200 



conflict with other management entities. In the 

 1836-treaty ceded waters, management conflicts exist not 

 only with the State of Michigan, but with the other 

 jurisdictions with regulatory authority over a portion of 

 the same territory: the Province of Ontario and the States 

 of Minnesota, Wisconsin, Illinois, Indiana, and in many 

 cases, the Great Lakes states bordering Lakes Erie and 

 Ontario. The tribes are justly proud of insisting upon 

 and obtaining a voice in the Great Lakes Fisheries 

 Commission, but that voice is muted by the number of 

 jurisdictions whose views must be taken into account, and 

 by the lack of overall management authority in that body. 



The areas of conflict increase exponentially when other 

 aspects of resource management and protection are taken 

 into account. They include: air and water pollution, non- 

 indigenous species introduction, habitat degradation, soil 

 erosion, shoreline development, water level regulation, 

 and navigation restrictions. In these areas, the tribes' 

 concerns about fishery resource protection and enhancement 

 have no guaranteed listener, at all. Regulation of these 

 subjects is a unpaltable stew of local, state and federal 

 agencies, who often have no responsibility to consult with 

 each other, and certainly feel no obligation to consult 

 with the tribes. 



The contemporary status of treaty rights is less dependent 

 on recognition by a court for viability, but of 

 problematic worth to the tribal signatories. No permanent 

 guarantee of a right to fish is of benefit if (1) there 

 are insufficient fish to catch, or (2) the fish available 

 are dangerous to consume, or tribal fishers are prevented 

 by conflict from harvesting. The ability of tribes to 

 protect the continued existence of their usufructuary 

 rights is not known; years of litigation before the courts 

 and administrative tribunals may be rec^uired before the 

 right of the tribe to have mandated review of the impact 

 on the treaty resource, prior to the issuance of a permit 

 or license. Even more necessary is the establishment of a 

 mechanism by which tribal concerns are taken into account 

 by regulatory agencies in setting standards or in 

 determining the need for enforcement actions. These 

 mechanisms are certainly non-existent at present. 



The Need for Federal Legislation 



In general, the responsibility of the United States to 

 protect tribal property (the trust responsibility 

 doctrine) has developed from court decisions going back 

 160 years. The courts since then have issued directives 

 concerning the nature and scope of that responsibility, 

 but there is no analogous comprehensive description of the 

 duties of the United States in any legislative enactment 



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