1998 Year of the Ocean Ocean Living Resources 



Wildlife Service before issuing a permit for activities that modify any body of water. The National 

 Marine Fisheries Service provides comments and recommendations to prevent loss of, and damage 

 to, fish populations and their habitats. 



Indian Treaty Rights to Hunt and Fish 



Certain Indian tribes in the Puget Sound and Columbia River basins of the Pacific Northwest and 

 on the Great Lakes have federally recognized and protected treaty guaranteed rights to take fish 

 including shellfish and, in the case of the Treaty with the Makah, 12 Stat. 939 (Jan 31, 1855) also to 

 take whales and seals. These rights are protected and enforced under the Supremacy Clause of the 

 United States Constitution. The federal government also protects these rights pursuant to its trust 

 responsibility towards the affected tribes. These rights, which were reserved in treaties entered into 

 by the United States with various Indian tribes in the mid-1 800's have been the subject of 

 numerous court decisions, including seven decisions by the United States Supreme Court. 



The treaties in the Pacific Northwest, commonly known as the Steven Treaties after the principal 

 federal negotiator at the time, Territorial Governor Isaac Stevens, generally contain a provision 

 similar to the following Article 3 of the Medicine Creek Treaty, 10 Stat. 11 32 (December 26, 

 1854): 



The right of taking fish, at all usual and accustomed grounds and stations, is flirther 

 secured to said Indians in common with all citizens of the Territory, ***: Provided 

 however, that they shall not take shellfish from any bed staked or cultivated by 

 citizens,***. 



The courts have interpreted these treaties rather broadly, recognizing that they reserved unto the 

 tribes several important legal rights, including: (1) a right of access to all usual and accustomed 

 fishing places; (2) a right to a fair share of the fishery, which has been interpreted to mean 50 

 percent of the harvestable resource within each tribe's usual and accustomed area; and (3) a right to 

 harvest each tribe's fair share free from state and federal regulations except those non- 

 discriminatory laws necessary for conservation. Moreover, although the focal point of litigation to 

 date has been on anadromous fish such as salmon, the courts and federal regulatory agencies have 

 recently applied these principles to shellfish and other fish species. The interrelationship of these 

 treaty rights with international treaties and other domestic federal laws concerning ocean living 

 resources often raises complex legal issues. 



Lacev Act Amendments of 1981 . 16 U.S.C. §§ 3371-3378 



The Lacey Act prohibits domestic and international trafficking in protected fish, wildlife, and 

 plants. It does so in two ways. First, it requires that most shipments offish and wildlife moving in 

 interstate or foreign commerce be accurately marked and labeled as to their contents. Second, the 

 Lacey Act makes it unlawftal to import, export, transport, sell, receive, acquire, or purchase fish. 



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