Here. My colleague Alan Stay was integrally involved in bringing the first treaty habitat case in U.S. v. WA, so this article makes for an interesting read.
treaty fishing rights
Washington SCT Holds that State Has No Jurisdiction over Off-Rez
Briefs are here.
Chicago Public Radio: “Who Owns the Fish? How Tribal Rights Could Save the Great Lakes”
Here. The transcript:
In Leelanau County in Northern Michigan, a small Native American tribe has struggled for generations to survive economic and social hardships. The tribe has always been deeply connected to the lakes economically and culturally. The latest threat to that connection is environmental degradation, particularly invasive species. But the tribes are forming unexpected alliances with old enemies to fight the threat.
When you first arrive in the Leelanau Peninsula, you think: This is heaven in the Midwest. Lake Michigan stretches out everywhere you look, blue as the Caribbean. It is a place full of second homes and tourists. But there is one spot that is different from the rest.
Arthur Duhamel Marina sound fade up
Peshawbestown is the reservation for the Grand Traverse Band of Ottawa and Chippewa Indians, a group that has lived in this area longer than anyone. It doesn’t have any t-shirt shops or beach-front mansions. Instead, there are government offices, a casino, and a tribal marina. Ed John is a tribal fisherman who docks his fishing boat here.
JOHN: I can weld, and other things. But I enjoy fishing ’cause I am my own boss. I am not rich, but I don’t want to be rich, it’s working for me.
Tribes have always been dependent on the lakes. We asked Ed how invasive species have been threatening the tribes’ livelihood.
JOHN: I was just telling my buddy, we got these reporters down here, asking about invasive species. We know a thing or two about invasive species. First we had the Vikings and all these other countries taking, actually invading our space.
Ed’s wife fishes, and so does her cousin, Bill.
FOWLER: My name is Bill Fowler, I am a tribal commercial fisherman.
His nickname is Bear.
FOWLER: Because I’m as big as a bear and I work like a bear.
Fade up engine
Bill fishes with Jason Sams who helps haul in the nets. Also along for the ride is Bill’s dauschund puppy, Beauford.
SAMS: He eats the face of the fishes. Faces ain’t worth any money anyway. He’s excited ‘cause he knows there will be fish soon.
It takes about an hour to reach the first fishing net.
FOWLER: Here fishy, fishy. Come here fishies.
Lake trout flop around on the dock, bleeding from the gills.
Ice keeps them fresh till they get to shore, where Bill sells his catch under the name 1836 Fishing Company, in honor of the Treaty of 1836.
FOWLER: I named it that because the treaty is important to us to reserve our rights.
You see, back in 1836 the tribes gave away a huge chunk of land – one-third of the state of Michigan. In return they kept the right to hunt and fish. But much later, in the 1960s, the state of Michigan started heavily regulating commercial fishermen, including tribes, limiting where and how they fished.
John Bailey was a tribal leader at the time and says the regulations hurt the tribes.
BAILEY: Economically it would destroy us. And it would destroy us as Indian people because it’s something that has been passed down generation to generation.
Inspired by the Civil Rights movement in the south, tribes began using non-violent civil disobedience to protest the regulations. They ignored state fishing restrictions and said to the authorities, come arrest me.
According to John Bailey, a lot of whites didn’t react well.
BAILEY: One of the groups actually took pictures of Indian fisherman and flooded the state with wanted posters: Spear an Indian, Save a Trout. We had guns pulled on us. We had women verbally and physically assaulted.
Briefs in Washington SCT Case Involving State Criminal Jurisdiction over Off-Rez Treaty Fishing Grounds
Here are the materials in State v. Jim:
Washington Petition for Review
Jim Answer to State Petition for Review
Umatilla/Nez Perce/Warm Springs/Yakama Amicus Brief
The appellate decision is here: 230 P.3d 1080
Washington State v. Cayenne — Wash. SCT Rules Against Treaty Fishing Rights of Convict
We’ve previously noted this case during the petitioning phase (here are the briefs favoring and opposing review by the Washington Supreme Court). The Washington Supreme Court now has reversed the lower court’s decision to recognize the treaty right of Indians convicted under state law to continue to exercise those treaty rights even after the conviction. Here are the materials:
Washington Supreme Court Materials