(CN) – The Skokomish Tribe failed to convince 9th Circuit judges to back up its primary fishing rights in the Hood Canal, because the 19th century treaties protecting the fishing rights of Pacific Northwest tribes don’t resolve disputes among tribes.
The Skokomish Tribe sought to assert its primary right to fish the Hood Canal off Washington’s Puget Sound. But other tribes pitched similar claims, forcing the Skokomish to strike deals with the Lower Elwha Klallam, Port Gamble S’Klallam and Jamestown S’Klallam tribes.
The Hood Canal Agreement created a collective fishery north of Ayock Point, where the Skokomish Tribe specifically agreed not to exercise its primary fishing right.
Over time, some of the tribes withdrew from the Hood Canal Agreement and other pacts, until they could no longer agree on how to divide fishing rights.
When the Skokomish gave itself certain percentages of the Indian share for the 2004-2005 harvest, the S’Klallam tribes accused it of violating the Hood Canal Agreement.
The Skokomish filed a counterclaim, seeking an equal share of the fishery.
The case draws on a series of treaties the government made with Pacific Northwest tribes in the 1850s. The federal government filed suit in 1970 to enforce those treaties on behalf of the tribes, and the Supreme Court ultimately upheld the tribes’ rights to about half the resources in their traditional fisheries. However, both the district judge and the Supreme Court left it up to the tribes to divvy up their 50 percent right within a shared fishery.
U.S. District Judge Ricardo Martinez dismissed the Skokomish tribe’s allocation request, saying nothing in the Hood Canal Agreement “empowers the court to allocate harvest shares in the absence of the agreement of the parties.”
The San Francisco-based appeals court firmly agreed.
“It is hard to see what we achieve in our continuing adjudications,” Judge Kleinfeld wrote. “We pretend to be able to read the mind of the long-deceased district judge who initially issued the decree on matters of which he did not speak. And we pretend to determine what the Indian tribes did 150 years ago at a time for which there is no evidence of especially high reliability and little evidence of any kind.
“This exercise is not law, and is not a reliable way to find facts, so it is hard to see why courts are doing it and how it could be preferable to the Indian tribes working some dispute resolution system out for themselves.”
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