Tribal Fishing Rights
Nearly 200 years after initial European settlement in the region, the political mindset of hard and defined borders became commonplace in the Northwest Territory. Treaties brought into sharp relief the issues of hunting and fishing on ceded lands. Anishinaabe fisheries were well-established around the Great Lakes year-round well before the arrival of Europeans into the region. The richest fishing grounds, including the St. Mary's River Rapids and the waters surrounding the Straits of Mackinac, were regularly fished by Native Americans. The Tribal communities used various tools to catch fish, such as spears during the winter ice-fishing months and scoop and gill nets during the summer. In the early period of occupancy, Great Lakes fishing remained a subsistence activity. Low local population densities and the inability to easily send fish to Eastern population centers made commercial fishing unprofitable.
In the early 19th century, commerical fishing grew as an industry as a result of better transportation, including the opening of the Erie Canal and the introduction of the railroad. This made it possible to ship fish and thus a more profitable enterprise. The American Fur Co. launched the first large-scale commerical fishing effort in Lake Superior. It was followed by other operations of a similar nature in the 1850s. Native Americans were intimately involved with these early commercial fishing efforts, primarily as fishers for the American Fur Co. The Treaty of Washington (1836) made specific provisions for the government to supply fish barrels and large quantities of salt; this strongly suggests that at least some of those who signed the treaty saw a future for themselves in commercial fishing. In 1846, missionary records indicate that there was at least one commercial fishing venture run by Native Americans in Sault Ste. Marie. In 1848, Indian fishers in the Sault region sold over 1,000 barrels of fish. The technological changes in the commerical industry eventually doomed Tribal commerical fishing enterprises. The introduction of very large nets, steam powered fishing vessels, and "power lifters" gave considerable economic advantage to large scale fishing operations. Small scale commercial fishers, both Native and Euro-American, could not sell fish as cheaply as their more mechanized competitors. Unable to buy the new modern equipment, Anishinaabe fisheries fell farther and farther behind the more profitable large fishing operations. Despite this, they remained active participants.
Treaties signed in 1820, 1836, and 1855 preserved pre-existing fishing rights in the Great Lakes for five Michigan-based Tribal governments. In 1973, the State of Michigan enacted laws limiting commercial fishing and applied these laws to Tribal members. Several Tribes sued the State. The Tribes argued 1) that they had historically fished the Great Lakes before treaties had been signed, 2) through the treaties they had retained the right to fish, and 3) that the Tribes had actively and continually fished commercially since the treaty signing. In 1979, a federal judge found in favor of the Tribes. The treaties preserved their rights, and the State of Michigan could not regulate fishing conducted by Tribal members.
Despite early defeats in the state courts and several precedent-setting decisions by the federal courts that suggested the state would have difficulty winning a federal case over treaty fishing, the state claimed sovereignty over the fishery. In 1965, William Jondreau, a Chippewa from L'Anse, took to court Michigan's first treaty fishing rights case. Jondreau asserted that as a member of the L'Anse band of Chippewas he was free to fish in the area he had been arrested because of Article 2 of the treaty signed September 30, 1854. Although lower state courts dismissed Jondreau's claim, in April 1971, the State Supreme Court upheld Jondreau. However, the impact of this decision was limited. The treaty cited was a minor one that affected very few bands. Jondreau's victory, however, inspired various other Chippewa and Odawa bands to consider the possibility of legal action. Bay Mills Chippewa Albert LeBlanc, with the assistance of Upper Peninsula Legal Services, pushed forward a far more significant case, based upon rights found in the Treaty of Washington signed in 1836. In December 1976, the State Supreme Court ruled in People v. LeBlanc that Odawa and Chippewa bands party to the 1836 treaty retained treaty-based fishing rights that could be limited by the state only if the state could demonstrate that Indian fishing endangered the fishery itself. Having found treaty rights to be relevant, the Supreme Court remanded the case back to district court to determine if the state could produce the necessary evidence to demonstrate that Indian fishing endangered the resource.
LeBlanc and other Indians feared that the state would exploit the loophole left open in the LeBlanc ruling by convincing the lower courts that Native American commercial fishing did endanger the fishery. Because of this fear, the Bay Mills Band, in conjunction with the Sault Ste. Marie Band, chose to pursue the identical claim in federal court. Later joined by the Grand Traverse Band, the three Native American communities sought relief in the case U.S. v. Michigan. Begun in 1973, this federal case would not be resolved until 1985. As U.S. v. Michigan slowly wound its way through the courts, the Native American claims upon the Great Lakes fisheries remained hotly disputed. In 1978, the case finally came to trial. The attorney representing the Native American plaintiffs clearly presented a very strong case. In his opening statement, he announced his intention to prove three points: the tribes bringing suit had historically fished the Great Lakes; they had retained the right to fish under the treaties signed in 1820, 1836, and 1855; and that the tribes had actively participated in the commercial fishing that had subsequently occurred in the Great Lakes and thus had every reason to assume that they should be allowed to continue to do so. The judge eventually ruled in favor of the legality of the Tribal claims. In 1979 and 1980, talks between the two sides led nowhere.
Delay may have well served the state's interests. In 1980, presidential candidate Ronald Reagan, seeking Michigan votes, weighed into the Native American fishing controversy with a widely publicized letter that stated that as president, he would "recognize and support the traditional precedence of the states to manage fish, wildlife and habitat within their boundaries." More pointedly, Reagan's campaign spokesperson for conservation issues declared him "the candidate for the outdoor sportsmen." Although never explicitly addressing the specific issues at stake in U.S. v. Michigan, Reagan's campaign statements clearly gave comfort to the sports fishing viewpoint. Sport fishing publications often were sharply critical of Native American treaty claims and commercial fishing activity. Outdoor Life's 1979 guide, Fishing in the Midwest, included an article entitled "They're Taking Your Fish." The article asserted that Indian fishers had been wrongly granted "superior rights" by the courts.
Now, the issues facing Tribal rights are pollution. The Keweenaw Bay Indian Community is particularly worried about the pollution of Lake Superior. The erosion of the Buffalo Reef—one of Superior's most profitable fishing grounds—is suffering from industrial waste left behind by mining companies. Failing to address the waste problem not only could lead to the destruction of the reef but also violate international and federal laws, including Native treaties. The struggle to stop pollution has taken many avenues, and the fight for cleaner, safer water continues.
Water policy is at the heart of treaties between the U.S. government and the Great Lakes Tribal Communities. In return for concessions from the Tribal governments, usually land, the U.S. government was obligated to provide the signers’ nations with compensation. Compensation generally included reserves of land and rights for the use of waterways. The rights regarding use of waterways are often perpetual and are still held by the descendants of the treaty signers and their communities. What actions of local, state, and federal governments respect Tribal sovereignty and water rights? Which actions do not?
