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2 Am. Indian L.J. 181 (2013-2014)

handle is hein.journals/ailj2 and id is 1 raw text is: AMERICAN INDIAN LAW JOURNAL FISHABLE WATERS Catherine A. O'Neill INTRODUCTION Tribes have long recognized that degraded environments mean both depletion and contamination of the salmon and other fish,' including shellfish, on which they depend. As tribal leaders contemplated litigation against the states in the 1960s to defend their treaty-secured2 right to take fish, they sketched the problems for their attorneys in its multiple layers: tribal fishers were being assaulted and harassed on the waters; the state was discriminatorily regulating harvest; the once-abundant salmon runs had declined precipitously; the aquatic environments that support the salmon and other fish had become degraded to the point that . Professor of Law, Seattle University School of Law; Faculty Fellow, Center for Indian Law & Policy. This article would not have been possible without the work of many people, to whom I am deeply grateful. I would like to acknowledge Dave Babcock, Jamie Donatuto, Eric Eberhard, Doug Nash, and Zach Welcker for their comments on earlier drafts of this article. I would also like to acknowledge Todd Bolster, Jeff Dickison, Larry Dunn, Barb Harper, Craig McCormack, Darrell Phare, Denice Taylor, Jim West, Rich Zabel, and the participants in the tribal fish consumption workgroup for sharing their expertise in numerous helpful discussions. I would like to acknowledge the unparalleled research of Librarian Kerry FitzGerald and the research assistance of Jenny Campbell. Finally, I would like to thank the AILJ's superb student editors Jenny Campbell, Nga Nguyen, and Shay Story, as well as its exceptional leaders, Emily McReynolds and Bree BlackHorse. Although I am indebted to these many teachers and friends, any errors in this article are my own. 1 The term fish, here and throughout, is understood to include all species of fish, including shellfish. 2 Tribes' fishing rights have been recognized, from the U.S. perspective, through various means, including treaties, agreements, and executive orders. See, e.g., United States v. Anderson, 6 Indian L. Rep. F-129 (E.D. Wash. 1979). This article recognizes the aboriginal origin of tribes' fishing rights, and does not mean to exclude any of the various forms of recognition for these rights by use of the terms rights, fishing rights, and treaty-secured rights, unless the context suggests otherwise. Nonetheless, the analysis in this article focuses on tribal rights reserved by means of the treaties between the tribes and the United States; a complete analysis of other sources of tribal fishing rights is beyond the scope of this article. 181

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