Kristen M. Fletcher, J.D., LL.M.

and Stacy Prewitt, 2L
 

With fish stocks declining nationwide and competition to participate in fisheries increasing, courts are the last resort for determining the breadth of rights among commercial, recreational and subsistence fishers. Native American fishers are in a unique position; the United States maintains a trust relationship with the Tribes and they rely upon hundred-year old treaties and aboriginal rights dating back as far as 7,000 years. The Ninth Circuit recently decided two cases involving Native American fishing rights, affirming treaty rights but barring claims of exclusive aboriginal rights. As the Supreme Court declined to review these decisions this year, the decisions stand.¹

Tribal Claim to the OCS

Native Village of Eyak v. Trawler Diane Marie, Inc., 154 F.3d 1090 (9th Cir. 1998).

Five Alaskan native villages (Native Villages) brought action against the Secretary of Commerce challenging fishing regulations and asserting aboriginal title which includes exclusive hunting and fishing rights to portions of the U.S. outer continental shelf (OCS) in Prince William Sound, the Gulf of Alaska, and the lower Cook Inlet regions of Alaska. The Native Villages based their claim of exclusive rights on occupancy and use of the OCS over a 7,000 year period and the fact that a majority of their members still depend upon hunting and fishing the OCS to maintain their subsistence lifestyle.

The challenge came as a result of 1993 regulations, pursuant to the Magnuson Fishery Conservation Act² and the Northern Pacific Halibut Act of 1982,³ which limited access to halibut and sablefish fisheries in the Gulf of Alaska and the lower Cook Inlet. The regulations required that any commercial fishing boat have an Individual Fishing Quota (IFQ) permit which specified the fishing quota assigned to the vessel. These regulations allowed non-tribal members to fish within the Native Villages' aboriginal territories but prohibited tribal members without an IFQ permit from fishing in the waters. The district court held that the U.S. holds sovereign title to the area and that there is no exclusive aboriginal right to fish in navigable waters outside of a treaty or federal statute. The Native Villages appealed.

The Ninth Circuit Court of Appeals agreed with the lower court that as a matter of law, the federal government has sovereign control and paramount rights in offshore waters. The Ninth Circuit pointed to Supreme Court precedent in which the federal government and individual states battled over ownership and control of the territorial sea and submerged lands.⁴ In such conflicts, the Supreme Court has consistently found that control over coastal waters, submerged lands, and the marginal sea is necessary to regulate foreign affairs, commerce, and national defense.

The Native Villages attempted to distinguish their claim of aboriginal title from the state claims by asserting that aboriginal title is not legal title. Rather, aboriginal title presumes some federal control and the exclusive right to use and occupy the territory does not interfere with the federal government's sovereign title. While acknowledging that aboriginal rights could coexist with federal interests,⁵ the court concluded that a claim of exclusive hunting and fishing rights in offshore waters conflicted with the federal government's interests and the Native Villages could not assert exclusive rights to use and occupy the OCS areas.⁶
 

Tribal Claim to Shellfishing

United States v. State of Washington, 157 F.3d 630 (9th Cir. 1998).

The United States and sixteen western Washington Tribes (Tribes) brought suit seeking a declaration of the nature and extent of tribal shellfishing rights as a direct consequence of the increasing competition for, and depletion of, the shellfish resource. The issue is unique as many of the tidelands to which the Tribes seek access are now held in private ownership and private landowners, as well as commercial shellfish cultivators, sought to preclude the Tribes from the lands and existing oyster beds. The Tribes relied upon their rights as set out in the Stevens Treaties of 1855 which reserved certain rights to fishing resources in Washington waters. The district court granted 50% of the shellfish harvest in Washington waters to the Tribes⁷ but, in a separate proceeding, limited this right by precluding tribal harvesting on cultivated beds and by applying restrictions on the tribal harvest from privately-owned land.⁸

In determining the issues on appeal, the Ninth Circuit first reviewed the Stevens Treaties of 1855 which reserved to the Tribes the "right of taking fish, at all usual and accustomed grounds and stations." These rights were limited by the "Shellfish Proviso" that provided "however, that they shall not take shellfish from any beds staked or cultivated by citizens."⁹ The commercial growers argued that this proviso should preclude the Tribes from all shellfish beds that were "in some fashion improved by human labor."¹⁰

The district court determined that this precluded the Tribes from taking shellfish from artificial, or planted, shellfish beds but not natural beds that had been cultivated. The Ninth Circuit agreed, finding that to exclude the Tribes from shellfish beds that were improved by human labor would violate the spirit of the Treaty which provided "the one significant promise . . . by the United States to the Indians [is] that they would enjoy a permanent right to fish as they always had."¹¹

The court's ultimate determination was that the Tribes' right to harvest in the commercial growers' beds is limited to a 50% harvest allocation of entirely naturally propagated beds. For enhanced beds, the Tribes are entitled to 50% of the pre-enhanced sustainable shellfish production. The court failed to elaborate on how to determine such an allocation, but remanded the case to the district level for implementation.

The appellants also argued that tribal harvesting amounts to the Tribes acquiring property rights in the state tidelands in violation of the Equal Footing Doctrine which, upon statehood, gave states the power to grant rights in or to dispose of certain shore lands subject to the federal interest in navigation and commerce. The court rejected this argument, relying on Supreme Court precedent that the Equal Footing Doctrine had no effect upon the treaty rights of the Tribes, and granted the Tribes the right to harvest shellfish on public tidelands. The Tribes were also granted the right to harvest on privately-held tidelands because "the Supreme Court has made clear that the Tribes' fishing rights in their usual and accustomed places are not diminished by private ownership of those lands."¹² The court granted deference to the Tribes' treaty rights because "treaties enjoy a unique position in our law."¹³

These decisions settle some issues regarding tribal fishing rights in the Ninth Circuit but tribal rights will remain contentious as the competition for fish and other marine resources intensifies among all users nation-wide.
 

ENDNOTES
 

1. See Native Village of Eyak v. Daley, 119 S. Ct. 2337 (1999) (cert. denied); and Puget Sound Shellfish Growers v. United States, 119 S. Ct. 1377 (1999) (cert. denied).

2. 16 U.S.C. §§ 1802-1882 (1999).

3. 16 U.S.C. §§ 773-773k (1999).

4. See United States v. California, 332 U.S. 19 (1947); United States v. Louisiana, 339 U.S. 669 (1950); United States v. Texas, 339 U.S. 707 (1950); and United States v. Maine, 420 U.S. 515 (1975).

5. Village of Gambel v. Hodel, 869 F.2d 1273 (9th Cir. 1989).

6. 154 F.3d at 1097 (9th Cir. 1998).

7. 873 F. Supp. 1422 (W.D. Wash. 1998) (Shellfish I).

8. 898 F. Supp. 1453 (W.D. Wash. 1998) (Shellfish II).

9. 157 F.3d at 638-39.

10. Id. at 648.

11. Id. at 648-49.

12. Id. at 646.

13. Id. at 649. In order to cross over private land to access shellfish beds, the Tribe must prove the unavailability of other forms of access.
 

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