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30 Ocean L. Memo 1 (1987)

handle is hein.journals/ocoaslme30 and id is 1 raw text is: 

(   n ar4ggstal Law Center * School of Law  University of Oregon * Eugene  97AnA

   FiOcean La                                                          mo

July 1, 1987.


Introduction                                   logical
                                               the ext
      The  assertion  of  tribal  fishing      fishing
 rights  in  the  Pacific Northwest   has      appears
 resulted in  decades of  heated  litiga-      resolvir
 tion.   Court decisions  have  radically     major
 reallocated  salmon  resource   harvests      putes.
 from ocean commercial and sport  fisher-
 ies to Indian  tribes and have been met      Legal Cc
 with only a  grudging social acceptance
 by many  of  the non-Indian  groups  in-          Lit
 volved.  The fishing rights controversy       in the
 has thus far focused primarily on tribal     cated  h
 rights arising under 19th century trea-       litigati
 ties negotiated with tribes living along     cific  t
 the Columbia River and in western Wash-      River  a
 ington.   A  less  well  known  fishing      has   thu
 rights controversy,  however,  concerns       tribes.
 the rights  of Hoopa  and  Yurok tribes      tribes'
 living along the Klamath River in north-     conseque
 ern California.                              by  whic
                                              are allc
     The Klamath River supports the sec-      of  the
ond largest  chinook salmon run in Cali-      this  so
fornia and produces salmon that comprise      are  app
as  much as  25 percent of  annual ocean          tribes.
fishery   harvests  between   Coos  Bay,      Indian
Oregon,   and  Fort  Bragg,  California.      River
Assertion of'full Hoopa and Yurok tribal      briefly
fishing rights may result in as profound      Northwes
a  salmon harvest reallocation  from the
ocean  fisheries  as  that seen  in  the           The
Columbia  River and  western Washington.      reservat
Yet,  there  are  promising  signs  that      or  execu
Klamath River tribal fishing rights will      sive tr
be  determined, and  the salmon  harvest          vation.
reallocated,  through peaceful  negotia-      River ba
tion  rather   than  through  protracted      ever,  n
litigation, which  has elsewhere divided      that exp
fishing  communities.   This  memo  will      al  right
review  the legal, regulatory,  and bio-      reservat

1    For a more detailed review of Northwest fishing r
     Memo Issues 13, 15, 18; Coastal Law Memo Issue 4.

issues   involved in  determining
ent of the Klamath River  tribes'
  rights   and  why   negotiation
  to be capable  of  successfully
ng one of the Pacific Northwest's
salmon  fishery  allocation  dis-


igation  of tribal fishing rights
Northwest has a long and compli-
istory.  For  the most part,  the
on  has primarily concerned spe-
:eaty rights of certain Columbia
nd western Washington tribes and
s  excluded  the  Klamath  River
    Indeed,  the  Klamath  River
  noninvolvement  has  important
nces for determining the methods
h Klamath  River salmon harvests
cated today.  Nevertheless, many
legal   principles  developed in
mewhat  fact-specific litigation
licable  to  the  Klamath  River
   To understand  the  nature of
fishing  rights  on  the Klamath
it  is  therefore  necessary  to
review  relevant portions of the
t fishing rights litigation.1

  act of establishing  an Indian
ion, whether by treaty, statute,
utive order, reserves  an exclu-
bal  right to fish on the reser-
   The  tribes  of  the Columbia
sin and western Washington, how-
egotiated a  series of  treaties
ressly reserved additional trib-
ts to  fish at  traditional off-
ion locations.3   In particular,

ights litigation, see Ocean Law

See, e.g., Menominee Tribe v. United States, 391 U.S. 404 (1968).

See United States v. Winans, 198 U.S. 371 (1905).




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