Fish and Fishing

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.