Record Eagle: Watershed moment for FishPass

TRAVERSE CITY — Construction for FishPass hasn’t started just yet, but Great Lakes Fishery Commission, Grand Traverse Band of Ottawa and Chippewa Indians and other project partners celebrated the project’s start.

Saturday’s event kicked off with Peshawbestown Community Drum performing, and a water ceremony by JoAnne Cook, Tina Frankenberger and Melissa Wiatrolik. The three women, each donning colorful skirts, prayed as they held copper vessels filled with water, then sang a song expressing thanks to the water.

Article here.

Enbridge Line 5: Michigan Public Service Commission Litigation

See below for 1) Applicant Enbridge Energy, Limited Partnership’s Limited Objections to the Notice of Intervention of the Attorney General; (2) Applicant Enbridge Energy, Limited Partnership’s Limited Objections to the Petitions to Intervene Filed by The Bay Mills Indian Community, The Grand Traverse Band Of Ottawa And Chippewa Indians, Little Traverse Bay Bands Of Odawa Indians, and Notttawaseppi Huron Band Of The Pottawatomi; (3) Applicant Enbridge Energy, Limited Partnership’s Objections to the Petitions to Intervene Filed by The Michigan Environmental Council, Tip Of The Mitt Watershed Council, The National Wildlife Federation, For Love Of Water, The Environmental Law & Policy Center, And Michigan Climate Action Network and Certificate of Service.

A pre-hearing was scheduled Wednesday August 12, 2020 at 1:00PM. Petitions to intervene from Bay Mills Indian Community, Grand Traverse Band, Little Traverse Bay Bands, and Nottawaseppi Huron Band below. In addition, the Attorney General is now intervening in the proceedings and Enbridge has asked for a rehearing which is also below.

Other Line 5 posts here.

Michigan Public Radio Environment Report — Two Stories


This morning The Environment Report covered NAGPRA and a road project in Oscoda County where workers uncovered remains. The Department of Transportation is working with the Saginaw Chippewa Tribe.

Also, the Report covered potential invasive species in the Great Lakes and an online resource developed by NOAA’s Great Lakes Environmental Research Lab to identify the species (including killer shrimp. Huh.).


Chicago Public Radio: “Who Owns the Fish? How Tribal Rights Could Save the Great Lakes”

Here. The transcript:

In Leelanau County in Northern Michigan, a small Native American tribe has struggled for generations to survive economic and social hardships. The tribe has always been deeply connected to the lakes economically and culturally. The latest threat to that connection is environmental degradation, particularly invasive species. But the tribes are forming unexpected alliances with old enemies to fight the threat.

When you first arrive in the Leelanau Peninsula, you think: This is heaven in the Midwest. Lake Michigan stretches out everywhere you look, blue as the Caribbean. It is a place full of second homes and tourists. But there is one spot that is different from the rest.

Arthur Duhamel Marina sound fade up

Peshawbestown is the reservation for the Grand Traverse Band of Ottawa and Chippewa Indians, a group that has lived in this area longer than anyone. It doesn’t have any t-shirt shops or beach-front mansions. Instead, there are government offices, a casino, and a tribal marina. Ed John is a tribal fisherman who docks his fishing boat here.

JOHN: I can weld, and other things. But I enjoy fishing ’cause I am my own boss. I am not rich, but I don’t want to be rich, it’s working for me.

Tribes have always been dependent on the lakes. We asked Ed how invasive species have been threatening the tribes’ livelihood.

JOHN: I was just telling my buddy, we got these reporters down here, asking about invasive species. We know a thing or two about invasive species. First we had the Vikings and all these other countries taking, actually invading our space.

Ed’s wife fishes, and so does her cousin, Bill.

FOWLER: My name is Bill Fowler, I am a tribal commercial fisherman.

His nickname is Bear.

FOWLER: Because I’m as big as a bear and I work like a bear.

Fade up engine

Bill fishes with Jason Sams who helps haul in the nets. Also along for the ride is  Bill’s dauschund puppy, Beauford.

SAMS: He eats the face of the fishes. Faces ain’t worth any money anyway. He’s excited ‘cause he knows there will be fish soon.

It takes about an hour to reach the first fishing net.

FOWLER: Here fishy, fishy. Come here fishies.

Lake trout flop around on the dock, bleeding from the gills.

Fish flopping

Ice keeps them fresh till they get to shore, where Bill sells his catch under the name 1836 Fishing Company, in honor of the Treaty of 1836.

FOWLER: I named it that because the treaty is important to us to reserve our rights.

You see, back in 1836 the tribes gave away a huge chunk of land – one-third of the state of Michigan. In return they kept the right to hunt and fish. But much later, in the 1960s, the state of Michigan started heavily regulating commercial fishermen, including tribes, limiting where and how they fished.

John Bailey was a tribal leader at the time and says the regulations hurt the tribes.

BAILEY: Economically it would destroy us. And it would destroy us as Indian people because it’s something that has been passed down generation to generation.

Inspired by the Civil Rights movement in the south, tribes began using non-violent civil disobedience to protest the regulations. They ignored state fishing restrictions and said to the authorities, come arrest me.

According to John Bailey, a lot of whites didn’t react well.

BAILEY: One of the groups actually took pictures of Indian fisherman and flooded the state with wanted posters: Spear an Indian, Save a Trout. We had guns pulled on usWe had women verbally and physically assaulted.

Continue reading

Indian Tribal Businesses and the Off-Reservation Market

My submission to the Lewis & Clark Law Review’s symposium issue on tribal economic development, “Indian Tribal Businesses and the Off-Reservation Market” is on SSRN. If it’s not available yet, it will be in a few days. Here’s the abstract:

The pre-American trading centers of the Great Lakes – Sault Ste. Marie, Michilimackinac, and Detroit – developed as natural manifestations of economic activity involving the Indigenous peoples of the region, as well as the French, the British, and lastly the Americans. In many ways, during that period, the Indian people controlled these markets. As history turned against the Indians, the Europeans acquired control of these markets. The federal Indian law and policy manifestation of this control can be explained in the phrase “measured separatism.” While measured separatism had value for Indian and American communities for a time, as well as serious disadvantages, the need Indian law controls over the market has receded to a significant extent. The recent limitations on off-reservation gaming are manifestations of this measured separatism. These controls should be a call for tribal business interests to drop some of their reliance on federal Indian law, which creates some economic advantages, and re-enter the larger economic world.

Ellen Kohler on Water Management in Michigan

Ellen Kohler has published “Ripples in the water: judicial, executive, and legislative developments impacting water management in Michigan” as the lead article in Volume 53 of the Wayne Law Review.

Here is the introduction to this interesting paper:

Michigan is defined by water. The two peninsulas touch four of the five Great Lakes, creating 3,300 miles of Great Lakes shoreline. We enjoy 35,000 inland lakes and ponds, and 34,000 miles of rivers. Michiganders are very aware of our surface waters-we swim, fish, and boat in them. We see them on our maps of the state.

The water underground is more of an afterthought. Most of us don’t know how far underground the water is, where it is, or how it moves. Yet, groundwater is essential for our public health, safety, and welfare.

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Loophole in Proposed Federal Legislation re: Great Lakes Invasive Species

From the Grand Rapids Press:

Loophole may let in more lake invaders

Posted by Jeff Alexander | Press News Service December 16, 2007 01:13AM

A loophole in proposed federal legislation designed to keep ocean freighters from importing more exotic species into the Great Lakes could sink the proposal, leaving the door open to continued invasions.

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Little Traverse Bay Bands et al. v. Great Spring Waters & Engler

In 2002, the three Michigan Ottawa tribes sued Great Spring Waters & Governor Engler over the State’s granting of rights to take millions of gallons of water from mid-Michigan’s water table — a sweetheart deal if there ever was one. The tribes sued under the Water Resources Development Act of 1986, but there was no cause of action and the district court dismissed the action. The tribes did not appeal.

Here is the motion to dismiss: Motion to Dismiss

Here is the Tribes’ response, plus an exhibit: Response Brief + Exhibits

Here is the reply brief: Reply Brief

Here is the order dismissing the case: Opinion

The tribes chose not to bring claims based on the treaty rights they had established in United States v. Michigan. At some point, we expect tribes to bring treaty claims in the environmental protection context — see our MSU Law Review paper.
There has been a fair amount of scholarly commentary on the case, such as this student note in the Columbia Law Review and this paper in the Vermont Journal of Environmental Law.