Elevating Awareness of Native Salmon Culture and Policy

After the United States gained independence from Great Britain, it relied on treaties to conduct its formal relations with Indian tribes. A treaty is a formal agreement between two sovereign nations. In this case, the United States and Indian tribes. The Constitution declares that a federal treaty is “the supreme law of the land.”  Treaties therefore are superior to state constitutions and state laws. This means if a state law were to conflict with the conditions of a treaty, the treaty prevails. In 1871, Congress enacted Title 25, U.S.C., section 71, which stopped the federal government from making new treaties with Indian tribes. This change allowed Congress to regulate Indian affairs through legislation instead of treaties. This shift significantly diminished the legal and political standing of Indian tribes. Previously, tribes were recognized as sovereign nations requiring their consent for actions affecting them. However, with section 71 in place, Congress could pass laws without Tribal consent

Each Native American tribe possesses an inherent right to self-governance, including the authority to regulate wildlife within its territorial boundaries. While Congress retains the ability to limit these inherent powers, tribes generally maintain their traditional rights to hunt and fish on tribal lands. This long standing right has been explicitly guaranteed to numerous tribes through treaties with the United States. Even if a treaty doesn't specifically mention it, the right to hunt and fish is still considered to exist for tribes.

Hunting and fishing holds importance on most reservations due to their direct connection to the cultural and religious practices of the tribes, as well as the reliance of many tribal citizens on wildlife for sustenance. Tribes typically have strict regulations governing the time, location, and methods of hunting and fishing within reservation boundaries, with enforcement carried out through tribal courts. Congress has established federal laws that classify hunting or fishing on tribal lands in violation of tribal regulations as federal offenses. This approach effectively aids tribes in enforcing their conservation laws by elevating tribal violations to federal crimes, subject to prosecution in federal courts. 

Many Indians have a federally protected right to hunt and fish outside the reservation. This is most commonly expressed through a treaty or statute. Many Northwest tribes have treaties that grant them rights to fish at traditional sites both on and off reservations. In the mid-1800s, the federal government appointed Isaac Stevens to negotiate treaties with these tribes. These "Stevens" treaties generally granted tribes the right to fish "at usual and accustomed grounds and stations ... in common with all citizens of the United States," However, these specific sites were not clearly defined in the treaties, leading to disputes as non-Indians settled in the area. In the landmark case, United States v. Washington, the federal court determined these sites as places where tribes historically fished before the treaties, even if they were far from the tribe's usual territory and shared with other tribes. Notably, the Makah Tribe, located on the Olympic Peninsula in Washington, secured a unique right to whale hunting through their treaty, making them the only tribe with such a specified right.

“About Treaties.” U.S. Senate: About Treaties, March 12, 2024. https://www.senate.gov/about/powers-procedures/treaties.htm#:~:text=The%20United%20States%20Constitution%20provides,Article%20II%2C%20section%202). 

Pevar, Stephen L. The rights of Indians and tribes. New York, NY: Oxford University Press, 2024. 

“U.S. v. Washington.” Environment and Natural Resources Division, June 6, 2023. https://www.justice.gov/enrd/indian-resources-section/us-v-washington.