Forum: Work together against Asian carp
By Derek Bailey
Three decades ago many thought that the Great Lakes fisheries resources would be ruined by American Indian tribes exercising “treaty-fishing” rights. After the federal courts confirmed these treaty-reserved rights, the tribes demonstrated their primary concern is protection of the Great Lakes fisheries.
Ironically, these “treaty-fishing” rights now might prove crucial in protecting fisheries resources for all of Michigan’s citizens against the Asian carp invasion.
The United States Supreme Court has denied Michigan’s request for an injunction closing the shipping locks outside of Chicago to prevent any further migration of Asian carp into the Great Lakes. In the midst of the competing claims debating the economic losses of closing shipping to the Mississippi River system compared to potential harm to Great Lakes fisheries, all parties — Attorney General Cox, Gov. Granholm, the Army Corps of Engineers and other federal agencies — agree that the damage to the Great Lakes fisheries will be profound.
It has been almost six years since the U.S. Fish and Wildlife Service estimated that “Asian carp could have a devastating effect on the Great Lakes ecosystem and a significant impact on the $7 billion fishery.” During this time the Army Corps of Engineers failed to act promptly, in effect fiddling while Rome burned. To the extent the Army Corps is responsible for the impending disaster, the tribes may be better situated than the state to challenge the federal government.
In the scramble to stop Asian carp, the issue of American Indian “treaty-fishing” rights has not been considered at all. The 1836 Treaty tribes (the Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little River Band of Ottawa Indians, the Little Traverse Bay Bands of Odawa Indians and the Sault Ste Marie Tribe of Chippewa Indians) retain rights to fish for commercial and subsistence purposes in vast areas of lakes Michigan, Superior and Huron.
Historically, fishing played a central role in the spiritual and cultural framework of American Indian life. As the Supreme Court noted a century ago, access to fish and wildlife was “not much less necessary to the existence of the Indians than the atmosphere they breathed,” United States v. Winans, 198 U.S. 371, 381 (1905).
The precedent for American Indian tribes intervening to protect their property interests in disputes between states was clearly established in 1960’s California v. Arizona litigation involving allocation of Colorado River water rights, and confirmed in the Grand Traverse Band’s 1990s litigation assuring access to fishing grounds.
Given the Supreme Court’s refusal to act in the state’s litigation filed against Illinois, the tribes are considering an alternative litigation strategy to combat the latest and perhaps most serious threat to the Great Lakes from invasive species.
The issue isn’t just protecting tribal property rights. It’s past time for the state and tribes to put aside perceived differences, and to begin concentrating on how together we can cooperate to preserve the Great Lakes for all Michigan citizens.
I hope that we don’t look back on what we had for a fishery, recreational resource and amazing gift from whatever powers who bestow gifts on people bestowed upon us and say “Way Back When…”
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