IndHunt - Indian Hunt
Tribal Hunting and Fishing Rights
Testimony on research by Representative Jim Buck of the Washington State Government
July 28, 1998
State Representative Jim Buck
For the record, I am 24th District State Representative Jim Buck from the Legislature in Washington State. I
am Chairman of the House Natural Resources Committee and I want to thank you for inviting me to speak with you today about the tribal hunting issue. I must stress at the beginning of this testimony that I am able to address only the situation surrounding hunting and fishing by Washington state's Indian tribes. I am not versed in the complexities of treaties with other tribes outside of Washington so my testimony is to provide you with some background of what is happening in our state.
Washington state's treaties were negotiated by Territorial Governor Isaac Stevens in 1854 at the direction of the President of the United States and ratified by the senate as required by Article 2, Section 2 of the U.S. Constitution.
Thirty-five years later, Congress set conditions for Washington statehood in the Enabling Act of 1889. It required the people of Washington to adopt the Constitution of the United States and Article VI says, "The Constitution, and laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under authority of the United States, shall be the supreme law of the land ..." Hence, Washington is bound by the treaties.
Each of the Steven's Treaties contain similar language. Article III applies to fishing and hunting and says, " The right of taking fish at all usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the territory, and the erecting of temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries and pasturing their horses upon open and unclaimed lands."
This Article has resulted in many court cases over Indian fishing rights. What I am about to discuss relies heavily on precedent contained in one of those fishing cases, US Vs Washington (the Boldt Decision).
In Washington State, The Steven's Treaties all contain a phrase which gives the Indians the "... right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the territory..." This is specifically different from the wording "... privilege to hunt on open and unclaimed land." The Stevens Treaties specifically address hunting as a privilege and fishing as a reserved right. Judge Boldt takes great pain to explain the difference between a right and a privilege. Here are some of the findings of fact and conclusions of law from the case.
Finding of fact #4 of U.S. vs. Washington states, "Indian tribes cannot rescind a treaty agreement or limit non-Indian fishing pursuant to the agreement, but off-reservation fishing by other citizens and residents of the state is not a right but a privilege which may be granted, limited or withdrawn by the state as the interests of the state or exercise of the treaty fishing rights may require."
Finding of fact #9 of U.S. vs. Washington states, "Fishing rights reserved by the Indians can not be qualified by the state."
Finding of fact #15 of U.S. vs. Washington states, "Treaty fishing of northwest Indians is a reserved right and not a mere privilege."
Finding of fact #17 of U.S vs. Washington states, "State of Washington has the legal authority to regulate the exercise of Indian tribes' off reservation fishing only to the extent reasonable and necessary for conservation of the fisheries resource."
Finding of fact #99 of U.S. vs. Washington states, "Because the right of each treaty tribe to take anadromous fish arises from a treaty with the United States, that right is preserved and protected under the supreme law of the land, does not depend on state law, is distinct from rights or privileges held by others, and may not be qualified by the state."
Judge Boldt makes a great effort to distinguish the difference between a right and a privilege. Privileges can be conditioned. Rights can not. This leads to the following questions:
- If Boldt makes the distinction between the clearly called out reserved right to fish in the treaties; and that right is separate from the clearly called out (mere) privilege to hunt on open and unclaimed land; why is tribal hunting being treated as a right?* If some off reservation activities are a privilege; and a privilege may be granted by the state as the interests of the state may require; and the treaty grants the privilege of hunting on open and unclaimed land; why can't the state regulate the privilege?"
* If the State of Washington has the legal authority to regulate the exercise of the Indian tribes' off reservation fishing right for conservation purposes than why does it not have the legal right to regulate the Indian tribes' off reservation hunting privilege even if that privilege can only occur on open and unclaimed land?
Two years ago several people from the Nooksack Tribe traveled about 300 miles to Naches, Washington
and shot 2 bull elk at a feeding station on Federal land during a closed hunting season. This case is currently being reviewed by our State Supreme Court. In addition to the questions above, Boldt has several findings which may apply to this case.
Finding of fact #98 of U.S. vs. Washington states, "Exercise of a treaty tribe's right to take anadromous fish outside of reservation boundaries is limited only by the geographical extent of the usual and accustomed places, the limits of the harvestable stock and number of fish which non-treaty fishermen shall have an opportunity to catch."
Finding of fact #103 of U.S. vs. Washington states, "State of Washington or its officers is authorized to arresta member of one of the plaintiff tribes fishing in contravention of state law outside of his tribes usual and accustomed fishing grounds, even though the individual may prove, in his defense in any criminal proceeding resulting from his arrest, that such area in which he was fishing is a usual and accustomed fishing ground of his tribe."
Finding of fact #113 of U.S. vs. Washington states, "With respect to non-self-regulating Indian tribes, the state may enforce properly promulgated fishing regulations which have been established to be reasonable and necessary for conservation."
Finding of fact #22 of U.S. vs. Washington states, "Any one of the plaintiff Indian tribes was entitled to exercise its governmental powers by regulating the treaty right fishing of its members without state regulation thereof, provided the tribe had and maintained certain specified qualifications and accepted and abided by certain delineated conditions."
Judge Boldt makes a great effort to establish the importance of the location of tribal usual and accustomed fishing areas and specifies how the state can regulate activities in those areas. This leads to the following questions:
* If the exercise of a treaty tribe's right to take anadromous fish outside of reservation boundaries is limited only by the geographical extent of the usual and accustomed places than why would their hunting privilege not be limited by the same geographical extent? (Note: UAs are defined in Boldt and not the treaties.)
* Would the hunting privilege be limited to open and unclaimed land in each tribes usual and accustomed area or would it be limited to the open and unclaimed land in the entire area ceded by the tribes signatory to the specific treaty in question? Or would it be limited to unclaimed land in the Washington Territory?
* If the state is authorized to arrest a member of one of the plaintiff tribes who is fishing in contravention of state law outside of his tribes usual and accustomed fishing grounds, why is the state not authorized to arrest a member of the plaintiff tribes hunting in contravention of state law outside of the tribes usual and accustomed hunting grounds?
* If the state may enforce properly promulgated fishing regulations which have been established to be reasonable and necessary for conservation on non-self-regulating tribes than why can it not enforce properly promulgated hunting regulations on tribes which have no legal authority for self regulation of off reservation hunting?
* If the Boldt decision permits a tribe to self regulate treaty right fishing by its members, provided the tribe had and maintained certain specified qualifications and abided by certain delineated conditions, where are the certain specified qualifications and delineated conditions which must be observed which allow a tribe to self-regulate the hunting privilege?
Article 1, Section 8 gives you, Congress, the power to regulate commerce (Commerce being all relations) with foreign nations, and among the several states, and the Indian tribes. Since Washington State does not have the authority to regulate the commerce, specifically hunting regulations, with the Indian tribes, questions such as the ones I've posed have always been decided by the courts.
Unfortunately, those decisions take years and unless the decision goes to the U.S. Supreme Court, the ruling may only apply to the particular treaty at issue. Our state finds itself in the unenviable position of having a very difficult time policing our wildlife resources at this time. Tribes assert a right to hunt on open and unclaimed land, set their own seasons, bag limits and rules and yet there are no legal requirements for how they are to self-police themselves or interact with state wildlife agencies for conservation of the wildlife. The state asserts that tribal hunting is a privilege yet apparently lacks the constitutional authority to regulate the privilege and thereby set up long term conservation programs that perpetuate the species. Consequently, our game animals are at risk from poachers or unaccountable over-harvesting and both sides are at odds over the how to proceed. This has caused hard feelings among both Indians and non-Indians.
I believe the Constitution gives Congress the responsibility to deal with this situation. Our founding fathers saw the need to have Indian affairs regulated by a single policy so that we, and other states can avoid the very difficulty in which our state finds itself today and gave Congress the job of setting that policy. I urge you to address this issue in a manner which will allow for responsible conservation of our wildlife resources. Failure to address the issue will result in long drawn out court battles, loss of wildlife resources and the way tempers are right now, dangerous confrontations between Indians and non-Indians.
Again, thank you for permitting me to testify here before you today.
May I answer any questions?
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Addendum to July 28, 1998 Congressional Testimony
By Representative Jim Buck
For the record, I am Washington State Representative Jim Buck. I am the Chairman of the Washington State House Natural Resources Committee. I appeared before the Resources Committee on July 28 and provided testimony on H.R. 3987, the Deer and Elk Protection Act.
Unfortunately, it was necessary to adjourn the hearing early so the congressional delegation could attend memorial services for members of the capital police force. Consequently, there was no time for questions. At that time, Resources Committee staff offered to leave the record open for several weeks so that testimony which might clarify the issue could be added. I hereby submit the following and thank you for the opportunity to do so.
My testimony centered on Findings of Fact and Conclusions of Law from The U.S. v Washington Case (Boldt Decision). You will recall that I presented questions about specific legal precedent regarding the Stevens' Treaties which show a difference between the Indians' "reserved right" to fish and the "privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed land ..." The objective of my testimony was to show Congress the dilemma faced by Washington state when trying to manage its wildlife while complying with treaty language and the U.S. Constitution.
Since my testimony, I have been informed that a state supreme court decision held that the words "right" and "privilege" were interchangeable when used in treaties. Although the state court may have made this determination, I believe further inquiry by Congress would show that this was clearly not the case at treaty time and that the decision may not stand scrutiny by higher courts. For example, Findings of Fact and Conclusions of Law in the Boldt decision appear to not support this view.
Noah Webster's 1853 version of An American Dictionary of the English Language defines right as:
right, (rite) n...
5. Just claim; legal title; ownership; the legal power of exclusive possession; enjoyment. In hereditary monarchies, a right to the throne vests in the heir on the decease of the king. A deed vests right of possession in the purchaser of land right and possession are very different things. We often have occasion to demand and sue for rights not in our possession.
6. Just claim by courtesy, customs, or the principles of civility and decorum.
7. Just claim by sovereignty. Prerogative. God, as the author of all things, has the right to govern and dispose of them at his pleasure.
8. That which justly belongs to one.
9. Property; interest.
10. Just claims; immunity, privilege. All men have a right to the secure enjoyment of life, personal safety, liberty, and property.
We deem the right of trial by jury inviolable, particularly in the case of crimes. Rights are natural, civil, political, religious, personal, and public.
In the same volume, privilege is defined as:
privilege, n ...
1. A particular and peculiar benefit or advantage enjoyed by a person, company, or society, beyond the common advantages of other citizens. A privilege may be a particular right granted by law or held by custom, or it may be an exemption from some burden to which others are subject. The nobles of Great Britain have the privilege of being triable by their peers only. Members of parliament and of our legislatures have the privilege of exemption from arrest in certain cases. The powers of a banking company are privileges granted by the legislature.
2. Any peculiar benefit or advantage, right or immunity, not common to others of the human race. Thus we speak of national privileges, and civil and political privileges, which we enjoy above other nations. We have ecclesiastical and religious privileges secured to us by our constitutions of government. Personal privileges are attached to person, as . . .
It is clear from reading Governor Isaac Stevens' letter to Commissioner of Indian Affairs George Manypenny, dated December 30, 1854, that the Governor fully expected the territory to be settled.
Recognizing the need of the Indians for fishing he separated in the treaty the unconditioned "reserved right" of fishing from the conditioned "privilege of hunting, gathering roots and berries, and pasturing horses on open and unclaimed land . . ." and intended the privileges mentioned to be "a particular right granted by law." He wrote,
These reserves have been selected as not to interfere with existing claims, or with the progress of settlements, and yet at such points as would enable the Indians to catch salmon, gather roots and berries, pasture their animals on unclaimed land and participate, as heretofore, in the labor of the Sound. These rights, with restrictions are secured in Article 3 of the treaty. [Emphasis added] Microfilm page 195.
Governor Stevens refers to the tribes of the Medicine Creek Treaty as fishing tribes and makes no mention of hunting in the letter of December 30, 1854. However, we can find references to the gathering of roots and berries and pasturing of horses. These provide an insight into the governor's intentions regarding the difference between reserved right and privilege when he writes:
The provisions as to reserves and as to taking fish, pasturing animals and gathering roots and berries had strict reference to their condition as above, to their actual wants and the part they play and ought hereafter to play in the labor and prosperity of the Territory. (Governor Stevens reported on the condition of the Indians in the previous paragraph and noted, "their principal food is fish, roots and berries.") Microfilm page 198.
He further writes:
It is not believed that the pasturage in common with whites on unclaimed land will lead to difficulty. The character of the country generally is wood interspersed with prairies. Settlers take their claims on the edge of the timber leaving much of the open space in the central portions which will not be occupied and will remain open as common pasture ground. Microfilm page 198.
And finally:
The tribes, parties to this treaty, raise 1000 bushels of potatoes, own 236 canoes and 256 horses and hence the provisions as to pasturing of their horses on unclaimed land and to prevent the propagation of their animals to the deterioration of the American horse [this last word is not clear in the written record].
Sentence construction would also indicate the separation of the right and the privilege. The right of taking fish -- together with the privilege of hunting -- does not indicate any interchangeability of the words if the qualifying words are removed. Therefore, it appears that Governor Stevens conditioned the treaty to provide two specific levels of Indian access to the ceded land. The Indians reserved the right to fish in the usual and accustomed grounds and places; but they maintained a privilege to hunt, gather roots and berries and pasture horses on open and unclaimed land which was ceded to the United States.
The second part of my testimony dealt with Findings of Fact and Conclusions of Law from the Boldt decision about the state's ability to regulate the fishing right which raised parallel questions about the authority of the state to regulate the hunting privilege. Boldt set requirements and conditions which each tribe must meet and maintain in order to self police tribal off reservation fishing. The state is permitted to police off reservation fishing if the tribes fail to meet and uphold those requirements and has some ability to police for conservation even if the tribes do meet and maintain the requirements. To date, there are no parallel requirements for a tribe to meet and maintain in order to self police the hunting privilege.
Article I, Section 8 of the U.S. Constitution says Congress is the only authority that can regulate the Indians, so it is doubtful that the state can make binding agreements with the tribes without congressional approval.
The U.S. Supreme Court states in U.S. v Winans, "By the Constitution, as is now well settled, the United States having rightfully acquired the territories, and being the only government which can impose laws upon them, have the entire dominion and sovereignty, national and municipal, Federal and state, over all territories so long as they remain in territorial condition."
The Indians reserved fishing rights on land they ceded. Privileges were granted to Indians on land which they ceded to the United States and to which they no longer maintained title as long as the ground was open and unclaimed. All ground ceded by the tribes was ceded to the United States government. As such, federal, territorial and, eventually, state laws applied unless the rights were reserved in the treaty. The reservations were selected as not to interfere with existing claims or with the progress of settlements. Thus, the Indian privilege did not apply to private property claims which were or would be provided to settlers. It applied only to open and unclaimed land.
The position that hunting can be regulated by the state is further supported by a number of U.S. Supreme Court decisions, notably Geer v Connecticut and Kennedy v New York. While the facts are unique to each case, the precedent in Geer states: "The power of a state to control and regulate the taking of game cannot be questioned." Geer v Connecticut, 161 U.S. 519 [16 S.Ct 600, 40 L.Ed. 793.] Kennedy is equally definitive when it states: "It is not to be doubted that the power to preserve fish and game within its borders is inherent in the sovereignty of the state . . ." (241 U.S. p. 562, 36 S.Ct. P. 707.)
I believe the Constitution gives Congress the responsibility to deal with this situation. I urge you to address this issue in a manner which will allow for responsible conservation of our wildlife resources. Failure to address the issue will result in long drawn out court battles and loss of wildlife resources and, given the growing animosity between factions, this failure may also result in dangerous confrontation between Indians and non-Indians.
I hope this information will clarify my testimony from July 28. I want to again thank the Resources Committee for inviting me to testify on H.R. 3987 and for the courtesy I was shown during my visit.
Thanks to Jackie Juntti for alerting me to this valuable document. idzrus@earthlink.net
Forest Glen Durland, webmaster
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