Native American tribe and natural rights coalition fight Michigan fishing decree before Sixth Circuit

(CN) ­— Both a natural rights coalition and a Native American Tribe asked the Sixth Circuit on Tuesday to toss a federal court ruling that upheld a Michigan decree governing fishing rights in the Great Lakes.

In a pair of related oral arguments, the Sault Ste. Marie Tribe of Chippewa Indians and the Coalition to Protect Michigan Resources argued that a federal court’s ruling that upheld the decree should be reversed on procedural grounds.

The 2023 Great Lakes Decree was the product of over three years of negotiations between tribal governments, the state of Michigan and the United States, and replaces fishery rules that were last established in 2000.

The inception of this case dates back to a 1973 complaint filed by the United States which sought to protect tribal fishing rights against Michigan, and since then, federal courts have continued entering decadeslong decrees.

The 2023 decree — the third such decree since 1985 — includes major changes to reporting requirements and updates to which areas of the Great Lakes can be fished by tribal commercial fishers.

However, the tribe claims that at some point it was removed from tribal negotiations and adds that the process in which the 2023 decree was approved is improper.

“This case was filed over 40 years ago by the United States to protect the tribe’s fundamental treaty rights against the state of Michigan,” said Ryan Mills who represented the tribe during oral arguments.

Mills argued to the panel that the decree was entered over the tribe’s objections and without a proper trial.

U.S. Circuit Judge David McKeague, who was appointed to the court by President George W. Bush, challenged Mills assertion that the proceedings were insufficient.

“But it just looks like you are dreaming up new things after the fact, to complain about the 2023 decree, and you don’t put in any evidence that supports any of it,” McKeague said. “It’s just a whole lot of things that you don’t like.”

Mills responded by saying that the tribe had requested a trial and was kicked out of the decree’s negotiations, and therefore was unable to fairly voice its objections before the decree was forced upon them.

The tribal rights of the Sault, Bay Mills Indian Community, the Little Traverse Bay Bands of Odawa Indians, the Grand Traverse Band of Ottawa and Chippewa Indians and the Little River Band of Ottawa Indians stem from the 1836 Treaty of Washington, which ceded almost 16 million acres of land to the United States.

McKeague voiced concerns about the ongoing nature of the case to U.S. Department of Justice Attorney Ben Richmond, who represented the U.S. during the proceedings.

“Are you at all concerned [that] this just continues on forever?” asked McKeague.

“Well, I think theoretically the case could end if there was a final determination on the allocation,” Richmond responded. “But because the resource is dynamic, because it is subject to change based on climatic changes and invasive species, I don’t think allocation can here be set for all time.”

Attorney Christopher Patterson represented the coalition during the second oral argument and challenged the court procedures in which the decree was upheld.

Specially, he argued that the coalition believed it would have a chance to appeal the decree in court, if they felt it did not adequately protect their rights.

Kelly Drake, who represented the state of Michigan during proceedings, argued that the coalition was not a legal party to the case as they are properly represented by the state during negotiations.

“These are Michigan citizens, non-tribal citizens, who participate in the fisheries at the permission of the state, under licenses issued by the state, under regulations issued by the state and enforced by the state,” Drake said.

Joining the panel were U.S. Circuit Judge Jane Branstetter Stranch, who was appointed to the court by President Barack Obama and Judge Julia Gibbons, an appointee of President George W. Bush.

The judges did not indicate when they would issue their ruling.