Treaty Rights
Our firm has long-standing and substantial experience in representing tribes regarding off-reservation hunting, fishing and gathering rights. For example, one of our partners, during his tenure as Assistant to the Solicitor General of the United States, U.S. Department of Justice, briefed and argued one of the seminal Supreme Court decisions on these issues, Wash. Dep't of Game v. Puyallup Tribe, 414 U.S. 44 (1973). In that decision, the Supreme Court held that a state cannot - in an effort to regulate fishing activities in the interests of conservation - adopt and enforce against Indians exercising treaty-protected fishing rights, state laws that discriminate against the Indians’ exercise of such rights or fail to fairly apportion the natural resources between Indian and non-Indian harvesters.
We also represented a tribe in litigation to secure recognition of the rights of Chippewa Indians in Minnesota to hunt, fish and gather under their treaties with the United States on lands outside the tribe's reservations. That litigation resulted in a Supreme Court decision affirming the continued existing of the Chippewa's rights. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999), aff'g Mille Lacs Band of Chippewa Indians v. Minnesota.124 F.3d 904 (8th Cir. 1997); see also Fond du Lac Band of Chippewa Indians v. Carlson, 68 F.3d 253 (8th Cir. 1995). We successfully worked on all phases of the litigation which included the presentation of the historical record necessary to establish the continued existence of the tribe's treaty rights, as well as legal analysis necessary to show that those rights were not extinguished or diminished by, for example, the “equal footing doctrine” upon the state’s admission to the Union, or as a result of claims litigated before the Indian Claims Commission, or as a result of recent tribal economic success.
For another tribal client, we established fishing rights based on an 1894 Agreement with the United States. The case involved extensive historical research and the use of both historians and anthropological experts to demonstrate to the court that the Agreement should be read to secure a fishing right for the Tribe, and that the Tribe had maintained sufficient cohesion in modern day times to assert the right. See United States v. Oregon, 2008 WL 3834169 (D.Or. 2008), aff’d, United States v. Confederated Tribes of Colville Indian Reservation, 606 F.3d 698 (9th Cir. 2010).
Our practice also includes significant work in defense of Alaska Native hunting and fishing rights, usually serving as of counsel to the Native American Rights Fund. This practice generally involves litigation to enforce Alaska Native "subsistence" rights under Title VIII of the Alaska National Interest Lands Conservation Act, a federal measure enacted when the State of Alaska failed to protect hunting and fishing rights under state law. Representative cases include Safari Club Int'l v. Demientiefff, No. A94-0414 CV (HRH) (D. Alaska Jan. 16, 2004); Katie John v. U.S., 72 F.3d 698 (9th Cir. 1995), on final judgment 247 F.3d 1032 (9th Cir. 2001) (en banc). We assisted in briefing in Native Vill. of Eyak v. Evans, 375 F.3d 1218 (9th Cir. 2004), involving unextinguished aboriginal fishing rights in the Outer Continental Shelf under the “paramountcy” doctrine.
In our work on tribal hunting and fishing rights we have also assisted tribes to develop tribal codes and resource management plans under which the tribes regulate their members' exercise of the rights and assume responsibility for management of the resource in a manner that allows the Tribe to pre-empt application of state hunting and fishing laws. We have also represented tribes in administrative and judicial proceedings to ensure that other activities – such as proposals to develop land or the use of water resources – do not adversely affect tribal rights to hunt, fish and gather natural resources both within and outside the tribe’s reservation.