Read the full article by Bennet Goldstein (Wisconsin Watch)
“…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…
…Compared to the other Great Lakes, the concentration of PFAS in Lake Superior water is lower due to less development within its watershed. But virtually no amount of PFOA and PFOS is safe for human consumption, according to the EPA, which in 2022 updated draft health advisories for the two chemicals.
A recent study from Duke University and Environmental Working Group researchers found large concentrations of PFOS in freshwater fish sampled nationwide by the EPA from 2013 to 2015, with the highest levels found in the Great Lakes.
If all consumption advisories incorporated the EPA’s latest health guidance, the study found, nearly all sampled fish would be ‘considered unsafe to eat.’
The impacts of such pollution and climate change create ‘an elevated level of environmental anxiety’ in Ojibwe communities, said Dylan Bizhikiins Jennings, associate director of Northland College’s Sigurd Olson Environmental Institute and a former Bad River tribal council member.
‘Once these things go away, they don’t come back,’ Jennings said. ‘It’s about our life.’
Anishinaabe cultures embedded in places
Leoso, the former Bad River tribal historic preservation officer, grew up on the reservation in her grandparents’ house near the Kakagon River.
Her grandmother grew angry when children threw things into the water to watch them wander with the seiche. She told them never to spit into the river.
‘It was putting the thought into my mind: should I spit in the river?’ Leoso said. ‘Would I like to be spit on?’…
Great Lakes cleanups see mixed outcomes
…U.S. and Canadian governments have achieved some successes in improving the health of the Great Lakes and its fish since 1972. That’s when the countries signed the Great Lakes Water Quality Agreement, which aims to coordinate Canadian and U.S. lake restoration efforts. Yet, neither country is required to abide by the agreement, which is periodically updated, and the International Joint Commission, formed by the binational Boundary Waters Treaty in 1909, issues recommendations to both parties but lacks authority to compel action.
In a 2022 progress report, the EPA and its Canadian counterpart praised ‘unprecedented progress’ toward that goal. The countries have so far delisted nine of 43 sites.
However, both countries have failed to meet a 1990 International Joint Commission challenge to eliminate the release of nine toxic pollutants into the Lake Superior Basin.
The lack of a final deadline or requirement that the countries launch new initiatives stymied the effort, scholars say.
In 1999, the program selected 2020 as the year to achieve ‘virtual elimination’ of the pollutants. Neither country has banned toxic discharges, enabling them to continue.
In their 2022 assessment, the countries rated the status of toxic chemicals in Lake Superior’s fish as ‘fair and unchanging’ — not yet safe to consume without restrictions.
EPA proposal: regulations must consider treaty rights
The 20th-century court rulings in Wisconsin that affirmed treaty rights addressed whether, where and how Ojibwe tribes could exercise them and the regulations deemed necessary to ensure the ‘supply’ of natural resources would be maintained. But courts did not consider the quality of plant and animal habitats.
‘It’s a legally gray area, how far the tribes can dictate what a state or the federal government might have to do or not do in order to preserve the treaty rights,’ said Ann McCammon Soltis, director of the division of intergovernmental affairs at the Great Lakes Indian Fish and Wildlife Commission.
But GLIFWC’s member tribes believe states should preserve the integrity of natural resources, she said.
A recent EPA proposal could address some of those concerns.
The draft rule would require states to account for treaty rights, such as fishing and wild rice gathering, when adopting water quality standards under the Clean Water Act. That law forces states, territories and some tribal governments to improve the quality of water bodies within their borders when they cannot safely be utilized for designated purposes, such as drinking or recreation.
States would also need to preserve full use of any resources guaranteed under the treaties on and off reservations. The EPA is accepting public comment on the draft rule until March 6.
Wisconsin DNR officials said the agency already consults with affected tribes and considers their uses of a waterbody when it sets water quality standards. Tribes also may submit comments when states review their standards every three years.
But ‘the states haven’t really had to respond in any way’ when the tribe presents a request, Soltis said.
‘This indicates that the EPA is going to be a little bit more willing to take what the tribes say seriously in that context and ensure that the state is responding.'”…