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Fish and Fishing - Native American Fishing Rights

tribe makah agreement treaties

Just as the United States has entered into treaties with foreign countries specifying certain fishing rights and privileges, so also has it entered into treaty agreements with many Native American tribes concerning fishing and hunting rights. In theory, U.S. treaties with foreign countries and with sovereign Indian nations are the same, as both represent negotiated agreements with independent nations that the parties are bound to honor. In reality, however, treaties involving Native American fishing and hunting rights are much more controversial and complicated, as their provisions often conflict with state and federal wildlife efforts as well as with the interests of non-Indian fishers and hunters. Though many legal developments in the area of Native American fishing rights have broad application, treaty rights pertaining to fishing often vary from tribe to tribe and depend on the language and historical context of the treaties involved.

Historically, fishing has always been an important activity for Native American tribes. Fish constituted a major portion of most Indians' diets, and dried fish were traded in large quantities. Religious rites were performed to ensure the return of local fish species each year, and tribes planned their own movements around the annual migrations of fish populations.

When Indian tribes signed treaties with the U.S. government to relinquish their lands—as nearly all did at some point—they often received assurance, either in the treaties or in statutes, that they could continue to hunt, fish, and gather food on their reservation and often in traditional locations off the reservation as well. In the mid-nineteenth century, when most of these treaties were signed, government officials willingly included such provisions because few non-Indians lived in frontier lands and because fish were thought to be an inexhaustible resource. Since then, the demand for fish has come to outstrip the supply, leading to battles over how to interpret and enforce treaty provisions guaranteeing Native Americans certain fishing rights.

Many of the treaties by which Indian tribes relinquished land to the United States expressly guaranteed the tribes' fishing and hunting rights. Even when treaties did not specifically mention fishing and hunting, those rights were considered to be retained. As the Supreme Court explained in the 1905 case United States v. Winans, 198 U.S. 371, 25 S. Ct. 662, 49 L. Ed. 1089, a treaty is not a grant of rights to the Indians but a taking of rights from them, and any right not specifically removed by a treaty is assumed to remain with the tribe. Though Congress has the power to extinguish Indian hunting and fishing rights, it must do so clearly and explicitly; rights cannot be considered extinguished based on ambiguous language or assumptions. Even when a tribe is officially "terminated" by Congress, its rights are retained unless Congress explicitly declares that it is terminating them. In Menominee Tribe v. United States, 391 U.S. 404, 88 S. Ct. 1705, 20 L. Ed. 2d 697 (1968), for example, Congress had terminated the Menominee tribe, but the Supreme Court ruled that the tribe's hunting and fishing rights were not affected because the termination statute did not explicitly mention those rights.

In many cases, Indian tribes have also retained the right to fish at locations off the reservation. In the Pacific Northwest, for example, many Indian tribes signed treaties guaranteeing them the right to take fish at their traditional fishing locations, whether those locations were on or off the newly created reservations. This right was upheld by the Supreme Court in Winans, in which the Court ruled that tribal members were entitled to "tak[e] fish at all usual and accustomed places," even though those places might be on privately owned land.

Though the fishing rights cases from the Pacific Northwest apply to specific parties and situations, they have had a broad effect on Indian fishing rights cases in other parts of the country.

The U.S. government's efforts to protect the environment and regulate its resources have given rise to tensions between the government and Native American tribes that claim exceptions to federal regulations based on legal, historical, and cultural rights to certain resources. Occasionally, disputes arise between Native Americans and foreign governments or intergovernmental organizations. One such case concerns an agreement between the U.S. government and the Makah Tribe of Washington's Olympic Peninsula regarding rights to hunt whales. In this case, the U.S. government was assertively promoting the rights of Native Americans to hunt whales, even in the face of strong national and international criticism.

On March 22, 1996, the National Oceanic and Atmospheric Administration (NOAA) entered into a formal written agreement with the Makah Tribe providing that NOAA, through the U.S. commissioner to the International Whaling Commission (IWC), would make a formal proposal to the IWC for a quota of gray whales for subsistence and ceremonial use by the Makah Tribe. The agreement provided for cooperation between NOAA and the Makah Tribal Council in managing the harvest of gray whales. NOAA agreed: (1) to monitor the hunt; (2) to assist the Council to collect data on the whales, including body length and sex of the landed whales; length and sex of any fetus in a landed whale; whether a whale that was struck, but not landed, suffered a potentially fatal wound from a harpoon or bomb emplacement); and (3) to collect tissue samples from landed whales. Finally, the agreement provided that within 30 days of IWC approval of a quota, "NOAA will revise its regulations to address subsistence whaling by the Makah Tribe, and the Council will adopt a management plan and regulations to govern the harvest…." The agreement was signed by the chairman of the Makah Tribal Council, Hubert Markishtum, and the under secretary for Oceans and Atmosphere, D. James Baker.

Pursuant to the agreement, the United States presented the IWC with a proposal to the IWC for a quota of gray whales for the Makah Tribe. Several member nations supported the Makah whaling proposal, while others expressed concerns and indicated that they would vote against it. The proposal quickly became controversial. Concurrent to the IWC's meeting, the U.S. House of Representatives Committee on Resources unanimously passed a resolution, introduced by Representatives Jack Metcalf (R-Washington) and George Miller (D-California), opposing the proposal. The U.S. delegation to the IWC subsequently realized that it did not have the three-quarters majority required to approve the Makah hunting quota, and the proposal was withdrawn.

On October 13, 1997, NOAA and the Makah entered into a new written agreement, which was nearly identical to the agreement signed in 1996. Unlike the earlier agreement, however, the 1997 agreement included a provision intended to underscore the intention to hunt only migratory whales. Although considerable controversy attended this second proposal, the Makah eventually were permitted to resume limited whaling for cultural and subsistence purposes.

Today, case law in states such as Wisconsin, Minnesota, and Michigan are consistent with these cases in terms of Indian off-reservation fishing rights, the allocation of fish between Indians and non-Indians, and the relationship between tribal and state regulatory schemes. Rather than rely on the court system to resolve disputes, tribes and states now frequently attempt to reach negotiated settlements.

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over 2 years ago

who wrote this?

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over 6 years ago

I am a Native American, a tribal member of the Northern and Western Cherokee Nations. Does the native American fishing rights include the Chockta and Chicksha Cherokee tribes? I was under the impression from what my father and mother told me that I did not need a fishing license to be able to fish. Can you confirm this or direct me to something that allows Native Americans to carry on tradition.

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over 3 years ago

Can native americans of the Choctaw tribe fish and hunt without hunting and fishing licenses in the state of oklahoma?

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almost 4 years ago

yeah the white man has to take all the fish and animals every year when they steal a dead moose or anything else they run away with it then again againn and again i hate them i wish i could just shoot them inn the head

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over 5 years ago

Im an enrolled member of the Cherokee Nation of Oklahoma and I also carry wampanog blood as well. First off I want to explain to you what the terms of these so called treaties involved. Its simple you move or die. Our people were forced to move through blood shed and violence not through happy get togethers of social business agreements. Our people had no say in these so called agreements which were not agreements at all but military orders handed down by the president of the United States threatening tribes to do as they say or be physically removed. Thats not a treaty thats intrusion by ultimative. The word treaty means truce and there was no truce due to the fact our people never agreed to these terms. Wars dont come from agreement, think of it that way. I also hear complaints on how our people are taking to much fish out of the waters and this is why the populations of fish have dwindled, wrong again the population of fish have dwindled due to industry and pollution derived from industry ,killing and polluting waters. Those are not factors cause by our people.

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over 5 years ago

I'm a naive american. I'm in 11th grade. Alot of people have made fun of me and i'm just wondering doues every body have problems with indians??

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about 6 years ago

Native americans have to many rights to pretain there enviromental features such as fishing....there fishing rights are way beyond the bubble....they need to stop this and give more to the people then to them selves!

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over 4 years ago

I am 1/4 Apache. I think the Tribes need to either completely become US citizens or completely separate from the US. We need to stop claiming sovereignty when it benefits us and then demand the US gov help us with disasters or other issues. Basically we are a conquered people, all tribes, and we need to accept that - I am NOT saying forget our culture - far from it - but we need to face reality. Hunting and Fishing rights were retained in MOST treaties because the tribes needed them to survive, today that isn't the case. We seem to want to bring up these issues just to start problems, we were once a proud people but now we make ourselves look petty and childish.
Glen: in the state of MN some of the tribes HAVE over fished lakes and then demanded to have the US or MN government restock the lakes so we could "continue with our rights".

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about 3 years ago

I do not believe Federally Reckonized Tribal Members should have to have a Fishing or Hunting permit.

It is un-constitutional. We have lost nearly everything precious and sacred to us. Why do you want to take something we cherish.
We pay taxes buy tags etc. We have already proven we are Native American Indians by paying to trace our ancestors, fortunatly in my case my grandfather was fullblooded.

Give us back the one thing that my people and I cherish. Fishing and Hunting.

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over 4 years ago

treaties gave up lands and wars, nothing is implied that it stopped giving us the right to find food by hunting and fishing. and Sut this thing about hunting and fishing by indians put species indanger is not true, over hunting by nonindians and industry has killed more then all the tribal nations in the U.S.

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over 5 years ago

This past weekend I was given a "Warning" by the D. N. R. in Waupaca, WI. The officer seen me cast and retrieve one time. My cousin received a 210 dollar fine for fishing without a license. We feel we were targeted for our appearance as we didn't see any other fishermen get ID'd and asked for fishing licenses. I am half Oneida, half Menominee. The Oneida and the Menominee have inhabited the entire state of Wisconsin for HUNDREDS of years. I don't feel I should be made to pay to hunt or fish on any part of the North American continent. I highly doubt my Grandfather or his Grandfather before him payed anyone to hunt or fish. Why should I? Why should my children? Why should my cousin have to pay the state of Wisconsin anything? What does the state of Wisconsin do with the money? Does my cousin have the right to get the ticket dismissed?

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over 5 years ago

indians at my school never get picked on

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over 5 years ago

i do believe that it is the native who were here first. but by agreeding to what the natives want is unaccounted for. this has put a lot of species endangered over the years.

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over 5 years ago

Indians should always have the right to fish. they were her fisrt and we need to respect that

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over 5 years ago

well if you say that they should not have the right to fish? becouse there much less fish now then most treaties were signed then we should credit them for the present day value for the land that we took from them!sounds fair,what do you think?

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over 1 year ago

k

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over 5 years ago

i think since the indians were here before us, and we are the people who intruded on their land then took it away, they have every right to fish. heck we might as well head back to europe and let them have their land back.

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almost 2 years ago

Are alaskan Indians eligable for discount fees for fishing&hunting permits in california?