Fisheries Case Law Rulings

Case Law as it pertains to commercial fishing, tribal ‘rights’, and the U.S. Constitution

Founding Legal Documents

1776

1776/07/4: The Declaration of Independence of the Thirteen Colonies

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

1787

1787/09/17: U.S. Constitution and Amendments thereto

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

1854

Treaty with the Nisqualli, Puyallup, etc., 1854

It was upon this treaty which the present-day Washington State Tribes (and later all US Tribes) made their claim to whaling and fishing rights.

Article 4 of this treaty gave them this ‘right’ stating both to be ‘in common with all’ citizens. The original intent was to ensure that the tribes were not denied fishing rights based on their race or social status at that time.

While all US citizens can fish for salmon, none are permitted to go whaling by US law. Since the courts have ‘determined’ the phrase ‘in common with’ to mean up to 50% of the harvest, the Makah share should rightly be up to half of it. Half of Zero is Zero. However, the Makah can and do kill whales due to this special dispensation.

1855

1855: Treaty of Neah Bay, 1855

It was upon this treaty which the present-day Washington State Tribes (and later all US Tribes) made their claim to whaling and fishing rights.

Article 4 of this treaty gave them this ‘right’ stating both to be ‘in common with all’ citizens. The original intent was to ensure that the tribes were not denied fishing rights based on their race or social status at that time.

While all US citizens can fish for salmon, none are permitted to go whaling by US law. Since the courts have ‘determined’ the phrase ‘in common with’ to mean up to 50% of the harvest, the Makah share should rightly be up to half of it. Half of Zero is Zero. However, the Makah can and do kill whales due to this special dispensation.

Modern Fisheries Case Law

PIF: Herein documents the beginnings of the legal War on Natural Resource Harvesters. Which has been largely won by the forces that began the attack. The overall result has been an impoverishment throughout most of rural America.

The cases below are in the order in which they occurred, however all of these cases either led up to or flowed from Washington v. Fishing Vessel Assn – 1979 below.

1968

Heard Before: U.S. Supreme Court

1973 May: Puyallup Tribe v. Dept. of Game, 391 U.S. 392 (1968)

Summary:
This ruling gave the tribes the right to fish with non-traditional gear like gill nets, set nets and purse seines off reservation. It should be pointed out that prior to this decision, many tribal Indians fished off reservation with the same gear. The significance was they no longer had to buy a permit from the State of Washington to fish with said gear and could fish in the rivers – something hereto not permitted anyone, thus protecting the returning salmon from mass harvest once they had reached the river.

 

Heard Before: U.S. Supreme Court

1973 November: Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44 (1973)

Summary:
This ruling gave the tribes access to in-river fisheries, but provides that the state was not obligated to subsidize them with planted fish. This provided the legal avenue for the tribes to later petition the Federal Government for access to all planted fish.

1977

Heard Before: U.S. Supreme Court

1977 June: Puyallup Tribe v. Washington Game Dept., 433 U.S. 165 (1977)

Summary:
This ruling rejected tribal claims to exclusive fishing rights to salmon and made catch accounting voluntary. Therefore, no records were kept on how many fish the tribes caught, making salmon in-river escapement impossible to judge. This led to wholesale elimination of many salmon stocks.

Basically the above three cases tested whether the Tribes were able to fish at will in river. Previously, state law prohibited anyone fishing in river to protect those fish which had passed through the fisheries and were breeding stock. The nunber of fish passed through to a river were pre-planned before the fishery began – harvest levels and areas of harvest were set accordingly.

1978

Heard Before: United States District Court, Western District of Washington

United States of America et. al. v. State of Washington 1978

Summary:
Known as Boldt I. Boldt was specifically brought back to Washington State from his seat on the Wage and Price Board for this case by President Nixon. Judge Boldt decided everything in favor of the tribes, gave them all the fish, took boats from the non-Indian fishermen and gave them to the tribes in a fair and balanced bit of judicial reasoning, told the State of Washington to take a hike, and made his tribal in-laws happy and wealthy.

Heard Before: United States District Court, Western District of Washington

1978 October: PSVOA, PSGA v. US Dept of State 1978

Summary:
This ruling gave the tribes the same access and accounting to Canadian origin sockeye and pink salmon – managed by an international commission (International Pacific Salmon Commission – fisheries scientists and managers from the US and Canada working together) as they were given on US origin stocks in the State of Washington. Sockeye salmon was the ‘money’ fish in the Washington fisheries. The ruling undid 60 years of successful, non-political, scientific management to rebuild the sockeye runs to the Fraser River system.

1979

1979: Heard Before: U.S. Supreme Court

1979 July: Washington v. Fishing Vessel Assn., 443 U.S. 658 (1979)

Summary:
This landmark ruling that sets Treaty Indians above all other U.S. citizens, and legalizes racial discrimination, as well as founding the principle that future consequences flowing from Treaties entered into by the Federal Government fall on specific individuals only; vacates the Boldt Decision.

From this single, little-known U.S. Supreme Court decision flowed all the modern notions of ‘Tribal Rights’, ‘Tribal Sovereignty’ as well as the world wide ‘native activism’. Had the Puget Sound Gillnetters Association lawyers been able to argue their case, instead of having to spend their 15 minutes rebutting (future Senator) Slade Gordon arguing for the State of Washington, the outcome might have been entirely different. See the Dissenting Opinions of Justices Powell, Stewart and Rehnquist.

 

1979/07/11 Memorandum on WA v. Fishing Vessel Association

Summary:
This is the Memorandum from the Law Firm hired by the PSGA to take the Boldt Decision to the U.S. Supreme Court. It briefly outlines the Court’s main points and details issues for further litigation. The Boldt Decision was VACATED, i.e. overturned.

 

Heard Before: United States District Court, Western District of Washington

United States et al. v. State of Washington et al. 1979

Summary:
Known as Boldt II. Judge Boldt sets the stage for previously unrecognized tribes to petition the Federal Government for official status, so they can cash in on the salmon bonanza, while seeming to side with the larger tribes – such as the Lummi, by denying the smaller tribes fishing rights.

1980

1980 April 2Puget Sound Gillnetters v. Moos

Summary:
The State of Washington asks to become the manager of the Fisheries. The Court agrees. The PSGA opposed this move.

1996

Heard Before: 9th Circuit Court of Appeals

1996 October: USA v. State of Washington October 1996

Summary:
This case gives a little background on Judge Boldt and denies more tribes status as Treaty Tribes.

Heard Before: 9th Circuit Court of Appeals

United States of America v. State of Washington No. 9535442 June 1996

Summary:
This ruling denies Non-Indian Commercial fishermen access to the process which determines what and where they can harvest shellfish, specifically shrimp, crab, sea urchins and sea cucumbers and gooyduck.

1998

Heard Before: 9th Circuit Court of Appeals

USA v. State of Washington 9635014 January 1998

Summary:
Known as Shellfish 1. This landmark ruling reaffirms the Boldt Decision which was vacated by the U.S. Supreme Court, and upholds the notion that shellfish are fish, as well as the concept of Special Masters, as well as furthering the principle that any future consequences flowing from Treaties entered into by the Federal Government fall on specific individuals only, without any compensation.

Heard Before: 9th Circuit Court of Appeals

USA v. State of Washington 9635014o (1998) September 1998

Summary:
Known as Shellfish II. This ruling adds further extreme opinions to USA v State of Washington, 9635014, above.

2001

Heard Before: 9th Circuit Court of Appeals

Oregon Coho Court Order September 2001

Summary:
…overturns the August 10, 1998 NMFS Oregon Coho listing decision, contained at 63 Fed. Reg. 42,587, as unlawful, arbitrary and capricious and affirming that hatchery-spawned salmon are biologically indistinguishable from naturally spawned salmon. The order reverses the action by the National Marine Fisheries Service (NMFS) listing the Oregon Coast coho salmon as threatened under the Endangered Species Act…

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