Judge Pushes Tribal Fishing Far Out to Sea

(CN) - The fishing grounds of the Quileute and Quinault tribes in Washington state extend as far into the Pacific Ocean as their ancestors typically trawled for marine life, a federal judge ruled.

The case stems from a 1974 injunction by U.S. District Judge George Hugo Bolt in U.S. v. Washington, which affirmed certain tribal fishing rights the state had been denying. The Makah tribe filed a subproceeding in 2009 to determine the usual and accustomed fishing ground of the Quileute and Quinault, claiming the tribes were fishing beyond their boundaries and taking the Makahs' catch.

Hearing the subproceeding, U.S. District Judge Ricardo Martinez advanced the case to trial this past February after denying requests for summary judgment by the Quileute and Quinault. Specifically, Martinez ruled that the tribes could not use laches - the unreasonable delay by the Makah to bring the case to court - since the Makah had been trying to negotiate an end to the dispute for years.

After a 23-day trial, Martinez ruled on July 9 that 160 years of treaties between the tribes of coastal Washington state and the U.S. government make clear the intention has always been that the boundaries of the tribes' fishing grounds extend as far as their "usual and accustomed" routes took them.

In an exhaustive 83-page ruling that reads as part history book, part sociology treatise, Martinez noted first that each of the tribes' word for "fish" at the time of the treaty negotiations with the United States in 1855 encompassed all marine life - including seals, whales, and shellfish.

"That the tribes are not now permitted by conservation restrictions to carry out this marine mammal harvest is of no moment with respect to adjudication of their usual and accustomed ground," Martinez wrote. "As this court has oft explained, a tribe's usual and accustomed ground for the harvest of any one aquatic species is coextensive with its usual and accustomed ground for any other aquatic species. This principle holds as true for marine mammals as it does for non-anadromous fish, for anadromous fish, and for shellfish."

As for the extent of the tribes' usual and accustomed fishing grounds, Martinez said previous rulings have rejected the Makah's claim that its boundaries should extend 100 miles offshore. While the tribe may have occasionally ventured out that far by the 1900s, they customarily only traveled 40 miles offshore when the Treaty of Olympia was signed in 1855.

The judge set the Quinault Indian Nation's western boundary at 30 miles offshore based on its customary harvest travels in 1855, and the Quileute tribe's boundary at 40 miles.

He directed both tribes to file longitudinal coordinates based on the boundaries he set within 10 days, and offered the Makah and Washington state to opportunity to respond to the coordinates thereafter.

Quileute attorneys Lauren King and John Tondini hailed Martinez's decision.

"Quileute's ocean heritage was borne out by the evidence and final decision in this case. We were honored to represent the tribe in such a historic and meaningful case. This is a significant decision in affirming the respect that should be shown for the treaty rights of all native people," the attorneys said.

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