Coastal Tribes Scoring Export Win With Geoducks

Bloomberg BusinessWeek magazine is featuring Tribes in the Puget Sound area that have successfully captured export markets in China and elsewhere with a unique product: the massive Geoduck clam. This unusual natural resource has become highly profitable due to growing consumer demand in Asia, and effective management and marketing by coastal Tribes has created a flourishing multi-million dollar industry. 

Foster Pepper Native American Group attorneys Greg Guedel and Ron Whitener are quoted in the article, which discusses the treaties and court decisions that affirmed Tribes' rights to Geoducks and other marine resources in their traditional lands. After solidifying their legal rights, Tribes that harvest Geoducks implemented strong monitoring and environmental protection for key marine areas, helping ensure the vitality and sustainability of this industry. With Geoduck habitat confined to the Northwest coast and a small area in California, Puget Sound Tribes are shaping the growth of this beneficial industry from a dominant market position.

Tribes Turn To Federal Court In Pacific Fishing Rights Dispute

In a case with implications for more than twenty Tribes in the Pacific Northwest, the issue of Native American fishing rights and boundaries in the Pacific Ocean has been brought before the federal District Court for the Western District of Washington.

In an earlier proceeding, the Court determined that the Makah, Quileute, and Quinault nations had usual and accustomed fishing grounds in the Pacific Ocean. It was determined that the Makah’s usual and accustomed fishing grounds “included the waters of the Strait of Juan de Fuca . . . extending out into the ocean to an area known as Swiftsure and then south along the Pacific coast to an area intermediate to Ozette village and the Quileute Reservation,” as well as certain rivers and lakes. The Court determined that Quileute usual and accustomed grounds included certain rivers, lakes and streams and “the adjacent tidewater and saltwater areas”, and that the Quinault utilized “ocean fisheries” in “the waters adjacent to its territory.” See 384 F. Supp. at 374 (FF 120).

However, the Court did not define the precise boundaries of the nations’ “usual and accustomed fishing grounds” in the Pacific Ocean, and the Court’s decision was limited to waters within the jurisdiction of the State of Washington and within three miles of shore. The question of precise ocean boundaries for the nations’ respective fishing rights remains unresolved. The Request for Determination filed by the Makah Tribe alleges:

On the basis of the information Makah assembled in response to the threat posed by Quileute’s and Quinault’s intent to participate in the Pacific whiting fishery in the manner described above, it appears that Quileute and Quinault have authorized and currently are conducting fisheries for salmon, halibut and black cod outside of their actual usual and accustomed fishing areas. Although Makah, Quileute and Quinault have been able to resolve disputes over these fisheries in the past, the Quileute and Quinault fisheries for these species compete directly with Makah fisheries for the same species.

It is interesting to note that the nations had previously worked out such issues through direct negotiation, but now have placed the power over their respective jurisdictions and economic rights in the hands of a federal judge.

Washington State Extends Sentencing Enforcement To Tribal Lands

In a reversal of the decision of the state Court of Appeals, the Supreme Court of Washington has ruled that prohibitions entered against a Tribal member in civil court sentences can be enforced by the state on Tribal lands. In State v. Cayenne, a prohibition against the defendant’s use of gillnets for fishing in state rivers was enforced when he subsequently used a gillnet within his Tribe’s territory.

Gerald Cayenne is an enrolled member of the Chehalis Indian Tribe, which has its reservation in southwest Washington. The Chehalis Tribe enjoys an exclusive right to fish within its reservation boundaries. As a non-treaty Tribe, Chehalis members are subject to state laws when fishing on non-tribal lands. In 2005, Washington State Department of Fish and Wildlife officers alleged that Cayenne unlawfully used gillnetting in the Chehalis River while on non-tribal land. The officers arrested Cayenne, the State charged him with two counts of felony first degree unlawful use of nets to take fish, and a jury convicted him on one count.

As part of Cayenne's eight-month sentence, the trial court prohibited him from owning gillnets during the term of his sentence, on and off the reservation. Cayenne appealed, arguing the trial court exceeded its authority to impose a crime-related prohibition restricting his on-reservation behavior with respect to fishing. The appellate court agreed and vacated the crime-related prohibition as it extended "[o]r could be interpreted to extend, to fishing within the Chehalis Indian Reservation." State v. Cayenne, 139 Wn. App. 114, 124, 158 P.3d 623 (2007).

Neither party disputed the power of the trial court to impose crime-related prohibitions on non-Tribal lands. However, Cayenne argued that the trial court lacked authority to extend the prohibition to his activities within the boundaries of the Chehalis Indian Reservation. This position was based on the opinion in State v. Stritmatter, 102 Wn.2d 516, 688 P.2d 499 (1984), which held that “the non-treaty fishing rights of the Chehalis Tribe are subject only to reasonable and necessary conservation regulations and that burden is on the State to demonstrate the regulation is reasonable and necessary.” Under this standard, it was argued that the state did not meet its burden of proving a connection between Mr. Cayenne’s gillnetting and a legitimate conservation concern, and therefore the state had no legal basis for regulating Cayenne’s conduct in waters running through Chehalis lands.

The state Supreme Court rejected this approach. The Court held that :

“the crime-related prohibition on gillnets is merely a sentencing condition placed on a convicted felon (who happens to be a tribal member) for an off-reservation crime. Notwithstanding Stritmatter, the defendant was personally before the trial court and subject to its full authority, which includes crime-related prohibitions. Limiting the trial court's sentencing authority, as Cayenne requests, would create the unwanted result of permitting tribal lands to be havens for criminals avoiding justice after violating state laws. As such, we hold when sentencing a tribal member for an off-reservation crime, the trial court may impose crime-related prohibitions to the extent they serve the purpose of sentencing and the crime related-prohibitions follow the individual during the prohibition's validity.”

The Cayenne decision raises significant jurisdictional and sovereignty questions, as well as issues of basic equity. The holding extends state court authority over the conduct of Tribal members on Tribal lands, yet Tribal Courts still possess little to no legal authority to punish non-Native actors who commit crimes within Tribal territory. It also impacts federal treaty rights negotiated between the Tribes and the US government (e.g. the right of Tribes to fish their waters according to their custom), and the extent to which concurrent jurisdiction can be used as a basis for increased state control over Tribal activity.