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Great Lakes pollution threatens Ojibwe treaty rights to fish

PFAS are the latest concern in Lake Superior, where fishing is central to the lifeways of the Red Cliff Band and other Indigenous nations.
Commercial fisher Donny Livingston, a citizen of the Red Cliff Band of Lake Superior Chippewa, picks cisco from gillnets during a fishing run near the Apostle Islands on Nov. 15, 2022.
Commercial fisher Donny Livingston, a citizen of the Red Cliff Band of Lake Superior Chippewa, picks cisco from gillnets during a fishing run near the Apostle Islands on Nov. 15, 2022.
Bennet Goldstein/Wisconsin Watch

This story is a product of the Mississippi River Basin Ag & Water Desk, an editorially independent reporting network based at the University of Missouri School of Journalism in partnership with Report For America and funded by the Walton Family Foundation. Wisconsin Watch is a member of the networkSign up for our newsletter to get our news straight to your inbox.

The ensnared fish seemed to materialize from the opaque water. Thrashing, wriggling, they rose, enfolded by mesh.

The lift reeled in the gillnet into the arms of a waiting crew, who hoisted it atop a table. Lake herring flopped weakly as the men gripped and untangled them from rope and nylon fiber. Iridescent scales popped into the air like confetti.

“When the floor is shiny with scales, we know we are making money,” said commercial fisherman Donny Livingston, grinning widely.

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Shortly before dawn, the fish tug, Ava June, pulled out from Duffy’s Dock, on the tip of northern Wisconsin’s Bayfield Peninsula. The vessel churned through Lake Superior’s chilly waters for 2 1/2 hours.

Waves slapped the boat after it left the shelter of the Apostle Islands near the main shipping channel. Snow drifted from the cloud-choked November sky. The fishermen finally reached the nets they set the previous day.

Livingston is a citizen of the Red Cliff Band of Lake Superior Chippewa, one of six federally recognized Ojibwe tribes in Wisconsin. His family has fished for generations and holds one of the original licenses issued to Red Cliff tribal citizens.

But Livingston’s access to Lake Superior fish was never a foregone conclusion.

Ojibwe, Ottawa and Potawatomi communities, who also call themselves Anishinaabe, have fished in the Great Lakes for centuries. But in the mid-1800s, the federal government, desiring to open the Wisconsin Territory to lumbering and mining, forcibly acquired Ojibwe lands and waters through a succession of treaties.

The bands retained hunting, gathering and fishing rights across what’s now called the Ceded Territory: portions of three Great Lakes and millions of acres stretching across northwestern Michigan and its Upper Peninsula, northern Wisconsin and northeastern Minnesota. The final treaty established reservations for four of the Wisconsin Ojibwe tribes.

States spent a century disregarding or rejecting treaty rights — fining or arresting tribal citizens who exercised them. After several citizens sued, a series of court rulings, starting in 1971, would affirm their reserved rights within the Ceded Territory, including the right to fish on Lake Superior.

But many see toxic pollution in the Great Lakes as a continued encroachment on how Ojibwe communities exercise those rights.

Alongside mercury, a neurotoxin that can harm the brains and nervous systems of developing fetuses, and carcinogenic polychlorinated biphenyls (PCBs), are the latest contaminants of concern — per- and polyfluoroalkyl substances, or PFAS.

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The “forever chemicals” are a class of more than 12,000 compounds that accumulate in the environment and human bodies. Scientists link two of the most widely researched — PFOA and PFOS — to a range of health problems, including cancer.

The failure of state and federal governments to keep contaminants out of the environment, scholars and environmental advocates say, calls into question their commitment to fully protect Indigenous rights.

“It’s a modern way of denying access and destroying foodways,” said Katrina Phillips, an associate professor of history at Macalester College and a Red Cliff citizen. “It’s through chemicals and pollutants instead of treaties and court cases.”

Tribes aim to fill regulatory vacuums through their own natural resources department projects, input on cross-government management committees and litigation. Now, those efforts may get support from a U.S. Environmental Protection Agency proposal that elevates consideration of treaty rights when states set water quality regulations.

Fish are vital for Ojibwe communities

Livingston, 42, supposes he is one of the youngest commercial fishers in Red Cliff.

The work is grueling. Profit margins, narrow. Crew, tough to find. When he’s not out fishing, Livingston stays busy mending nets. “It ain’t a 9 to 5,” he said during the November fishing trip, “I’ll tell ya’ that.”

Livingston tried other careers but always returned to fishing. “It’s something I know how to do,” he said. “It’s something I can depend on.”

Livingston and his three-member crew worked a nearly 12-hour shift on Lake Superior, or Anishinaabe Gitchigami in the Ojibwe language.

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The Red Cliff Reservation flanks the lake’s southern coastline, marked by blazing sandstone cliffs, wetland sloughs and rivers.

Coyotes and bobcats roam its 15,000-plus acres. Whitetail deer bound through rolling forests, dense with conifers and hardwoods. Bald eagles soar overhead, and ospreys dive to prey on fish.

These relatives — the plants and animals, the land and water — sustain Ojibwe communities, as Chief Flat Mouth, of the Pillager band from Leech Lake in Minnesota, articulated in 1837 while negotiating one of the treaties. He questioned the fairness of the federal government’s proposed compensation for taking control of Ojibwe territory.

“You know that without the lands, and the rivers and lakes, we could not live,” the chief told government officials. “We hunt and make sugar and dig roots upon the former, while we fish and obtain rice and drink from the latter.”

Giigoonh, or fish, are important for subsistence, culture and business. But climate change threatens many species, and contaminants long released into the Great Lakes, the health of people who eat them.

“The community getting impacted by something in the environment, that’s something that has been happening to us from day one of European onset,” said Edith Leoso, retired tribal historic preservation officer with the Bad River Band of Lake Superior Chippewa.

A Great Lake for fishing

Livingston and his business partner, Bryan Bainbridge, grew up in and around Red Cliff.

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More than 7,600 people are living tribal citizens, about 16% of whom live on the reservation. A few hundred reside just 3 miles south in Bayfield, a destination for lake-loving tourists.

The tribe is the largest employer in the county, providing jobs to about 300 people — many in tribal administration and the Legendary Waters Resort and Casino.

But at its heart, Red Cliff is a fishing community.

“That’s what everybody’s family has done around here,” said Bainbridge, 45, a former Red Cliff tribal chairman. “I grew up on fish.”

Bluegills, perch, suckers — a fish every day, whatever they caught.

Livingston and Bainbridge teamed up about a decade ago shortly before Bainbridge acquired the tug from an old fisherman in Kenosha, Wisconsin.

Constructed in the mid-1940s by the Burger Boat Company in Manitowoc, Wisconsin, the diesel-powered boat measures nearly 50 feet from bow to stern. Bainbridge christened it the Ava June.

“My niece had a little baby that died just before I got the boat,” Bainbridge said, “so when I got back here, we named it.”

In their day-to-day business operations, Bainbridge handles the duo’s paperwork. Livingston does most of the captaining. “He can catch fish like no one else,” Bainbridge said.

With SiriusXM radio blasting during the November fishing run, the crew worked quietly, tossing freshly caught fish into stacked plastic boxes. They laughed whenever one chucked a herring at the other.

That day, they sold their catch to the Red Cliff Fish Company, a tribally owned fish processor and seller, but they also distribute fish to markets as far away as New York.

After decades of overfishing from the late-1800s through the 1930s and the introduction of invasive species, Lake Superior’s fish populations have rebounded enough to sustain a consumer market. Among tribally licensed commercial fishermen, whitefish, salmon, lake trout, trout and lake herring constitute the bulk of the catch.

The combined commercial fish harvest of 11 Ojibwe nations that are members of the Great Lakes Indian Fish and Wildlife Commission, an inter-tribal natural resource management organization that helps oversee the implementation of off-reservation treaty rights, annually exceeds 2 million pounds.

PFAS in Great Lakes water and fish 

For much of the 20th century, manufacturing plants generated mercury- and PCB-containing wastes and dumped them directly into the Great Lakes or its watershed. Power plants and incinerators also spewed air pollution that tainted waters, and they continue to do so.

Their concentrations have declined significantly in Great Lakes waters since the 1970s due to efforts of the U.S. and Canadian governments, states and industry to reduce toxic emissions. Yet lingering mercury and PCBs bioaccumulate in animals at levels high enough to warrant fish consumption advisories.

PFAS also are drawing greater scrutiny as their harms come into focus. In 2021, the Wisconsin Department of Natural Resources issued Lake Superior’s first PFOS advisory, warning against eating too many smelt.

PFAS, which are added to products ranging from fabric stain protectors to firefighting foam to food packaging, enter water bodies through wastewater, airport and fire training runoff and the atmosphere.