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The “Scales” of Justice: Tribal Fishing Rights and Federal Law

* By Jeffrey Ma

In Canada, the rights of Indigenous people to hunt and fish have long been subject to litigation in both the Supreme Court as well as the court of public opinion. Peaking in 2020, widespread protests erupted across Canada following a dispute between Mi’kmaq community members who were exercising their treaty right to fish during the off-season and disgruntled non-Indigenous fishers in St. Mary’s Bay, Nova Scotia.[1] The historical basis for this dispute can be traced to the 1999 Supreme Court of Canada decision in R v. Marshall (No. 1). This ruling validated the rights of Indigenous fishers to conduct their activities during the closed fishing season and without the requirement of additional licensure.[2] The basis for this decision lay within the 1760 and 1761 treaties between the Indigenous Mi’kmaq peoples and Britain.[3] Following this ruling local non-Indigenous Nova Scotian fishers, who were long reliant on the fishing industry, protested on the basis of both environmental conservation concerns as well as allegations of unfair commercial competition.[4] Subsequently, amending R v. Marshall (No. 1), the Supreme Court of Canada elaborated on their affirmation of Indigenous treaty rights in R v. Marshall (No. 2). This ruling indicated that Indigenous fishing practices were, in fact, subject to federal regulation so long as valid conservation concerns or other public policy concerns were sustained.[5] While these decisions were handed down over two decades ago, the implications of the Supreme Court of Canada’s stance remain a topic of ferocious public debate. The so-called 2020 Mi’kmaq lobster dispute devolved into violence, arson, and vandalism of self-regulated Indigenous fisheries by non-Indigenous fishers and their supporters.[6] Thus, the question emerges: how have Canada’s neighbours to the South navigated this complex intersection of Indigenous treaty rights, environmental concerns, and market regulation?

Based upon Article 1, § 8, Clause 3 of the constitution, the Supreme Court has determined that the federal branch maintains plenary power in relation to Indigenous peoples in the United States.[7] This so-called “Indian Commerce Clause” informs the construction of tribal sovereignty as well as tribal interactions with federal regulations. Consequently, the stringency through which federal bodies have respected principles of tribal sovereignty have varied to a considerable extent over the past century.[8] In a recent example, McGirt v. Oklahoma, Justice Gorsuch ‘s majority opinion indicated an affirmation of the Creek Nation’s treaty rights to lands, following their displacement during the Trail of Tears.[9] In contrast, the dissent, written by Chief Justice Roberts, argued for the termination of treaty rights on the basis of subsequent historical developments, namely the establishment of the state of Oklahoma.[10] A further complication emerges in considering the relationship between tribal status and the treaty rights of Indigenous peoples. Although both are subject to the plenary power of Congress, case law has indicated that tribal status and treaty rights are not neccessarily coterminous. In a 1968 Supreme Court ruling, Menominee Tribe of Indians v. United States, the majority found that fishing rights derived from the Wolf River Treaty of 1854 survived the Termination Act of 1954, which saw termination of official tribal status for the Menominee Tribe of Indians.[11] This ruling indicated that termination of treaty rights may not be implied through deprivation of title (i.e., termination of tribal status) but instead must be a function of explicit legislative action. The broad construction of Indigenous fishing rights may further be explicated in the case of U.S. V. Winans. In a 1905 ruling, the Supreme Court found that a treaty made with the Yakima Nation in 1859 sustained the rights of Yakima people to fish on land which was subsequently acquired as private property.[12] Writing for the majority, Justice McKenna found that “the license from the state…gives no power to [complainants] to exclude the Indians [from fishing], nor was it intended to give such power”.[13]

However, greater contention has emerged in instances where tribal fishing rights have collided with federal environmental regulation. A case illustrating this intersection is Anderson v. Evans. This Ninth Circuit case saw animal advocacy groups challenging the Department of Commerce and the National Oceanic and Atmospheric Administration’s (NOAA) approval of a whale hunting quota for the Makah Indian Tribe based on the 1855 Treaty of Neah Bay.[14] The plaintiffs challenged the approval of whale hunting on the basis of the National Environmental Protection Act (NEPA) and the Marine Mammal Protection Act (MMPA), arguing that an environmental impact statement should have been prepared prior to federal approval of whale hunting.[15] By majority opinion, the Ninth Circuit agreed and suspended the approval of whale hunting rights for the Makah Tribe.[16] Importantly, in this case, the federal agencies advocated in favor of affirming Indigenous fishing rights. The impetus for the enforcement of environmental legislation was not from proactive federal investigation but rather through the intervention of interested third parties. In fact, further examination yields considerable evidence of collaborative negotiations between the Makah Tribe and the NOAA. As recently as April 5, 2019, the NOAA published a proposed waiver under the MMPA for the hunting of eastern North Pacific gray whales by the Makah tribe for a 10-year period.[17]

Similarly, case law suggests that challenges by commercial enterprises towards Indigenous fishing rights have utilised environmental regulations as justification. For instance, in Midwater Trawlers Co-operative v. Department of Commerce, fishing industry groups brought challenge against the National Marine Fisheries Service for their allocation of fish catches to the Makah, Quinault, Quileute, and Hoh tribes under the “Stevens Treaties” of the mid-1850s.[18] While the Ninth Circuit affirmed tribal treaty rights as “applicable law” which “are unambiguous [and] secure the Indians’ right to take a share of each run of fish that passes through tribal fishing areas”, they upheld a challenge on the basis of the Magnuson-Stevens Fishery Conservation and Management Act.[19] Remanding to the National Marine and Fisheries Service, the court found that fishing allocations must consider scientific rationale and cannot be solely the result of political compromise.[20]

The modern implementation of Indigenous fishing rights in the United States reveals complex interactions between environmental regulations, treaty rights, and commercials interests. Similar to our northern neighbours, the judicial philosophy governing the interpretation of treaties manifests equivocally. On the one hand, some precedent suggests a general affirmation of traditional fishing rights on the basis of treaty, while other case law suggests subordination to federal environmental protection schemes. Moreover, governmental bodies, such as the NOAA, appear to pre-empt federal enforcement by negotiating fishing terms with Indigenous peoples outside the courtroom, resulting in the bulk of significant legal challenges to these treaty rights being brought forth by interested third parties. Regardless, it appears that this intersection remains a hotly debated crossroads of environmental protection, Indigenous treaty rights, and commercials interests.

* Jeffrey Ma is a Junior Editor on MJEAL. They can be reached via email at jeffhma@umich.edu

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.


[1] Ron Johnson, Indigenous Canadians Suffer Abuse, Attacks Over Fishing Rights, Sierra: The Magazine of the Sierra Club, https://www.sierraclub.org/sierra/indigenous-canadians-suffer-abuse-attacks-over-fishing-rights

[2] R. v. Marshall, 3 SCR 456. (1999)

[3] Id.

[4] Johnson, supra note 1.

[5] R. Marshall, 3 SCR 533. (1999) (“The Congress shall have the power to…regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”)

[6] Johnson, supra note 1.

[7] William J. Rich, Modern Constitutional Law, 3rd ed. (2021) (“What, has gone unquestioned for a century remains true today: A huge portion of Oklahoma is not a Creek Indian reservation. Congress disestablished any reservation in a series of statutes leading up to Oklahoma statehood at the turn of the 19th century.”)

[8] Id.

[9] McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)

[10] Id.

[11] Menominee Tribe v. United States, 391 U.S. 404 (1968)

[12] United States v. Winans, 198 U.S. 371 (1905)

[13] Id.

[14] Anderson v. Evans, 371 F.3d 475 (9th Cir. 2002)

[15] Id.

[16] Id.

[17] West Coast Regional Office, Makah Tribal Whale Hunt, NOAA Fisheries, https://www.fisheries.noaa.gov/west-coast/marine-mammal-protection/makah-tribal-whale-hunt# (last updated January 7, 2022)

[18] Midwater Trawlers Co-operative v. Department of Commerce, 282 F.3d 710 (9th Cir. 2002)

[19] Id.

[20] Id.

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