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.


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Grant Marine Advisory Programq Donxaibs  OR  97331


,I


May   1979


/   Distributed by:     OSU Extension Service' Sea

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