H-1424.2
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HOUSE BILL 1823
_______________________________________________
State of Washington
56th Legislature
1999 Regular Session
By Representatives Buck, Doumit, Sump, Cairnes, Schoesler, Benson,
Clements, Mastin, Hankins, Skinner, Mitchell, Koster, Hatfield,
Mulliken, Lisk, K. Schmidt, G. Chandler, Eickmeyer, Huff, Boldt
andD. Sommers
Read first time 02/08/1999. Referred to Committee on NaturalResources.
AN ACT Relating to the responsibilities
of the department of fish
and wildlife in relation to native American fishing rights; adding
new
sections to chapter 77.12 RCW; and creating a new section.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
{+ NEW SECTION. +} Sec. 1.
The legislature recognizes that the
right of each treaty tribe to take anadromous fish on their
reservations is rooted in the historic Stevens treaties.
Federal
courts have found this right was reserved and protected under the
supreme law of the land, is distinct from rights or privileges
held by
others, and may not be qualified by any action of the state.
Treaty
fishing rights are also a right reserved for off-reservation fishing,
but it is to be in common with the citizens of Washington state.
The
legislature also finds that the state has been given the police
power
to regulate off-reservation fishing only to the extent reasonable
and
necessary for conservation of the resource. The legislature
further
recognizes that federal court orders allow treaty tribes to become
self-policing of off-reservation fishing by their tribal members
if the
tribe meets and maintains certain qualifications and conditions.
The
legislature finds that codification of United States v. Washington,
384
F. Supp. 312 (1974) (Boldt I) and subsequent case law is in the
best
interest of all citizens of Washington state, tribal and nontribal
alike, in order to minimize misunderstandings, identify costs
associated with compliance with federal court orders, clearly define
departmental responsibilities in implementing the Boldt decision
and
subsequent case law, and maximizing opportunity for seeking new
areas
of fisheries management cooperation between the tribes and states.
{+ NEW SECTION. +} Sec. 2.
A new section is added to chapter
77.12 RCW to read as follows:
It is reasonable and necessary for the
conservation of the state's
wildlife resources to control poaching. It is therefore necessary
for
the state to identify those who are fishing legally. To comply
with
federal court orders and enable the state to readily differentiate
between treaty right and nontribal fishers and to assist in minimizing
the burden on both treaty and nontreaty fishers:
(1) Each tribe must provide for tribal
membership certification.
At a minimum it shall include a tribal member's identification
by
photograph in a suitable form that shall be carried on the person
of
each tribal member when approaching, fishing in, or leaving either
on
or off-reservation waters. The department shall request from each
federally recognized fishing tribe a sample identification document
to
be carried by its tribal fishers by June 30th of each year.
(2) Failure of an individual tribal fisher
to have proper
identification on his or her person when fishing, or when going
to or
from the fishing site, will cause the fisher to be subject to stateauthority.
(3) For the purpose of exercising treaty
fishing rights, an Indian
may only be enrolled in one tribe. The department shall request
an
officially approved tribal membership roll from each federally
recognized fishing tribe by June 30th of each year.
(4) A treaty right fisher may secure the
assistance of other tribal
fishers with off-reservation treaty fishing rights in the same
usual
and accustomed places, whether or not such fishers are members
of the
same tribe or another treaty tribe. His or her spouse, forebears,
children, grandchildren, and siblings may also assist a fisher,
but all
assisting the fisher must possess the proper identification.
(5) If any person shows identification
that he or she is exercising
the fishing rights of a treaty tribe, and if he or she is fishing
in a
usual and accustomed place, he or she is protected under federal
law
against any state action that effects the time, place, manner,
purpose,
or volume of their harvest of anadromous fish and naturally occurring
clams, oysters, geoduck, shrimp, and sea cucumbers, unless the
state
has previously established that such an action is an appropriate
exercise of its power.
{+ NEW SECTION. +} Sec. 3.
A new section is added to chapter
77.12 RCW to read as follows:
Federal court orders authorize the department
to monitor off-
reservation fishing by treaty tribes with fishing rights.
Monitoring
is a reasonable and necessary tool to assist the treaty tribes
and the
department as comanagers of the anadromous resources of Washington
state in readily identifying illegal off-reservation treaty right
fishing. The department shall request an officially approved
gear
identification code from each federally recognized fishing tribe
by
June 30th of each year so that department personnel and tribal
enforcement officers can readily distinguish legal fishing gear
on the
waters of the state.
{+ NEW SECTION. +} Sec. 4.
A new section is added to chapter
77.12 RCW to read as follows:
The legislature recognizes that federal
court orders provide legal
descriptions of usual and accustomed fishing grounds for the federally
recognized fishing tribes in Washington. The legislature
also
recognizes that disputes exist between western Washington treaty
tribes
over the federally adjudicated usual and accustomed fishing places
designated for each tribe. It is the responsibility of the
treaty
tribes to resolve these disputes, have the federal courts approve
the
decisions, and have the courts transmit the changes to the state.
The
state has no ability to recognize claims of changes to these usual
and
accustomed fishing places unless federal court action changes theboundaries.
{+ NEW SECTION. +} Sec. 5.
A new section is added to chapter
77.12 RCW to read as follows:
The legislature recognizes that federal
court orders stipulate the
conduct of treaty fishing in usual and accustomed places. The
department shall recognize:
(1) That the exercise of a treaty tribe's
right to take anadromous
fish and naturally occurring clams, oysters, geoduck, shrimp, and
sea
cucumbers is limited only by the geographical extent of the usual
and
accustomed places, the limits of the harvestable stock, the tribes
fair
need for these species, and the opportunity for non-Indians to
fish in
common with Indians outside reservation boundaries.
(2) That in order for Washington anadromous
fishing rules not to
discriminate against treaty tribes, the department's harvesting
plan
must provide for an opportunity for treaty tribes to take, at their
off-reservation usual and accustomed fishing places, a share of
the
harvestable fish as defined under United States v. Washington,
384 F.
Supp. 312 (1974) (Boldt I) and contemplated under RCW 75.08.530.
(3) That the state of Washington, or its
officers, is authorized to
arrest a member of one of the federally recognized treaty tribes
fishing in contravention of state law outside of the area of his
or her
tribe's usual and accustomed ground, even though the individual
may
prove, in their defense in any criminal proceeding resulting from
his
or her arrest, that such an area in which they were fishing is
a usual
and accustomed fishing ground of their tribe.
(4) That in order to achieve the monitoring
requirements of section
2 of this act, it is reasonable and necessary for the department
to be
apprised of all arrangements between tribes with overlapping usual
and
accustomed fishing areas to avoid overharvest of the fisheries
resource. The department shall request that the treaty tribes
provide
details on the arrangements between tribes with overlapping usual
and
accustomed fishing areas to avoid overharvest of the fisheriesresource.
{+ NEW SECTION. +} Sec. 6.
A new section is added to chapter
77.12 RCW to read as follows:
The legislature recognizes that federal
court orders stipulate the
number of fish allowed for ceremonial purposes is limited to the
number
of fish actually used for traditional tribal ceremonies.
The
department shall count ceremonial fish in the share of fish that
treaty
right fishers have an opportunity to take. To minimize
misunderstandings and simplify comanagement responsibilities, the
department shall request tribes taking ceremonial fish off-reservation
to notify the department as to time and area of ceremonial fishery.
{+ NEW SECTION. +} Sec. 7.
A new section is added to chapter
77.12 RCW to read as follows:
The legislature recognizes that federal
court orders stipulate that
fish taken for subsistence shall be limited to the number of fish
actually used for personal subsistence consumption by tribal members
and their immediate families. The department shall count
subsistence
fish in the share of fish that treaty right fishers have an opportunity
to take. To help minimize public misunderstandings of the
tribal
subsistence harvest right, the department shall seek to develop
jointly
with each federally recognized fishing tribe, as a component of
its
comanagement plan, agreements as to how subsistence fish will be
separated from commercial fish harvests and how the combined
ceremonial, subsistence, and commercial catch will impact the
watersheds in which the harvest occurs.
{+ NEW SECTION. +} Sec. 8.
A new section is added to chapter
77.12 RCW to read as follows:
The legislature recognizes that federal
court orders stipulate that
the regulation of off-reservation Indian fishing by the United
States,
the state of Washington, or northwest Indian tribes does not preempt
the regulation by either of the other two. Jurisdiction of
each entity
to regulate is unimpaired by the exercise of another entity'sjurisdiction.
{+ NEW SECTION. +} Sec. 9.
A new section is added to chapter
77.12 RCW to read as follows:
The legislature recognizes that federal
court orders permit
federally recognized treaty tribes to become self-policing under
the
following conditions:
(1) Treaty tribes may become self-policing
off the reservation if
they meet and maintain specific qualifications and conditions as
specified under United States v. Washington, 384 F. Supp. 312 (1974)
(Boldt I) and subsequent case law. Before self-regulation
is
authorized, a tribe must establish to the satisfaction of the
department or the court, that the tribe has:
(a) A competent, responsible, and well-organized
tribal government
able to adopt and apply off-reservation fishing regulations that,
if
strictly enforced, will not adversely affect conservation;
(b) Personnel trained for and competent
to provide effective
enforcement of all tribal fishing regulations;
(c) Qualified experts in fishery science
and management who are
either on the tribal staff or whose services are arranged for and
readily available to the tribe;
(d) An officially approved tribal membership
roll;
(e) A provision for tribal membership
certification. Each
individual must have photographic identification in a suitable
form,
and each individual must carry the photographic identification
when
approaching, fishing in, or leaving either on or off-reservationwaters;
(f) Full and complete tribal fishing regulations,
which before
adoption, have been discussed in their proposed final form with
the
department and include in the regulations any state rule that has
been
established to the satisfaction of the tribe, or upon hearing by
or
under direction of the court, to be reasonable and necessary forconservation;
(g) A provision for the monitoring of
off-reservation Indian
fishing by the department to the extent reasonable and necessary
for
conservation; and
(h) Fish catch reports, as to both on
and off-reservation treaty
right fishing, when requested by the department for the purpose
of
establishing escapement goals and other reasonable and necessary
conservation purposes.
(2) When a tribe has fully met the qualifications
and conditions of
subsection (1) of this section, the tribe shall be relieved of
state
regulation except to the extent specified in the stated conditions.
Failure of a tribe to either maintain its required qualifications
or to
abide by and adhere to prescribed conditions when established and
not
promptly corrected, shall suspend self-regulation by such tribe
until
that time as all required qualifications and conditions are fullyestablished.
(3) A self-regulating tribe does not have
the authority to enforce
its off-reservation fishing regulations against persons who are
not
members of the tribe. However, tribes should report an apparent
misuse
of the fishery to the state if a non-Indian is involved or to the
tribe
of a treaty fisher. If appropriate action is not taken by
the state,
the report should be brought to the court for such action as the
court
deems appropriate.
{+ NEW SECTION. +} Sec. 10.
A new section is added to chapter
77.12 RCW to read as follows:
The legislature recognizes that federal
court orders permit state
regulation of the treaty fishing right in certain circumstances.
(1) Except for tribes entitled to self-regulation
of tribal
fishing, the right of treaty tribes to take anadromous fish may
be
regulated by the department in the following manner:
(a) State regulation of fishing rights
must not discriminate
against Indians and must meet appropriate due process standards;
(b) Every regulation of treaty right fishing
must be strictly
limited to specific measures that before becoming effective have
been
established by the department, either to the satisfaction of all
affected tribes or upon hearing by or under direction of the district
court, to be reasonable and necessary to prevent demonstrable harm
to
the actual conservation of fish. In order for a state fishing
rule to
be reasonable and necessary for conservation, it must, when considered
in the context of the total regulatory plan, be designed to preserve
and maintain the resource;
(c) State treaty right fishing rules shall
be published either
separate and apart from other state fishing rules or as a separate
and
plainly labeled part thereof readily distinguishable from other
fishingrules;
(d) No state fishing rules applied to
off-reservation treaty
fishing can be valid unless and until it has been shown to be
reasonable and necessary for conservation;
(e) Arrest or seizure of property owned
or in permitted custody of
a treaty right fisher under a rule not previously established to
be
reasonable and necessary for conservation is unlawful and may be
actionable as to any official or private person authorizing or
committing such an unlawful arrest or seizure; and
(f) To meet appropriate standards, state
fishing rules that affect
the harvest by Indian tribes on future runs must receive a full,
fair,
and public consideration and determination in accordance with the
requirements of chapter 34.05 RCW.
(2) If any person shows identification
that he or she is exercising
the fishing rights of a treaty tribe and if he or she is fishing
in a
usual and accustomed place, they are protected under federal law
against any state action that affects time, place, manner, purpose,
or
volume of his or her harvest of anadromous fish, unless the state
has
previously established that such an action is an appropriate exercise
of its power. (3) If a member of a nonself-regulating
tribe is alleged to be
guilty of misuse of the treaty fishery, such an incident is to
be
reported to his or her tribe for adjudication, and failing prompt
and
appropriate action there, the matter must be brought to the court
for
such action as the court finds appropriate.
(4) Any person who would qualify under
chapter 34.05 RCW as having
standing to obtain judicial review of the department's failure
to
enforce any provision of sections 2 through 13 of this act may
file a
petition for civil enforcement seeking an order requiring performance
and reasonable attorneys' fees.
{+ NEW SECTION. +} Sec. 11.
A new section is added to chapter
77.12 RCW to read as follows:
The legislature recognizes that it is
in the best interest of all
of the citizens of the state to have rules that clearly spell out
tribal and nontribal fishing responsibilities.
(1) The department shall meet with federally
recognized fishing
tribes to develop a state treaty right fishing agreement.
The
agreement shall be completed annually in time to be incorporated
into
the submission of tribal regulations as required by federal court
order
for tribes seeking to obtain or maintain off-reservation self-policingauthority.
(2) The department shall annually publish
a state treaty right
fishing agreement that is either separate and apart from other
state
fishing rules or as a separate and plainly labeled part that is
readily
distinguishable from other fishing rules.
(3) The department shall assist federally
recognized Indian tribes
to meet the federal court-ordered requirements to become self-policing
of off-reservation fisheries enforcement. An Indian tribe,
seeking to
satisfy the qualifications that its fishing regulations will not
adversely affect conservation, must promptly prepare its regulations
and submit them to the department, which will examine the proposed
regulations for alleged inadequacies. Failing agreement between
the
parties, the proposed regulations will be reviewable by the court
on
application of either party.
(4) The department may adopt fishing regulations
of a
self-regulating tribe, but only if state adoption is consistent
with
chapter 34.05 RCW. Before a state rule can be enforced against
any
treaty fisher, the state must demonstrate that the rule is designed
to
preserve, conserve, and maintain the resource.
{+ NEW SECTION. +} Sec. 12.
A new section is added to chapter
77.12 RCW to read as follows:
The department shall review a tribe's
application to obtain or
maintain off-reservation self-policing authority within forty-five
days
and provide the tribe, the governor, the leadership of the legislature,
and the attorney general with the findings of the review in writing.
The department shall deny the tribal request for self-policing
authority solely for failure to meet the federal court-ordered
requirements in section 9 of this act.
{+ NEW SECTION. +} Sec. 13.
A new section is added to chapter
77.12 RCW to read as follows:
The department shall determine which department
activities are
directly attributable to compliance with United States v. Washington,
384 F. Supp. 312 (1974) (Boldt I) and its subproceedings and provide
a
cost for those activities to the natural resources committees of
the
house of representatives and senate annually.
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