Sault Tribe files Great Lakes Consent Decree Appeal Opening Brief.

April 3 2024.  

SAULT STE. MARIE, Mich. – The Sault Ste. Marie Tribe of Chippewa Indians has filed its opening U.S. Court of Appeals brief against the state of Michigan, arguing that a court-imposed 2023 Great Lakes Fishing Decree violates the tribe’s treaty rights and its right to due process.

The 2023 decree had been under intense negotiation since 2020 after the previous document expired. It attempts to create a regulatory framework guiding commercial and sport fishing rights in the Michigan waters of parts of lakes Michigan, Huron and Superior, where five tribes reserve fishing rights per the 1836 Treaty of Washington. U.S. District Court Judge Paul Maloney imposed the decree after negotiations failed, despite objections to numerous egregious provisions called out by the Sault Tribe.

“We are deeply disappointed in how the other consent decree parties and the court have attempted to silence the Sault Tribe’s voice in regard to this decree, which restricts our rights as a sovereign nation, affects the livelihood of our citizens, and limits the ability of our people to feed themselves,” said Sault Tribe Chairman Austin Lowes. “Our members represent the largest commercial fishing operation in Michigan and the largest number of subsistence fishers among the tribes. We also invest more than any other Michigan tribe in fisheries management programs. That’s why the Sault Tribe Board of Directors is committed to protecting the treaty-reserved fishing right for many generations to come and will take the necessary legal steps to do so.”

The tribe’s legal brief details how the previous court failed to allow Sault Tribe due process by refusing the tribe’s request to have a trial on the matters, a necessary step in the proceedings according to the law and precedent set by the landmark fishing rights case United States v. Michigan. The Sault Tribe had requested the trial to put forth vital expert testimony that should have been considered when drafting the 2023 decree.

The need for a trial was especially important for the tribe as the other six consent decree parties—the state of Michigan, the federal government, the Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little Traverse Bay Bands of Odawa Indians, and the Little River Band of Ottawa Indians—excluded the Sault Tribe from negotiations beginning in August 2022. Despite its repeated protests to be allowed to reengage in negotiations, the Sault Tribe remained locked out and was left with no other option than to seek a trial that was ultimately denied.

“It is unfathomable to me how the other parties in this case deemed it appropriate to lock the Sault Tribe out of negotiations when this fishing decree directly affects the treaty-protected rights of Sault Tribe citizens,” said Sault Tribe Attorney Ryan Mills. “It’s equally incomprehensible that the District Court entered this decree, which limits the Sault Tribe’s exercise of its federally-protected treaty right, without allowing a trial on the merits.”

The 1836 Treaty with the Ottawa and Chippewa retained the tribe’s right to hunt and fish in the areas ceded to the United States in perpetuity. From the 1930s to the 1970s, the state of Michigan continuously violated those rights by imposing state regulations and prosecuting tribal fishers. In 1979, the tribes were able to regain their treaty right to fish anywhere in the 1836 treaty waters without limitation as to the species of fish caught or the manner of taking those fish after Judge Noel Fox correctly decided in their favor in United States v. Michigan. This District Court decision led to the 1985 Consent Decree, the 2000 Consent Decree, and now the 2023 Consent Decree.

“Each decree has resulted in the state of Michigan gaining more authority over the tribes and chipped away at our sovereign rights and authority to regulate our own citizens,” said Chairman Lowes. “This is not just about our tribe, but the sovereignty of every tribe that is a signatory to the 1836 treaty—a treaty that was fought and paid for with their lives.”

In the August ruling, Judge Maloney overruled all of the Sault Tribe’s objections to the agreement, which the judge contends were raised without “affidavits from expert witnesses or other documentary evidence.” However, the Sault Tribe’s federal appeals court brief makes clear that it was denied that opportunity when the District Court refused to allow a trial and entered the decree without an evidentiary hearing.

“If the District Court had followed the law and precedent in this case, the proper procedure would have been to schedule this for a trial, but the court did not do that. We look forward to making those arguments at the Sixth Circuit,” said Mills.

With more than 50,000 members, the Sault Ste. Marie Tribe of Chippewa Indians is the largest federally recognized tribe east of the Mississippi River. It has long been a leader in natural resource management both with the fisheries and through its other environmental and wildlife management programs. The Sault Tribe Fisheries Program works closely with state and federal agencies, as well as university researchers, conducting invasive species monitoring and fishery health and abundance assessments. Each year, the Sault Tribe stocks nearly 1 million walleye into northern Michigan lakes and streams, and is a national leader in whitefish restoration efforts by developing pond rearing techniques for this culturally and economically important species.