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Monday, May 20, 2024 | Back issues
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Tribe Loses Ruling on Treaty Fishing Rights

(CN) - The full 9th Circuit upheld the denial of treaty fishing rights for the Samish Tribe, a Washington tribe that wasn't federally recognized until 1996. The decision overrules a finding that tribes can assert treaty rights based on federal recognition.

More than two decades earlier, the Samish tribe asked to intervene in a lawsuit between the United States and several Pacific Northwest tribes over tribal rights under the 1855 Treaty of Point Elliott.

The Samish tribe claimed to be the successor of a tribe that had signed the treaty, which allowed tribes to take 50 percent of the annual harvestable runs of salmon and steelhead trout at their customary fishing grounds.

When the treaty was signed, Samish Indians had integrated into the Lummi and Swinomish Tribes, which now include descendants of the 1855 Samish Indians. Both the Lummi and the Swinomish Tribes are defendants to the appeal.

The Samish lost their bid to intervene, because they were not a federally recognized tribe at the time. The tribe wasn't recognized until 1996, after years of litigation. It has since battled for treaty rights, which are often rooted in tribal recognition.

In 2002, the Samish tried to reopen the case over treaty fishing rights, but lost its case in the district court.

The tribe appealed, and the 9th Circuit reversed.

"We noted that if the Samish Tribe had been recognized at the time it first sought an adjudication of treaty rights, it 'almost certainly' would have succeeded," Judge Canby wrote, referring to the court's decision in Washington III.

But the lower court again refused to reopen the case, saying the tribe had not maintained a tribal structure over the years and wasn't a successor to the Samish Tribe that had signed the 1855 treaty. It added that reopening the case would disrupt the delicate treaty rights established since the final judgment.

The 9th Circuit voted to rehear the case en banc, to resolve whether tribal recognition has any effect on treaty rights. The judges noted the conflicting opinions: Greene I and II, which denied treaty tribes the right to intervene in tribal recognition proceedings, and Washington III, which allowed the Samish to pursue treaty fishing rights based on their new-found tribal recognition.

The court voted to overrule Washington III, citing the "potential disruption and possible injury to existing treaty rights."

"The claims of the Samish Tribe necessarily compete with those of treaty tribes held to be successors of the treaty Samish, who now fish at the customary stations of the Samish at treaty times," Canby wrote. "The impact of new claims asserted as Samish claims will have a particularly severe impact on such treaty tribes."

The judges opted "to deny intervention by tribes seeking to protect their treaty rights, and to deny any effect of recognition in any subsequent treaty litigation."

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