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13 Ocean L. Memo 1 (1979)

handle is hein.journals/ocoaslme13 and id is 1 raw text is: Ocean Resources Law Program * School of Law * University of Oregon * Eugene * OR 97403 Ocean Law Memo Issue 13 May 1S7u U.S. Supreme Court to Rule on Northwest Indian Fishing Rights The controversy over fishing rights in the Northwest has been a classic example of the tra- gedy of the commons. Thus it is not surprising to discover that there are now too many fishermen chasing the depleted salmon resource in the North- west, with each group (commercial, recreational, etc.) claiming a right to a substantial portion of the fish. This Ocean Law Memo focuses upon the claims of one of the groups: treaty Indians. In September of 1970 the United States, as trustee for several Indian tribes of the State of Washington, brought suit in the federal District Court claiming the Indians were not receiving the off-reservation fishing rights guaranteed to them by nineteenth-century treaties. Judge George Boldt conducted an extensive pretrial hearing to determine the facts. He then made four important findings of fact which became the ultimate basis of his holding. First, the tribes, in negotiating the trea- ties, had been willing to give up large areas of land, but they had insisted that they would con- tinue the right to fish. The Indians' intent was reflected by the treaty language right to fish at usual and accustomed grounds and stations in common with all citizens. Second, at the time of the treaty neither the Indians nor the white settlers contemplated that either would interfere with the other in uses of the fishery. Third, Judge Boldt found that enforcement of Washington state fishing laws and regulations against Indians fishing at their usual and accus- tomed places has been partially responsible for prevention of the full exercise of Indian treaty fishing rights, loss of income to Indians, inhi- bition of cultural practices, confiscation and damage to fishing equipment, and arrest and crim- inal prosecution of Indians. Finally, Judge Boldt found that enforcement of the Washington Department of Fisheries regula- tions allowed a large proportion of the harvest- able numbers of fish from given runs to be taken by persons with no treaty rights before such runs reached the tribes' usual and accustomed places. Having made these findings of fact, Judge Boldt declared in 1974 that Indian fishermen should be given the opportunity to harvest up to fifty percent of the resource which normally would return to tribal fishing grounds. He directed the State of Washington to reduce non-Indian fish- ing on runs that normally pass through the usual and accustomed off-reservation fishing areas of the tribes so that the Indians would be provided with their treaty opportunity. The Boldt decision has generated a number of legal issues concerning allocation and management of the salmon resource. Three related cases have recently been brought before the U.S. Supreme Court. The Court heard oral arguments on Febru- ary 28, 1979. The final disposition of these cases will guide the resolution of the Northwest salmon fishing rights controversy. Two of the cases now under consideration by the Supreme Court directly place the allocation of the resource scheme before the Court. They are Puget Sound Gillnetters v. Moos and Washington State Commercial Passenger Fishing Vessel Associa- tion v. Tollefson, both 1977 decisions of the Washington State Supreme Court. In the Moos case, the gillnetters asked the state supreme court to prohibit the Washington Department of Fisheries from issuing any regula- tions designed to implement the Boldt decision's resource-allocation percentages, claiming that this action was beyond the Department's statutory authority. Further, they asked the court to de- clare that the Department must have only one set of regulations that applies to both Indians and non-Indian fishermen. The court determined that the Department had no power to regulate fishing except for conservation purposes and therefore the Department could not issue any regulations designed to allocate the resource among competing groups. Further, the court decided that consti- tutional equal protection concepts require the Department regulations to apply equally to Indian and non-Indian fishermen. Finally, the state court held that the federal court could not re- quire the Department to act beyond its statutory authority and thus that the federal District Court had no power to require the Department to implement its decision. F-179rotdo: ~ xeso evie e rn aie dioyPorn O~L., l Y~ Grant Marine Advisory Programq Donxaibs OR 97331 ,I May 1979 / Distributed by: OSU Extension Service' Sea

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