variables and qualitative analysis for assessing the causal mechanisms to explain how these variables are
related. Lin, supra note 15, at 165.

79

response rate of tribal ﬁshers was expected to be extremely low. This was anticipated
due to a lack of trust and lack of participation by tribal ﬁshers. Additionally, there were
inadequate means to distribute the surveys since some tribal ﬁshers do not maintain a
permanent residence year-round. Without the participation of tribal ﬁshers, the analysis

would not have provided meaningful results.
Research Design

The overarching research question in this study was: How do stakeholders
perceive the 1985 Consent Order as a management tool for the 1836 Treaty waters of
the Great Lakes? The overarching research question was evaluated in terms of
stakeholder perceptions of provisions they believed were important in this ﬁsheries
management policy. These key provisions included:

0 Lake trout reﬁrges and zones;

0 Establishment of assigned zones for tribal commercial ﬁshers; and

o Gil] net use and restrictions.

For this evaluation, two preliminary instruments were drafted. The ﬁrst was created
for ﬁshers, and the second was created for biologists and representatives. These
instruments were drafted based upon review of pertinent background information,
including literature, media, court rulings, reports and legislation.20 They were also
developed from discussions with key informants, or people considered by others to be
knowledgeable on the research topic (see Appendix A: Research Tirneline, Phase I). A

tribal representative, a biologist from the Michigan DNR, and a representative from the

 

'9 McCay, B.J. and Jentolt, S. (1998). Market or community failure? Critical perspectives on common
propaty research. Human Organization, 57(1): 21-29, p. 24-29.

80

sport ﬁshing community reviewed the preliminary instruments and provided comments
and suggestions. Their feedback was reviewed, and the instruments were revised
accordingly.

The instruments were tested in a pilot interview with a sport-ﬁshing
representative and a tribal ﬁsher. These people were chosen for the pilot interviews since
they were knowledgeable about the Great Lakes ﬁshery, the 1985 Consent Order, and the
2000 Consent Decree. Further revisions were made to address concerns that arose ﬁ'om
the pilot interview (see Appendix A: Research Tirneline, Phase II).

Preliminary interviews were conducted in the fall of 1999, and formal interviews
started in June of 2000, as the 1985 Consent Order was coming to termination and
negotiations were ongoing for the 2000 Consent Decree. Minor revisions were made to
the instruments during data collection (see Appendix A: Research Tirneline, Phase III &
IV; Appendix B: Final Research Instrument for Fishers; Appendix C: Final Research
Instrument for Biologists and Representatives)” Interviews were completed in January
of 2001, after the 2000 Consent Decree was signed and in its implementation phase (see

Appendix A: Research Tirneline, Phase V).

 

2° According to Strauss and Corbin, a literature review can provide the necessary information to understand
the research topic and provide ideas for questions and sampling during the initial stage of research. Strauss,
supra note 8, at 48-52; Yanow, supra note 5, at 31.

2' Id at 31-33.

81

In the ﬁnal design of this study, the perceived effectiveness of the 1985 Consent

Order as a management tool for the 1836 Treaty waters of the Great Lakes was analyzed

through individual, in-depth, semi-structured interviews with members from the

following stakeholder groups:

Tribal commercial ﬁshers (ﬁom the Bay Mills Indian Community, Grand
Traverse Band of Ottawa and Chippewa Indians, Sault Ste. Marie band of
Chippewa Indians);

State-licensed sport ﬁshers;

State-licensed charter boat ﬁshers;

Tribal biologists (from the Bay Mills Indian Community, Grand Traverse Band
of Ottawa and Chippewa Indians, Inter-Tribal Fisheries Assessment Program);22
DNR biologists;

Tribal representatives (from the Bay Mills Indian Community, Grand Traverse
Band of Ottawa and Chippewa Indians, Sault Ste. Marie band of Chippewa
Indians);

DNR representatives;

Sportﬁshing and charter boat ﬁshing representatives; and

State of Michigan representatives from the Attorney General’s Ofﬁce.

These same stakeholders were asked to compare the 1985 Consent Order to the 2000

Consent Decree to assess changes in policy, the process of policy development, and

compare stakeholder perceptions of both policies.

 

22 Although the Sault Ste. Marie band does not have its own biologists, it has access to scientiﬁc expertise
of biologists working at the Inter-Tribal Fisheries Assessment Program (ITFAP). Fmtherrnore, CORA, the

82

Representatives that were solicited for participation included formal and informal
party representatives of the stakeholder groups. Most representatives played a role in the
negotiations for the 1985 Consent Order and/or the 2000 Consent Decree. Members of
the Public Information and Education Committee and a regional representative from the
Sea Grant College Program also participated in this study. They discussed their
perceptions of information and education under these policies.

Interviews were conducted in a manner that was most convenient for the
respondent in order to achieve the greatest compliance. F ace-to-face interviews were
conducted at respondents’ homes, places of employment, at marinas, and on a boat.
When it was not convenient for respondents to participate in face-to-face interviews, they
were conducted by telephone. These interviews were completed using a telephone-
operated tape recorder, upon permission of the respondent.

Recreational sport ﬁshers were selected through purposive sampling of ﬁshers, or
sampling of select respondents.” Fishers were solicited for participation by approaching
them at various marinas and public access boat launch sites24 throughout the 1836 Treaty
waters of the Great Lakes.25 Each recreational sport ﬁsher who arrived at the site was
asked the same set of questions to determine their eligibility and willingness to

participate in an interview. Interviews were sought with sport ﬁshers who ﬁshed the

 

Chippewa-Ottawa Resource Authority — previously known as COTFMA, the Chippewa-Ottawa Treaty

Fishery Management Authority — oversees tribal management of its ﬁsheries.

’3 Patton, supra note 2, at 179-180, 183.

2‘ Each marina and public boat launch site was visited for two hours by the researcher to solicit ﬁshers.

2’ Visits were made to the following marinas and public access sites in an attempt to solicit sport ﬁshers for
their participation: Grand Traverse Bay, West Arm, west side, Greilickville Marina (along M-22); Grand
Traverse Bay, East Arm, east side, Bowers Harbor, public access site; Grand Traverse Bay, East Arm, west
side, public access site; Grand Traverse Bay, West Arm, west arm, public access site; Northport marina;
Leland marina; Sutton’s Bay marina; Charlevoix marina; Traverse City marina; Acme marina; Whiteﬁsh
Point, public access site; Brimley, public access site; Whiteﬁsh Point public access site; Cheboygan
marina; Rogers City public access site.

83

Michigan waters of the upper Great Lakes and lived in the area.26 Those ﬁshers willing
to participate in an interview to discuss a Great Lakes ﬁsheries management policy were
asked to provide their name and telephone number. These participants were contacted
within a week to determine a date and time that was convenient for them to conduct an
interview. Charter boat sport ﬁshers were solicited to participate in an interview through
snowball sampling.27 Despite efforts by the researcher to solicit sport ﬁshers from a wide
geographic area throughout the Michigan waters of the Great Lakes, recreational and
charter boat sport ﬁshers that participated ﬁshed mame in Lake Michigan and in the
Grand Traverse Bay region.

To solicit interviews with tribal ﬁshers required the assistance of a critical
gatekeeper within the Grand Traverse Band and Bay Mills Indian Community.28 The
gatekeeper from each tribe was a biologist and/or representative that provided permission
and information on how to solicit participation from tribal ﬁshers. They played a vital
role in allowing entry into the community and legitimizing the research through their

recognition of the project’s validity and legitimacy. Snowball sampling was also used to

 

2‘ Each ﬁsher was told:

“Hello, my name is Laura. I 'm a graduate student at Michigan State University.
May I ask you a few questions?

[If the response is yes] Do you live in the area?

Do you f sh the Great Lakes? [If so] Which of the Great Lakes do you ﬁsh?
How long have you been f shlng in
[If they ﬁsh in the northern Great Lakes] Would you be willing to participate in an interview evaluating a
fisheries management policy in the Michigan waters of the northern Great Lakes? To participate, you will
be interviewed for approximately 20—30 minutes at a place and time that is convenient for you. All
participation is completely voluntary. Would you be willing to participate?

[If the response is yes] All interviews will be strictly conﬁdential and you will remain anonymous in all
reports of ﬁndings. Upon request results may be available to you If you have any questions or concerns
about participating in the study, you can contact David E Wright, Chairperson of the University
Committee on Research Involving Human Subjects at 355-2180.”

27 When asked to provide the names of anyone that I should speak with regarding this issue, all recreational
sport ﬁshers provided the names and contact information for charter boat sport ﬁshes in the area. Patton,
supra note 2, at 176, 182.

 

84

solicit tribal ﬁshers that would be willing to participate. Sault Ste. Marie ﬁshers were
solicited through word of mouth and by a visit and/or a telephone call.29

Tribal and DNR biologists/representatives, sport-ﬁshing and state representatives
that were involved in the negotiations for the 1985 Consent Order and 2000 Consent
Decree were also asked to participate in the study. Snowball sampling was also used to

solicit participants that would provide an interesting, illustrative or unique perspective.
Data Collection

Data were collected from audio taped recordings of interviews, transcriptions of
these interviews and ﬁeldnotes.3o During the interview, reﬂective notes were written
down to provide guidance in future data analysis and interpretation}1 These notes
contained personal accounts, impressions, thoughts, and ideas that came to mind during
interviews. Memos were created to provide detailed information on personal reﬂections.
Descriptive information on the context surrounding interviews was documented to aid
data analysis and interpretation”

Although there are no steadfast rules for sample size in qualitative inquiry, the

number of interviews depended upon saturation of data.33 Instead of focusing on a

minimum sample size, qualitative sampling maximizes the opportunities for making

 

2' A “gatekeeper” is someone who has either formal or informal authority to control access to a research
site and/or research participants. Bogdan, R. & Taylor, SJ. (1975). Introduction to Qualitative Research
Methods: A n Phenomenological Approach to the Social Sciences. Wiley: New York, NY, p. 30-32.

29 A Sault Ste. Marie ﬁsher was introduced to me through Bay Mills, and I believed the ﬁsher was ﬁ'om the
Bay Mills Indian Community. Upon conducting the inta'view, I discovered that the ﬁsher was a member
of the Sault Ste. Marie tribe.

3° Clandinin, supra note 8, at 420.

3 ' Bilken, S. & Bogdan, R. (1992). Qualitative Research for Education: An Introduction to Theory and
Methods. Boaon, MA: Allyn & Bacon, p. 107, 121-122.

32 Id at 119-122

’3 Patton, supra note 2, at 185.

85

comparisons through selection of information-rich cases to study in depth.34 According
to Lincoln and Guba, samples should be selected “to the point of redundancy. . .sarnpling
is terminated when no new information is forthcoming” from new information sources.35
AS interviews were conducted, the researcher took note when interview data failed to
provide new information, as members within the same stakeholder group offered
repetitive responses. This lack of new information and repetition dictated the conclusion
of data collection with each stakeholder group. However, the researcher made every
effort to conduct interviews with individuals representing different perspectives to allow
the greatest comparison of responses.36 Overall, 50 individual interviews were conducted

(see Appendix D: Interview Summary for a summation of how many interviews were
conducted with each stakeholder category).
Data Analysis

Throughout the study, qualitative interview data were organized by stakeholder
group, or the identiﬁcation of interview respondents.37 Based upon examination of

responses, tribal biologists and representatives were combined into one stakeholder group

 

3‘ Strauss, supra note 8, at 202-203; Patton, supra note 2, at 169.

3’ Lincoln, Y.S. & Guba, 13.0. (1985). Naturalistic Inquiry. Newbury Park, CA: Sage Publications, p.
202.

3‘ Sport ﬁshes were solicited from expensive private marinas, as well as public marinas and boat launches
throughout the treaty-ceded, Michigan waters of the Great Lakes. Although attempts were made to solicit
ﬁshers with a diversity of social variables and from different geographical locations, all sport ﬁshers seen
were male Caucasians who mainly ﬁshed in the Grand Traverse Bay region, and most ﬁshes were
approximately over 35 years of age. Tribal ﬁshes were asked to participate from Grand Traverse Band,
Bay Mills Indian Community and Sault Ste. Marie. Among the ﬁshes willing to participate, both cmrent
and former ﬁshes participated from Grand Traverse Band; most of the ﬁshers who participated from Bay
Mills Indian Community were former ﬁshers; and only one current ﬁsher participated ﬁ'om Sault Ste.
Marie. Notably, a gatekeeper did not provide access to the Sault Ste. Marie, although assistance was
provided from one of the leaders in the tribal community.

7 This data organization technique was based partially on Whyte’s “orienting theory” that is used to
provide guidance for data analysis and Patton’s organization of qualitative data. Whyte, W.F. (1984).
Learning ﬁom the F ield‘ A Guide ﬁorn Experience. Bevely Hills, CA: Sage Publications, p. 118-121;
Patton, M.Q. (1987). How to Use Qualitative Methods in Evaluation. Newbury Park, CA: Sage
Publications, p. 147.

86

and DNR biologists and representatives were combined into another group. This was
done due to similarities in the responses of biologists and representatives from the tribes
and the DNR and the overlap in their responsibilities. Recreational sport ﬁshers and
charter sport ﬁshers were separated into two separate stakeholder groups due to their
different levels of knowledge regarding the 1985 Consent Order.

The qualitative interview data for each group was compiled and organized based
upon the content analysis method. This method entailed asking repeated questions about
the meaning and signiﬁcance of statements in search of patterns and themes.38
Transcribed texts were reduced and organized based upon analytic categories, or
categories that were developed and articulated by respondents.39 The organization of
data was veriﬁed using Glaser and Strauss’ constant comparative method.40

Data analysis was conducted throughout each phase of data collection. Data
analysis provided an understanding of how the participants perceived the Consent Decree
as management policy. Secondly, data analysis guided ﬁxture inquiry by illustrating the
need for minor revisions to research questions, pointing out deﬁciencies in the data, and
follow-up questions that needed to be asked to resolve inconsistencies or clarify data
interpretation.

Validity and T rustwor'thiness

Potential distortions may occur in qualitative data due to the failure of

stakeholders to recollect past feelings and attitudes, or ﬁ'aming of responses to persuade

 

3' Id. at 147-152; Clandinin, supra note 30, at 423; Strauss, supra note 8, at 66.
39 -
Lincoln, supra note 35, at 337.
4° Glaser, B.G. & Strauss, A.L. (1967). Discovery of Grounded Theory: Strategies for Qualitative
Research. Chicago, IL: Aldine, p. 3.

87

or please the interviewer.41 Due to these potential problems, the researcher must compare
responses, remain cognizant of the respondents’ state of mind, and follow procedures to
ensure validity and trustworthiness of data.42

Validity and trustworthiness of the data were established in the study through the
following procedures:

0 comparison of stakeholder responses to pertinent literature;

0 triangulation,43 through conducting interviews with different stakeholder groups
and utilization of various sampling techniques for sport ﬁshers (purposive and
snowball sampling);

9 maintenance of a skeptical attitude and validation in subsequent interviews; and

o adherence to research procedures.44

Validity and trustworthiness were also established through member checks, or testing

of categories, classiﬁcation, and conclusions with members of the stakeholder groups
ﬁom which data were collected."5 Upon the initial completion of data analysis,
preliminary results were shared with select key informants ﬁ'om each stakeholder group.
Each informant was chosen based upon their knowledge and expertise on the 1985
Consent Order and/or the 2000 Consent Decree. The informants were asked to review

the draft results and provide any feedback and comments that they may have (see

 

" Whyte, supra note 37, at 122-124.
‘2 Idat 124-126.
‘3 Some types of triangulation are:
1) Data - using different data sources;
2) Investigator — using different investigators;
3) Theory — using multiple themetical pespectives on the same data set; and
4) Methodological - using different methods of analysis.
Denzin, N.K. ( 1978). The Research Act: A Theoretical Introduction to Sociological Methods. McGraw-
Hill: New York, NY; Patton, supra note 2, at 187-198; Neuman, W.L. (2000). Social Research Methods:
Qualitative and Quantitative Approaches. (4" ed.). Allyn & Bacon: Boston, MA, p. 170-171.
“ Strauss, supra note 8, at 44-46.

88

Appendix A: Research Tirneline, Phase VI). In two cases, results were revised based

upon key informant feedback.
Evaluation Results

Stakeholder perceptions of the 1985 Consent Order and the 2000 Consent Decree
were inﬂuenced by their knowledge of these ﬁshery management policies. Therefore,
stakeholder knowledge was examined prior to analysis.

Knowledge of the 1985 Consent Order and 2000 Consent Decree

A majority of stakeholders were very familiar with the 1985 Consent Order, with
the exception of most recreational Sport ﬁshers.”5 However, these ﬁshers were generally
aware that a policy was in place, and they knew about the prohibition of gill netting
below the 45m parallel in Grand Traverse Bay under this policy.47 Many stakeholders
were very familiar with the 2000 Consent Decree, except for recreational sport ﬁshers,
some charter boat sport ﬁshers, some tribal ﬁshers, and a few DNR
biologists/representatives.48
Analytic Categories

Stakeholders identiﬁed the following categories as signiﬁcant, as revealed from the

analysis of interview data:

 

‘5 Lincolrn, supra note 35, at 290, 313-316.
‘6 The most common response from recreational sport ﬁshes to the question, “Are you familiar with the
1985 Consent Order?” was “The what?” Another common response was, “No.”
‘7 One recreational sport ﬁsher illustrated the response of most informed sport ﬁshes regarding the 1985
Consent Orde’s restriction on tribal gill net ﬁshing below the 45'” parallel inn Grand Traverse Bay,
Is the rules they came u with? I don ’t know much about it. I only know they [Native ﬁshes]
can ’t ﬁsh below the 45‘ parallel.
Most of the recreational sport ﬁshes were unaware of othe provisions of tlne 1985 Consent Orde.
Generally, charter boat ﬁshes had greater awareness of these provisions.
“ The details of this agreement were not made available to the public until August of 2000, so it was not
expected that all respondents would have known the details of this policy. However, a majority of
respondents wee very familiar with this document since they wee involved with the negotiatiorns directly
or indirectly.

89

9 Lake trout rehabilitation and conservation; 49

9 Fishing opportunities and communities;
0 Social conﬂict;
0 Knowledge and perceptions of Native treaty ﬁshing rights;
0 Fisheries management between tribal and state regulatory agencies; and
9 Negotiations and the negotiation processes leading to the 1985 Consent Order and
the 2000 Consent Decree.
The results and relationships between provisions of the 1985 Consent Order and these
analytic categories are described below, and they are organized by analytic category.
(For visual illustration of the relationships between policy provisions and the analytic
categories, see Appendix E: Cognitive Map — Interview Data Analysis Results).
I.) 1985 Consent Order: Lake Trout Rehabilitation and Conservation
A majority of stakeholders believed that lake trout rehabilitation and conservation
were not promoted under the 1985 Consent Order, despite a variety of conservation
measures within this ﬁsheries management policy. Stakeholders discussed lake trout
rehabilitation and conservation in terms of the following policy provisions and factors:
a. Refuges and zones;
b. Gill net use and restrictions;

c. Role of science in policy-making; and

 

‘9 At the start of the research project, respondents were asked about lake trout conservation. However, ornce
interviews were connducted with biologists/representatives, they clariﬁed that lake trout relnabilitation is the
goal in Lakes Huron and Michigan, and lake trout conservation is the goal irn Lake Superior. A tribal
biologist/representative explained:
When talking about lake trout, you should probably say "rehabilitation ” instead of
“conservation " because in [Lakes] Huron and Michigan, the lake trout are virtually all stocked—
they ’re not reproducing. In Lake Superior, it ’s the flip of that. The lake trout are mostly all wild
and naturally reproduced There 's very little stocking, and now in Michigan waters of the Great
Lakes there will be no stocking pursuant to rehabilitation

90

d. Lack of commitment.
I.) a. Refuges and Zones

A majority of respondents from all stakeholder groups believed that the establishment
of lake trout conservation refuges, priority rehabilitation and deferred zones50 under the
1985 Consent Order failed to promote lake trout rehabilitation and conservation.5 1
Respondents discussed a variety of biological factors they believed were responsible for
the ineffectiveness of lake trout conservation refuges, rehabilitation and deferred zones
for lake trout rehabilitation and conservation. The biological factors that were mentioned
include:

0 Lack of natural reproduction in Lake Michigan and Lake Huron;

0 Sea lamprey predation;

o Salmonid predation; and

0 Lack of ﬂy survival and recruitment.
According to respondents from the tribes52 and the DNR, these important factors

prevented lake trout rehabilitation and conservation under the 1985 Consent Order.

 

5° Stakeholders referred to “refuges” when discussing lake trout conservation refuges established under the
1985 Consent Order. However, in their discussions of lake trout rehabilitation and conservation within the
refuges, they also spoke of the priority rehabilitation and the deferred zones. Thus, although the research
instrument asks for stakeholder perceptions of the lake trout conservation refuges, responses included
discussions of the priority and deferred zones. The charter boat sport-ﬁshers were not aware of the
distinction between the lake trout conservation refuges and the priority rehabilitation and deferred zones.
Therefore, during the interviews, every effort was made to try and elicit whether or not the respondent was
discussing their perceptions of the refuges or the zones by asking ﬁshers to refer to geographic locations as
a point of reference. This allowed the researcher to recognize whether or not they were discussing
perceptions of a location that was within a refuge or a zone.

' As further evidence of the failure of lake trout reﬁiges to promote lake trout rehabilitation and
conservation, a tribal biologist/representative stated, “The only lake that we 've had success/id natural
reproduction and actual rehabilitation [of lake trout] is Lake Superior, and it doesn 't have a reﬁige in it.”
’2 Responses from ﬁshers and biologists/representatives from each of the tribes — Grand Traverse, Bay
-Mills Indian Community, and Sault Ste. Marie — we not analyzed collectively. However, many of their
responses were similar. Thus, responses that were similar amongst respondents from the three tribes were
lumped together, and differences in responses of the tribes were illuminated. In some eases, there were
differences in responses from eta-rent and former ﬁshers; these are highlighted as well.

91

Although the absence of naturally reproducing lake trout stocks was discussed by
a majority of stakeholders, they offered many different reasons as to why natural
reproduction did not occur. Some tribal and DNR biologists/representatives perceived
that natural reproduction did not occur since reefs were not being imprinted by hatchery-
raised lake trout.53 Members ﬁ'om each category of stakeholders believed that lake trout
were not reproducing since lake trout experienced mortality prior to sexual maturation.54

Many stakeholders within each stakeholder category, with the exception of
recreational sport ﬁshers, mentioned sea lamprey predation as an important source of lake
trout mortality and another critical factor that prevented lake trout rehabilitation and
conservation under the 1985 Consent Order.55 According to many stakeholders from the
tribes, the DNR and the State of Michigan, although sea lamprey control programs have
been somewhat effective in reducing their abundance in the Great Lakes, these programs
have not signiﬁcantly reduced lake trout mortality. 56 Tribal ﬁshers from Grand Traverse

and Bay Mills and a few tribal biologists/representatives also blamed salmonid predation

 

’3 One tribal biologist/representative offered this explanation:
In the northern refuge, they 've got three dm'erent lake trout strains that run in there, and they 've
got three diﬂerent reefs that they 've [U.S. Fish and Wildlife Service] are stocking...As part of the
modeling experiment and everything they ’re looking at the C WT s (coded wire tags) and they ’re
finding out that returns [of stocked lake trout] to one of the reefs is virtually zero. So they 're
dumping all these fish out of there, and the fish aren 't... imprinting on it and don 't come back -
they 're leaving and not coming back [to spawn].
5‘ A DNR biologist/representative illustrated this perception:
You expect lake trout, as a very weak swimming ﬂy to emerge ﬁ-om the rocks at less than an inch
or slightly more than an inch and survive for a year or two to make it to the size that we plant
[salmonids] in order to get survival?! It just doesn 't happen! Those ﬁsh don ’t make it.
According to one former tribal ﬁsher,
[T]he lake trout can 't survive. It takes six to eight years for mature lake trout to spawn. Gill nets
catch them before then... Plus there ’s the lamprey, sportiefishermen, other fish—all these things
prevent the fish from reaching maturity. They dump I 00, 000 pounds of ﬁngerlings. Who knows
how many survive to six to eight years titer dodging nets, spoons, lamprey trying to suck the life
out of them? ! That ’s why I think the lake trout reﬁtges are wrong.
’5 A tribal ﬁsher also paceived sea lamprey as an important factor preventing lake trout rehabilitation and
conservation: “They [sea lampreys] killed so many trout, so many trout!... We could bring in a trout that
had four lampreys on it!”

92

and competition for lake trout mortality and unsuccessful lake trout rehabilitation and
conservation.57

Tribal and DNR biologists/representatives also mentioned the lack of lake trout
ﬁ'y survival and recruitment as important obstacles to lake trout rehabilitation and
conservation. Some tribal biologists/representatives believed that lake trout did not
survive due to thiamine-deﬁciency and early mortality syndrome (EMS). One DNR
bio logist/representative believed that the wrong genetic strains of lake trout were stocked
in Lake Michigan and Huron, hindering their survival.

Although most stakeholders perceived that the lake trout refuges were not
effective at promoting lake trout rehabilitation and conservation, several tribal and DNR
biologists/representatives — and a few sport ﬁshers and sport ﬁshing representatives —
believed that the refuges were necessary to reduce lake trout mortality. Among these
stakeholders, tribal and DNR bio logists/representatives believed that the refuges were
necessary for lake trout rehabilitation and conservation o_n_ly as part of a larger strategy to

resolve the remaining obstacles to lake trout natural reproduction. 58

 

5‘ One DNR biologist/representative stated, “The federal government hasn 't met their goal in sea lamprey
control.”
’7 One tribal biologist/representative explained,
Treaty ﬁshermen have always thought that the introduction of the salmon made it more diﬁicult
for lake trout to rehabilitate because they take over the main predator role, and when lake trout
compete with salmon for the same food source...something ’s got to give. Since these ﬁsh [sahnon]
are not native, their introduction into the ecosystem is probably going to have unforeseen
consequences... the lake that did pg; have salmon introduced—Lake Superior—and guess where
the lake trout recovered?
5' (he tribal biologist/representative described this perception of the role that refuges played in lake trout
rehabilitation and conservation:
They [refuges] may be a necessary condition, but they haven ’t been suﬁicient, so we 're looking for
other bottlenecks to reproduction. But I think there 's enough consensus that having reﬁtges in an
area where the biomass is suﬁ'icient will — if the other problems are licked — will lead to successﬁd
natural reproduction. The only lake that we ’ve had successful natural reproduction and actual
rehabilitation is Lake Superior, and it doesn 't have a refuge in it, so obviously it isn '1 critical to
success or leads to success by itself: but it may lead to success someday.

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Other tribal and DNR biologists/representatives believed that the establishment of
conservation reﬁiges was beneﬁcial, although not necessary, since they helped re-build
stocks and increase lake trout biomass.59 Importantly, this increased biomass should
promote lake trout rehabilitation in the ﬁsture, once other obstacles to natural
reproduction are overcome. A few biologists/representatives from the tribes and the
DNR also perceived that the reﬁiges were beneﬁcial since they protect historic lake trout
spawning habitat.60

On the contrary, a few DNR bio logists/representatives disagreed with the concept
of establishing refuges as a way to rehabilitate lake trout stocks. One respondent from
the DNR believed that lake trout are no longer able to reproduce naturally in Lake
Michigan and Lake Huron, and he contradicted the perception that the reﬁiges provided

better spawning habitat for lake trout.61 Another DNR bio lo gist/representative believed

 

’9 One DNR biologist/representative illustrated this belief:
I think they 're good [lake trout refuges], and in fact, [in] the northern Lake Michigan reﬁtge... in
particular was successful because despite gill nets all around the reﬁtge and high extraction rates
around the reﬁtge, stocks have gradually built up. So yeah, I think technically speaking, you
wouldn 't need reﬁtges [ if you were] appropriately managing the mortality of the species, but I still
think they 're a reasonable thing to layer on top of rehabilitation eﬂorts.

6° According to one tribal biologist/representative,
The Lake Committees [established under the Great Lakes Fishery Commission] had established a
lake trout plan which includes refuges... The focus of that plan, in Lake Huron and Michigan, was
to emphasize the refuges. These were the areas where the habitat was the best, where we thought
lake trout could reproduce, and we stocked there very heavily—we being the federal government.

6' This DNR biologist/representative stated,
I think the opportunity to establish...self-sustaining lake trout populations... in Lake Michigan and
Lake Huron—I don 't think it ’s possible {in a quiet voice}. The primary reason that I think it 's n_ot
possible is the presence of the alewife and smelt...l think that the biological mix and the physical
habitat of the lakes themselves have changed to a point that the spawning techniques of the lake
trout will no longer function. Now it won 't be absolutely zero, but it will be so low as to make
preposterous any management scheme based on the sustaining of naturally reproducing
populations [of lake trout].

He also said, “I don 't think that the lake trout can spawn in the refuges arty better than they can spawn

anywhere else! They can try it and continue the facade, but it 's not going to work!”

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that the refuges have had no affect on lake trout stocks, and therefore are unnecessary for
lake trout rehabilitation and conservation.62
1.) b. Gill Net Use and Restrictions

In general, perceptions of stakeholders towards gill net restrictions were related to
stakeholders’ perceptions of gill net use and its impact on lake trout mortality. DNR
biologists/representatives, sport ﬁshers, sport ﬁshing and state representatives strongly
opposed gill net use. They discussed gill net use as the most signiﬁcant source of lake
trout mortality and an obstacle to lake trout rehabilitation and conservation.63 Nearly all
recreational and charter boat sport ﬁshers, as well as sport ﬁshing representatives,
perceived that gill net use was destructive and solely responsible for signiﬁcant
reductions in lake trout and other ﬁsh species since the 1950s. 64 Therefore, they believed

that limiting tribal harvest was the only way to protect ﬁsh stocks in the Great Lakes.65

 

62 One DNR biologist/representative explained,

I have a very diﬁ'erent perspective of reﬂtges than probably anyone else you 'll talk to... I think the
concept was that you have this area that is closed to ﬁshing, and therefore the fish will do well
there. The problem is that they don 't stay there! They still achieve the same mortality rates when
they come off as they would if this area were open. The concept being that these have been
historical reefs, so we need to keep the fish there protected blah, blah, blah. Well, we did that for

l5years, andwhat do we have to showfor it? Not very much. [believe ifyou setyour
regulations—I don 't care if it 's commercial or recreational—properly so that your mortality rates

are where they need to be, you don 't necessarily have to have refuges! You just don ’t

‘3 In the 19605, incidental catch of lake trout in the harvest of lake Whiteﬁsh and chubs was determined by
the DNR to present a problem for lake trout recovery. As a result, the Natural Resources Commission of
the DNR banned large-mesh gill nets in 1968 and 1969 and required replacement of this gear with trap nets
to reduce bycatch of lake trout and other species. Brege, DA. and Kevern, N.A. (1978). Michigan
Commercial Fishing Regulations: A Summary of Public Acts and Conservation Commission Orders ( I 865-
1975). Michigan Sea Grant Program: Ann Arbor, MI.

6‘ One charter boat ﬁsher explained,

There 's no reason to let them [tribal ﬁshers] keep using gill nets since they ’ve harmed the
ﬁshery... by la'lling the fish stocks! People will tell you that fishing in the Great Lakes was
fantastic before the whole tribal ﬁshing rights issue came up. Before that all started the ﬁshery
was excellent. Ome Judge F or 's decision came out and the Indians began commercially fishing
here, the ﬁshery stﬂered. There 's nowhere near what we used to have.

‘5 According to one sport-ﬁshing representative, “[W]e ’11 never see natural reproduction until there '3 no
gill net fishing and there 's unlimited sport fishing.”

95

These stakeholders believed that gill net restrictions under the 1985 Consent Order were
insufﬁcient to promote lake trout rehabilitation and conservation."6

On the contrary, tribal ﬁshers and biologists/representatives from Grand Traverse,
Bay Mills and Sault Ste. Marie were not opposed to gill net use, and they believed that
biological sources of mortality, such as sea lamprey predation, were more important
obstacles to promotion of lake trout rehabilitation and conservation under the 1985
Consent Order. Some tribal stakeholders believed that the DNR and the State of
Michigan are opposed to all gill net use and that false information has been spread about
the selectivity of gill nets, which has led to intolerance of gill net ﬁshing.“ Many of
these tribal stakeholders believed that the restrictions on gill net use in the 1985 Consent
Order were unnecessary, particularly when there are appropriate restrictions on seasonal

harvest and depths.68 Furthermore, all tribal ﬁshers, tribal biologists/representatives and

 

6" A charter boat sport ﬁsher exempliﬁed the response of most sport ﬁshers, sport-ﬁshing representatives,

and DNR biologists/representatives:
I don 't think it ’s [gill net restrictions under the 1985 Consent Order] enough. Gill nets kill off all
the fish, including the juveniles and species thin they ’re not targeting. I don 't think gill nets
should be allowed at all.

‘7 One cmrent ﬁsher illustrated this perception with the following quote:
It ’s [the gill net] a selective gear. It 's hard for people to understand that. It ’3 been drilled in
guys’ heads that it ’s bad

According to a tribal biologist/representative,
[W]hen this controversy started when it got into the carats with the treaty rights being sought to
be established... the reason was that the Michigan DNR was trying to eliminate gill net use by
commercialfrshermen...” was at that point that tribal members — who happened to be licensed
commercial fishermen by the State of Michigan — started asserting their rights under the [1836]
treaty, because gill nets, in this area, have been shown to be used since about the time of
Christ...lt is a very eﬂectivefrshing method y you know what you ’re doing..[B]ack when the lake
trout populations took a nose dive, primarily because of sea lamprey infestation, but gill nets
made a much easier thing to blame because the state had control over that...they convinced
everyboay over the course of the next couple of generations tint gill nets were the villain

6: According to one tribal biologist/remesentative, “Biologically speaking...data supports the ability of gill

net fishers to... target whitefish during certain seasons at certain depths, and actually harvest very, very

clean catches of Whiteﬁsh and very few other incidental species - 90% Whitefish and fewer lake trout.”

96

a few respondents from the DNR believed that tribal and recreational harvest both
account for lake trout mortality.69

Although most stakeholders believed that gill net use and restrictions inﬂuenced lake
trout rehabilitation and conservation, some respondents believed that the lack of science,
as a basis for policy-making in devising the 1985 Consent Order, hindered lake trout
rehabilitation and conservation.
I.) c. Role of Science in Policy-Making

Tribal biologists/representatives from the Grand Traverse Band and Bay Mills,

along with several respondents from the DNR and a few sport-ﬁshing representatives,
believed that the lake trout refuges and zones failed to promote rehabilitation and
conservation in part because they were based on politics, not science.70 Beyond the
establishment of lake trout reﬁrges and zones, many tribal ﬁshers from Grand Traverse,
Bay Mills, and Sault Ste. Marie and tribal biologists/representatives also expressed

concern over the political basis for gill net restrictions in the 1985 Consent Order."

 

‘9 A DNR biologist/representative stated,
Lake trout populations have [and of waxed and waned in some areas. I '11 give you a couple of
examples tied right close to the same spotBy far, the highest source of mortality was. tribal
commercial [harvest] in Grand Traverse Bay. Just on the other side of the peninsula—in the
Leland area—the mortality was also way too high, and the primary cause of mortality there was
recreational [harvest]. That 's an interesting case because they 're almost side-by-side.
7° A DNR biologist/representative shared this concern and stated,
There were pretty vast areas tint were declared to be deferred for lake trout rehabilitation
That 's always been one of nty personal issues... I don 't think it 's a rational thing to do, just
because of the lay of the land out there. The most important areas for lake trout reproduction
were the same areas that we deferred! ...So, that was just bad It was almost guaranteed that
rehabilitation wasn 7 going to work
7' (he tribal biologist/representative stated,
A lot of it IS political, I mean, we can ’tﬁsh south of the 45'h parallel for the better part of the year
down to the 900 grids at all. That 's political. We can 'tﬁsh south of the 45‘” on the other side.
You know, all of that 's strictly political... There ’s no biology involved It ’s...gear, a user conflict,
for the most part, to avoid user conflict. The state doesn 't want, doesn 't think that a commercial
and recreational ﬁshery can coexist in harrnorty together.

97

A few tribal biologists/representatives from the Grand Traverse Band and Bay
Mills also discussed concerns over the DNR’s failure to conduct sufﬁcient scientiﬁc
assessments of the stocked, non-native ﬁsh that they plant for the sport ﬁshery. A few
believed that the DNR was more concerned about tribal harvest than the ecological health
of the Great Lakes ﬁshery when devising the 1985 Consent Order.72
Most tribal ﬁshers also perceived that the State of Michigan and the DNR has
taken advantage of the need for lake trout relmbilitation and conservation and used it to
justify decisions that harm ﬁshing opportunities for the tribes. A few sport-ﬁshing
representatives commented that the sport ﬁshery has beneﬁted from the need for lake
trout rehabilitation, since it has led to a reduction in tribal gill net ﬁshing.73
I.) (1. Lack of Commitment
Stakeholders discussed that a lack of commitment to fulﬁllment of several provisions
under the 1985 Consent Order was also responsible for the failure of lake trout
rehabilitation and conservation. One of these provisions was the enforcement and
establishment of quotas, or total-allowable-catch limits (TACS), on lake trout harvest
within the priority rehabilitation zones.
A majority of respondents from the tribes, DNR, state and sport-ﬁshing organizations
believed there was a lack of commitment to enforcement of TACS on lake trout harvest.

Some of these respondents also believed that deferred zones hindered lake trout

 

72 One tribal biologist/representative illustrated this perception:
It was just totally stunning—the lack of biological studies that were done... they kept dumping non-
native ﬁsh. They 've brought exotics and haven 't evaluated the impacts. They ’re so worried about
Indians taking a ﬁsh instead of looking at what their recreatiornlfrshery has done.

73 One sport-ﬁshing representative expressed this sentiment: “lake trout rehabilitation worked well for us

[sport ﬁshers]. It ’s permitted the restriction of gill netting.”

98

rehabilitation and conservation since no limits were set on lake trout harvest within these
areas.

A few tribal and DNR biologists/representatives discussed the failure of the tribes and
the DNR to establish TACs for lake trout alter the ﬁrst few years under the 1985 Consent
Order. They perceived that the lack of commitment to creating TACS was another
important factor that adversely impacted lake trout rehabilitation and conservation. 74

State representatives, tribal and DNR biologists/representatives believed that
enforcement of TACs under the 1985 Consent Order was insufﬁcient due to a lack of
political will.75 According to these stakeholders, the lack of political will resulted from
having no accountability or oversight without judicial intervention. Since the court often
failed to provide a satisfactory or timely remedy, none of the parties desired to go to
court, and they failed to hold each other accountable for not adhering to the provisions of
the 1985 Consent Order.76 A few tribal and DNR biologists/representatives and state
representatives perceived that the inﬂexibility of the Consent Order and its dispute
resolution mechanism prevented the parties from solving problems as they arose, and led

to continuous adjudication over aspects of the policy. One state representative discussed

 

7‘ One DNR biologist/representative emphasized this point:

[T]he parties didn 't addrere to developing TA Cs, total-allowable-catches, that would have
protected trout. We just dropped that, and people just went out and fished Then everyone looked
at the stocks and said “Oh ,rrry God! Lake trout mortality rates are at 70%! What are we going
to do?" And noboay would do anything.

75 One DNR biologist/representative explained,

Early on, we [DNR] to enforce total-allowable—catches, and I think everybody—because of lack of
diligence—kind of lost the will to make it happen.

7‘ The lack of enforcement was reiterated by a state representative in the following demonstrative quote:
There weren ’t adequate erforcement mechanisms, and by the end of the I5 years, everyboay was
looking the other way. There was almost a gentleman 's agreement that nobody 's in compliance...
On the state side, we really couldn ’t take the tribes to carat because our innds weren ’t clean It
was a mutual problem. There were areas where BOTH sides were in excess of the TA C [total-
allowable-catch] limits.

99

how inﬂexibility encouraged litigation and discouraged cooperative problem solving by
the parties.”

Some tribal and sport ﬁshers, as well as representatives for the Grand Traverse Band,
DNR, State of Michigan and sport-ﬁshing organizations, perceived that the inability of
the State of Michigan and DNR to convert tribal ﬁshers in the Grand Traverse Band ﬁ'om
gill nets to trap nets was another important limitation for lake trout rehabilitation and
conservation under the 1985 Consent Order. Many of these stakeholders believed that
the State of Michigan and the DNR are to blame for not fulﬁlling its commitment to
converting the tribes to trap nets.78 In contrast, a few DNR representatives, one state
representative and some recreational sport ﬁshers blamed the tribal ﬁshers for their lack
of conversion from gill nets to trap nets.79
II.) Comparison of the I 985 Consent Order and 2000 Consent Decree:

Lake Trout Rehabilitation and Conservation

Although most tribal and DNR biologists/representatives and sport ﬁshing and
state representatives believed that lake trout rehabilitation and conservation should be
promoted under the new 2000 Consent Decree, questions remain over whether or not

these management actions will promote lake trout rehabilitation and conservation, and

 

77 According to one state representative,
But it [1985 Consult Order] was a pretty rigid system—it wasn ’t ﬂexible at all, and the parties
tended to respond to one another in a pretty rigid way... Under the ’85 Decree, there was a high
likelihood that if the other side was over their limit, the perception was that the only way you were
going to get anything done was to haul tirem into court...It 's an expensive, cumbersome process
that tends to exacerbate the differences between the parties and to discourage their ability to work
together.

7' One sport-ﬁshing representative said, “There was a lot of promises made by the state, and the state didn ’t

come through on conversion [to trap nets], getting the tribes set up and getting the boats here in a timely

manner.”

79 A recreational sport ﬁsher stated,
The state pushed hard to put them [tribal ﬁshers] in selective gear. They paid a lot of money
towards helping fishers convert in the interest of the ﬁshery.

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most respondents were hesitantly optimistic.80 A majority of respondents who
participated in the negotiations for the 2000 Consent Decree believed that greater
commitment is necessary under the 2000 Consent Decree to ensure that lake trout
rehabilitation and conservation is successful. Biologists/representatives from the tribes
and the DNR, along with sport ﬁshing and state representatives believed that lake trout
rehabilitation and conservation has been expanded under the 2000 Consent Decree. They
perceived that the following signiﬁcant changes in the new policy will promote lake trout
rehabilitation and conservation: improvements to the lake trout refuges and zones, greater
restrictions on gill net use, increased conversion of tribal ﬁshers from gill nets to trap
nets, a greater role of science in policy-making, and a stronger commitment to fulﬁllment
of the provisions within the 2000 Consent Decree.
II.) a. Refuges and Zones

Despite the perceived failure of lake trout refuges and zones under the 1985
Consent Order, these concepts were included in the new agreement. Biologists and
representatives from each stakeholder group discussed how signiﬁcant changes to the
reﬁrges and zones should help promote lake trout rehabilitation and conservation.81
These changes include placing lake trout harvest limits in all areas, thereby eliminating

deferred zones. Most tribal and DNR biologists/representatives and sport ﬁshing and

 

8° A tribal biologist/representative remarked,
Lake trout rehabilitation has expanded under the 2000 [Consent Decree] compared to '85,
although I have to add that it does not necessarily mean that they '11 [Take trout] start reproducing
naturally, but there will be more adults spawning. We don ’t brow if their young will survive any
better.

8' A tribal biologist/representative explained,
In the 2000....the changes with the lake trout were: the refuges stayed the same, the deferred
zones were discontinued... Tribal ﬁshermen were not happy about tint. So now that all the areas
are under some type of lake trout harvest limit, unlike the l 985 Order where there were deﬁned
zones where you could catch as much as you want without consequence. That ’s a rather major
change to the tribal ﬁshing regulations and the major change to the lake trout rehabilitation plan.

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state representatives believed that these changes should be beneﬁcial in combination with
additional restrictions on gill net use.
II.) b. Gill Net Use and Restrictions

According to all biologists and representatives from each stakeholder group, gill
net use is expected to be signiﬁcantly decreased under the 2000 Consent Decree — by at
least 14 million feet — through conversion of gill net ﬁshers from Grand Traverse and
Sault Ste. Marie to trap net operations. This reduction in gill net was calculated based
upon the necessary diminution in gill net effort to achieve 40-45% lake trout mortality.
These tribal ﬁshers will convert to trap nets as they take over state-licensed, non-tribal
commercial ﬁshing operations that were operated in Bay de Noc. These operations
became available through a voluntary buyout of nine state-licensed commercial ﬁshers by
the State of Michigan. Representatives from the tribes, DNR, state, and sport-ﬁshing
organizations perceive that the reduction in gill net use should help protect adult lake
trout stocks, while allowing tribal ﬁshing opportunities to expand.82 According to many
of these stakeholders, the voluntary buy-out is the critical factor in the 2000 Consent
Decree. They perceive that the agreement to convert tribal ﬁshers ﬁom gill nets to Bay
de Noc trap net operations was critically important to allow expansion of tribal ﬁshing

opportunities in a manner that was acceptable to all parties.

 

So now, in both lakes deferred zones are gone and lake trout are stocked there... There 's some nice
historically important lake trout reefs in deferred zones.

82 One DNR biologist/representative illustrated this perception:
Our position was the I 985 Decree worked pretty well ﬁom an allocation standpoint, so we ’re
going to start with that with a few tweaks... It wasn 7 until February of I 999 when... two things
happened The Fish Producers came to us and said “We 're willing to sell out I 0 operations if
you guys '11 buy them on a ‘willing seller, willing buyer' basis. We will turn over those operations
so that the tribes can get into trap nets. " When we looked at that opportunity and remove that gill

102

II.) c. Role of Science in Policy-Making

Most stakeholders perceived that the 2000 Consent Decree’s provisions dealing
with lake trout rehabilitation and conservation were based upon science, in contrast to the
1985 Consent Order, since biologists played a central role in the policy negotiations.83
Most stakeholders discussed that there needed to be a stronger commitment to lake trout
rehabilitation and conservation under this new policy if it was going to be successful.
11.) d. Lack of Commitment

A majority of tribal and DNR biologists/representatives, sport-ﬁshing and state
representatives believed that there would be a greater commitment to enforcement under
the 2000 Consent Decree, compared to the 1985 Consent Order. Tribal and DNR
biologists/representatives discussed how enforcement should be facilitated under the

2000 Consent Decree due to unambiguous language and an increase in resources for

enforcement.84 Importantly, one DNR biologist/representative stated that if problems

 

net eﬂort out of the water, then we have a real shot at lake trout rehabilitation if we '11 commit to
putting size limits and regulations in place that we need

83 A DNR biologist/representative similarly said,
We ’re excited about this new 2000 agreement. We think the biological basis for it—ﬁshing eﬂon
linked to biological assessment—will provide greater protection of the resource. There 's a
greater professional commitment to the management of a shared resource. It offers benefits to
each side. It works for the benefit of everyone by better protecting the resource.

In response to the question, “Do you think the new agreement is more biologically sound than the 1985

Consent Order? A DNR biologist/representative remarked, “Definitely not.” One tribal

biologist/representative stated,
If the Consent Decree was based upon science, they would have looked at diﬂerent issues. They
would have looked at the interaction of alewife and salmon, the survival of lake trout and
whiteftsh... If the state was interested in biological evaluation, they 'd look at alewife, since tirere 's
evidence now that there may be early mortality syndrome occurring. The state needs to decide
what to do, but that might mean action that would eject the salmon

3‘ One DNR biologist/representative provided this example,
There are penalties for exceedance of total-allowable-catches this time that were just left vague
last time [under the 1985 Consent Order]. . ..It ’s real this time, unlike '85. We were much more
deliberate in defining the kinds of fishing, the times of fishing, and the species to be fished for than
we were in 1985. There was a lot of ambiguity in the 1985 agreement that could be explained
several ways.

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arise with respect to enforcement, the parties will have a change to work problems
amongst themselves without adjudication.
III.) I 985 Consent Order: Fishing Opportunities and Communities

Most tribal ﬁshers from Grand Traverse and Bay Mills believed that the 1985
Consent Order detrimentally affected their ﬁshing opportunities, and former ﬁshers
blamed this policy on their inability to continue ﬁshing for a living. With this loss of
ﬁshing opportunities, former ﬁshers described the devastating impact of the 1985
Consent Decree on their ﬁshing communities.85 Yet, current tribal ﬁshers ﬁ'om Grand
Traverse, Bay Mills and Sault Ste. Marie described how they did relatively well under the
1985 Consent Order, compared with how they expected to fare under the 2000 Consent
Decree.“5 Similarly, one charter boat sport ﬁsher perceived that his ﬁshing improved
under the 1985 Consent Order, but was skeptical about his opportunities under the 2000
Consent Decree.

Fishers — tribal commercial, recreational and charter boat sport ﬁshers - perceived
that the provisions within the 1985 Consent Order adversely impacted ﬁshing
opportunities and communities. In particular, respondents discussed how the following
policy provisions detrimentally affected their ﬁshing opportunities and communities:

a. Gill net use and restrictions; and

 

'5 One former tribal ﬁsher stated,
To show its aﬂect...it would be best to look at our community in its entirety...I could walk you
through...and how you all kinds of exftshermen... One time, I sat down and wrote down the
households that were aﬂected by ftshing...At that time, the households affected by fishing would
have been two-thirds... That ’s the impact on this community. There 's all kinds of people who
would love to be on that lake, but we 're not. I 'm one of them.

36 A tribal ﬁsher explained,
We were waiting for 2000 with the hope that we could obtain a better agreement [than the 1985
Consent Order]. . .Faced with what we 're looking at now, it doesn ’t seem so bad! At least I could
make a living... but it was very oppressive. We barely survived it. Only if you compare it to how
very bad this new agreement is, I can say it was acceptable.

104

b. Assigned zones.

III.) a. Gill Net Use and Restrictions

Most tribal ﬁshers from Grand Traverse and Bay Mills and tribal
biologists/representatives believed that the restrictions on gill net use under the 1985
Consent Order adversely affected ﬁshing opportunities and the ability of ﬁshers to sustain
their livelihood, particularly small boat gill net ﬁshers.87

Most recreational and charter boat sport ﬁshers, in contrast, believed that their
ﬁshing opportunities diminished due to tribal gill net ﬁshing,88 and that there were too
many tribal ﬁshers utilized gill nets. These stakeholders expressed their opposition to all
tribal ﬁshing with gill nets, although one recreational sport ﬁsher and one charter boat
sport ﬁsher were only opposed to tribal harvest of salmon. These sport ﬁshers perceived
that tribal gill net ﬁshing decimated the Great Lakes ﬁshery and was responsible for a
reduction in their ﬁshing opportunities.89 According to many recreational sport ﬁshers,
extensive gill net use by the tribes has ruined the sport ﬁshery in some locations and

caused the decline of sport ﬁshing communities.90

 

'7 One former tribal ﬁsher demonstrated this sentiment, “They regtdated small boat ﬁshermen out of
business... There are very few small boat ﬁshermen anymore. Very few.”
" A charter boat sport ﬁsher remarked,
[T]he policy that MIS-managed the Great Lakes [referring to the 1985 Consent Order] ...It let the
Indians rape our resourcesl... They were allowed to gill net the entire area above the 45'” parallel,
which includes this area... The state didn 't represent us during those negotiations. They caved in
to make a deal.
'9 One charter boat sport ﬁsher illustrated the sentiment of most sport ﬁshers towards tribal gill net use: “In
general, the sport ﬁshers are opposed to Indian ﬁshing because they ’re using gill nets. We feel they ’re
taking too much of the ﬁshery.”
9° One recreational ﬁsher explains how he perceives tribal ﬁshing has impacted his community in
Northport:
Before I980, approximately 20 years ago, Northport was full of lake trout. You couldn ’t cast out
without waging one off the wall of the marina Now, no lake trout come in near the wall.
Natives have fished heavily in this area, and that combined with the phosphate levels explain why
there '5 no ﬁsh here... There used to be boats and cars waiting to get here People used to come
here on vacation. Now they go to Leland and Suttons Bay.

105

Sport ﬁshers and sport ﬁshing representatives, most DNR
biologists/representatives and state representatives believed that it would be in everyone’s
best interest if all tribal ﬁsherswould switch ﬁom using gill nets to using trap nets.9|
These respondents, along with several tribal ﬁshers and biologists/representatives from
Grand Traverse, Bay Mills and Sault Ste. Marie, discussed some beneﬁts of using trap
nets over gill nets.92 When asked for their opinion about converting ﬁom gill nets to trap
nets, ﬁshers from the Grand Traverse Band, Bay Mills and Sault Ste. Marie were not
opposed to conversion from gill nets to trap nets, and some tribal ﬁshers believed that
trap net operations could be easier to ﬁsh.93 Furthermore, according to ﬁshers ﬁ'om Bay
Mills and Sault Ste. Marie, most ﬁshers have converted to trap nets.94

Yet, a few tribal ﬁshers ﬁom Grand Traverse and Bay Mills believe there are

some ﬁshers that do not wish to convert.” Most respondents discussed a number of

 

9' One state representative expressed this sentiment:
Conversion will be beneficial to large gill net fishers since trap nets produce a better product, they
are easier since you don 't need to retrieve your nets as often. It ’s more expensive and you need
crew... Trap nets require more skills. . . [But for] those taking part in conversion, it 's a win-win
proposal.

92 As illustrated by one tribal biologist/representative:
Two things about trap nets: one is that the catch-per-eﬂort is higher, generally, than it is with gill
netting, and another point is that trap nettedﬁsh tend to have higher commercial value than if the
sarnefish are caught by gill net because the quality is better. That 's because they ’re held live in
the net. They 're [trap nets] easier to tend... because with a gill net, the fish will die in the net, and
you have to get out and liﬂ that net or lose your fish...and if the weather 's bad and you can ’t get
out to tend it, the fish in the net are dead and they 're not sellable... There are a lot of reasons [for
conversion], but primarily ecortomic.

93 A crn'rent tribal ﬁsher responded with a sentiment similar to other ﬁshers:
I 'd convert [to trap nets]. But I ’m not on the list. They took all the fishers ﬁom the tribes [in
Grand Traverse and Sault Ste. Marie] and each had to fish a certain length of net. But I didn 't
fish enough net to qualify for conversion, even though I think I have... I told them I ’d like to
convert.

9" (he tribal ﬁsher demonstrated a common response when he stated, “A large part of our ﬁshery is [now]

trap netters.” A tribal biologist/representative explained,
Once...a gill netter has gotten to a certain size, they saw trap netting as a logical way to extend
their economic value of the ﬁshery, so they were converting on their own.

9’ This sentiment is illustrated by the following quote by a former tribal ﬁsher:
Some just want to fish the old traditional way—they didn 't want to use trap nets... Gill nets are
cheaper, easier to move, and it 's much easier and cheaper to start a business. Trap nets take

106

obstacles to conversion ﬁom gill nets to trap nets. According to these stakeholders,
conversion required an extraordinary amount of capital investment, a larger crew, a larger
boat, and more expertise.""6 Additionally, they described how trap net operations limit the
seasons, depths and surfaces that can be ﬁshed.97

Beyond these problems that stakeholders associated with conversion from gill net
ﬁshing to trap net ﬁshing, tribal ﬁshers from the Grand Traverse Band, Bay Mills and
Sault Ste. Marie and tribal biologists/representatives believed it was more important that
gill net ﬁshing was preserved under the 1985 Consent Order since it provided
opportunities for small boat operators that could not afford to convert and upgrade to
larger ﬁshing operations. A few tribal biologists/representatives explained that the tribes
value maintenance of ﬁshing opportunities for small-boat operators, so preservation of
the gill net ﬁshery is necessary. Tribal ﬁshers and bio logists/representatives from the
Grand Traverse Band and Bay Mills stated that they strongly believe tribal ﬁshers should

have the right to choose which type of ﬁshing operation to use. 98 Importantly, they

 

more learning. They take a lot more work Once they 're set up, you simply move the nets, empty
one net, and then go to the next. Tkap nets do real well ...but gill nets do too.

9‘ One current tribal ﬁsher illustrated the difficulty with trap nets:
I used to work for ...they wanted everyone to go in on trap nets, and you 'd inve to make
your money right away in the spring and early fall and get ready to pull out. It ’s such an
expensive net and you got to have expensive equipment...A lot of the DNR state conservationists
would like you to believe that you can just run out there with any kind of boat with a trap net!
There ’s no such thing!

97 A former tribal ﬁsher expressed his ﬁ'ustration will trap nets,
Dap nets are only a seasonal fishery. You can only ﬁsh with them in the spring and fall. Their
use requires conversion of your boat [too].

Another former tribal ﬁsher further described the limitations on ﬁshing seasons and depths:
Certain times of the year you can do more with a gill net than you can with a trap net. You can ’t
go and put a trap net...where there ’s gravel or rocks...where a gill net...no matter what 's on the
bottom, it doesn ’t hurt your net... You cannot anchor trap nets where there are rocks!

98 One tribal biologist/representative explained,
As far as ifyou ’re a fisherman and you want toftsh trap net or gill net, that ’s your choice. But it 's
literally shutting people out to only have a trap net fishery. It comes down to that it ’s their tribe
and their choice. But it impacts other people.

An addition, a DNR biologist/representative stated,

107

believe that since the tribes have a treaty right to use gill nets, they should retain the
opportunity to participate in gill net ﬁshing.

Most tribal ﬁshers perceived that under the 1985 Consent Order, it was necessary
to upgrade to larger ﬁshing operations to sustain their livelihood. Some ﬁshers and tribal
biologists/representatives expressed frustration at the failure of ﬁsh prices to rise with
inﬂationary pressures because while the cost of equipment increases, their proﬁts do
not.99

The desire of small boat gill net ﬁshers to upgrade under the 1985 Consent Order
raised some concerns for a few tribal biologists/representatives and a respondent ﬁ'om the
DNR. They discussed ﬁshing capacity as a problem associated with the encouragement
of conversion of all small gill net boats to larger trap net operations. ‘00 Although gill net
use and restrictions were considered critical provisions under the 1985 Consent Order,

tribal respondents discussed that the closing of waters, through the creation of assigned

ﬁshing zones, was one of the most inﬂuential aspects of the 1985 Consent Order.101

 

There was anger...even in rrty family. “You ’re taking food of the table with these restrictions on
fishing. " But you ’re taking away their way of life. There was a lot of emotions and hard feelings.
Now, they ’ve been bought out [ﬁom ﬁshing].
99 One tribal biologist/representative explained,
I think the bigest problem is that the small boats are having a harder and harder time of just
making a living, of competing. Tiny ’re just having a hard time because the price per pound just
isn 't going up for them, and with the small boats, they 're limited to what they can physically go
out and catch So, they 're wanting to upgrade.
"’0 An explanation was given by a tribal biologist/representative:
Well, y. . . [small-boat operations] upgrade, you put aﬁtrther squeeze on the remaining small
boats... The resource can only absorb so much and support so many. So what direction do you go
in when a small boat ﬁsinr isn ’t mala'ng a living but wants to upgrade?
'0' A tribal biologist/representative stated,
There were opportunities [for ﬁshing] that were lost, traditional fishing areas that were lost, and I
think that 's why the I 985 Consent Order affected people the way it did
Another former tribal ﬁsher illustrated the perception of a majority of these stakeholders:
We [the tribes] own all these treaty-ceded waters. Our ancestors fished these waters and signed
the treaty. We have rights to fish wherever we want in these waters. The state doesn 't own these
waters, but tiny 're trying to give us part of what alreaay belongs to us.

108

111.) b. Assigned Fishing Zones

Tribal ﬁshers from Grand Traverse, Bay Mills and Sault Ste. Marie and tribal
biologists/representatives strongly opposed assigned ﬁshing zones since they limited
ﬁshing opportunities for the tribes. Stakeholders from Bay Mills, in particular, discussed
how they opposed the 1985 Consent Order due to its closure of traditional ﬁshing
waters.‘02 Notably, a few tribal ﬁshers from Bay Mills and Sault Ste. Marie believed that
the establishment of exclusive ﬁshing zones was unfair.103 Yet, several tribal
biologists/representatives discussed that the creation of an exclusive ﬁshing zone may
have been necessary for the Grand Traverse Band since other tribes favored ﬁshing in the
Grand Traverse Bay area.

Most recreational and a few charter boat sport ﬁshers were unaware of the
assigned ﬁshing zones for the tribes, although most charter boat sport ﬁshers had a
general understanding of these zones. These ﬁshers did not have an opinion about how
these zones may have affected ﬁshing opportunities.

IV.) Comparison of the 1985 Consent Order and 2000 Consent Decree:
Fishing Opportunities and Communities
A majority of tribal and DNR biologists/representatives, sport ﬁshing and state

representatives believed that all parties conrpronrised in the 2000 Consent Decree

 

"’2 One tribal biologist/representative explained,
[O]ne of the basic oppositions to the I 985 allocation Order was the shut-down of a substantial
number of areas that Bay Mills fishers found valuable to fish in It made it more dtﬂicult for what
we call “our small boat ﬁshery " to have places where it was safe to fish

'03 A current tribal ﬁsher expressed these sentiments:
Well, I didn '1 think it was right. The fishermen in the old days, and what I learned from my Ma
and everybody, they [tribal ﬁshers] followed the fish. It didn ’t matter what tribe or what band of
Indians it was, you followed the ﬁsh. r you lived in a particular area you followed the ﬁsh in
that area. Sometimes areas would cross, and that 's how the tribes got “interbred " you might say.
They would go where the ﬁsh was, and in those fish camps, tiny would get to know tinir
neighbors, diﬂ’erent bands of Indians. To make one area exclusive over another band of Indians

109

negotiations, which resulted in an agreement that was more equitable and provided
sufficient ﬁshing opportunities for all sides, compared with the 1985 Consent Order.‘04
The perception by most tribal and DNR biologists/representatives and state
representatives was that tribal and sport ﬁshers would have greater ﬁshing opportunities
under the new 2000 Consent Decree. Despite a decrease in allowable gill net harvest,
they believed that tribal and sport ﬁshers will have increased ﬁshing opportunities under
the 2000 Consent Decree, relative to the 1985 Consent Order, due to the opening of
access to waters that were closed off under the 1985 Consent Order.105 Most
representatives involved in the 2000 Consent Decree negotiations believed the gill net
restrictions are an acceptable compronrise since additional ﬁshing opportunities will be

provided for tribal and sport ﬁshers. '06

 

was wrong. That 's the court... politics. Nothing to do with the fish, and it shouldn ’t have had
nothing to do with the people, but it did

104 One DNR biologist/representative ﬁlrther illustrated this sentiment,
I think it [2000 Consent Decree] was a win-win for all of the parties...everybody got something,
and everyboay gave a little something too. Both sides are not happy about many things, which
tells you that you probably hit some common ground... it ’s all about compromise ...A little give and
take...as long as what you do ultimately protects that resource and you provide a good and
diverse and ﬂexible opportunity for everybody.

'05 A state representative also stated,
We restructured the way the ﬁshery was allocated Instead of allocating by zones and fencing
everyboay of in dtﬂerent area of the lake...as happened in ’85 - “Here ’s your water, you take
care of it, it ’s your problem, we ’11 be over here. " Instead of dividing it by zones, it was divided by
species. Under tin current agreement [2000], essentially tirere is [tribal] ﬁshing throughout the
lakes. There are gear restrictions in most of Lake Michigan...but there will be tribal commercial
fishing in those waters. Under the ’85 Decree, that whole area was closed off to tribal
commercial ﬁshing and was restricted to state ﬁshing... In our approach towards the resource,
we ’re not segregating water to the same degree [as in the 1985 Consent Order].

'06 A tribal biologist/representative exempliﬁed the impact of these changes on Sault Ste. Marie,
[Tribal] ﬁshing opportunities have increased substantially [under the 2000 Consent Decree]. Our
Whiteﬁsh harvest will increase about 5 0% over the previous years we think, and that
ts primarily because of the trap netting opportunities in Bay de Noc, which was closed to us in
'85 and in the water south of Hammond down to Alpena, to the treaty line, which was also closed
to us. We inve room to expand our commercial fishery without increasing the number of fishers
and have...a larger number of economically viable fishing operations, while at the same time, not
increasing our lake trout harvest...So we have expanded ﬁshing opportunities, and we will take
advantage of them At the same time, we will increase our protection of the sport species by
converting to trap nets and reducing or eliminating harvest of non-target species.

110

Tribal ﬁshers from Grand Traverse, Bay Mills, and Sault Ste. Marie in contrast,
perceived that their ﬁshing opportunities would be adversely affected under the 2000
Consent Decree due to the new restrictions and limits on harvest.'°7 A few current tribal
ﬁshers had opinions about the opportunities to convert to trap netting under the new
agreement, but they differed amongst those ﬁshers who were offered the chance to
participate in the conversion and those who were not. '08

Importantly, some DNR and state representatives expressed an awareness that
tribal ﬁshers valued having a choice to ﬁsh with gill nets or trap nets.109 A few tribal
biologists/representatives reiterated this sentiment in their explanation that Bay Mills and
Grand Traverse did not agree to participate in the conversion of gill nets to trap nets since

ﬁshing opportunities would be adversely impacted.llo

 

m One current tribal ﬁsher illustrated the perception of most other current tribal ﬁshers: “[Ilfthe state

would have just rubberstamped the old agreement that they had for the last 15 years, everyone would 've

been happy.”

'°" One tribal ﬁsher stated,
They 're in the process of picking who 's going to go down to Alpena—which is a lucrative ﬁshery
because it 's...not been open to ordinary ﬁshermen for quite a while, 20 or 30 years. They had two
permit fishermen fishing under the state... Those guys have been catching a biggerftsh all these
years and catching lots of them

'09 The following sentiment was expressed by a DNR biologist/representative:
The last factor was that the way we structured it, the thing was absolutely voluntary. The tribes
were clearly not prepared to go back to their members and say, "You, you, you and you are all
converting. " There ’s nobody that 's being forced to convert. The notion is that the package is
being structured so that it 's attractive enough to the fishermen that they will see it as being to
their advantage to convert and so it 's voluntary. I think that 's very critical from the tribal
perspective.

"° A biologist/representative explained,
There had to be an agreement by each of those tribes that they would put an absolute can on the
amount of fishing eﬂort their members could have, which would mean that you would put a cap on
the number of fishers who could participate. That, in Bay Mills’ view, is saying that certain
people can benefit from a tribal right, and certain people cannot. There is no way they were
going to do tint. In Bay Mills ’ view, every single person that wishes to fish should inve the right
to do so, and the tribe would not agree to pick and choose who could fish and who could

111

V.) I 985 Consent Order: Social Conﬂict

According to several DNR biologists/representatives, sport-ﬁshing and state
representatives, the 1985 Consent Order was created to resolve social conﬂict between
tribal commercial and state-licensed, sport ﬁshers during the late 19708 and early
19805.lll Stakeholder perceptions of changes in social conﬂict under the 1985 Consent
Order varied between and among the different categories of respondents. A majority of
representatives ﬁ'om the tribes, DNR, sport ﬁshing organizations and the state believed
that social conﬂict has been greatly reduced under the 1985 Consent Order, relative to
how bad conditions were prior to this policy.1 ‘2 Notably, some stakeholders discussed
that although there has been a decrease in social conﬂict, instances of conﬂict still occur
occasionally. Some recreational sport ﬁshers and most charter boat sport ﬁshers within
the Grand Traverse Bay perceived that social conﬂict has diminished under the 1985
Consent Order, but that tension still exists.

Amongst tribal ﬁshers, perceptions differed somewhat depending on the
geographic location where stakeholders ﬁshed and whether or not they were currently
ﬁshing. Most tribal ﬁshers that ﬁshed outside of the Grand Traverse Bay region .

perceived that social conﬂict has been reduced under the 1985 Consent Order, with the

 

not... This is a treaty right held by the tribe. Therefore, certain people should not be able to enrich
themselves ﬁ-om that benefit and others cartnot because they can 't get into tin ﬁshery.

”' According to one sport-ﬁshing representative,
It was the coryIict of the late ‘70s which prompted the agreement. When Judge Fox innded down
his decision, all hell broke loose. There were physical con/iontations, ﬁghts. Tribal and sport
ﬁshers avoided coming into harbor to avoid ﬁghting. There were bumper stickers, “Save a
salmon—spear an Indian " Tinre were major confrontations. Someone was going to get
killed... People were shooting. Tiny were threatened

“2 (me sport-ﬁshing representative illustrated this sentiment:
[The tribes] will tell you dtﬂerently, and say there 's still quite a bit of conflict, but you have to put
it in the context of the times. Back then [before the 1985 Consent Order], it was horrible. Now, I
don ’t have any empirical evidence to back this up, it 1: just anecdotal evidence, but from what I 've
been told relations were at their worst back then There was a lot of violence. You don 't have

112

exception of one current ﬁsher from Bay Mills. ‘ '3 On the contrary, most current tribal
ﬁshers within the Grand Traverse Bay region believed that social conﬂict has not
declined during the 15 years of implementation of the 1985 Consent Order. Most former
tribal ﬁshers within Grand Traverse perceive that violence has decreased, but that a
tremendous amount of animosity and hostility still exists between tribal and sport ﬁshers
that has the potential to lead to ﬁrture social conﬂict.114
Geography was discussed as an inﬂuential factor by a few tribal ﬁshers, tribal

biologists/representatives, and charter boat sport ﬁshers, since it is related to population
density and the number of competing user groups. Beyond geographic location,
stakeholders perceived that provisions of the 1985 Consent Order and other factors
inﬂuenced stakeholders’ perceptions of social conﬂict. These included:

a. Gill net use and restrictions;

b. Lack of commitment to enforcement of vandalism;

c. Assigned ﬁshing zones; and

d. Shifts in attitudes.
V.) a. Gill Net Use and Restrictions

Recreational and charter boat sport ﬁshers, some DNR biologists/representatives

and sport-ﬁshing representatives indicated that gill net use was the largest source of

 

anything like that today. Putting it in the context of how bad things were, conflict has been
drastically reduced
"3 Although most ﬁshers outside of Grand Traverse perceived that social conﬂict has decreased under the
1985 Consent Decree, one current tribal ﬁsher from Bay Mills believed it has not. He responded, “They
talk about ‘calmer waters. ' What the hell are they talking about?!”
m A current tribal ﬁsher illustrated this sentiment,
That 's one thing tiny promised us was peace. Tinre ’s been no peace... Three years ago, I was on
my boat with my wrfe and two young kids. [A sport ﬁsher] yelled that we ‘d better get our Indian
asses out of __ if we wanted to leave with them in one piece. He said he didn 7 give a f__ck who
was on the boat. He looked directly at the women and children on the boat. He was threatening
women and children

113

animosity and hostility towards tribal ﬁshing. ‘ ‘5 Recreational and charter boat sport
ﬁshers discussed their lack of support for the use of gill nets. A few ﬁshers mentioned
that gill nets can be cut loose, and set out into the open water where they continue to kill
ﬁsh. Importantly, tribal ﬁshers and tribal biologists/representatives discussed how sport
ﬁshers oﬁen caused ﬂoating nets by cutting the buoys from the nets. They perceived that
nets were continually out until sport ﬁshers became educated on the consequences. ' ‘6

Sport ﬁshers — recreational and charter boat - and a few sport-ﬁshing
representatives also perceived that gill net use was a safety hazard for many sport ﬁshers,
resulting in animosity and hostility towards tribal gill net ﬁshing and social conﬂict. A
few sport ﬁshers described the same incident where a sport ﬁshing boat become
entangled in a gill net in the Grand Traverse Bay area that they believed was not properly
marked, and a ﬁsher drowned. ”7 When asked about proper marking of nets, one tribal
ﬁsher explained that the nets are marked, but they are marked with small buoys to
prevent vandalism. The ﬁsher explained that if law enforcement would prevent

destruction of ﬁshing gear, then the tribes could safely mark their nets with larger

buoys. ‘ ‘8

 

"5 (he DNR biologist/representative explained, “Things will never get better until you get equal fishing

0 for-tunities and reduce gill net ﬁshing eﬂort to what tinfrsh stocks can hold”

' One tribal biologist/representative explained,
[W]e do on occasion get some nets cut. If tiny [sport ﬁshers] come across a net, they 71 cut them
up or cut the buoys off But I think a lot of them have been more educated to where they shouldn 't
do that because if tiny lose a net, they ’re [ the net] going to continue fishing.

“7 A sport-ﬁshing representative explained the ﬁ'equartly told story about this event:
I 've seen where people have been caught up in them [ gill nets] and the dangers that tiny can have
when they 're on the surface... Well, all three men in the Straits area were killed were
drowned! They were...sportftshing, and their downriggers had been caught in them, and then
the back part of the boat that the motor is attached had gotten caught, and then so you have this
area oftrap net onyour boat, which takes the buoyancy out ofyour boat—tin boat can ’t go up or
down—it was ﬂooded and tinre was three people killed

“a He stated,
In the past, ...orn of the frshermen...marks his nets the way he ’s supposed to, but he wants to keep
small buoys because...every time—I don 't care when it is—every time aﬁsherman goes over there

114

V.) b. Lack of Commitment

Tribal ﬁshers from Grand Traverse, Bay Mills and Sault Ste. Marie also discussed
how the lack of commitment by local law enforcement officers to prosecute vandalism
under the 1985 Consent Order fostered social conﬂict. A few current and former tribal
ﬁshers blamed state law enforcement ofﬁcers for allowing instances of social conﬂict to
occur and even encouraging social conﬂict under the 1985 Consent Order.1 19 They
perceived that the state law enforcement ofﬁcers failed to prosecute incidents of violence
against tribal ﬁshing gear.

Despite stakeholder perceptions that the lack of commitment to enforcement
fostered social conﬂict, biologists and representatives of all parties believed that assigned
ﬁshing zones helped reduce social conﬂict.

V.) c. Assigned Fishing Zones

Most tribal and DNR biologists/representatives, sport-ﬁshing and state
representatives, perceived that assigned ﬁshing zones helped reduce social conﬂict by
separating user groups.‘20 A few DNR biologists/representatives and sport-ﬁshing
representatives observed that the zones were beneﬁcial for preventing social conﬂict by

keeping tribal ﬁshers out of waters that were densely populated with sport ﬁshers. ‘21

 

and sets his nets...they disappear, they ‘re gone...a sportie gets pissed oﬁf and he goes over to the
nets and destroys them That 's what happens. We can ’t prove it because we can 't catch them. So
the ﬁshermen keep their buoys small...

"9 According to a current ﬁsher,
It was the state ’s fault that all this trouble came up in the first place, for sabotaging boats and all
that type of stuﬂ...No the state didn ’t gig that, but tiny more or less sanctiornd it because they
didn 't do artything to stop it aﬂirmatively.

m A tribal biologist/representative illustrated,
I think that the zoning approach was a necessary, but not very satisfactory compromise reached in
’85 to get an agreement... Given that the climate at the tinre was so much more hostile—at least in
social terms—that separating the ftsinrs made a good deal of sense.

'2' One DNR biologist/representatives demonstrated this perception:

115

Several tribal biologists/representatives believed that the exclusive ﬁshing zones in Grand
Traverse Bay in particular helped reduce social conﬂict and simpliﬁed management
within this contentious region.l22
V.) d. Shift in Attitudes

Some of the respondents — including several former tribal ﬁshers, tribal and DNR
bio logists/representatives, a few recreational sport ﬁshers, and state representatives -
perceived that social conﬂict has been gradually reduced due to growing adjustment or
acceptance to tribal ﬁshing. 123 In contrast, several tribal ﬁshers from Grand Traverse and

respondents from the DNR believed that negative attitudes towards tribal ﬁshing have not

changed. ‘24

 

They [the zones] definitely reduced corn'lict. We put tribal fishers in an area where there were the
least sport ﬁshers. We kept tribal ﬁshers out of Grand Haven, Frankfort, and Manistee where big
sport ﬁshing grows exist.

‘22 One tribal biologist/representative explained these sentiments:
Keep in mind that Bay Mills ﬁshers used to fish down there many years ago, and there have been
very hard feelings about Bay Mills fishers in Grand Traverse Bay. Bay Mills ﬁshers went down
there, they harvested fish, and then they leﬂ... Grand Traverse Band stays down there and tiny still
have to deal with tin societal issues — conﬂicts with other user groups..J think the assigned zones
10, in some ways, reduce conﬂict.

123 Additionally, a drarter boat sport ﬁsher remarked,
I think people have gotten used to it...the ruling. I mean, you heard a lot about Judge Fox for
years and years... negative comments about Indiartftshing that we 've all heard about in the news
about read about...I think as times goes by, it ’s more accepted Peopleth realize tint 's the way
it ’s going to be, for better or worse.

A state representative expressed this perception:
Social conflict went way down. In I984 and I985 you had armed patrols on the beaches, car
windows being smashed guns being ﬁred nets being vandalized threats of violence on both sides,
and it was a real powder keg... One of the good things about the I 985 agreerrnnt was that it did
mark boundaries...It drew lines in the lake and over a period of tinn as people became
accustomed to that, social expectations about the fishery acb'usted to the agreement and people
knew what to expect, and the level of violence went down

‘2‘ One current tribal ﬁsher illustrated this perception:
They [sport ﬁshers] came to swamp me when I ﬁrst arrived there. . . [That was] three to four years
ago. They came out with a bunch of boats. There was waving and yelling. They left me alone
eventually. Now they want to chit-chat. But they carry tin same attitude in their minds and
hearts. They haven ’t changed

116

VI.) Comparison of the 1985 Consent Order and 2000 Consent Decree: Social Conﬂict
Although many respondents perceived that social conﬂict diminished under the
1985 Consent Order, a few tribal and DNR biologists/representatives, as well as
respondents from the state, expressed a concern that there is potential for conﬂict
between tribal and sport ﬁshing gear under the 2000 Consent Decree. They believe the
potential exists due to the opening up of waters to gill net ﬁshers. Without education of
the ﬁshing public, these respondents expressed concern that the opening of waters may
lead to renewed social conﬂict.I25 Yet, one state representative discussed that this may
not be problematic due to the reduction in gill net ﬁshing as more tribal ﬁshers move into
trap net operations. '26
Although sport ﬁshers, their representatives, and respondents ﬁ‘om the DNR and
the state discussed gear conﬂict as a potential source of problems under the 2000 Consent

Decree, tribal stakeholders also believed that a lack of accurate knowledge about Native

treaty ﬁshing rights inﬂuenced social conﬂict under the 1985 Consent Order.

 

'25 One DNR biologisUqureseIitative remarked,
[W]e wanted to find a way so that not only did we protect the resource, but that we just as much
opportunity for both of groups involved as possible. That means you 're going to have these
ﬁsheries interacting, which we tried to segregate last time. Every time we have mobile and
stationary gear, you have a problem. So, there 's a lot of education you need to do.

'26 The representative explained,
I think there is certainly some concern to the extent that gill nets will be in places that they hadn 't
appeared before [under the I985 Consent Order] and there could be an increase in potential for
social corylict. But under the new agreement...in fact, there 's a reduction of gill net
activity...Most of the waters that the tribes will be moving commercial activity into that were
closed to them under ’85 will primarily in the form of trap net operations. In most of these
areas, sportsmen are accustomed to seeing trap net operations and in fact, they get along with it
very well. You ﬁnd fishermen ﬁshing near the trap nets on the theory that the nets are attracting
ﬁsh, so that should work fairly well.

117

V11.) 1985 Consent Order: Knowledge and Perceptions of Native Treaty Fishing
Rights

All tribal ﬁshers and most biologists and representatives ﬁ'om all stakeholder
groups knew that Native ﬁshing rights originated from the 1836 Treaty. In contrast,
nearly all sport ﬁshers and one sport-ﬁshing representative did not know or understand
why the tribes have rights to ﬁsh the Great Lakes. Still, some of the sport ﬁshers who
knew about Native treaty ﬁshing rights demonstrated that they did not understand these
rights. Sport ﬁshers frequently described treaty rights as “special rights,” and they
believed that tribal treaty-right ﬁshers are “playing the best of both worlds,” compared to
the non-Native ﬁshers. 127 Importantly, the few sport ﬁshers that were aware of treaty-
ﬁshing rights failed to acknowledge the existence of these rights.128

Many tribal stakeholders believed that sport ﬁshers generally were unaware of
Native treaty ﬁshing rights. ‘29 Most tribal and sport ﬁshers within the Grand Traverse
Bay region believed that a lack of knowledge and understanding of tribal treaty rights

have perpetuated intolerance and social conﬂict under the 1985 Consent Order.130 A few

 

m A recreational sport ﬁsher illustrated the most commm response among sport ﬁshers when describing
relations between tribal and sport ﬁshers under the 1985 Consent Order:
There ’s a lot of animosity, even now. A lot of Na_tives are plying the best of both worlds; They
want the beneﬁts of living in the United States, being a United States citizen, but they also want
their sovereign rights.
12: Age may represent an inﬂuential social variable on stakeholder perceptions of Native treaty-ﬁshing
rights. The two recreational sport ﬁshers that were less hostile toward tribal ﬁshers and perceived that
there is validity in tribal claims for ﬁshing rights were the only respondents that were less than 45 years
old. Notably, these respondents also believed that tribal ﬁshing should be allowed, but that it should not
detrimentally impact the sport ﬁshery.
'29 One former tribal ﬁsher explained this perception,
Perhaps if we had an educational program about treaty rights, the real story about gill nets and
their depths as I explained to you, perhaps it would be better. Perhaps it won 't ever get better.
But it might. Then the only ones who would hate Indians would be the ones who hate the Jew and
other groups—those people that are just racist...If I was uneducated and only read what I saw in
the papers, then I ’d be one pissed oﬂson—of-a—bitch, thinking, "They 're [the Indians] taking all the
fish! " There 's a lack of education.
m One DNR biologist/representative responded, “Sport ﬁshers feel that Indians are getting special rights
and it 's not fair. ”

118

tribal and DNR bio logists/representatives shared this belief. Tribal stakeholders
perceived that sport ﬁshers’ lack of knowledge and understanding of Native treaty ﬁshing
rights stemmed ﬁom:

a. Misinformation; and

b. Lack of education.
VII.) a. Misinformation

Many tribal ﬁshers, biologists/representatives discussed misinformation as a

critical obstacle to understanding and tolerance of tribal ﬁshing. They discussed the
difﬁculties in combating this misinformation.l3l They faulted the local media, sport-
ﬁshing organizations, DNR, and politicians for failing to educate the public and
disseminating false information, such as referring to the 1985 Consent Order as a
“treaty.”132 This statement is further supported by the reference to the 1985 Consent
Order as a treaty by several sport ﬁshers.133

Another example of misinformation was that tribal ﬁshing is not managed or

regulated.134 Notably, one tribal biologist/representative believed this misconception has

 

'3 ' One member of the Public Information and Education Committee stated,
It 's hard to combat the misinformation that exists... We help reporters, media people—we correct
fallacies. One particular fallacy—people in the media, the public, and the DNR were conﬁtsing
the Consent Decree with a treaty...lt ’s hard to do though...to combat the misinformation and
tales. Someboay will go on radio, “They [the Indians] want treaty rights to fish ” or “They want to
expand their treaty waters "—it starts with a little bit of false information, and people begin to
conﬁtse the agreement with a treaty. During an NPR segment, for example, I heard a sport ﬁshing
association president give misinformation. He wasn 't even well informed
'32 One tribal biologist/representative expressed this sentiment,
I ’m extremely ﬁ-ustrated by the media. The media says it ’s a treaty. It ’s not. It 's a management
plan... Perhaps it ’s more sensational [to say it’s a treaty]—it gets people 's attention. Or they think
the general public is so ignorant that they won 't know the diﬂ’erence. It 's misleading.
'33 In response to the question, “Are you familiar with the 1985 Consult Orda”? A few sport ﬁshers
responded as this particular charter boat sport ﬁsher, “The treaty, you mean? I was aware of it, though I
don 't know all the details.”
‘3‘ A charter boat sport ﬁsher responded, “There ’s never been relations [between tribal and sport ﬁshers]! I
mean, how can there be? While we ’re bombed with regulations, they [the Indians] have at it!” Similarly,
another charter boat sport ﬁsha' remarked, “[O]verall their fishing is unregulated The biomass they 're
taking—nobody checks. No one is checking.”

119

been perpetuated by the DNR’s failure to portray the tribes as having a role in the
management of the Great Lakes ﬁshery. ‘35
VII.) b. Lack of Education

According to several tribal ﬁshers, tribal and DNR biologists/representatives and a
few state representatives, there has been a lack of education about Native treaty ﬁshing
rights. They discussed that this omission may have inﬂuenced stakeholder perceptions of
these rights. '36 According to a Sea Grant representative, educational programs have not
been held on Native treaty ﬁshing rights and the 1985 Consent Order due to confusion
over how to present these issues and a lack of resources. '37 In contrast, the Public
Information and Education Committee members mentioned their constant involvement in
education through press releases, a website, and dissemination of information — including
the informational booklet, entitled, “The 1836 Treaty Guide” by COTFMA’s Public
Information and Education Committee. However, the decision of the DNR to pull

support from the ﬁnal version of this publication was discussed as a cause of contention

 

'35 This biologist/representative stated,
I think the general public for many years has been under the impression that the tribes will do
what they want to do, how they want to do it, because that ’s in the early years how the DNR
portrayed the tribal fishery. The tribal ﬁshery management capacity developed over the years and
in large part that was never brought to the public ’s attention. It may not be as bad now—in the
past couple of years. Through the ‘80s and certainly the ‘90s, unless a sport ﬁshing group was
represented or came to meetings that... the tribes were on, they wouldn ’t lmow that we were even
involved [in ﬁsheries management]! You can tell that by reading the sport ﬁshing newsletters or
newspapers and outdoor papers... When they refer to the tribes as though they were...oﬂ' in the
distance—and the DNR was the one doing all the work It ’s not like that.

'36 One state representative stated, “The notion is that the root of a lot of prejudice [against tribal ﬁshing]

is—tf not ignorance—at least lack of knowledge. ”

m The representative explained,
It ’s not out of the question [ to do an education/outreach program], but timing was not right.
There 's also the question, "How to do it? ” There 's a handﬁtl of people with limited resources.
We 're partners with all key elements. We 've tried to put workshops on the agenda There were
requests I5 years ago... The court is trying to compromise between competing users. It 's out of
our hands. The court has to give the rules for people to abide by. This issue can ’t be addressed
with an educational program. I don 't see a clear path for education I don 't see an avenue to do
this. There ’3 lots of other avenues, lots of other important issues to address—low lake levels, land

120

within the committee.'38 Upon inquiry into the reasoning for the DNR’s withdrawal of
support for the booklet, a member of the committee explained that the DNR could not
support some of the statements that were made in the ﬁnal version of the booklet.139
Despite the difficulties with completing the informational booklet, the respondents
believed that the committee served a very important role in disseminating information.

Some tribal respondents believe there is potential for social conﬂict under the 2000
Consent Decree due to the continued lack of understanding and acceptance of tribal treaty
right ﬁshing. ”0 However, they perceived that greater education and awareness could
increase understanding and acceptance of tribal ﬁshing.
VIII.) Comparison of the I 985 Consent Order and 2000 Consent Decree: Knowledge
and Perceptions of Native Treaty Fishing Rights

Some tribal ﬁshers and representatives from each category stated that education

about the 2000 Consent Decree is needed to avoid some of the user conﬂicts that arose
under the 1985 Consent Order. A Sea Grant representative stated that educational

programs on the 2000 Consent Decree had been discussed and attempted, but they were

 

use. There are lots of educational programs addressing stewardship of Great Lakes resources.
But this issue is nebulous. It is diﬂicult to grasp.
'33 One member of the Committee explained,
It was decided that we needed more education... The Committee started doing it [the informational
booklet]... We were working together, but at the last draﬂ, the DNR didn 't want to be apart of
it... The DNR had pulled out titer all that work....[The DNR] said it was too late....Aﬂer it was
out for more than I year {looking disapprovingly}. I don ’t know the unofﬁcial reason.
'39 A Committee member stated,
[The DNR] was involved in its creation. Yet in the final editing, there were problems with the
language. The problem was that everyone wrote a separate section ﬁom their own perspective...
in the ﬁnal stages, there were some things said that compromises the appropriate point of view,
ﬁom. . . [the DNR’s] perspective. Some people felt pride of ownership. They weren 't willing to
modify their statements.
”° One DNR biologist/representative illustrated this sentiment,
There 's a possibility with the new agreement of new conﬂict. I ’ve heard rumblings of corﬂict.
Some people argue that the tribes hate the right to ﬁsh beyond what other ﬁshers are allowed
They feel the tribes should have no extra rights. You ’re never going to convince everyone that the
tribes deserve special rights.

121

hampered by the status of negotiations and the conﬁdentiality agreement of the parties.‘4|
Yet, stakeholders perceived that education is going to be necessary to address ﬁshers’
lack of knowledge about the new agreement and helped avoid some of problems that
were experienced under the 1985 Consent Order.

Signiﬁcantly, the Public Information and Education Committee was discontinued
in the new agreement. Some respondents believed discontinuation of the Committee was
a mistake, and others believed that it was purely an oversight. A few DNR
biologists/representatives and state representatives believed that education was going to
be an important component within the 2000 Consent Decree, although it will not involve
the Committee.142
IX.) 1 985 Consent Decree: Fisheries Management Between Tribal and State Agencies

According to tribal and DNR biologists/representatives, ﬁsheries management has
improved under the 1985 Consent Order since this policy mandated a systematic
approach for the tribal and state regulatory agencies to conduct ﬁsh population

assessments.143 Biologists and representatives from all parties also believed that

 

1" The representative stated,
Due to the confidentiality, we could only discuss history since we 're all very familiar with the
history as it 's been in place for I 5 years. We said “maybe not. ” The situation was always in the
“state of ﬁre: " and it was being dealt with officially and arbitrated with the court system. We are
hampered by it [secrecy]. But secrecy is a good thing—educational eﬂ'orts would probably lead to
a good discourse without guidance.

“2 A state representative discussed that the approach used in the 2000 agreement is a more attractive

alternative to the Public Information and Education Committee:
But there is some better stuﬂr in there [than the Public Information and Education
Committee] There is a Law Enforcement Committee made up of community representatives that
will meet on a regular basis, and the whole point is that those folks can bring to the Law
Enforcement Committee problems that they 're running across. So there ’s a formalized process
for input from non-treatyﬁshers in the process. There is a provision within the agreement that
basically says that CORA will organize and conduct community meetings involving local sport
ﬁshing groups and local governmental oﬂicials upon request.

"3 One DNR biologist/representative illustrated this belief,
Like I said it ’s partly because of the I985 Consent Decree, we got on the ball and systemically
sampled a lot more of the populations These models that have been developed required many
years of data to operate well and ...the models that we were using [prior to 1985] were pretty

122

management of the Great Lakes ﬁshery became more cooperative between the state and
tribal regulatory agencies under the 1985 Consent Order, although a few tribal and DNR
biologists/representatives discussed a few contentious issues, such as an assessment that
was initiated by the tribes in Lake Huron.‘“ Some trlhal biologists/representatives also
discussed that one the beneﬁts of the 1985 Consent Order was creation of the Chippewa
Ottawa Treaty Fishery Management Authority (COTFMA) as a governing body for
increasing cooperation between the tribes. Importantly, tribal and DNR
biologists/representatives believed that ﬁsheries management within the Great Lakes has
become more cooperative because representatives of the tribes under COTFMA and the
state worked together on Lake Committees under the authority of the Great Lakes Fishery
Commission (GLF C). Some stakeholders discussed how the ﬁsheries committee formed
under the 1985 Consent Order failed to provide meaningful input into joint management
issues surrounding the Great Lakes ﬁshery. However, they described how this
committee’s role was replaced by the GLFC’s Lake Committees.MS

Some stakeholders discussed that the degree of cooperation in management
between tribal and state regulatory agencies tended to vary, depending on the level of

management and on the individuals involved. A few tribal biologists/representatives

 

simplistic, partly because these new models were not available, and partly because the data were
not available!

'“ A DNR biologist/representative illustrated,
We have biologists working together on lake trout research Management has been cooperation
for I 0 years. It ’5 getting to be more and more cooperative as time goes on. I suspect there should
be more of the same under the new agreement.

"5 One tribal biologist/representative explained,
The value of the Lake Committees is... it 's a holistic biological look at the lake and its
problems...rather than the GFC historically had a tendency of focusing just on the Consent Order.
It seemed like a duplication of eﬂort for the GFC to get together and talk about certain biological
things that the Lake Committees were already talking about and are doing on a whole lake-wide
basis, rather than a grid or management-unit basis.... We met, we did status of stocks reports, we
did all the biology... but the Lake Committees were doing that stuﬁ' too plus more! It was the same

123

believed that managers within the Fisheries Division of DNR do not work 000peratively
with the tribes, although some of the local biologists do.146 However, most tribal and
DNR biologists/representatives and the state representatives discussed that the tribes’
increased management expertise and capacity has fostered greater trust and cooperation
in management of the Great Lakes ﬁshery resource. ”7

Many tribal and DNR biologists/representatives perceived that management also
became more cooperative due to an increase in open communication and information
sharing under the 1985 Consent Order.148 To demonstrate their commitment to open
communication and information sharing, a few tribal biologists/representatives discussed

that they shared catch data from individual ﬁshers with the DNR, despite resistance ﬁom

 

people...just drﬂerent hats. So aﬂer awhile, the G!“ C ...just started fading away and the same
people met under a different hat and got it done there.

"6 One tribal biologist/representative stated,
When we get...into Fisheries Division, they don ’t want our help...andthey don ’t want us to do
nothing...Sometimes the local biologists. . . [one that] works with us a lot... get slapped downfrom
the top, saying, “Hey, I don ’t want you working with the tribe on this project. There isn ’t
anything he can do. His hands are tied

"7 One tribal biologist/representative remarked that it’s taken a hug time for the DNR to recognize the

talents and contribution of the tribal biologists. The biologist/representative stated,
I think it took more into 1995 Before, every management agency, including the Great Lakes
Fishery Commission, recognized the expertise and experience and what would say is “non-
biased" science produced by the tribes ' biologists. They were chairs of Lake Committees. They
served on various task forces that were set up under the Commission. I would say that recognition
of tribal biologists as being just as interested in the resource came ﬁorn other agencies before it
came from the Michigan DNR.

Similarly, a DNR biologist/representative ﬁirther illustrated this paception and how it helped promote

cooperation during negotiations for the 2000 Consent Decree,
One thing about the I985 Order, or the intervening years since I985, is that all the tribes have
biologists on board Some of them have very good biologists. The Sault band doesn ’t have
biologists, but they use COT F MA biologists... those biologists are on many of the same committees
as state biologists...So we gradually developed trust in one another and respect for their opinions.
Sometimes we don 't agree with them, but basically they 're fundamentally pretty good biologists. I
think that helped this go around during negotiations [for the 2000 Consent Decree]. . .that the
biologists could oﬂen agree on contentious issues and resolve at least the resource level issues.

m (he tribal biologist/representative stated,
I think all along [aﬁer the 1985 Consent Order] cooperation has improved...1 try very, very hard
to work with the state and federal employees and biologists, and I actually try to talk straight with
people...In the past, however, it 's always been a case where you ’ve always been land of hesitant.

124

the tribal ﬁshers.I49 Yet, a few DNR biologists/representatives believed that some tribes
were not cooperative in slurring individual ﬁshers’ information as required under the
1985 Consent Order.150
X.) Comparison of the I 985 Consent Order and 2000 Consent Decree:
Fisheries Management Between Tribal and State Agencies

The 2000 Consent Decree replaced the tribal authority of COTFMA with the
Chippewa Ottawa Resource Authority (CORA),151 so the respondents expect that
cooperation between the tribes will continue to be fostered under the new agreement.
Several tribal and DNR bio logists/representatives also expect that there will be a renewed
commitment — by tribal and state agencies — to share information and maintain open
communication. Respondents mentioned that the opportunity for tribal and DNR
regulatory agencies to comment on each other’s management strategies under the 2000

Consent Decree should help. Respondents from the tribes, DNR and the State of

 

"9 Another tribal biologist/representative explained that the sharing of catch data from individual ﬁshers

was so difﬁcult for the tribes,
There ’s a...cultural dtﬂ'erence. When it comes to information about individual fishers, the state 's
policy is that its licensed ﬁshers are there at the grace of the public, and they ’re given the
privilege of using a public resource, and economically benefiting from it...Information about their
individual activities on the water are public information and they have to made available to the
state. On the tribal side, there 's great concern about the disclosing the identity of individual
ﬁshers, and that is a very dlﬂicult issue. On part, it 's a cultural difference, but it 's a gal
diﬁ'erence. From our side, there was dtﬂiculty in [the state] understanding the tribal
position...that if the names are disclosed people will not be honest about the injbrmation they

give.
"° One DNR biologist/representative remarked,
Sharing data—it 's a one-way street. We give the tribes our data, but it 's very dtﬂicult to get their
data... .I can ’t say we 've never received their data... It ’s very slow in coming.
'5' A tribal biologist/representative explained how the tribes work cooperatively under their single
management authority under the auspice of the Great Lakes Fishery Commission:
Participants on the lake Committees include every agency that has authority on that lake... They
are members of the Great Lakes Fishery Commission, the ﬁsheries management umbrella
organization and the Commission then recognizes each of these agencies as manager and
therefore they 're members of the Lake Committee... The tribes in the 2000 agreement recognizes
CORA, ChippewaOttawa Resource Authority as the regulatory body for the fishery. Regulations
will be passed by CORA. The agreement does not recognize the individual tribes as a
management authority—it recognizes CORA

125

Michigan also discussed their expectation that there would be greater commitment and
compliance under the 2000 Consent Decree.
XI.) Comparison of the I 985 Consent Order and 2000 Consent Decree:
Negotiations and Negotiation Processes
In general, representatives of the tribes (from the Bay Mills Indian Community,
Grand Traverse Band, and Sault Ste.Marie), DNR, sport-ﬁshing organizations and the
State of Michigan perceived that the negotiations and negotiation process that led to the
2000 Consent Decree were more constructive than those that led to the 1985 Consent
Order, and the parties were more satisﬁed with the outcome. The respondents discussed
that a number of factors changed the process and dynamics in negotiations, including:
a. Accommodation of other parties’ interests;
b. Cooperation between the representatives;
c. Shiﬁ in attitudes of the party representatives;
d. Communication between the representatives; and
e. Approaches to negotiation.
XI) a. Accommodation
According to several tribal ﬁshers and biologists/representatives, the negotiations
for the 1985 Consent Order failed to produce an acceptable result since the DNR was
unwilling to accommodate any other interests. ‘52 Importantly, one current tribal ﬁsher

discussed that if the state had sought to accommodate the uibes’ interests, they would not

 

'52 One tribal biologist/representative illustrated this perception:
So you ’ve got one side not accommodating, saying, ” We want to minimize you. ” And then the
tribes saying, “We want to maximize it [the tribal ﬁsheryl.” There wasn 't a sense of
accommodation by either side at that time, or an attitude of accommodation. In the negotiations
[for the 1985 Consent Orda], there was trade-off of course, but if the tribes said “Hey, this is
really a problem for us. Why can ’t we work this little piece out? " There wasn ’t that

126

have gone to court to push for recognition of their treaty ﬁshing rights. This ﬁsher
believed that the state’s failure to seek any accommodation left the tribes with no other
choice. '53 According to a majority of tribal and DNR biologists/representatives, sport-
ﬁshing and state representatives, there was a greater amount of accommodation — by both
sides — in the negotiations for the 2000 Consent Decree.‘54
XI.) b. Cooperation

Representatives of the parties also perceived that negotiations were more
constructive for the 2000 Consent Decree, compared with those leading up to the 1985
Consent Order, due to an increase in cooperation among the various party representatives.
Most of these respondents discussed dramatic changes that occurred during the 2000
Consent Decree negotiations. They revealed the shift ﬁom entrenched posturing in the
beginning of the negotiations - which they blamed on the 1985 Consent Order — to more
cooperative problem-solving that took place as the negotiations leading up to the 2000

Consent Decree progressed.” 5 Representatives of the parties also discussed the

 

[accommodation of interests] back then. It was more cut and dry. You want this, I want that, so
forget it. ”

"3 This ﬁsher said,
That 's the state 's own fault for that being done [being taken to court by the tribes]. They were
oﬂered at one time - by the fishermen that were in court — that 9" they would let 12 tribal licenses
fish unrestricted in these areas that they wouldn 't push for their rights. They didn ’t take it...So I
kind of chuckled because I Imew... those guys [head of the DNR] and they wanted a fishery just
for sportsmen — they didn 't want any commercial fishermen at all. That was their attitude for
years.

'5’ A tribal biologist/representative stated,
In 2000, I think the state did accommodate and the tribes did too. Both sides were far more
accommodating. They listened more to the other side and did their best to
accommodate...Sometimes they would accommodate as far as they could until a hammer fell on
their head ﬁom their constituents back home. The tribes gave some sttgﬁr up they wanted and
they 'd wanted since I985! I think they backed oﬂon those things to accommodate, and the state
did the same.

"5 A tribal biologist/representative stated,
Initially. . .[we] were forced to work together [in 2000], but what happened is that the negotiations
moved ﬁom positions that each party took and debated to problem-solving for how we can
accommodate each other 's interests... Once we went from defending positions that each of us had

127

perception that relationships between the party representatives became more cooperative

as they worked towards the common goal of reaching an agreement without litigation. '56
In contrast, one sport-ﬁshing representative did not perceive that there was greater

cooperation in the 2000 Consent Decree negotiations.157 One DNR

bio logist/representative also remarked how difﬁcult it was to convince the tribes to allow

the sport-ﬁshing groups an opportunity to participate in negotiations for the 2000 Consent

Decree. However, his perception was that the relationships between the participants

158

became more cooperative over time. This sentiment was reiterated when one tribal

bio logist/representative discussed his perception that the sport-ﬁshing groups played an
especially constructive role in the negotiations for the 2000 Consent Decree.159

A few DNR and state representatives believed that the state kept in constant

communication with the sport-ﬁshing groups in an effort to protect their interests. One

 

that seemed to be irreconcilable to how can we solve this problem of meeting both of our interests
in the speciﬁc case, then. . . [we] came up with creative solutions.

'56 (be state representative replied,
Relations were very bad in the beginning. Over time, during the negotiations, there was a greater
appreciation of the dﬂerent parties ’ interests. We all started to work together. Relations over
time became more cooperative as we began to work together...Each entity had dlﬂerent goals, but
all agreed that it was better to come to an agreement outside the courtroom. We all shared that
goal.

'57 The sport-ﬁshing representative responded,
Cooperation? There was no cooperation! I mean, we were sitting at opposite ends of the issue!
We had to fight long and hard this time around even to get a seat at the negotiation table! The
tribes wouldn 't even let us sit at the table, whereas in the old agreement, the carat saw the value
of having us be apart of the negotiations. Only qﬂer a long ﬁght were we allowed to sit at the
table... But, qﬁer a while, I think they realized that it was important for us to be speaking in the
tent with them than to be outside the tent taking pot shots. But no. There was no cooperation. I
mean, you have separate stances and dtﬂerent interests.

'58 The biologist/representative explained,
We pushed very hard to keep the amicus groups at the table, and the tribes didn 't even want them
in the room. They hated them, because they knew that they were the ones causing all the
heartache. That took a long time, and in fact, ultimately what we got was not just a better
relationship between the state and these individual groups, but relations between all of the groups
vastly improved

'59 A tribal biologist/representative explained,
One of the heartening things about these negotiations was that the amici groups — MUCC and the
Coalition group, that included sport fishers ﬁom Hammond Bay and Bay de Noc, and other areas

128

state representative also stressed the importance of including sport-ﬁshing organizations
in negotiations and making sure their interests were represented in the 2000

negotiations. '60 A sport-ﬁshing representative discussed how representatives from the
State of Michigan and the DNR met frequently with the groups and sought to obtain their
feedback on various proposals. Importantly, they believed that the state did a much better
job representing their interests in the negotiations, compared with 1985.

Notably, all respondents that were involved in the negotiations for either the 1985
Consent Order or the 2000 Consent Decree remarked that the biologists had been
working cooperatively prior to the negotiations for the new agreement. They believed
this helped foster cooperation amongst the other participants.161
XI.) c. Shift in Attitudes

According to several tribal and DNR biologists/representatives and a sport-ﬁshing

representative, the shift in attitudes ﬁ'om the participants involved in the 1985 Consent

 

- was that these organizations played a positive role and were accepting of the approach of
problem-solving. rather than defending positions, and wound up supporting the 2000 Decree.

'60 This representative from the State of Michigan explained,
I don 't think we could have accomplished what we did without their participation... On our side,
we kept on pretty close contact with those groups that were represented... when we went to the
tribes and made a proposal, we had had a chance to talk with representatives of the sport fishing
community, get feedback ﬁom them, and know that they would support the proposal. . . [T]hat 's
important for us because ultimately, in order for this thing to work, there has to be public
acceptance of it, and so to have these folks involved in the process — who had a direct line out to
important constituent groups in the community — we think was critical to enabling the state to
move into positions that were acceptable to both the tribes and the sport fishing community. It
couldn 't have worked without them

'6' A DNR biologist/representative remarked,
The biologists have always worked well together. We use the same measurements, the same
management tools, we speak the same language. So there hasn ’t been an uncooperative
relationship. There ’s been a positire environment... It 's been more of a policy conﬂict regarding
the leadership disagreeing about treaty right fishing and what that means.

Similarly, a tribal biologist/representative stated,
I think that it 's [cooperation] always been there. Biologists work on a very diﬂerent level than
politicians do. Among biologists, biologists get along. . . [W]e ’re always cooperated together. The
tribal, state, and federal biologists are all members of the Great Lakes Fishery Commission
process. We ’re all involved in the specialized lake committees, subcommittees, technical
committees. We all work together.

129

Order to those in the 2000 Consent Decree dramatically improved the level of
cooperation between the parties. '62 In particular, a few tribal biologists/representatives
discussed the shiﬁ in attitude of party representatives from intolerance towards
recognition and acceptance of treaty ﬁshing rights.163 Tribal and DNR
biologists/representatives and state representatives perceived that the recognition and
acceptance of Native treaty ﬁshing rights by the DNR and the State of Michigan led to
greater cooperation in the 2000 Consent Decree negotiations, compared with the 1985
Consent Order negotiations. '64

Many of these respondents discussed how cooperative particular individuals were
during the negotiations for the 2000 Consent Decree. They perceived that increased
accommodation and cooperation were attributable to the attitudes of some new
participants in the negotiations, particularly new representatives for the State of

Michigan, the DNR and the sport-ﬁshing organizational“ One sport-ﬁshing

 

"2 A DNR biologist/representative reiterated this sentiment, and stated,
I heard some stories, talking to the old tribal guys that were involved in I 985, some of their old
fishermen and some of their policy people would tell us, “Shoot, in I983, I 984, Fisheries Division
[of the DNR] wouldn ’t even talk to the tribe. " They didn 't want them there, they hated them, they
wouldn ’t even acknowledge them That ’s just going to put you in an arena of tension for years.
It ’s not going to get you anywhere, and while you 're busy ﬁghting, the resource is going down the
tubes.

'63 One tribal biologist/representative illustrated this belief:
Now, currently they 're taking a position...that the treaty fishing right is a valid legal right that
needs to be accommodated by the state, as opposed to ﬂat out engaged in warfare and rhetoric
against it, pitting the citizens of the state against it. In some respects, we 're seeing a change in
attitude among the sport-fishing folks who aren ’t necessarily pleased by the existence of treaty
fishing, but they realize it 's here to stay.

‘6‘ A state representative stated,
I think one thing that helped ﬁom the tribes ' standpoint, I think there was a growing perception
that while the interests of the state were in many respects dtﬂerent from the tribes, the state did
recognize and accept - as a starting point - the existence of the treaty right... I almost sense that
the tribes were apecting...that the state - after all these years — was unable to come to the
acceptance of the existence of the treaty right... The issues were difficult, but once the state
recognized their right and the tribes and their representatives as sovereigns, I think that over
time...there was a greater sense of trust.

"5 Ore tribal biologist/representative illustrated this sentiment,

130

representative and a DNR bio lo gist/representative perceived that attitudes and
cooperation improved in part due to changes in leadership within their organizations. ‘66
Yet, a few stakeholders attributed the shift in attitudes partially to the fact that some party
representatives have been working together on these issues for over 15 years.
XI.) (1. Communication

Most respondents who had been involved in the 2000 Consent Decree
negotiations discussed how cooperation increased during negotiations in part due to an
increase in communication between the parties.167 These respondents believed that
communication was critical to improving negotiations between the parties. A few
respondents discussed how communication improved once trust was fostered by the
parties’ adherence to the conﬁdentiality agreement during the 2000 Consent Decree

negotiations. ‘68

 

The negotiations [for the 2000 Consent Decree] would have gone dtﬂ’erently if it weren ’t for a
couple players in this who made an agreement happen, as opposed to the carat, and I think he ’s
[John Wemet] is one of them. He was a real-mediator type, strong when he had to be,
accommodating too, and upfront. If he wasn ’t accommodating, he ’d tell you...rather that trying
to disguise himself

'66 A DNR biologist/representative discussed attitudes of their rqrresentation in 1985,
[Our former representative] flat out believes there is no rig}! aid the tribes should never have
been allowed to fish...He 's just one of those guys who never believed—it didn 't matter what the
court said—they should just shut them down and this shouldn 't be happening... That was one of
our goals — to repair that damage and find a place where we could work together in the long haul.
Part of it was the fact tha there were diﬂ‘erent people this time, not necessarily for the tribes... We
had dlﬂerent people in top level positions with dtﬂerent perspectives. They were willing to try and
make this work, as opposed to ’85 when they were not.

"7 A DNR biologist/representative shared this sentiment,
I don 't think at that time [1985] there was any communication...except at the Executive levels.
There certainly wasn ’t at our level ...the United States, the tribes and us. Our relationship with
the amicus groups wasn ’t all that great either. They 're the ones who were always upset and in
conflict over the I 985 Decree and forced us to go to carat... we decided that we needed... to
improve communication with all of the grattps, not just the amicus groups. We have much more
open communication than we ever did Much more.

'63 A tribal biologist/representative expressed this sentiment,
This time around ...and this is really important too, the parties agreed to a gag order. The media
didn 't hear about this stuﬂf and even the sport ﬁshermen who don 't work for government, but they
were at the table, they — as far as I can tell — held to their agreement not to take this back [to their
organizations]. They could have started fires allover the place, they could have sabotaged so
many aspects of this agreement by releasing it to the media in its unrefined state...Parties were

131

XI.) e. Comparison of Approaches

Representatives described how the parties had hired a mediator, instead of having
a court-appointed Special Master — as they did in the 1985 Consent Order negotiations —
to assist with the negotiations for the 2000 Consent Decree. An important distinction that
was made by the representatives was the difference of power between Special Master,
Francis McGovern, and the mediator, John Bickerman. According to many
representatives of the tribes, DNR, sport-ﬁshing organizations and the State of Michigan,
the parties had less power and control over decisions during the negotiations for the 1985
Consent Order, compared to the 2000 Consent Decree, which provided the parties with
greater sense of empowerment.169

One signiﬁcant contradiction with this perception that the parties had more power
and control during the 2000 Consent Decree negotiations came ﬁom tribal and
biologists/representatives of the Grand Traverse Band of Ottawa and Chippewa Indians,
as well as rank and ﬁle sport ﬁshers. These respondents discussed how the tribe had been
blackmailed by the State of Michigan - by Governor Engler’s ofﬁce — to either accept the

2000 Consent Decree, or face litigation over their rights to land upon which one of the

 

open and they weren 't spreading rumors. In I985, that wasn 't the case...Back in '83, ’84 when
negotiations were going on, it was just a ﬁrestorm of misrepresentation and rumor and
propaganda...which hurt negotiations, and it hurt relationships. We didn 't have that this time
around

'69 A DNR biologist/representative described it this way,
It was completely dtﬂerent. Francis McGovern had all the authority of the court Francis is a
true arbitrator, and with the authority he had he could do things that Bickerman couldn 't do,
could never dream of doing... [During] negotiations [that McGovern held] in the Sault, there were
rarely days when the parties were all together. They were all in separate rooms, and Francis
would run from room to room, trying to...cut deals, that kind of thing. Bickerman was, in the true
sense of the word. a mediator. He had no authority. None. He couldn 't do anything but try to get
us together, try to figure out what the issues were...try to find where there was common ground...I
think that was helpﬁtl...to build the ability to talk and create these relationships that I hope will
carry us forward In I 985, that wasn 't the case. You had one guy with all the power. “This is
what you ’re taking, ” run to another room, “This is what you ’re taking. ”

132

tribe’s casinos lies, the Turtle Creek casino. ”0 Thus, Grand Traverse Band ﬁshers
believed that their treaty rights were held hostage by the State of Michigan.171

Many representatives discussed the differences between the approaches used by
the mediator, John Bickerman, versus the approach used by the Special Master, Francis
McGovern Importantly, some tribal ﬁshers and tribal biologists/representatives
discussed how McGovern chose inappropriate people to represent the interests of the
tribes during the 1985 Consent Order negotiations. ”2 According to some tribal ﬁshers,
the lack of appropriate representation during the ﬁnal negotiation session for the 1985
Consent Order resulted in a ﬁnal document that did not include what had been negotiated

prior to this session, and was unacceptable to the Bay Mills Indian Community. ”3 In

 

"0 An illustrative remark by a current tribal ﬁsher was:
It 's nothing short of blackmail. They threatened the economic base of this tribe. They put the
council between a rock and a hard place. I hold no animosity towards the council. I respect the
difficulty of their position. But it doesn ’t make it right....It 's a “take it or leave it " deal, or they '11
litigate Turtle Creek... There ’s a dispute over the lands we built it on.
One charter boat sport ﬁsher reiterated,
I 'm surprised they [Grand Traverse Band] did sign the new agreement. But the word on the street
is that the Turtle Creek casino is tied into the new agreement. I heard it from several reliable
sources that the Department of the Interior and the Department of Justice and other tribes told the
Grand Traverse Band to “get in line and sign. " The Grand Dwerse Band wanted no part of the
agreement because it limits their fishing... The Band initially rejected the new agreement. They
wanted...below the 45" parallel to be a viable gill net fishery. I ’ve heard it ﬁom a number of
sources that they were told “You can catch a few fish or keep your casino. ” I heard in an eﬂort
to get them to sign, they tied the casinos and the new agreement.
m An illustrative remark was made by a tribal biologist/representative: “To stand back and look at this
thing fiom a distance, you 'll realize that the power trumps the [treaty] right in many respects.”
172 One current tribal ﬁsher remarked, “They put pressure on these people that knew nothing about the
ﬁshery. They were non-fishingfamilies, and they’re the ones that negotiated that first I985 Consent
Decree.”
"3 A former tribal ﬁsher explained,
Actually he [Francis McGovern] didn 't want me to sit in on the negotiations! So_sat in on
negotiations, but I was there. Now, a lot of times I leﬂ the roorrr, but I was satisfied with what we
negotiated on that deal. But when we got done negotiating, all the lawyers and everybody sat
down to write these up. When they come out with that, it was entirely different that what we 'd
negotiated! What we negotiated there wasn ’t very much in there. They were doing it to satisﬁ
who they called “The Master. ” The lawyers...re-wrote everything in that negotiations. We might
as well have never sat down and just told them, “Go ahead and do what you want... ” That 's just
what the Master wanted in the first place.

133

contrast, many stakeholders believed that their interests were represented during the
negotiations for the 2000 Consent Decree.

Several representatives ﬁom the tribes and the DNR criticized the techniques that
were used in the 1985 Consent Order negotiations, such as setting unrealistic tirnelines
for completion, failing to work cooperatively with all the parties — instead of treating the
three tribes as one entity — in an open negotiation process, and in some instances, forcing
representatives to make decisions. m Respondents described how John Bickerman took a
different approach in trying to work with the parties and meet with all the interested party
representatives. A few representatives complained that the right people weren’t always
brought into discussions, but overall, most representatives were pleased with the
assistance he provided. ”5

According to all representatives that were involved in the negotiations for the
2000 Consent Decree, one key difference between the negotiations leading to the 1985
Consent Order and the 2000 Consent Decree was the time commitment of the
participants. Tribal and DNR biologists/representatives described how the negotiation

process for the 1985 Consent Order involved bringing participants to Sault Ste. Marie,

 

'7’ One tribal biologist/representative illustrated some of the criticisms:
Francis McGovern used labor management techniques in the I 985 negotiations... I contend that
those techniques were inappropriate in the context because those techniques have to deal with
boiling down the large group to a couple of key people, putting those key people in a room, and
locking them up until they hammer out a deal... What Francis McGovern did...was to employ those
techniques on the assumption that you had two sides - the state on one side, and the tribes on the
other. In doing that, what happened in ’85 was that each of the tribes was not present in that
small session. You had o_ne representative from all of the tribes... but there wasn ’t one unified
tribal position.

'7’ A tribal biologist/representative illustrated this perception,
I think Bickerman helped in providing the forum more than anything... he provided a way for
people to get together....A t times he would have group A meet with group C, and other times
group D and group E He 'd try to bring people together for certain issues. I think he missed
some things. There was a couple of pretty serious items tint he messed up on, in my opinion. He
sinuld have put the right people together - the right groups together — and he didrt ’t. I don 't
krnw that we could have done it without a mediator....t_'f you get a result, something worked!

I34

locking representatives in a room, and forcing them to make decisions after three non-

stop days of intense negotiations, despite the participants’ lack of sleep and consultations

with others. '76

In contrast, the representatives discussed the extensive time commitment that they
made for the 2000 Consent Decree negotiations. They stated that John Bickerman was
instrumental in initiating discussions with representatives of all the affected parties to

discover what their interests and concerns were for the new agreement, prior to the

177

beginning of any formal negotiations. The representatives of all parties perceived that

the time commitment helped build trust among the participants, which helped the

negotiations. ‘78

 

'76 One former tribal ﬁsher discussed his paceptions of the 1985 Consent Order negotiations,
“Hurry up, hurry up, hurry up! " Everything was, “Hurry up”... [T]here was a few...scared of
Judge Enslen. The way they wrote that up was more or less to satisfy...and get it done just as
quick as you could!

A DNR biologist/representative also stated,
In I 985, we didn ’t go through a negotiation process, like we did here [for the 2000 Consent
Decree] Tire judge... brought in a carat Master — a Special Master - and some consultants, and
they just started to hammer out a deal, and it got to the point where the judge had had enough,
and he lacked people in a room... up at the Sault, and they hammered out a deal in three days.

"7 A description provided by a DNR biologist/representative that illustrates the 2000 Consent Decree

negotiation process:
The DNR started meeting informally with the tribes in I 998 to initiate discussion regarding the
new agreement. They began meeting formally with the tribes in spring of I 999. They 've been
trying to lay the groundwork; each side oﬂered proposals, and each side has been modifying these
proposals. Through these meetings, each side has been trying to get the perspective of each other.
It has been a healthy exploration process. It 's been a good way to understand each other—a
mutually beneficial process. The federal government, state government and tribal government
have been meeting. John Bickerman was the negotiator. On September 13, 1999 he met with all
the entities as a group. Since then he ’d been meeting with the groups individually to explore their
points of view.

”8 One DNR biologist/representative illustrated this sentiment,
That ’s one thing these negotiations did over two years. We walked in the first day, aid nobody
trusted anybochr because of our history. It took us awhile to understand that we were all kind of
the some, had the same goals... because in '85, things were diﬂ'erent...” was very attagonistic. It
started that way for us, aid over the two years things changed I 80 degrees. It 's very positive
now... We got to krnw each other because we were together ._s_Q much. That helps... It took both
sides a long time to build up their credibility, especially us... Once you have trust and credibility,
the rest comes.

135

XII.) Summary:
1985 Consent Order as a Management Tool for the Great Lakes Fishery

Perceptions of the effectiveness of the 1985 Consent Order as a management tool
for the Great Lakes ﬁshery varied between stakeholder groups. All respondents believed
that the 1985 Consent Order was not effective in terms of promoting lake trout
rehabilitation and conservation within the Michigan, treaty-ceded waters of the Great
Lakes. They perceive that the conservation refuges failed to promote natural
reproduction, although they helped increase stock biomass and protected historic
spawning habitat. Several respondents also criticized the policy’s lack of ﬂexibility,
which led to continuous and inefﬁcient litigation, and impeded enforcement efforts.
They believe these factors may have ﬁ'ustrated lake trout recovery measures.
Importantly, however, these representatives believed that the 1985 Consent Order was
effective in providing a new structural ﬁamework under which the tribes and the DNR
worked cooperatively in ﬁsheries management.

Lastly, according to all tribal and sport ﬁshers, the 1985 Consent Order was
unsuccessful as a management tool for providing fair ﬁshing opportunities for their
communities. Tribal stakeholders were bitterly disappointed in this policy’s failure to
protect ﬁshing opportunities for small boat gill net ﬁshers. At the same time, sport
ﬁshers were frustrated by any allowance of gill netting under the 1985 Consent Order.

Biologists and representatives ﬁom the tribes, DNR, State of Michigan, and the
sport ﬁshing organizations believed that the 1985 Consent Order helped reduce social

conﬂict through separation of user groups and through allocation of the ﬁshery.

136

Furthermore, it provided a venue for increased cooperation and communication through
the negotiation process as the 1985 Consent Order was coming to termination.'79
In contast, tribal and sport ﬁshers in the Grand Traverse Bay region, as well as a
current ﬁsher from Bay Mills, perceived that the 1985 Consent Order was ineffective as a
management tool for reducing social conﬂict. These ﬁshers perceived that social conﬂict
has not diminished since 1985, although outbreaks of violence have decreased. These
tribal respondents believed that this policy failed to address the animosity that stems from
a lack of education and understanding of treaty ﬁshing rights. Sport ﬁshers, in contrast,
believed that the policy failed since it provides “special rights” to Indians.
Tribal ﬁshers from outside the Grand Traverse Bay region — mostly former ﬁshers

— perceived that social conﬂict has diminished under the 1985 Consent Order. They do
not attribute the reduction to the policy, however, but instead to the passage of time and
greater tolerance or acceptance of these rights by non-Native ﬁshers.
XIII.) Considerations for the Future under the 2000 Consent Decree

Many biologists/representatives from the tribes and DNR, as well as sport ﬁshing and
state representatives, anticipate that the 2000 Consent Order will be more effective than
the 1985 Consent Decree as a management tool for the Great Lakes. This expectation
stems ﬁ'om stakeholder perceptions of:

0 increased commitment to lake trout rehabilitation and conservation;

0 enhanced ﬁshing opportunities for tribal ﬁshers due to the acquisition of trap net

ﬁshing operations from the state;

 

'79 One representative from the State of Michigan stated,
I think the I985 agreement was part of the process that gets us to where we 're at, but I anticipate
and hope that there will be a much higher degree of cooperation and communication now. Things
have evolved

137

0 enhanced ﬁshing opportunities for sport ﬁshers due to a reduction of at least 14
miles of gill nets;

0 greater ﬂexibility in ﬁsheries management; and

0 increased commitment to enforcement.
One important and illustrating statement made by a tribal biologist/representative is that
the effectiveness of the 2000 Consent Decree does not depend upon cooperation among
the party representatives, but its ability to set up a ﬁamework for ﬁsheries management
and allocation that the parties will abide by over the long-run.180

Stakeholders discussed some potential problems for the ﬁlture under the 2000
Consent Decree. The problems that were raised surrounded the following issues:

a. Implementation;

b. Allocation;

c. Control and ﬁsheries management; and

d. Invasive species control and prevention.
XIII.) a. Implementation

Several tribal and DNR biologists/representatives predict that there will be several
problems associated with implementation of the 2000 Consent Decree. In particular, they

believe that the new requirements for development of lake trout harvest guidelines will be

extremely difficult to implement. m A few respondents from the tribes and the DNR also

 

"0 One tribal biologist/representative expressed this concern,
Cooperation has improved [but it is] probably short-term... I think, frankly, that the institutions
themselves are stronger than the personalities of their representatiyes. I think that apart of the
[2000] Decree itself is self-executing. There are things tint certain people must do, things tint
certain agencies must do, regartﬂess of who is holding the position at any particular time. Those,
I think, are crtjted well enough that it will work for the long-run

"" One tribal biologist/representative expressed this sentiment,
We have may more tasks... We got some tough hills to climb here. We 're going to have to find a
way to manage using these... harvest guidelines... We 're going to hate our moments where there 's

138

discussed the impossibility of implementing various provisions of the 2000 Consent
Decree without sufficient funds. ‘82 Their concern is that despite good intentions of the
parties, adequate funding is necessary for implementation of the agreement.

Another concern that was raised by respondents ﬁ'om the tribes and DNR were
related to the problems of compliance and enforcement under the 2000 Consent Decree,
due to its complexity. '83 Some of the tribal and DNR biologists/representatives also
raised the issue of monitoring larger ﬁshing operations, compared to small boat, gill net
operations.

XIII.) b. Allocation

Several tribal and DNR biologists/representatives also discussed issues related to
allocation of the ﬁshery, particularly since there are two additional federally recognized
tribes within northern Michigan that were included in the 2000 Consent Decree — the

Little Traverse Band and the Little River Band. Respondents mentioned that the

 

going to be disagreements - disagreeing with what the [ﬁsheries population assessment] model
spits out, disagreeing over what the harvest report could have or should have been, disagreement
over, “Is this really a big deal? We 're over [the harvest guidelines] by one green. Are we going
to inve to make a major regulations over one percent... ? " That kind of stuﬂr still awaits us. I
guess then we '11 see how accommodating we are when some of those gray areas arise.

"’2 This sentiment is illustrated by one DNR biologist/representative,
The biological collection of data, the enforcement through surveillance and inspection is an
enormous undertaking. I 've said it at public hearings, and I will continue to say until I get
evidence to the contrary, that it is going to cost more to administrate and to enforce than the
fishery is worth. If you add up the Conservation Oﬂicers and the biologists and all the time that ’3
going to be put into this IF we enforce the stipulations and then you figure out what the sale value
of that fish is—tftaken commercially—it ’s going to cost more. So, the probable result—in my
opinion—is that it will never be erforced It ’s just based on the current budget and the number of
people available. Unless there 's an infitsion of money, which the Governor and this legile
has not seemed willing to do, that you ’re going to take what biologists you hare and what
Conservation Oﬂicers you have and use them as eﬂiciently as you can. But tint ’s going to take
away from other good department programs and it ’s not going to be adequate.

"3 One DNR biologist/representative illustrated this perceptim,
The problem with the current agreement, ﬁom nry perspective, it is so complicated to enforce
and if you were afisherman, so complicated to comply with, that it ’s going to be a source of great
diﬂiculty if in fact, the elements of that agreement are enforced...

Similarly, a tribal biologist/representative stated, “They should have re-approved the old agreement. The

new agreement is some 157 pages long, is complicated ...it ’s too complex for ﬁshers to understand”

139

challenge of lake trout rehabilitation and ﬁshery management within the Michigan waters
of the Great Lakes will be signiﬁcantly increased by having to allocate between ﬁve
tribes and the sport ﬁshery, especially if there are declines in ﬁsh abundance. '84 Another
tribal biologist/representative highlighted the pending concern over whether or not the
Little Traverse Band will license a large number of new gill net ﬁshers. However, a
majority of stakeholders described the extraordinary difﬁculties associated with
sustaining a livelihood based on commercial ﬁshing. Several respondents commented
that the parties are counting on this tribe not to add a signiﬁcant amount of gill net effort
to the Great Lakes ﬁshery. '85
XIII.) c. Control and Fisheries Management

A few tribal and DNR bio logists/representatives mentioned the difficulty with
having joint management of the Michigan waters of the Great Lakes ﬁshery due to the
DNR’s belief that it has sole management authority over the Great Lakes ﬁshery. Since
the 2000 Consent Decree’s success is predicated on having cooperation in ﬁsheries
management, a few biologists/representative discussed the concern that the DNR will
have to strive towards maintaining cooperation with the tribes in Great Lakes ﬁshery

management, if the 2000 Consent Decree is going to be a successful management tool.

 

134 Similarly, a DNR biologist/representative raised this concern, “I think things will be firn unless we have
a real downturn in fish supply. If competition for fish becomes more extreme, it will become more
difficult.”
"5 One tribal biologist/representative remarked,
The 2000 Order will result in a significant reduction in gill net, and the only way that might not
occur is if Little Traverse gears up and makes up the dtﬂ'erence, which tiny are allowed to do. I
think the state is banking on the fact that commercial fishing isn ’t something you get into. It 's a
nasty job, and tinre 's not a lot of money in it. If it ain 't in your blood then you probably won 't
last long... [T]hey retired I4 million feet of Sault tribe and some Grand Traverse [gill net] eﬂort —
where does it get them if Little Traverse gears us and fishes I 4 million feet?. . .[I-I]istory has shown
us that fishermen who jump into this thing, don 't last long. We got 20 years behind us with lots of
fishermen who 've come and gone... They [Little Traverse] may put some fishermen on the water.
They ’ll probably be small operation... That 's my expectation and I think it has to be the state ’s, or
else tiny didn 't get very far [in the 2000 Consent Decree].

140

Several tribal biologists/representatives gave the example of the DNR’s anger over some
walleye stocking that was conducted in Grand Traverse Bay by the tribe under the 1985
Consent Order.186 In contrast to this perspective, the DNR biologists/representatives
discussed that their opposition to the walleye stocking was based on the fact they
believed the Bay did not provide proper walleye habitat. They also expressed the
concern that the tribe had made a stocking decision without consulting the DNR";7
Several DNR biologists/representatives discussed their belief that the DNR has
sole management authority over the ﬁshery, but some also expressed a willingness to
share the management responsibilities with the tribes, as long as they can work
together.188 Notably, most state biologists/representatives and state representatives
perceived that there would be cooperation in management under the 2000 Consent

Decree between the tribes and the DNR

 

"’6 One tribal biologist/representative stated,
The state was upset when the tribes began a small walleye stocking program in Grand Traverse
Bay, even though they ’d been stocking enormous amounts of salmon and trout without biological
evaluations of these programs. 80, 000 ﬁngerlings of walleye were planted by the tribe, an
insignificant amount biologically, and the state was in an uproar... They don 't want to lose control
or power over management of the resource. It ’s about power and control.

'87 A DNR biologist/representative illustrated this perception:
Generally, this [walleye stocking]. . .is not a good idea. because I don ’t think it '3 really walleye
habitat. I think we 're better served NOT doing that.

'“ One state representative expressed this belief.
The state 's view at the outset was that under state and federal law, we believe that the state alone
has the authority to manage the resource - not the federal government, not the tribes - but the
state. The tribes have a treaty right, the state has to respect that right, its management has to be
conducted in deference to that right... The tribes... want to be involved and believe they have a
right to be involved in management decisions...Nobody is really surrendering management
authority. What we 've agreed to do is to conduct the management in a cooperative way.

A DNR biologist/representative illustrated this sentiment,
This is a particularly sticky issue for us [the DNR]. We believe that we have the [sole]
management authority... But, we also understand that the tribes have their ownftsheries, and as
long as they ’re committed to monitoring and regulating those fisheries accordingly. They ’ve done
an outstanding job this time around in terms of the structures they ’ve set up, the policies they ’ve
set up... They ﬂ]! manage their owmftsheries. That was made pretty clear, and we accept that as
long as we have the ability to work with them to monitor and make sure things are on track, in the
same way they want the ability to monitor us and keep things on track.

141

One important consideration for ﬁJture ﬁsheries management within the Great
Lakes under the 2000 Consent Decree is lake trout rehabilitation. According to one DNR
biologist/representative, if natural reproduction of lake trout is not successﬁilly promoted
under the 2000 Consent Decree, this could erode the foundation upon which the

'89 Most respondents, however, perceived that among the available

agreement is based.
alternatives, the 2000 Consent Decree was the best opportunity for promotion of natural
reproduction and lake trout rehabilitation and conservation. The only other management
challenges that were discussed were invasive species.
XIII.) d. Invasive Species Control and Prevention

According to many respondents from each category, control and prevention of
exotic species remained signiﬁcant obstacles to ﬁsheries management within the Great
Lakes Basin. 19° A few tribal biologists/representatives discussed how management
agencies tend to focus on ﬁshing, although invasive species present a far greater threat to
the ecosystem. They believe that an inadequate amount of attention and resources is
given to aquatic, invasive species, and until they are made a priority, these species will

continue to pose an enormous biological threat.

 

"9 This sentiment is illuminated in the quote below by a DNR biologist/representative:
I don ’t think there '11 be any structural ﬂaws that ’11 make the [2000] Decree tumble other than lake
trout rehabilitation. K it doesn 't happen, the tribes will want to re-open areas. There ’s no reason
not to have gill nets y the stocks aren 't self-sustaining.

'°° One current tribal ﬁsher offered this perspective, which illustrates the concern of most ﬁshers regarding

the impact of exotic species on the Great Lakes ﬁshery:
They [DNR] introduced all these exotics, and now we ’re into a real nightmare, because all these
exotics that are coming in with this ballast water...some of them are starting now that are going to
aﬂect the ﬁshery. We ’ve got I 59 or I 5 7 dijferent exotic species that come in with ballast water in
the last 10 years. If those things come to pass, and do as much damage as just 2 of them that they
know about—one of the them is the zebra mussel and the other one is a tiny water ﬂea. They
displace Diaporia, which is a main food for perch, walleyes, herring, menominee,
whiteﬁsh. There ’s no food there for ﬁsh They ’ve done that in the last 3 years...So there ’s big
changes going on [in the Great Lakes], and nothing that man can do other than shut the St.
Law'ence seaway of... You have to do it [exotic species management through ballast water
treatment and control] at the federal level ...Something has to be done.

142

Chapter 4: Discussion and Policy Recommendations

As a result of litigation and subsequent recognition of Native treaty ﬁshing rights, the
number of management agreements between Native and state or provincial regulatory
agencies to cooperatively manage ﬁsheries allocation and social conﬂict has been on the
rise in recent years within the United States and Canada.1 Evaluation of these policies
requires an examination of the ecological, historic, social, cultural, political and
economic conditions surrounding the ﬁshery of concern ﬁ-om the perspective of
stakeholders, since they have a signiﬁcant impact on the effectiveness of these policies.2
An investigation of the conditions surrounding the Great Lakes ﬁshery - in conjunction
with an analysis of stakeholder perceptions of the 1985 Consent Order and the 2000
Consent Decree — led to the following important discussion and recommendations for
future ﬁsheries management policies of the tribal and state regulatory agencies within the
1836 treaty waters of the Great Lakes that seek to address social conﬂict over ﬁsheries
allocation and management, in light of judicially recognized treaty-ﬁshing rights and
diminished lake trout stocks. This evaluation of stakeholder perceptions of the 1985
Consent Order and the 2000 Consent Decree also led me to formulate my own
conclusions about some important issues surrounding these policies and their direction.
Social Conﬂict, Native Sovereignty and Scales of Power

Some respondents perceived that social conﬂict emerged when the DNR began to

exert its management authority over ﬁshing in the Michigan waters of the Great Lakes,

 

' Pinka'tar, E. (Ed). (1989). prerative Management of Local Fisheries: New Directions for Improved
Managemem and Community Development. University of British Columbia Press: Vancouver, B.C.

2 Selin, S. and Chavez, D. (1995). Developing a collaborative model for environmental planning and
management. Environmental Management, I9(2):l89-l95, p. 190; McCay, BJ. and lentoﬁ, S. (1998).
Market in community failure? Critical perspectives on common property research. Human Organization
5 7(1): 21-29, p. 24-29.

143

and establish a recreational ﬁshery through the stocking of non-native salmonids.3 The
state’s management and re-allocation strategy towards a recreational ﬁshery precluded
consideration of Native ﬁshing rights,4 which increased social conﬂict as the state began
to restrict tribal ﬁshing opportunities.5

Other stakeholders believed that the Fox decision led to increased social conﬂict
as the tribes began to exercise their rights to self-management as a sovereign

government,6 and exert their judicially recognized treaty ﬁshing rights.7 Upon

 

3 According to fornner representatives of the DNR, the utilitarian model of Gifford Pinchot was followed in
the management and re-allocation of the Great Lakes ﬁshery during the 19605 from a commercial ﬁshery to
a recreational ﬁshery. This model was used since the DNR valued a management strategy that would
provide “the greatest good, for the largest number, for the longest time.” Pinchot also valued
economically-efﬁcient use of natural resources, meaning that natural resources were not underused or
overused. Pinchot, G. (1947). Breaking New Ground Harcourt Brace: New York, NY.
‘ Despite the intertribal differences between the Bay Mills, Sault Ste. Marie and Grand Traverse bands,
they shared common values with respect to the Great Lakes ﬁshery. Each band valued protection of their
sovereign treaty rights and commecial ﬁshing opportunities for all members that want to ﬁsh. They
believed in providing ﬁshers with a viable livelihood and preservation of small-boat, gill-net ﬁshing
opportunities. In contrast, the State of Michigan and DNR valued protection and enhancement of
recreational ﬁshing opportunities for salmornids and othe game species. The managenent scheme was also
in direct contrast to the federal government’s focus on protection of the commercial ﬁshery, creating
tension between the two jurisdictions.
5 Burnett argues that there is “inherent conﬂict” in state regulation of treaty-right tribal ﬁshing — even for
the purposes of conservation — since state conservation measures are intended to protect stocks for the nonn-
Native recreational ﬁshey. Burnett, M.A. (1996). The dilemma of commercial ﬁshing rights of
indigenous peoples: a comparative study of the common law nations. Stﬁolk Transnational Law Review,
XIX(2): 398-434, p. 404.
6 Under international law, treaties are a vehicle by which sovereign natiorns relate to each other. Indian
treaties that the Chippewa arnd Ottawa made with Europeans and the United States are a demonstration of
tribal sovereignty. Although the Bay Mills Indian Community, Sault Ste. Marie and Grand Traverse Band
of northen Michigan have a legal right to exert management authority over natural resources, due to their
Native sovereignty and riglnts of aboriginal title, the tribes had not execised this right Federally
recognized Indian tribes have the right to participate in ﬁsheries management arnd the creation of ﬁshing
regulations. Qualiﬁed tribes have the right to manage their own treaty ﬁsheries. State regulation is
unnecessary when tribal management is sufﬁcient to conserve ﬁsh species. Sohappy v. Smith, 302 F. Supp.
899, 912 (D. Ore. I969); Busiahn, TR. (1984). An introduction to Native People’s ﬁsheries issues irn
North America. Fisheries, 9(5): 9-1 I, p. 9; Kickingbird, K. (1985). What’s past is prologue: the status
and contemporary relevance of American Indian treaties. St. Thomas Law Review, 7(3): 603-629, p. 604-
605.
7 The Court held in United States v. State of Michigan,
The treaty-gttar'mrteedﬁshing rights preserved to the Indians in the I 836 Theaty, including the
aboriginal rights to engage in gill net ﬁshing, continue to the present day as federally created and
federally protected rights...no principle of federalism requires the federal government to defer to
the states in connection with the protection of those rights. The responsibility of the federal
government to protect Indian treaty rights ﬁ'om encroachment by state and local governments is
an ancient and well-established responsibility of the national government.

144

recognition of these rights by the courts, these stakeholders perceived that the State of
Michigan and the DNR fought incessantly against treaty-ﬁshing rights.8 Subsequently,
social conﬂict increased between state and tribal regulatory agencies during the 19703
and 19808.

These assertions are consistent with the belief that social conﬂict arises over
natural resources management between the three levels of federalism in the United States
— the federal, state, and tribal governments — or “geographic scales,” when one or more
governments seek to expand their jurisdiction. 9, Importantly, as the federal government in
recent years has been emphasizing self-determination and self-governance for tribes
throughout the United States,10 the states have often attempted to centralize their power
and extend their authority over local Indian populations within their geographic
boundaries. 11 As in the State of Michigan, attempts by states to expand their authority
have been resisted by Native peoples, and they have fought to preserve their rights of

self-governance as a “third sovereign,” or “third geographic scale,” within the American

 

653 F.2d 277 (1981).

' The DNR resisted any relinquishment of their management authority and did not accommodate tribal
ﬁshing interests in its management plans. Bielski, V., Cornell, G. and White, R. (1980, June 21). Indians
only ask to keep their age-old right to ﬁsh. Detroit Free Press, pg. 5-6; Cleland, CE. (1990). Indian
treaties and Ameican myths: roots of social conﬂict over treaty rights. Native Studies Review, 6(2): 81-87.
9 Silvern refers to tribal, state and federal governments as geographic scales that have some overlap in
jurisdiction and hierarchy in power. Silverrn, SE. (1999). Scales of justice: law, American Indian treaty
rights and the political construction of scale. Political Geography, 18: 639-668.

1° Tribal self-governance has been promoted by the court irn New Mexico v. Mescalero Apache Tkibe, 462
U.S. 324, 335 (1983) and in various federal legislation, including the Indian Reorganization Act of 1934,
25 U.S.C. §476, 477 (1988), and the Indian Self-Determination and Education Assistance Act, Public Law
No. 93-638, 25 U.S.C. §450 (1988). A number of U.S. Presidents have also encouraged self-governance.
President’s Special Message to the Congress on the Problems of the American Indian: The Forgotten
American. (March 6, 1968). Public Papers 1, 1968-69, pg. 335 (President Johnson); President’s Message
to Congess on Indian Aﬁ‘airs (July 8, 1970). Public Papers 1970, pg. 564 (President Nixon); Statenent on
Indian Policy (January 24, 1983). Public Papers I, I 983, pg. 96 (President Reagan); Memorandum of
April 29, 1994, Government-to-Government Relations with Native American Tribal Governments. 59 Fed.
Reg. 22,951 (President Clinten).

" Reynolds, L. (1984). Indian hurnting arnd ﬁshirng rights: the role of tribal sovereignty arnd preemption.
North Carolina Law Review, 62(4): 743-793, p. 743-744; Silvern, supra note 9, at 640-641.

145

system of government.12 Tribes view treaty rights litigation as a means of asserting their
rights as a sovereign government,13 and promoting self-sufﬁciency through sustainable
self-management of their natural resources. 14 According to Silverrn, social conﬂict over
natural resources management arises as Indian tribes challenge the existing scale of
power,15 seeking jurisdiction over on-reservation natural resource management, and
shared jurisdiction over off-reservation natural resources. ‘6 Thus, conﬂicts and litigation
over treaty rights are “instances of the political construction of geographic scale,” and
litigation of treaty rights can decentralize management authority through recognition of
tribal sovereignty and self-governance. This decentralization rectiﬁes the power
imbalance that exists for Indians in natural resource decision-making.l7

Silvem’s assertions regarding the political construction of geographical scale are
supported by the more active role of northern Michigan tribes in ﬁsheries management as
a result of litigation.” Prior to the mid-19808, cooperation in ﬁsheries management
between northern Michigan tribes and the DNR was non-existent. In contrast, the tribes

and the DNR have been working cooperatively on the technical aspects of ﬁsheries

 

‘2 Getches, E. (1988). Resolving tensions between tribal and state governments: Learnirng hen the
American experience. In: Long, J.A. and Boldt, M. (Eds), Governments in Conﬂict? Provinces and
Indian Nations in Canada, (pp. 195-208.) University of Toronto Press: Toronto, p. 197; Silvern, supra
note 9, at 640.

'3 Cleland, supra note 8, at 81.

" Wood describes four fundamental attributes of Native sovereignty that slnould be protected under the
Indian trust doctrine: 1) a land base, 2) viable tribal economy, 3) self-governance, and 4) cultural viability.
Wood, MC. (1995). Protecting the attributes of Native sovereignty: a new trust paradign for federal
actions affecting tribal lands and resources. Utah Law Review, (1): 109-237, p. 113-237.

'5 Silvern, supra note 9, at 640-641.

'6 First Nations peoples and Native American tribes are increasingly reassertirng their treaty rights and
riglnts to co-manage natural resources through the courts. Mofﬁtt, CM. (2000). Reﬂecting on Native
Ameriean ﬁsheries. Fisheries, 25(7), p. 4.

‘7 Silvern, supra note 9, at 641-650.

'8 Ferguson, K. (1998-1999). Indian ﬁshing rights: aftermath of tine Fox decision and the year 2000.
American Indian Law Review, 23(1): 97-154, p. 133.

146

management since the court recognized the treaty rights of the tribes.19 Similarly,
Clemens observed that federal court decisions empowered the tribes of northern
Michigan,20 and they subsequently re-asserted their authority to negotiate allocation of
the ﬁshery on a more equal footing with state ofﬁcials.21

According to the analysis of stakeholder perceptions, litigation over treaty ﬁshing
rights caused a restructuring of the power scale and marnagement authority over the Great
Lakes ﬁshery, as the court recognized treaty-ﬁshing rights and the tribes of northern
Michigan as legitimate participants in decision-making processes.22 This “balance” irn the

scales of power helped foster collaboration between tribal and state regulatory agencies,

 

‘9 Busiahn, supra note 6, at 10.

2° Although consensus among multiple jurisdictions in the Great Lakes basin has been called for by the
Great Lakes Fishery Commission, the tribes were excluded ﬁ'om participating in Great Lakes ﬁsheies
management prior to 1980. He describes how the Great Lakes Indian Fish and Wildlife Commission
(GLIF WC), representirng the tribes within the Great Lakes basirn, sought to have the status of tribal ﬁsheies
management recognized within this docurnernt after various court decisions ruled in favor of Indians around
the country. In additiorn, the GLIFWC called for tribal, state and provincial governmental agencies to work
more cooperatively, allow greater sharing of information, and have greater accountability for political
decisiorns. Signiﬁcantly, the tribes also asked that their nmique organizational structure in government be
recognized. Busiahn, TR. (1986). Great Lakes Indian Fish and Wildlife Commission Presentatiorn on the
Indian Role in the Strategic Great Lakes Fishery Management Plan Process. Committee of the Whole
WorkshOp on hnplernentation of the Joint Strategic Plan for Management of Great Lakes Fisheries
(SGLFMP). Agenda item 12. (February 18-20, 1986). Torornto, ON. In: Dochoda, MR. (Ed). Report
and Recommendations from the 18-20 February I 986 and 5-6 May 1986 Meetings. Great Lakes Fishery
Commission Special Publication: Ann Arbor, MI: 55-58.

2' Clemens argued that differences in participation in ﬁsheries management by Native peoples are attributed
to recognitiorn of their sovereignty and treaty ﬁshing rights, as well as their economic status. Compared to
the tribes within the United States whose sovereign treaty rights were recognized through judicial review,
Carnada’s First Nations peoples have not enjoyed the same level ofparticipatiorn in ﬁsheries management.
Clenens attributes the diminished participation of Canada’s First Nations peoples to the fact that their
sovereign treaty rights have not been recognized to the same extent as those tribes irn the United States.
Clenens, M. (1994). Participation by Native People in Interjurisdictional Resource and Environmental
Governance in the Great Lakes Basin M.A. Thesis. Department of Geography and Institute for
Envirornmental Studies. University of Toronto: Toronto, ON, p. 25; Edwards, D. & Glavin, T. (1999). Set
Adriﬂ: The Plight of British Columbia ’s Fishing Communities. Paciﬁc Salmon Forest Project. David
Suzuki Foundation: Vancouver, B.C., p. 22-23.

22 It is noteworthy that judicial decisiorns have not been the prerequisite for all cooperative natural resource
management ageernents between tribal and governmental entities. However, the threat of continued
litigatiorn can prompt alternative decision-making processes and cooperative managenent sclnemes.

Berkes, F., George, P. & Prestorn, RJ. (1991). Co-managenent: the evolutiorn irn theory and practice of the
joint administration of living resources. Alternatives, I 8(2): 12-18; Clemens, supra note 21, at 9; McCay,
supra note 2, at 23-24.

147

and diminish social conﬂict over natural resource management.23 However, I believe that
the failure of sport ﬁshers, their former representatives, and some former DNR
representatives to recognize these rights intensiﬁed contentious relations between the
parties and perpetuated social conﬂict under the 1985 Consent Order.

Poligy Recommendation: Native Sovereignty and Rights to Self-Governance Must be
Accepted By State and Local Government Representatives in Negotiations and

Formulation of Policy.
" Negotiation Processes

Inequality existed in the scale of power between the parties during the negotiation
process of the 1985 Consent Order, based upon an analysis of stakeholder perceptions.
The most vivid example was the federal district court’s imposition of the Order when the
Bay Mills Indian Community opposed this policy. In addition, some tribal respondents
believed that treaty-ﬁshing rights were not protected under this policy. During the
negotiations for the 1985 Consent Order, the State of Michigarn, the DNR, and the sport
ﬁshing community continued to oppose treaty rights, and they sought to dimirnish these
rights.24 Thus, the nature of the negotiations failed to protect treaty rights since they were

treated as merely one other element to be considered during negotiations.”

 

23 Power differences or the failure to recognize particular parties as having legitimate riglnts to the resource
tend to hinder collaboration. Selin, supra note 2, at 193.

2’ The lack of equality at the onset of negotiations for the 1985 Consent Order helps explain why
McGovem’s “game tlneory” approach to negotiations may have been unsuccessful at producing a
management policy that the parties ageed to. Game theory approaches to negotiations explicitly assume
that there is equality among the parties. Another problem that Edney describes with game theory allocatiorn
is that they do not help explain what happens when the resources are depleted or at a low level. Edrney, JJ.
(1981). Paradoxes on the commons: scarcity and the problem of equality. Journal of Community
Psychology, 9: 3-34, p. 14-15.

25 Similar to the State of Washington, ﬁsheries managenent decisions were subject to gate political
scrutiny than judicial review. To obtain an agreement that would be politically acceptable, the court and
the non-Native parties treated tribal treaty rights as “negotiable.” United States Commission on Civil

148

In contrast to the negotiation process for the 1985 Consent Order, respondents
discussed how the State of Michigan, DNR and sport ﬁshing organizations recognized
treaty-ﬁshing rights and the tribes as legitimate participants in ﬁsheries management at
the onset of negotiations for the 2000 Consent Decree. As a result, stakeholders
perceived that the negotiation process for the 2000 Consent Decree involved greater trust,
communication and cooperation between the parties.

The use of a mediator in the 2000 Consent Decree negotiations represented an
important shift in dynamics between the parties, according to respondents. Those
involved in negotiations for the 2000 Consent Decree believed that having a mediator
was extremely helpﬁrl for empowering all the parties and giving them greater control
over the policy-making process, relative to negotiations for the 1985 Consent Order.
Mediation can be beneﬁcial to parties in negotiations that are complex and when the
parties have high emotional and ﬁnancial stake in the outcome, as found in the
controversy surrounding ﬁshing rights within the 1836 treaty waters of the Great Lakes.26

An analysis of stakeholder responses also revealed that there was an irncreased
emphasis on consensus buildirng during the negotiations for the 2000 Consent Decree,
compared to the negotiations for the 1985 Consent Order. Similar to negotiations in
other environmental disputes, these consensus-building approaches provided a more
equitable, efﬁcient, credible, and feasible outcome, relative to the 1985 Consent Order.27

The respondents also commented on the tremendous time commitment made by

the parties during the negotiations for the 2000 Consent Decree. As the parties worked

 

Rights. (1981). Indian Tribes: A Continuing Quest for Survival. Report of the U.S. Commission on Civil
Rights. Government Printing Ofﬁce: Washingtorn, D.C., p. 82-83.

2‘ Susskirnd, L. arnd Cruikshank, J. (1987). Breaking the Impasse: Consensual Approaches to Resolving
Public Disputes. Basic Books: New York, NY, p. 136-137.

149

together over time, stakeholders perceived that positions of the parties changed from
beirng adversarial to more problem-focused, and they shared a unifying goal of reaching a
satisfactory compromise to avoid litigation.28 This case supported the notion that
cooperation increases when parties develop solutions together over time,29 and successﬁnl
collaborative processes usually involve shared goals and recognition of interdependence
between the parties.30

Poligy Recommendation: Negotiation Processes Must Involve Parties Finding Solutions
Together Over Time.

Extensive support also existed among the stakeholders for having a negotiated
agreement rather than a court order.31 Importantly, negotiated settlements can be
especially effective for resolution of site-speciﬁc disputes where stakeholders challenge
existing policies and regulations.32
Polig Recommendation: To the Maximum Extent Possible, Parties Should be
Encouraged to Seek to Reach Agreement Between Themselves, Rather than Having a
Court-Imposed Policy.

Notably, inequality and dissatisfaction existed durirng negotiations for the 2000
Consent Decree, as demonstrated by allegations that the Grand Traverse Band was “held

hostage” to sign the agreement by the threat that the State of Michigan would pursue

 

27 Susskind, supra note 26, at 21-34.

2’ Successﬁnl collaboration irn negotiatiorns is problem-focused, irnstead of being bound by positions. Fisher,
11, Ury, w., and Pattorn, B. (1991). Getting to Yes: Negotiating Agreements Without Giving In. (2"l ed.)
Penguin: New York, NY, p. 27-28.

29 Fisher, supra note 28, at 56-80; Ayling, RA. and Kelly, K. (1997). Dealing with conﬂict: natural
resources and dispute resolutiorn. Commonwealth Forestry Review, 76(3): 182-185, p. 183; Wondolleck,

J .M. and Yaffee, S.L. (2000). Making Collaboration Work: Lessons from Innovation in Natural Resonance
Management. Island Press: Waslnirngtorn, D.C., p. 134, 163-164.

3° Wondolleck, supra note 29, at 142-144.

3' Wilkirnsorn, CF. (1991). To feel the summer irn the sprirng: the treaty ﬁshirng rights of tire Wisconsin
Chippewa. Wisconsin Law Review, p. 403; Ferguson, supra note 18, at 150.

150

litigation over a land claim that affects the band’s “Turtle Creek casino” if they didn’t
sign.33 Despite the successes of the 2000 Consent Decree negotiations, I believe that
these allegations have the effect of undermining conﬁdence in the policy among some
respondents.

Cooperative Fisheries Management

The conﬂict over Native treaty-ﬁshing rights in the Great Lakes can be
categorized as a “distributional dispute,” or a dispute that centers on allocation.“
Susskind and Cruikshank claim that consensus—building, cooperative management
strategies can help resolve distributional disputes.” The beneﬁts that have been
attributed to cooperative management strategies include dirnirnishment of social conﬂict.“

According to an analysis of stakeholder perceptions, ﬁsheries mannagement within

the 1836 treaty waters of the Great Lakes has been increasingly cooperative at the

 

32 Selin, supra note 2, at 194.
33 Bradsher, K. (2000, August 8). Miclnigan pact resolves battle over limits on Indian ﬁslning. New York
Times, p. 12A
3’ Susskind and Cruiksharnk corntrast distributional disputes with cornstitutiornal disputes. In cases of
constitutional disputes, ﬁrndamental constitutional rights are at stake. Some examples are a woman’s right
to chose to have an abortiorn or ﬁ'eedorn of speech. Although the conﬂict surrounding Native ﬁshing riglnts
in the Great Lakes centers aronmd interpretation of Native treaty rights urnder the U.S. Constitution, this
dispute has already been decided by the courts in United States v. State of Michigan 471 F. Supp. 192
(W.D. Mich. 1979). The remaining issues of debate are related to issues of allocatiorn arnd managenent.
Generally, ﬁmdamerntal questions are decided before distributional disputes can be resolved. Susskind,
supra note 26, at 16-18.
3’ Susskind, supra note 26, at 17-18.
3‘ The following beneﬁts have been attributed to cooperation in natural resources marnagement:

o facilitatiorn in the irntegatiorn of vested irnte'ests and values;

0 increased understanding and political support for decisions;

0 capitalization of local knowledge and informatiorn, leading to improved and credible decision-
making;
geate coordinatiorn of marnagement efforts;
promotion of trust between stakelnolder goups;
relationship-building amorng stakeholder goup representatives;
reduced mornitoring and enforcement costs; and
enhanced ability ofmanagement agencies and cornmnnrnities to deal with conﬂicts.
Pinketon, supra note 1; Feerny, D., Berkes, F., McCay, BJ. arnd Acheson, J.M. (1990). The tragedy of the
commons: twenty-two years late. Human Ecology, 18(1): 1-19, p. 14; Worndolleck, supra note 29, at 5-10,
23-24.

151

management level since the 1985 Consent Order. Upon judicial recognition of the tribes’
rights to participate in natural resources management, the 1985 Consent Order outlined a
management strategy in which the tribal and state regulatory agencies were required to
share data and work together on various aspects of ﬁsheries management. Collaborative
management processes were also put in place in the 19808, under the ﬁ'amework of the
Great Lakes Fishery Commission, that were beneﬁcial for facilitating joint management
and increasing cooperation between tribal and state regulatory agencies.37 According to
stakeholders, the Lake Committees under the Great Lakes Fishery Commission provide
good examples of how such collaborative, institutionalized management structures can be
effective.

Cooperation in Great Lakes ﬁshery management was also promoted by enhanced
tribal proﬁciency and capacity for ﬁsheries management. Due in part to
interjurisdictional issues, I believe that advances in tribal expertise and capacity tend to
be paralleled by an increased awareness among policymakers that tribes should play an
active role in management.38 Thus, the 1985 Consent Order — in combination with the
collaborative processes set up under the framework of the Great Lakes Fishery
Commission and increased tribal management capacity - helped reduce social conﬂict at

the management level by requiring greater cooperation among the multiple

 

’7 Collaborative processes in natural resource management often lead to increased cooperation amorng
stakeholders by buildirng undestandirng, through the exchange of irnformation and ideas, and providirng a
means to coordinate management efforts. Selin, supra note 2, at 190; Clenens, supra 21 , at 30;
Wondolleck, supra note 29, at 18-19.

3' The development of sophisticated managenent programs by tribes has supported the legal basis for
sigrniﬁcant tribal participation in natural resource marnagerrnent decisions. Many tribes — including those in
northern Michigan - have committed trenendous resources and hired skilled biologists. Theefore, they
match state regulatory agencies in terms of technical expetise. Goodmarn, B. (1998-1999). The meaning
of W’: off-reservation Indian hunting rights and habitat protection. Natural Resources Law Institute,
9(2): 1-7, p. 6-7.

152

jurisdictions.” Collaborative management processes help reduce the harmful impacts of
losses in institutional memory, as there are changes in staff among the parties.40
Furthermore, they motivate people to maintain positive relations and promote the
understanding that collaborative efforts are important.41

Signiﬁcantly, collaborative processes established by the 1985 Consent Order and
under the Great Lakes Fishery Commission will continue under the 2000 Consent
Decree, and the tribal management capacity will likely be maintained or increased.
Importantly, the principles and objectives outlined by the DNR for the 2000 Consent
Decree include collaboration and cooperation in research, evaluation and nnanagement of
shared ﬁsh stocks with other jurisdictions.42 Thus, cooperation in ﬁsheries management
should continue, helping reduce social conﬂict over issues of allocation in the 1836 treaty
waters of the Great Lakes, at the management level. Institutionalized processes should be
continued as tribal and state biologists continue to work collaboratively through the
Technical Fisheries Review Committee of the 2000 Consent Decree and the Lake

Committees of the Great Lakes Fishery Commission. One suggestion is to follow the

 

’9 According to Clenens, the Great Lakes Fishey Commission’s decentralized managenent structure
helped foster cooperatiorn between tribal and state regulatory agencies. Yet, he points out that it was only
through legal recognition of the tribe’s treaty rights that tlnee has been greate tribal participation in the
Great Lakes Fishey Cornmissiorn. Clenens, supra note 21, at 30.
‘° Krueger, C.C., Jones, ML. and Taylor, W.W. (1995). Restoration of lake trout in the Great Lakes:
challenges and strategies for fnrture managenent. Journal of Great Lakes Research. 2 l (Supp. 1): $47-$58,
. 556; Wondolleck, supra note 29, at 37.
' Clenens, supra note 21; Wondolleck, supra note 29, at 92, 115-117.
‘2 The principles and objectives included: encouragenent of multilate'al cooperation in research,
encouragement of collaborative research, disclosure and mutual evaluatiorn of researcln, and working with
othe jurisdictiorns in the managenent of shared stocks. Smith, K. (2001). Principles and Objectives: Year
2000 Fishing Agreement. Department of Natural Resources. Presentation for a seninar in the Department
of Fisheies & Wildlife, Michigan State University, East Lansing, MI.

153

example set by the State of Washington by having the parties meet for bi-annual
retreats.”

Poligy Recommendation: Collaborative Management Processes Must be
Institutionalized and Enduring.

Due to the complexity of problems in ﬁsheries management and the limited
resources available to address them, I believe that the tribes of northern Michigan, the
DNR and the federal government must share management of the 1836 treaty waters of the
Great Lakes. Problems associated with ﬁsheries management within these waters will
remain complex and dynamic, shared management will help promote collaboration,
coordination and cooperation between the tribaL state and federal regulatory agencies and
make management more effective.

Poligy Recommendation: Great Lakes Fishery Management Must Continue to be a

Shared Responsibility Between Tribal, State and Federal Regulatory Agencies.
Lake Trout Rehabilitation and Conservation

Prior to the 1985 Consent Order, many tribal respondents perceived that the
politically-motivated polarization of sport ﬁshing organizations and the DNR around the
issue of banning gill nets prevented the parties from cooperatively developing credible,
scientiﬁcally-based management decisions to reduce lake trout bycatch.“ In contrast,
they believed that the Council of Lake Committees within the Great Lakes Fishery
Commission was a positive, proactive force in lake trout rehabilitation and conservation,

and it has helped bring science to policy-makers in the Great Lakes basin since the early

 

‘3 Pinkerton, E.W. (1992). Translating legal rights irnto managenent practice: overcoming barriers to the
exercise of co-management. Human Organization, 51(4): 330-341, p. 331.

154

1930s.“ The U.S. Fish and Wildlife Service has also worked collaboratively with the
tribal and state regulatory agencies towards lake trout propagation and enhancement
through stocking programs.46 Once the tribes gained federal recogrnition to participate
with the DNR in ﬁsheries management, the 1985 Consent Order required data sharing
between the tribal and state regulatory agencies, which increased the catch and effort
information available for decision-making affecting lake rehabilitation and conservation.
Simultaneously, the Great Lakes Fishery Commission promoted the sharing of scientiﬁc
information and multijurisdictional collaboration in research and decision-making
through their Lake Committee structures."

Despite the collaborative efforts of the tribal and state regulatory agencies under
the 1985 Consent Order and the Lake Committees, reductions in gill net harvest, and
federal stocking programs, lake trout mortality rates exceeded harvest quotas set for

Lakes Huron, Michigan and Superior under the 1985 Consent Order.48 To reduce lake

 

“ According to Selin and Chavez, polarization of inteest groups arournd an issue presents a clnallenge to
collaboration. Wondolleck and Yaffee asset that managenent decisions must be based on science to be
viewed as credible. Selin, supra note 2, at 190-191; Wondolleck, supra note 29, at 134-136.

‘5 In 1983, the Council of Lake Committees encouraged tribal representation on advisory committees.
Subsequently, it created a task force in 1984 to coordinate lake trout rehabilitatiorn strategies inn lake
committee and act as a liaison to researches and policy-makers. Committee of the Whole. (February 18,
1986). Workshop on the Implementation of the Joint Strategic Plan for the Management of the Great Lakes
Fisheries (SGLFMP). Agenda iten 10, p. 53.

‘6 Holey, M. (pesonal cornmurnicatiorn, 2002).

‘7 The multi-jurisdictional nature of the Great lakes basin has led to an ecosysten-based approach to
managenent by the Great Lakes F islne'y Commission. Signiﬁcantly, the ecosysten-based model that is
used by the Great Lakes Fishe'y Commission assumes that a cooperative approach to managenent is the
most effective to ensure sustainability and avoid conﬂicts. Belsky, MR (1989). The ecosystem model —
marndate for a comprehensive United States Ocean Policy and Law of the Sea. San Diego Law Review, 26,
p. 448; Caldwell, L.K. (1988). Introduction: irnplenenting an ecological systems approach to basinwide
managenent. In: Caldwell, L.K. (Ed) Perspectives on Ecosystem Management for the Great Lakes, (pp. 1-
27.) University of New York Press: Albany, NY.

‘3 Eslnenrode, nu... Payne, N.R, Johnson, J.R., Bowen [1, c, & Ebene, M.P. (1995). Lake trout
relnabilitation in the Lake Hurorn. Journal of Great Lakes Research, 21(Supp. 1): 108-127; Haley, M.E.
Rybicki, R.W., Eek, G.W., Brown, Jr., E.H., Marsden, J.R., Lavis, D.S., Toneys, M.L, Trudeau, T.N., &
Horrall, RM. (1995). Progress towards trout restoratiorn irn Lake Michigan. Journal of Great Lakes
Research, 21(Supp. 1): 128-151; Hansen, M.J., Peck, J.W., Schorfhaar, R.J., Selgeby, J.H., Schreine,
D.R., Sclnrarrn, S.T., Swarnsonn, B.L., MacCallum, W.R., Bumharn-Curtis, MK, Curtis, G.L., Heinricln,

155

trout mortality, signiﬁcant reductions in gill net effort plan to be rrnade under the 2000
Consent Decree, and lake trout stocking programs will be continued. Population
assessments should be increased under this policy as well. Therefore, respondents
believe that lake trout rehabilitation and conservation should be promoted under the 2000
Consent Decree, as long as there are sufficient ﬁnancial resources for implementation and
greater commitment is rrnade to enforce policy provisions.

Nonetheless, lake trout rehabilitation remains critically dependent on lake trout
stocking programs in many areas of Lakes Huron and Michigan.49 Some researchers
have stressed the need for a reduced emphasis on stocking of lake trout, in light of
restoration goals.so Although a tremendous amount of research has been done to examine
the obstacles associated with lake trout rehabilitation, in my opinion, future policies will
need to reﬂect new scientiﬁc information as it becomes available.

A few stakeholders raised concerns that lake trout rehabilitation was an ethical
question, not an ecological question. They believed that lake trout rehabilitation and
commercial ﬁshing should be stopped, and managers should place greater emphasis on
hatchery and stocking programs of popular game species, including non-native
salmonids. These stakeholders nostalgically recalled the capture of gigantic salmon
during the 19605, and many expressed frustration that these large catches were no longer
possible. They believe that the DNR should focus more on managing for large game

species, instead of lake trout.

 

J.W., & Young, RJ. (1995). Lake trout (Salvelinus namaycush) populations irn Lake Supeior and their
restoration in 1959-1993. Journal of Great Lakes Research, 21(Supp. 1): 152-175.

‘9 Eshenroder, supra note 28; Holey, supra note 28; Hansen, supra note 28.

5° “From the standpoint of maintaining natural gene pools, stocking depleted populations is a management
respornse that also acts as a depensatory manne and ean hasten the collapse of native stocks.” Post, J.R.,
Sullivarn, M., Cox, 8., Lester, N.P., Walters, C.J., Parkinson, E.A., Paul, A.J., Jackson, L., and Shute, BJ.
(2002). Canada’s recreational ﬁslneies: tlne invisible collapse. Fisheries, 27(1): 6-17, p. 12.

156

In contrast, most ﬁsheries managers believed that lake trout rehabilitation is
necessary for ecosystem health and sustainable management. The need for lake trout
rehabilitation has also been expressed by a number of researchers.5 1 Another concern
with these perceptions is that the ecological impact of the salmon ﬁshery on lake trout
rehabilitation is not well understood. I believe that comprehensive, long-term
assessments of the ecological impacts of non-indigenous species —- such as salmon — on
lake trout and ﬁsh communities must be conducted to guide ﬁrture ﬁsheries management
decisions. Future management policies between the State of Michigan and the tribes
should emphasize joirnt decision-making based upon science to protect the long-term
health of the ecosystem. Since most ﬁshers - sport and commercial - expressed concern
over the status of the Great Lakes ﬁshery, it is my opirnion that they will support ﬁsheries
management strategies that help produce healthy and sustainable ﬁsh stocks, once they
are made aware that these strategies are necessary.

Poligy Recommendation: Fisheries Management Policies Must be Ecosystem-Based to
Promote Sustainability of the Resource.

Some stakeholders also believe that attention and resources for invasive species

mamgement has been insufﬁcient, despite the growing number of harmﬁrl, non-

indigenous species and the lack of preventative measures. 52 They perceive that more

 

5' Eshenroder, R.L., Crossrnarn, EJ., Meffe, G.K., Olve, C.H., and Piste, E. P. (1995). Lake trout
relnabilitatiorn irn the Great Lakes: an evolutionary, ecological, and etlnical pespective. Journal of Great
Lakes Research, 21 (Supp. 1): 518-529; Kenen, LT. (1995). Lake trout: valuable native fannrna or just
grease? Journal of Great Lakes Research. 21 (Supp. 1): 198-201; Knuth, B.A., Lerner, S., Cornnelly, NA,
and Gigliotti, L. (1995). Fishey and environmental manages’ attitudes and support for lake trout
relnabilitation irn the Great Lakes. Journal of Great Lakes Research. 21(Supp. 1): 185-197; Piste, ER
(1995). Etlnics of native species restoration: the Great Lakes. Journal of Great Lakes Research, 21 (Supp.
1): 10-16.

’2 Preventiorn of invasive species is critical since eradication of an established invasive species is practically
impossible. Leach, J.H., Mills, B.L. and Dochoda, MR. (1999). Non-irndigenous species in tlne Great
Lakes: ecosysten impacts, birnatiornal policies and managenent. In: Taylor, W.W. and Fe'rei, C.P. (Eds),

157

funding is needed for the control and prevention of invasive species into the Great Lakes.
Yet, more research is also needed to help answer questions about the ecological impacts
of non-indigenous species on lake trout and ﬁsh communities. I believe this information
is necessary to help inform decision-nnakers in the formulation of future rrnanagement
policies.

Poligy Recommendation: Non-Indigenous Species Research Must Increase and be Used

by Decision-Makers in Fisheries Management Policies.
Allocation, Fishing Opportunities and Communities

In the case of Native treaty-ﬁshing rights, the U.S. Supreme Court has determined
that although a state cannot deprive Indians of a fair share of the ﬁshery, Indians do not
have rights to exclusive use of the ﬁshery. Thus, both sides have a right to a “fair”
allocation, in light of conservation measures to rehabilitate and conserve lake trout
stocks.53 However, state regulatory agencies that focus on recreational exploitation of
natural resources, including the Michigan DNR, have been reluctant to accept a

management ﬁamework that includes tribal harvest, 5‘ since they perceive there is

 

Great Lakes Fisheries Policy and Management (pp. 185-207) Midnigan State University Press: East
Lansing, MI; Shute, BJ. and Mason, D.M. (2001). Erotic Invertebrates, Food-Web Disruptions, and Lost
Fish Production: Understanding Impacts of Dreissenid and Cladoceran Invaders on Lower-Lake Fish
Communities and Forecasting Invasion Impacts on Upper-Lake Fish Communities. Report prepared for
the Board of Technical Experts, Great Lakes Fishe'y Commission.

’3 Department of Game of Washington v. Puyallup Tribe, 414 U.S. 44, 49 (1973); Washington v.
Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 684 (1979).

5‘ Many researches believe that Native Ameicans historically had an ecological, stewardship etlnic
towards natural resources, whicln forms the basis for Native resource stewardship in present time. Cornell,
G. (1990). Native American peceptions of the environment. Northeastern Indian Quarterly, p. 3-4;
Austin, RD. (1995). Native people of Ameica and the Environment. Stanford Environmental Law
Journal, 14(2): ix-xi; Pieotti, R. and Wildcat, D. (1999). The connectedness of predators and prey: Native
American attitudes and ﬁsheies management. Fisheries, 24(4): 22-23.

Altlnough some researches disagree with the concept that Native Americans practiced an
ecological ethic, they believe that the managenent of ﬁsheies resources as propety riglnts helped protect
ﬁsh stocks by reducing access of othe tribes. Barsh, R.L. (1977). The Washington Fishing Rights
Controversy: An Economic Critique. University of Washington: Seattle, WA, p. 23; Oveholt, T.W.
(1979). Ameican Indians as ‘ﬁnatural ecologists.” American Indian Journal, 9-11; Andersen, T.L. ( 1997).

158

potential for overharvest.55 In the Great Lakes ﬁshery, some respondents ﬁ'om all
stakeholder categories perceived that once the treaty-ﬁshing rights of the tribes of
northern Michigan were recognized by the judicial system, the tribes began to overexploit
lake Whiteﬁsh and lake trout stocks. Subsequently, ﬁshing opportunities were diminished
for recreational and commercial ﬁshers, social conﬂict increased, and a need arose for the
1985 Consent Order to allocate the ﬁshery and ﬁshing opportunities. In contrast, some
trnhal stakeholders perceived that tribal overharvest was merely a response to efforts by
the DNR to establish a recreational ﬁshery at the expense of the tribal commercial
ﬁshery. These stakeholders believed that the diminished tribal ﬁshing opportunities
prevented the tribes from earning a living in commercial ﬁshing, which threatened their
cultural heritage.56

McCay and Jentoﬁ assert that healthy communities are a critical component of
healthy ecosystems, and unlimited ﬁshing behavior may be indicative of community
failure, or erosion of social ties and collective concern for the ﬁshery resource and their
community.57 Thus, management systems that preserve, restore and reinforce the social
structure and culture of communities motivate ﬁshers to participate and cooperate in
ﬁsheries management schemes that protect and sustain the resources8 Therefore, it is

critical to consider the socioeconomic and cultural impacts of ﬁsheries management

 

Cornservation: Native Ameican style. Quarterly Review of Economics and Finance, 37(4): 769-785, p.
777.

5’ Pinketorn, supra note 1.; McCorquodale, SM. (1999). Historical and contemporary policies regarding
off-reservation hnrrnting by Native Ameicans. Wilcﬂ’y'e Society Bulletin, 27(2): 446-455, p. 452.

’6 These resporndents peceived that once the tribes were granted economic opporturnities they had been
deprived of, thee was an incentive to utilize the resource while they could.

’7 McCay, supra note 2; Jentoft, S. (1999). Healthy ﬁshing communities: an important component of
healthy ﬁsh stocks. Fisheries, 24(5): 28-29.

5' Boulding, K. (1977). Commons and cornmurnity: the idea of a public. In Hardin, G. arnd Baden, J.
(Eds.) Managing the Commons. (pp. 280-294) W.E. Freeman: San Francisco, CA, p. 290; Jentoﬁ, supra
note 57.

159

decisions, since they have such important implications for cooperation and resource
stewardship.”

An analysis of stakeholder perceptions led me to believe that in 1985 the court’s
Special Master failed to consider the socioeconomic impacts of this policy, and as a
result, small-boat gill net ﬁshers believed that they were “forced out” of the ﬁshery since
they were unable to compete with the larger, tugboat operations.60 The most common
perception among tribal ﬁshers was that srrnall-boat ﬁshers needed to upgrade under the
1985 Consent Order to sustairn their livelihood. These ﬁshers also perceived that the
State of Michigan, DNR, and sport ﬁshers tried to eliminate their ﬁshing opportunities
and erode their treaty-ﬁshing rights recognized by the 1985 Consent Order. They
expressed bitterness, anger, and resentment towards these management agencies and the
sport ﬁshing community.

The 2000 Consent Decree retains a focus on gill net ﬁshing gear and emphasizes a
signiﬁcant reduction in gill net use — in combination with stocking — to rehabilitate lake
trout stocks."l As a result of contirnued emphasis on gill net reduction under the 2000
Consent Decree, bitterness is likely to contirnue over continued emphasis on conversion
of small gill net operations to large, tugboat trap net operations.

Importantly, respondents at the management level perceived that the 2000

Consent Decree would reduce bycatch while preserving gill net harvest opportunities.

 

’9 Wondolleck, supra note 29, at 42-43.

6° These peceptions are signiﬁcant in liglnt of tlne 1985 Consent Order’s commitment to preseve small boat
ﬁshing opportunities. Rastette, W. (1997, Sept. 28). The Grand Travese Band of Ottawa and Chippewa
Indians: our opinion. Traverse City Record Eagle, p. El 1; Ferguson, supra note 18, at 134-135.

"Although the 2000 Cornsent Decree attenpts to protect some small-boat gill net ﬁshing opportunities,
tlnese opporturnities will decline unde new regulatiorns and restrictiorns. Some of the money given to the
tribal govenments by the federal government with the signing of tine 2000 Consent Decree is expected to
compensate small-boat Indian ﬁshing operations that did not receive trap net boats, but will have their
ﬁshing opportnmities restricted nrrnder this policy. Bradshe, supra note 33.

160

These perceptions stem from policy-development based upon a gill net study that
demonstrated some temporal and spatial differences in the distribution of lake trout and
Whiteﬁsh in parts of northern Lake Huron.62 Tribal ﬁshers, however, believed that the
provisions of the 2000 Consent Decree would continue to diminish overall gill net ﬁshing
opportunities. In response to these restrictions, some ﬁshers expressed interest in
conversion to trap nets, but they also expressed extreme trepidation based upon past
experiences. Conversion from gill nets to trap nets continues to present critical obstacles
for tribal ﬁshers due to the high cost of conversion and difficulty securing loans.63 Thus,
it is my opinion that the parties must address the obstacles facing tribal ﬁshers if
conversions ﬁom gill net to trap net operations are going to be successﬁrl.

Tribal ﬁshers that did not qualify or chose not to participate in the gill net
conversion plan to trap net operations under the 2000 Consent Decree — resulting from
the buy-back of state-licensed commercial ﬁshers in the Bay de Noc region — believed
that this plan perpetuated inequality among tribal members. Signiﬁcantly, they perceived
that this policy would fail since it forced the small ﬁshers out of the ﬁshery, while

maintaining opportunities for the largest operators. These assertions are consistent with

 

‘2 In this study, lake trout and lake whiteﬁsh catcln data and catdn-pe-unit-effort (CPUE) wee calculated.
Three depth strata wee examirned, altlnough the ﬁnal analysis collapsed irnto two categories of depth: < 75
feet and > 75 feet. Ebene, M.P., Gehardt, K, and Johnson, J.E. (2001). Final Interim Report
Summarizing the Spatial, Temporal, and Bathymetric Distribution of Lake Trout and Lake Whiteﬁsh in
Northern Lake Huron in 1998 and 1999. Lake Huron Technical Subcommittee of the Technical Fisheies
Committee.

‘3 Hinmarn and Bensten conducted a study to provide the basis for evaluating the feasibility of tribal ﬁshing
with impoundment gear using small, traileable boats. Data used was geneated by the trap net convesion
expeirnent of the Grand Traverse Band and the State of Michigan. The study outlined the extensive costs
and liabilities associated with trap net enteprises and affects on costs. Some obstacles wee outlined for
the tribes, including the need for a solid credit rating and comprehensive business plan; detailed ﬁnancial
records; and the difﬁculties and high cost of borrowing for tribal menbes. Although no conclusions wee
made, a baseline analysis demonstrated that an aveage negative cash ﬂow for a six-year peiod of
cornvesion was -Sl9,212, and the irnitial capital cost was estimated to be $202,735. Hirnman, D.L. arnd
Bernsten, RH. (1997). Economic Assessment of Small-Boat Trap Net Fishing in the Grand Traverse Bay.
Manuscript, p. 1, 5-33.

161

Jentoft’s belief that some government-initiated programs can lead to inequality and
stratiﬁcation of ﬁshing communities, and overexploitation of the ﬁshery resourcef’4 To
preserve social structure within the community and protect the resource, Jentoft suggests
that ﬁshing opportunities and cultural practices be preserved to the greatest extent
possible. Furthermore, any government buy-back or conversion program that limits
access for some ﬁshers should be incorporated in an economic development plan to help
foster transition and maintain the social structure arnd culture of the community, rather
than elirnirnating opportunities, or preserving opportunities for a limited number of ﬁshers
through the denial of opportunities to other ﬁshers.“

Poligy Recommendation: Fisheries Management Policies Should be Devised as to

Reirnforce the Social Structure of Communities, and Avoid the Creation of Inequality.

Knowledge and Acknowledgement of Native Treaty Fishing Righe

Native rights to hunt arnd ﬁsh are vested property rights of the tribes and were
reserved in the 1836 Treaty, in exchange for land cessions with the United States
government. I learned that many respondents ﬁ'om the sport ﬁshing community were
unaware of these legal rightsf’6 However, a nnajority of sport ﬁshers who knew of Native
treaty-ﬁshing rights under the 1836 Treaty failed to acknowledge the existence of these
rights, despite the ongoing involvement of sport ﬁshing organizations in treaty-ﬁshing

rights litigation,67 and they adamantly opposed tribal ﬁshing. Many sport ﬁshers

 

6‘ Jentoﬁ, supra note 57, at 29.

‘5 Jentoft, supra note 57, at 29.

‘6 Walke, H. (1979). Indian hurnting and ﬁshing rights. North American Wildife Conference
Transactions, (44): 618-619.

‘7 Fegusorn believes that the lack of acknowledgenent of Native treaty-ﬁshing rights has perpetuated the
controvesy surroundirng Native treaty ﬁshing riglnts within the Midnigan wates of the Great Lakes.
Ferguson, supra note 18, at 148-149.

162

perceived that tribal ﬁshing was the sole reason for reductions in ﬁsh populations within
the Great Lakes.

An analysis of stakeholder perceptions revealed that tribal stakeholders believe a
lack of knowledge and understanding of treaty-ﬁshing rights and racism by sport ﬁshers
has perpetuated social conﬂict."8 Numerous examples were given to demonstrate how
many government and sport-ﬁshing leaders have spread false information and used
inﬂammatory language to fuel the ﬂames of intolerance for tribal ﬁshing.69 Furthermore,
in their view, there needs to be greater awareness that tribal harvest is not the only cause
for diminished ﬁsh stocks.

Some stakeholders were disappointed at the lack of collaboration and failure to
emphasize educational efforts called for urnder the 1985 Consent Order. Although there
was some dissatisfaction among respondents at the discontinuation of the Information
and Education Committee under the new policy, other respondents failed to perceive this
as an obstacle to increase education and understanding since they believed that written

materials produced by the Committee may not be the appropriate vehicle for informing

 

6‘ Altlnough racism is an important elenent affecting the lack of toleance for Native ﬁshing rights and
social cornﬂict among ﬁshes, Clelarnd argues that racism is not their root cause. Instead, he argues that they
delve ﬁ'om a violation of our cheished values of “equal riglnts” for everyone, and a violationn of the myths
that Indians and treaties are relics of the past witlnout modern relevance. Cleland, supra note 8.

‘9 One illustrative example of how legislators in the State of Michigan have helped inﬂame passiorns against
treaty ﬁshing riglnts petains to a Republiean task force hearing on hunting and ﬁshing in Travese City,
Michigan in 1997. At this hearing, legislators DeVuyst and McManus vowed to support efforts of sport
ﬁshes towards prohibiting commecial tribal harvest. They reiteated the belief that tribal harvest is solely
responsible for declines in the Great Lakes ﬁshery. These legislators committed at this hearing to
introducing legislatiorn that would lirnk treaty rights to tribal casirnos, referred to as “No Fish, No Chi ”
legislatiorn. Kelleman, S. (1997, Novenbe 8). Panel hears protests ove gill netting. Traverse City
Record Eagle, p. A l .

At a public meeting sponsored by the Michigan Steelhead arnd Salmon F islnernen’s Association,
attendees consistently argued that Native ﬁshes should only ﬁsh ﬁ'om bircln bark canoes since that is what
is allowed by the treaties. Michigan Steelhead and Salmon Fishe'men’s Association Meetirng. (Octobe 1,
1999). Manistee, Michigan. Howeve, the courts have ruled that Indian ﬁshes have used the best
available technology tlnroughout history, and tlnis right corntirnues today. United States v. Washington, 384
F. Supp. 312 (W .D. Wash. 1974), qtfd 520 F. 2d 676 (9l|l Cir. 1975); Washington v. Washington Passenger
Fishing Vessel Association, 443 U.S. 658 (1979).

163

sport ﬁshers. Rather, these respondents believed that the educational provisions of the
2000 Consent Decree — educational forums hosted by the tribes, upon request by the
DNR or sport ﬁshing community - would be more effective.

Many respondents perceived that increased education and awareness of Native
treaty-ﬁshing rights in ﬁrture policies may help to increase understanding and tolerance
among the public. Increased knowledge could help resolve misunderstandings over these
issues, and form a basis for collaboration instead of conﬂict.70 Although attempts have
been made to increase education and awareness, I believe that education remains a low
priority, relative to other issues, as reﬂected by the discontinuation of the Information and
Education Committee in the 2000 Consent Decree.

Unfortunately, the potential for future social conﬂict in the 1836 treaty waters of
the Great Lakes ﬁshery continues to exist as sport ﬁshers protest against tribal ﬁshing.
According to Jacques LeBlanc, a tribal ﬁsher of the Bay Mills Indian Community,
although tension dimirnished after the 1985 Consent Order, he described how social
conﬂict started “to get had again” in Munising during the fall of 2000. This Bay was
opened up to Indian commercial ﬁshing under the 2000 Consent Decree, after being
prohibited under the 1985 Consent Order.71 Thus, I believe that the parties should

continue efforts to educate the public about treaty rights.

 

7° Pommesheirn stated, “When there is no basic doctrinal literacy or cultural empathy, there is no hope
that any decisions will adequately resolve the problem [of controversy surrourndirng Native treaty-ﬁshing
rights].” Pommersheirn, F. (1997, Novenbe 4). Indian Law Symposium. Sponsored by the Thomas M.
Cooley Law Review and the Michigan Indian Law Cente; Ferguson, supra note 18, at 154.

7‘ Prior to 1985, LeBlanc described how Indian ﬁshes were often shot at and harassed by sport ﬁshes. In
January of 2001, when LeBlanc tried to ice ﬁsln the wates in Munising Bay, vandals cut the lines of his
nets. He heard talk about burning his equipment and shooting at him. Doug Miron, Chairman of the
Munising Bay Fish Committee, said that he is seeking a legal clnallenge to the tribes’ rights to ﬁsh irn
Munising Bay. He and otlne sport ﬁshes claim that the tribes will deplete the ﬁslney withirn the Bay.
Fleshe, J. (2002, March 9). Settlenent wording rekindles battle between tribal, sport ﬁshes. Detroit
News, p. 1-2.

164

Poligy Recommendation: Education of the Fishing Public Regarding Native Treaty

Rights Should be Increased to Promote Greater Awareness and Understanding.
Cultural Understanding and Differing Values

A few tribal and sport ﬁshers expressed the belief that they hold in common the
same passion for ﬁshing, enjoyment of being out irn the Great Lakes, the thrill of catching
ﬁsh, and spending time with family. Based upon analysis of stakeholder perceptions,
however, social conﬂict has been perpetuated in the 1836 treaty waters of the Great
Lakes ﬁshery due to a lack of cultural understanding by the parties. I believe that sport
ﬁshers were not aware of the importance of ﬁshing to the tribes beyond economic
values.72 Many sport ﬁshers perceived that commercial ﬁshing did not make economic
sense for the tribes, and they believed that Indians don’t “need” to ﬁsh in present times to
sustain thenn, because they earn revenue ﬁom casinos. Therefore, they believed that the
tribes do not need to exercise their ﬁshing rights. Others expressed the sentiment of
former DNR management that sport ﬁshing should be the only permissible use of the
Great Lakes ﬁshery, since it provides tremendous revenue for the State of Michigarn. 73

These perceptions reﬂect a lack of understandirng that the tribes value ﬁshing for non-

 

7’ Turtle, SD. (1989). Native Ameican’s right to hunt arnd ﬁsln: an overview ofthe aboriginal spiritml
and mystical belief system, the effect of European corntact and the corntirnuing ﬁglnt to observe a way of life.
New Mexico Law Review, I 9: 376-423, p. 377, 381-384.

73 Some respondents ﬁ'orn the DNR discussed the highe value of a recreational sport ﬁshey vesus a
commecial ﬁshey as justiﬁcation for a dirninishment of commecial ﬁshing and establislnment of a
reeeatiornal ﬁshery. According to Talhelm’s economic analysis of the Great Lakes ﬁshey in 1979, the
recreatiornal sport ﬁshey was assessed to be wortln approximately $1 billion to the State of Michigan,
compared to $160 milliorn that was provided by the commercial ﬁslney. Tallnelm, DR. (1979). Current
Estimates of Great Lakes Fisheries Values: 1 97 9 Status Report. Great Lakes Fislney Commission: Ann
Arbor, MI, p. 2.

165

economic purposes, as well as economic ones.74 To illustrate, an offer to “buy-out” the
tribes from ﬁshing was made in 1979, after the Fox decision, and the tribes refused.”
According to an analysis of stakeholder perceptions, many believe that federal
Indian policies have left scars on tribal communities, and some aspects of Native culture
have been lost or destroyed. 7" As a result, efforts to reassert treaty-ﬁshing rights have
been part of a larger attempt by tribes to revitalize their Native culture, religious
practices, and traditions.77 Although the tribes of northern Michigan valued commercial
ﬁshing as a source of income,78 they also valued the exercise of their treaty rights as a
demonstration of their sovereignty, culture and religion. Greater education and
consideration of these non-economic values of ﬁshing should occur to correct the
misinformation that ﬁshing is only important for economic purposes. In my opinion, this
may help dispel the false belief that casinos can replace ﬁshirng as a livelihood for tribal
ﬁshers.
Poligy Recommendation: Collaborative Management Processes Must Foste Trust

Through Sensitivity and Respect for Cultural Differences

 

7‘ Fegusorn points out that the execise of treaty rights to earn a living does not represent a trade-off for
othe non-economic values of ﬁshing. Feguson also points out that no ethnic group witlnin the Urnited
States has been forced to trade their economic pursuits for non-economic values. Feguson, supra note 18,
at 149.

7’ The Michigan United Consevation Clubs made an offe to the tribal ﬁshes, which was endorsed by then
Govenor Milliken and the DNR. Indian ﬁslnirng “buy-out” proposed. (1979). Michigan-Out-of-Doors, p.
12.

76 For example, a few tribal respondents discussed how Indians living on the reservation had been renoved
from their families when they wee children and put into boarding sclnools. In 1879, the Carlisle Indian
Training Sclnool was established urnde efforts to assimilate Native children into Ameican society.
Thousands of Indian dnildren wee removed ﬁen their families and communities and forced to relocate to
tlnis and othe boarding sdnools to adopt “Ameiean ways.” The Bureau of Indian Affairs banned Indian
celebrations, languages, marriage customs and religious practices. Upon recognition of the deleteious
state of Indian communities, state and federal governments sought to have the tribes become beneﬁciaries
of social programs. Howeve, some tribes were simultaneously forced to relinquish jurisdiction ove civil
and criminal mattes on their resevatiorns. United States Commissiorn on Civil Rights, supra note 25, at
20-21, 42-43; Wood, supra note 14, at 198-199.

77 Wood, supra note 14, at 198-199.

7' Cleland, supra note 8, at 82.

I66

Researcher Reﬂections

I believe that my identity as a Caucasian woman and a graduate student from
Michigan State University inﬂuenced how respondents perceived nne as a researcher. My
identity was perceived differently among individuals from each stakeholder group, and I
believe that these perceptions affected the information presented to me.

Although there were other Caucasians working for and with each of the tribes of
northern Michigan, I perceived there was a lack of complete trust among tribal
respondents. Prior to conducting research interviews, I made a concerted effort to
become educated about the relevant history and culture of northern Michigan’s Ojibwa
and Ottawa, so I could be knowledgeable and respectful of cultural differences between
respondents and myself. Yet, I believe that some of the mistrust stemmed ﬁ'om the
mistreatment of Indians by Caucasians throughout history and their lifetime. A few
respondents discussed how their families were torn apart when they were growing up in
the State of Michigan, as the children were removed ﬁom the custody of their parents and
sent away to boarding school in another city. These memories revealed unhealed wounds
and pain that continue to exist in the hearts of some tribal members inn communities of
northern Michigan.

A few tribal respondents expressed trepidation and skepticism due to my
association with Michigan State University. They falsely assumed that the Michigan
DNR funded my research since Michigan State University has close ties to this agency. I
corrected this notion during interviews, but respondents may not have shared certain

information with me as a result of this misconception.

167

My communication style also hindered communication during sorrne of my initial
interviews with tribal respondents. As I began my research, I anticipated that
respondents would be anxious to “tell their side of the story,” so I behaved that very few
probing questions would be needed to begirn a dialogue between tribal respondents and
myself. However, I realized this was not always the case, and that I needed to better
prepare myself for these situations. I learned that an informal, conversation-style
interview was the most productive format to use. With experience, I also learned to be
more patient and comfortable as participants paused at length between responses and
communicated in a non-linear mode.

Another problem I faced during data collection was my perception that several
male sport ﬁshers and representatives believed I lacked sorrne credibility as a female
researcher. In my opirniorn, these respondents presumed that I lacked scientiﬁc knowledge
and an understanding of the Great Lakes ﬁshery. During interviews with these
respondents, I was asked to explain my academic background and why I was conducting
this study. Yet I do not believe these perceptions hindered the information that was
shared with me. On the contrary, these respondents spent an extraordinary amount of
time detailing their issues and concerns about the ﬁshery.

Beyond stakeholders’ attitudes towards are as a researcher, other factors also
affected how stakeholder described their perceptions of the 1985 Consent Order and the
2000 Consent Decree. Racism is one social phenomena tlmt I believe has affected social
conﬂict between Native and non-Native ﬁshers, particularly in the Grand Traverse Bay
region of the 1836 Treaty waters of the Great Lakes. Although I did not inquire about the

existence of racism between Native and non-Native ﬁshers, tribal respondents often

168

expressed ﬁ'ustration at the racist remarks and attitudes of intolerance towards tribal
members. Even those non-Native members who worked for the tribes discussed
harassment.79 These sentiments were supported by the racist remarks by some non-
Native ﬁshers from the Grand Traverse Bay region. Some of these respondents referred
to the burning of tribal ﬁshing nets as “Southern ﬁres” and discussed how some tribal
ﬁshers should be shot for “raping the resource.” The presence of racism in these
communities has contributed to intolerance, which has led to social conﬂict in the ﬁshery.
I believe that the presence of racism in these communities prevents resolution of social
conﬂict and hinders educational efforts aimed at increasing understanding and
acceptance.

Another inﬂuential factor on stakeholder perceptions of lake trout rehabilitation
and conservation has been management of the ﬁshery between treaty-right, Native
commercial ﬁshers and state-licensed sport ﬁshers. As the Michigan DNR has
emphasized maintenance of a viable sport ﬁshery, the burden of lake trout rehabilitation
and conservation has fallen mame on the shoulders of the federal government. The
federal government has committed the greatest resources to this effort and maintains lake
trout stockirng programs. The 2000 Consent Decree moves the parties towards greater
coordination, cooperation and commitment in ﬁsheries management and lake trout
rehabilitation efforts, but I believe that more is needed.

One important concern about the 2000 Consent Decree is that biologists and

managers believe implementation of this policy is going to pose tremendous challenges

 

7” Afte slnarirng several instances whee non-Native biologists and game wardens wee harassed by othe
norn-Native menbers of the community, I asked why these people wee harassed. Seveal people
responded that it was because the enployees of the tribe wear a patcln, designating that they are enployed
by the tribe.

I69

for the parties. They attribute the anticipated difficulty with implementation to the
complexity of the 2000 Consent Decree. One biologist believed that the conﬁdentiality
surrounding negotiations of this policy contributed to the complexity by restricting
communication regarding policy provisions and the feasibility of their implementation.

Research Recommendations

This study has provided stakeholders with a baseline of stakeholder perceptions of
the effectiveness of the 1985 Consent Order and the 2000 Consent Decree, with respect
to lake trout rehabilitation and conservation, ﬁshing opportunities and communities,
social conﬂict, ﬁsheries nnarnagement between tribal and state regulatory agencies, and
the negotiation processes leading to the fornnation of these policies. According to
biologists and representatives, the 2000 Consent Decree and its policy process reﬂect a
shift towards greater commitment to lake trout rehabilitation and conservation, enhanced
ﬁshing opportunities for all parties, continued reduction of social conﬂict, cooperative
and science-based ﬁsheries management between tribal and state regulatory agencies, and
greater trust and cooperation between the parties as a result of the negotiation process for
the 2000 Consent Decree. In contrast, tribal and sport ﬁshers perceive that there will be a
continued diminution of ﬁshing opportunities, adverse impacts on ﬁshing communities,
and continued social conﬂict under this policy. Future studies should examine if the

2000 Consent Decree meets these expectations.
Conclusion

Based upon an analysis of stakeholder perceptions, the Great Lakes ﬁshery should
be managed as a shared resource to rehabilitate lake trout stocks, and provide economic

opportunities for each stakeholder group, while protecting cultural interests. Allocation

I70

of these common property resources must be done in a way that preserves resources
while protectirng social and ethical values to the greatest extent possible.80 Only tlnrough
continued collaborative management efforts, cooperation, and increased education and
understanding will social conﬂict be avoided and the Great Lakes ﬁshery will be
sustainably managed to protect the resource for all stakeholders and future generations.
According to the State of Michigan and the DNR, the 2000 Consent Decree has
been successful to date. They believe that ﬁsheries management and law enforcement
has been more cooperative. They also believe that relations have improved between
tribal commercial and state-licensed sport ﬁshers.“ Yet, only time will tell if this policy

moves the parties closer to these goals.

 

8° Edney, supra note 24, at 23.
" Parke, B. (Ed.) (June 2000). 2000 Consent Decree a success, state says. Michigan Outdoor News.

171

APPENDICES

172

APPENDIX A:

 

 

 

 

 

RESEARCH TIMELINE
Phase I Phase II
Fall 1998 - Summer 1999 Fall 1999—
Spring 2000
Data - Conducted literature review“ - Interview questions were
Collection - Discussion with MDNR reviewed by: MDNR biologist,
biologist (Nov. 16, 1998) tribal rep., sport ﬁshing rep.
- Discussion with - Discussion with MDNR rep.
historian/anthropologist (Sept. 1999)
(October 1998) - Attended Steelheaders Assoc.
public meeting (Oct. 1, 1999)
- Discussion with anthropologist
(Oct. 13, 1999)
- Attended status hearing
(Oct. 15, 1999)
- Pilot interview with sport-
ﬁshing rep. (Nov. 1, 1999)
- Discussion with tribal
ﬁsher/rep. (April 3, 2000)
Questions - Created preliminary - Assirrnilated feedback ﬁom
and topics instrument for serrni-structured preliminary instrument review
interviews and pilot interview
re-draﬁed instrument
Analysis - Analyzed initial interview
results
- Based on feedback from initial

 

 

interviews, instrument was
revised

 

173

 

APPENDIX A:

 

 

 

RESEARCH TIMELINE
Phase III Phase IV
Summer 2000 Fall 2000 —
Winter 2001
Data - Individual interviews with - Individual interviews with
Collection Grand Traverse Bay (GTB) representatives from MDNR,
tribal ﬁshers, representatives, State of Michigan, sportsmen
biologists; MDNR biologists in group representatives; MDNR
GTB region; sport ﬁshing biologists
representatives in GTB region; - Individual interviews with
sport ﬁshers Bay Mills, Sault Ste. Marie
- Discussion with U.S. F WS tribal ﬁshers, representatives,
biologists (June 8 & July 31, biologists
2000)
- Attended status hearing
(August 2, 2000)
Questions - Semi-structured interview - Revised senni-structured

and topics

questions (based on feedback
from interviews)

interview questions
(based on feedback from
interviews) and fo llow-up
questions

 

 

Analysis

 

- Immediate transcription of
interview data into ﬁeld notes
- Analysis of data throughout
Phase II

- Reformulate questions as
needed and create follow-up
questions for Phase III

 

- Immediate transcription of
interview data into ﬁeld notes
- Analysis of data throughout
Phase IV

- Reformulate questions and
create follow-up questions as
necessary

 

174

 

APPENDIX A:

 

 

 

RESEARCH TIMELINE
Phase V Phase VI
Winter 2001 — Fall 2001 —
Summer 2001 Spring 2002
Data - Drafted results summary
Collection - Presented draft results to key
informants and asked for
feedback
Questions

and topics

 

 

Analysis

 

- Completed transcription

- Conducted fo llow-up
phonecalls regarding interview
questions

- Performed data analysis and
interpretation

 

- Incorporated stakeholder
comments, feedback into results
- Completed evaluation of 1985
CO - Completed comparative
analysis of 2000 CD

- Made policy recommendations

 

I"Literature review conducted throughout study

175

 

APPENDIX B:
FINAL RESEARCH INSTRUMENT FOR FISHERS

Overarching Research Question:

How do stakeholders perceive the I 985 Consent Order as a management tool for the
1836 Treaty waters of the Great Lakes?

=> How long have you been ﬁshing on the Great Lakes?
=> Which Great Lakes do you ﬁsh?
:> Where do you ﬁsh in Lake(s) ?
=> How often do you ﬁsh?
:> Do you ﬁsh with others?
[If so] Who do you ﬁsh with?
:> Are you a member of any ﬁshing organizations?
[If so] Which ones?
=> What type(s) of ﬁsh do you prefer to catch when ﬁshing the Great Lakes?
:> Do you earn any income from ﬁshing?
[If so] Doesﬁshing provide a substantial portion of your income?
:> What are some (other) reasons why you ﬁsh?
=> Has the amount of your catch over time?
[If so] How has it changed? What do you think are some of the reasons your catch
has changed?
:> Are you generally satisﬁed with the amount of fish you catch?

=> Have your ﬁshing opportunities changed?
[If so] How have they changed?

2 Are you familiar with the 1985 Consent Order?

> Are you familiar with the lake trout conservation refuges created by the I 985
Consent Order?
9 [If so] What is your opinion of the lake trout conservation refuges?
0 Do you think these refuges promoted or did not promote conservation of lake
trout stocks in the Michigan waters of the Great Lakes?

9 What are some reasons why you think the refuges promoted/did not promote
conservation of lake trout stocks?

> Are you familiar with the Consent Order's assigned fishing zones for tribal
ﬁshers?
e [If so] What is your opinion of the assigned ﬁshing zones?
0 Do you think the assigned fishing zones are fair/unfair?
0 What are some of the reasons you think the zones are fair/unfair?
0

Do you think the assigned fishing zones helped or did not help reduce conﬂict
between ﬁshers?

176

0 What are some reasons why you think the assigned zones did/did not help
reduce conﬂict?

> Are you familiar with the Consent Decree's restrictions on gill-nets?
0 [If so] What is your opinion of these restrictions?
0 Do you think these restrictions are fair/unfair?
0 What are some of the reasons you think the restrictions are fair/unfair?

:> Were you involved in the negotiations for the I 985 Consent Order?
[If so] Can you describe your role in the negotiations for the I 985 Consent Order?

:> Are you familiar with the new [2000] agreement?
:3» Were you involved in the negotiations for the 2000 Consent Decree?
[If so] Can you describe your role in the negotiations for the 2000 Consent Decree?

:> What is your opinion of the new agreement compared with the 1985 Consent Order?

=> How would you describe current relations between tribal and non-tribalﬁshermen?

:9 Were these relations diﬂerent in the past?
[If so] How were they diﬂerent?
:9 Have you personally interacted with tribal/sportﬁshers?
[If so] Could you brieﬂy describe your most memorable encounter?

:> Do you know why Native ﬁshers have ﬁshing rights?

=> Do you support or do you not support Native ﬁshing rights?
9 What are some reasons why you support/do not support these rights?

177

APPENDIX C:
FINAL RESEARCH INSTRUMENT
FOR BIOLOGISTS AND REPRESENTATIVES

Overarching Research Question:

How do stakeholders perceive the 1985 Consent Order as a management
tool for the 1 83 6 Treaty waters of the Great Lakes ?

Research Instrument:

What is your occupation? How long have you been in this position?
[For biologists] How long have you worked on Great Lakes issues in Michigan?

Are you familiar with the I985 Consent Order?

> Are you familiar with the lake trout conservation refuges created by the
Consent Order?

9 [If so] What is your opinion of the refuges?
0 Do you think these refuges promoted or did not promote conservation of
lake trout stocks in the Michigan waters of the Great Lakes?

9 What are some reasons why you think the refuges did/did not promote
conservation of lake trout stocks?

> Are you familiar with the 1985 Consent Order's assigned fishing zones for
tribal ﬁshers?
0 [If so] What is your opinion of the assigned ﬁshing zones?
0 Do you think the assigned ﬁshing zones helped or did not help reduce
conﬂict between ﬁshers?

o What are some reasons why you think the assigned ﬁshing zones did/did
not help reduce conﬂict?

> Are you familiar with the I 985 Consent Order's restrictions on gill net use?
0 [If so] What is your opinion of these restrictions?

> Do you think management has or has not become a more cooperative effort
between tribal and state regulatory agencies since implementation of the I 985
Consent Order?

0 What are some reasons you think management has/has not become a more
cooperative eﬂort?

o [If management has become a more cooperative effort] Can you describe
how management has become a more cooperative eﬂort?

I78

>

Do you think the provisions of the 1985 Consent Order were adequately

enforced or not?

0 [If no ﬁrrther explanation is given] In your opinion, why was enforcement
adequate/inadequate?

How would you describe current relations between tribal and sport ﬁshermen?
Were these relations dzﬂerent in the past?
> [If so] How were they diﬂerent?

Were you involved in the negotiations for the 1985 Consent Order?
> [If so] Can you describe your role in the negotiations for the I 985 Consent

>

>

Order?
9 Do you think the negotiation process aﬂected communication between the
parties?
[If so] How do you think the negotiation process affected communication
between the parties?
0 Do you think the negotiation process affected cooperation between the
parties?
[If so] How do you think the negotiation process aﬂected communication
between the parties?
9 Do you think the negotiation process affected relations between the
parties? [If so] How do you think the negotiation process aﬂected relations
between the parties?

2 Are you familiar with the 2000 Consent Decree?
2 [If so] Were you involved in the negotiations for the 2000 Consent Decree?

O

0

[If so] Can you describe your role in the negotiations for the 2000 Consent
Decree?

Do you think the negotiation process aﬂected communication between the
parties?

[If so] How do you think the negotiation process aﬂected communication
between the parties?

Do you think the negotiation process aﬂected c00peration between the
parties?

[If so] How do you think the negotiation process aﬂected cooperation
between the parties?

Do you think the negotiation process aﬂected relations between the parties?
[If so] How do you think the negotiation process aﬂ'ected relations between
the parties?

2 How would you compare the 1 985 Consent Order to the 2000 Consent Decree?

2 Do you know why Native ﬁshers have ﬁshing rights?
2 Do you support or do not support Native fishing rights?
What are some reasons why you do/do not support Native ﬁshing rights?

179

APPENDIX D:

 

 

INTERVIEW SUMMARY
Stakeholder Group Number of Interviews
Tribal biologists/ 9
representatives“
Tribal ﬁshers“ 10
Tribal game wardens* 2
Sport ﬁshing 4
representatives“
Recreational sport ﬁshers 9
Charter sport ﬁshers“ 4
Michigan DNR biologists/ 7
representatives
State representatives 3
COTFMA Public Information 1
& Education Comnnittee
Sea Grant agent 1
Total 50

* Denotes stakeholders that fall into several categories.
They were only counted once in totals.

180

APPENDIX E:
COGNITIVE MAP — INTERVIEW DATA ANALYSIS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I81

 

 

 

 

 

Bio logigg factors ‘ J
Role of science Small boat
Lake trout rehabilitation ' in pglicy- ﬁshers
and conservation: mak__ing
-no harvest in reﬁrges ‘ V
m -TACs in priority zones ¢ Fishing
-no restrictions in . _, o rtunities
deferred zones Allocation of the .m—
t‘mhm &
-assigned ﬁshing mm
zones, closure of
Lack of . . waters (traditional
knowledge, ____gNatlve ﬁghm waters — Increased tribal
education, “ -g—" hts Hammond Bay, m—W We
cog 1836 Treaty, GTB — waters capacity
¢ Fox decrsnon & densely populated r
1985 CO with sport ﬁshers)
M ‘J A -allocation of ;
“Ade—rig; l harvest Fisheries
l <- Misinfo L -> ﬂL—bem; bet-
Lack of _ w
accegtance l SOCial conﬂiCt
-violence .
Gill . (ex. shootings) T—HPC
—— a Perception of l" -vandalism Commitment
223““ N—Matfve to (ex. destruction of I
gm“ ﬁshm r1 hts equipment) “P Negotiations
‘_L— U harassment T
. M
m -__+ Coopgration accommodation
tolerance
_L__ 9
Lack of Shift in Communication Judicim
commitment attitudes A oversight
- TACS A , Trust
' g1“ net New reps. _' T
conversnon
- rosecution
p ‘—‘ N_01£li_tichill mam

 

 

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