Bob,

Since no one else took a shot at it...I'll give it a try!

That law prohibits giving special rights or immunities to any one based on race, treaty rights, etc....

It would certainly prohibit a caucasian only fishing season...or a lake that is only open for mexicans...or a limit of two steelhead for germans, but only one for the rest of us.

I'm guessing that's not what you're looking for, though...I'm pretty sure you want to know about the "treaty rights" part...and the answer is a lot easier than for the above statutory questions.

The answer?

It has absolutely no legal application whatsoever. No one, and I mean not even one, Indian has ever been arrested, nor has any tribe been sued, under this statute.

The reason that they haven't is that they can't be. The law itself violates the United States Constitution, which states that the laws of the U.S. cannot be usurped by any state laws.

This includes federal court rulings.

As we all know, the federal courts have repeatedly, and without fail, found that signatories to the Treaties of Point Elliot, Point No Point, Medicine Creek, etc., all have off-reservation treaty fishing rights, rights that are paramount to our abilities to go fishing.

Why is the law still on the books? Probably for a couple of reasons. One, it still prohibits other types of discriminatory practices...even though that wasn't the point of writing it. Two, it might be that someone just hasn't done it yet, lazy or not important enough to do it. Or three, the state wants you to think that they tried to do something about it, i.e., tried to prohibit treaty fishing, even though they knew they couldn't.

I can tell you this, though, that law is the butt of many jokes in the AG's office.

Fish on...

Todd.

P.S. Even though it has been stated on this BB and all the others, repeatedly, that the State can do nothing to limit the treaty fishermen's right to fish...folks repeatedly bash WDFW for not doing something to limit treaty fishing. Here's the answer to your prayers...this law. Problem is, it doesn't matter.

Bob,

Did you get to read the above post yet?

Todd.

Todd,

Thanks for you reply!

I just got some time to reply to your answer and you may be surprised at what it is!

I was under the impression (but do not know if it is true) that you and I were required to hire a "tribal" fishing guide if we wanted to fish on the Lower Quinault River. I could be wrong on that one, but that is what I have always been told. Since I have never fished it personally, I don't know if that is true or not. But if it is true, and you are required to hire a "special Indian guide" if you want to fish the lower Quinault, then that would diffidently show that there is a "cultural discrimination" occurring. If only tribal Indians are being allowed to guide on those navigable waters, it would be in my opinion, a civil right violation. It is my understanding that the tribes own the land that their reservations lays within. But the U.S. Supreme has a long standing ruling under the "Equal Footing Doctrine" that rivers are navigable, for title purposes, and are owned by the state and "held in trust" for the public.

If that is true, then the Lower Quinault River should be owned and held in trust by the "state" for it's people. Am I wrong, or is there some other federal law or ruling that you know of that overrides the U.S Supreme Court ruling? Can you please point it out for me so that I can review it if there is such a law? Was their any ruling in any of the Treaties of Point Elliot, Point No Point, Medicine Creek, etc. that specifically address this issue? Can a tribe own or control sections of "navigable water" that are being held in trust for it's people of the state?

One more thought; if the tribes are allowed to have their usual and custom fishing rights on their reservations or historic fishing areas, is the white or any other colored race then restricted from fishing side by side on these "navigable" waters (like the lower Quinault)?

These are questions that I would like to hear your opinion on. I have never heard anyone discuss these question before, so that is why I brought up the issue about RCW 77.110.040.
Since the Quinault headwaters are outside the reservation lands, they should be consider as state waters...right?

Thanks again for your quick responses

Cowlitzfisherman

Bob,

The parts of the Quinault, Queets, and Salmon Rivers that are within the Quinault Indian Reservation are wholly under their ownership and control. They're not "owned" by the state and held in trust for us.

Thus, you have to have an Indian guide to fish on those parts of the rivers.

The "in common with" language in the treaties applies to off-reservation, usual and accustomed fishing areas, and an example of where that works would be like on the Chehalis, where the Quinaults net and we fish side by side.

The upper Quinault is outside the reservation, and you and I can fish there without a tribal guide...same with the upper Queets and lower Salmon River.

It's up to the particular tribe as to what the regulations will be on their reservation. I believe that if you fish portions of Lake Roosevelt that are within the Colville Reservation, or, say, the Pend Oreille river within the Kalispel Indian Reservation, you don't need a guide, but you do need a tribal recreational fishing license.

Fish on...

Todd.

Thanks again Todd for your prompt reply!

But do these waters now belong to tribes or do they now belong to the people of the state? If not the state, to whom do they now belong to, and how did they receive ownership of our public water ways (i.e. what ruling was it done under)?

I am having a little problem understanding what you just have posted. Can you "walk" me through this one more time and explain to me how this is legal under the U.S. Supreme court ruling of "Equal Footing Doctrine"?

Thanks,

Cowlitzfisherman

Bob,

I'll give you a quick answer for now...

The waterways within the reservations are owned by the tribes, or perhaps more accurately, by the federal government and held in trust for the tribes.

They were given to the tribes by the federal government in the treaties that ceded land to the feds and created reservations for the tribes.

The equal footing doctrine has been used to fight treaty rights that pre-exist the creation of a state, and it hasn't worked yet.

Fish on...

Todd.

Thanks again Todd for your prompt reply!

I am having a little problem understanding what you had just posted. Can you "walk" me though this one more time and explain to me how this is legal under the U.S. Supreme court ruling of "Equal Footing Doctrine"?

It has been my understanding that the state's public trust ownership of a river is not diminished where a river flows through a National Forest, National Park, Wild and Scenic river, or other "federal land"-- the river is still "held in trust" for public navigation and recreation by the state (one would think that this would also include "federal reservations" also since they too are also under government control and Jurisdiction!

Federal agencies can regulate the development of and beside the river, and they can regulate commercial trips (because they are commerce not navigation) (does this sound like guiding to you?).

They can also prohibit certain types of navigation, such as motors, where motors would conflict with the public-trust enjoyment of the river. But regulations on non-commercial, non-motorized trips are subject to the subject's paramount right to navigate and visit the land along the river up to the ordinary high water mark.

Limits on such navigation-- such as a river "permit system" on a river flowing through federal land-- must be at a level that is supported by the majority of those requested spaces within the limits. And the federal courts have repeatedly ruled that limits must be administered so that space is no less available noncommercially than it is commercially.
Ok, how far am I off?

Please take some time, before you give us your relpy to these questions. Thanks again Todd for for giving us your opinion!


Cowlitzfisherman

Todd,

Just wanted to add one more thing to my last post.

You said that the "The equal footing doctrine has been used to fight treaty rights that pre-exist the creation of a state, and it hasn't worked yet." We are not talking about fighting any "treaty rights" here; we are talking about the rights of a citizen of the state to use the waterways that are held in trust for its people.

I have nothing against the tribes, but I do have a problem with what both our federal laws and state laws appear to say when it comes to this particular issue.

Have you had a chance yet do any additional research on this issue?

Thanks ahead of time,

Cowlitzfisherman

Todd/Cowlitzfisherman -
How is that for a pair.

I'm seem to remember a big rhubarb on the Bighorn River in Montana about fishermen being able to float through the local reservation. Believe it was in the 1970s and as that tail water fishery developed the local tribe tried to limit access but after several years of court actions it was resolved. Don't know if there is any federal case law or decisions that would be applicable to this discussion or not. Todd?

Tight lines
Smalma

What a giant load of BS.