Indian Fishing Rights: Aftermath of the Fox Decision and the Year 2000

American Indian Law Review Volume 23 | Number 1 1-1-1998 Indian Fishing Rights: Aftermath of the Fox Decision and the Year 2000 Karen Ferguson Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indian and Aboriginal Law Commons Recommended Citation Karen Ferguson, Indian Fishing Rights: Aftermath of the Fox Decision and the Year 2000, 23 Am. Indian L. Rev. 97 (1998), https://digitalcommons.law.ou.edu/ailr/vol23/iss1/4 This Comment is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . COMMENT INDIAN FISHING RIGHTS: AFTERMATH OF THE FOX DECISION AND THE YEAR 2000 Karen Ferguson* L Introduction The ongoing Indian fishing rights debate in northern Michigan is intensifying as a 1985 court ordered consent agreement nears its year 2000 expiration date.' Many of the local citizenry are concerned that the debate may turn violent as it did in the 1970s.2 In the 1970s there was fierce competition between Indians and non-Indians over a fish resource that was becoming depleted at an alarming rate.' While pollution of the Great Lakes and the presence of non-native parasites were more likely the cause of the depleted stocks, the sport fishermen blamed Indian gill netting for the problem.4 In recent years, Indians have continually pressed for expanded gill net fishing grounds and for a higher share of the fish harvest.' The Michigan Department of Natural Resources (MDNR) wants to be able to manage and protect the state's natural resources for the benefit of all the people in the state. Sport fishermen claim that the Indians will destroy the sport fishery.6 The Indians are offended by the sport fishermen's assertions that Indians are responsible for the decimation of the fish resource and by the sport fisherman's lack of respect for their fishing rights which have been guaranteed to them by the treaties and affirmed by numerous court decisions.7 * Research Associate, Olson, Noonan, Urso, & Ringsmuter, P.C. J.D. cum laude, 1998, Thomas M. Cooley Law School. The author served on the Thomas M. Cooley Law Review and the Practicaland Clinical Law Journal. She is admitted to the practice of Law in Michigan. The law firm practices environmental and land use law. I. Diane Conners, Fishing Debate Renews Tension of Years Past,TRAVERSE CrrY RECORD EAGLE (Traverse City, Mich.), Feb. 2, 1997, at Al [hereinafter Fishing Debate]. 2. A Timeline of Fisheries in the Region, TRAVERSE CITY RECORD EAGLE (Traverse City, Mich.), Feb. 2, 1997, at A4 [hereinafter Timeline]. 3. Id. 4. Fishing Debate, supra note 1, at Al; Timeline, supra note 2, at A4. In the 1960s and 1970s the Great Lakes experienced high levels of pollution caused by the presence of toxic chemical and phosphorous. Id Advisories were issued warning of the health dangers of eating Great Lakes fish. Id Sea Lamprey, a non-native parasite, was responsible for killing off large numbers of fish. Id. 5. See Fishing Debate, supra note 1, at Al. 6. Id. 7. William Rastetter, There's No Basisfor the Claim of Salmon Depletion in Grand Traverse Bay, TRAVERSE Criy RECORD EAGLE (Traverse City, Mich.), Sept. 28, 1997. Published by University of Oklahoma College of Law Digital Commons, 1998 AMERICAN INDIAN LAW REVIEW [Vol. 23 The IvIDNR hopes to have the new agreement in place by 1998 or 1999,8 but is concerned that current controversies initiated by the Grand Traverse Band of Ottawa and Chippewa Indians have diverted efforts away from the negotiation process.' The Director of the MDNR plans to address concerns of sport fishermen but will not abide by any plan to disregard the treaties."0 Whether these parties with their divergent interests will be able to negotiate a year 2000 agreement remains to be seen. But, as the Director aptly commented, this year 2000 deadline "is coming like a freight train."" Without an agreement in place many fear the resurgence of the social unrest and violence of the 1970s." One sports writer commented that he is now hearing many comments reminiscent of that time when sport fishermen threatened Indians, tore up their boats and talked of beating up Indians. 3 Part II of this comment examines the process courts use to interpret treaties in order to determine whether Indians have reserved treaty fishing rights. This process of treaty construction involves a historical review of aboriginal title, the cultural and religious significance of fishing rights, and court cases that have dealt with various Indian fishing rights issues. Court cases in Michigan have relied on the reasoning and holdings of court cases concerning fishing controversies in the State of Washington and the State of Wisconsin. Parts I, IV, and V provide an in depth review of court decisions regarding Indian fishing rights in the States of Washington, Wisconsin, and Michigan respectively. Part VI describes controversies and litigation in Michigan that followed the momentous United States district court's decision in United States v. Michigan,4 also known as the Fox decision. The discussion focuses on the Grand Traverse Band of Ottawa and Chippewa Indians. Part VII provides a critical discourse concerning the courts' use of the canons of treaty interpretation and the arguments brought by the parties involved in the current controversies in Michigan. It also discusses many of the obstacles that must be overcome in order to reach an agreement for the year 2000. One of these obstacles concerns the expansion of the Indian's sovereign rights of 8. Diane Conners, Cool: New FishingAgreementComing, TRAVERSE CITY RECORD EAGLE (Traverse City, Mich.), July 16, 1997, at Al [hereinafter New FishingAgreement Coming]. 9. Brief in Support of the State of Michigan's Motion to Enforce Paragraph 22 of the 1985 Consent Order and for an Expedited Hearing and for an Expedited Hearing on the Motion to Enforce the State's Previous Informational Filing Regarding Paragraph 22 of the 1985 Consent Order at 8, United States v. Michigan, No. 2:73 CV26 (W.D. Mich. filed Aug. 29, 1997). 10. New FishingAgreement Coming, supra note 8, at Al. 11. Id. 12. Fishing Debate, supra note 1,at Al. 13. hi. 14. United States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979), stay denied, 505 F. Supp. 467 (W.D. Mich. 1980), remanded, 623 F.2d 448 (6th Cir. 1980), modified, 653 F.2d 277 (6th Cir. 1981), cert. denied, 454 U.S. 1124 (1981). https://digitalcommons.law.ou.edu/ailr/vol23/iss1/4 No. 1] COMMENT subsistence into other areas such as inland hunting and fishing. Part VIII concludes this comment. The purpose of the comment is to further the "doctrinal literacy" of Indian fishing rights. As Professor Pommersheim suggested, literacy will open the way towards solving many of the current misunderstandings over Indian rights is (...truncated)