jimh
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I was watching the news and they said the indians who shot and killed the grey whale a few months ago could lose their treaty rights. So, what do indians have to do to lose their treaty rights, and why isn't this pursued more?
Shouldn't wasting resourcings like piling up dead salmon to rot count? How about overharvesting?
Thoughts?
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hmitchel
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Quote:
jimh said:
I was watching the news and they said the indians who shot and killed the grey whale a few months ago could lose their treaty rights. So, what do indians have to do to lose their treaty rights, and why isn't this pursued more?
Shouldn't wasting resourcings like piling up dead salmon to rot count? How about overharvesting?
Thoughts?
Most likely because it is the particular indian nation (they are considered their own sovereign nation) that must revoke the treaty rights of the individual, rather than the feds. If any of us had the ability to revoke the fishing/hunting license of a buddy of ours because of their activities, how likely would we be to do it? For most of us, not very, unless their conduct was so far out of bounds that it created PR problems for us, or made our own lives more difficult.
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Lead_Bouncer
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Sounds like a good punishment, but probably wont last forever.
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Trouthead
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They are looking at taking their fishing rights for 3 years.
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Gooose
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Jim a Treaty Tribe is unlikely to lose their fishing rights due to the actions of some of it members.
A tribe may remove an individual tribal members harvest rights though. Two different legal subjects. The actions of the 5 Makahs are not germaine to treaty rights.
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Salmo_g
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Treaty fishing rights belong to sovereign treaty Indian tribes, not to individual Indians. Any tribe can revoke fishing privileges from a member for any reason the tribal government deems appropriate.
The treaty fishing rights of a treaty tribe can only be revoked by an act of Congress because it is Congress that ratifies treaties.
Sincerely,
Salmo g.
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jimh
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So, hypothetically, a bill that got through Congress could eliminate the treaties... That would be a lot of money. What are the downsides?
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Trouthead
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Jim,
Are you asking the tribes about the downsides or some of us old rednecks? I submit that the answers could be very different. LOL
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Eddie
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Jim, you asked, "What are the downsides?" I submit that the biggest downside is the lack of trust that the Government's word (treaty) means anything. It would seriously inhibit that Government's ability to enter into new treaties with anyone.
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How about the cost of the years and years of legal costs involved in defending the decision.
I'd submit that (depending on what argument was used to throw out the treaties) it may also invalidate any other treaties the US has entered in to since the tribal treaties were ratified.
I guess it would be great for the tribes, because they would regain ownership of a bunch of the US. Look what happened to Canada when they were forced to re-negotiate most of the treaties with the First Nations Peoples...
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cupo
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Congress would never get rid of the treaties with our poor, abused, taken advantage of, downtrodden, oppressed, tribes.
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Salmo_g
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Congress can unilaterally modify the Steven's treaties, and it wouldn't affect other treaties currently in effect or the ability of the US to make future treaties. While treaties are the supreme law of the land, they are still like other laws in that they can be modified. It's beyond doubtful that if Congress modified the treaties, they'd return all the land to the tribes. And the situation isn't comparable to Canada, which BTW didn't have any original treaties, so they weren't renegotiated. I'm pretty sure that was new stuff with most of the First Nations Mojo.
Most importantly, it's extremely unlikely that Congress will consider nullifying the Steven's treaties any time soon.
Sincerely,
Salmo g.
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hmitchel
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Quote:
Salmo_g said:
Congress can unilaterally modify the Steven's treaties, and it wouldn't affect other treaties currently in effect or the ability of the US to make future treaties. While treaties are the supreme law of the land, they are still like other laws in that they can be modified. It's beyond doubtful that if Congress modified the treaties, they'd return all the land to the tribes. And the situation isn't comparable to Canada, which BTW didn't have any original treaties, so they weren't renegotiated. I'm pretty sure that was new stuff with most of the First Nations Mojo.
Most importantly, it's extremely unlikely that Congress will consider nullifying the Steven's treaties any time soon.
Sincerely,
Salmo g.
Sorry, but treaties cannot be unilaterally modified. Rather than being the supreme law of the land, they are more like a contract between the entities that entered into them. As such, they require the consent of both parties for modification and, absent that agreement, a unilateral modification would breach the treaty and eliminate the limits both sides agreed to.
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jimh
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Of course then, there would be only one side, and it wouldn't matter!
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Gooose
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Reality...the treaties are not going away or going to be changed. Deal with it.
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Todd R
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Two points...
1. hmitchel, Congress absolutely has the power to change, modify, or abolish the Stevens Treaties.
2. They aren't going to.
Fish on...
Todd
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Gooose
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I repeat what previously stated....deal with it.
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hmitchel
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Quote:
Todd R said:
Two points...
1. hmitchel, Congress absolutely has the power to change, modify, or abolish the Stevens Treaties.
2. They aren't going to.
Fish on...
Todd
For purposes of my own curiosity, on what do you base your conclusion that Congress can unilaterally change the terms of the treaty? Such a unilateral right would generally have to be reserved in the document. Granted I do not have the text of the treaty so I don't know if it contains such language. If it's not in the treaty, what would be the basis for Congress's ability to make the change?
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Todd R
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It's just inherent Congressional power...they have the sole authority among the branches of government to enter into, or leave, treaties made with other nations. It doesn't have to be in the document.
That being said, so long as the treaty is still in force the government (executive branch) is bound to its terms, and that is enforced by the judicial branch. It would take some serious political will to get Congress to abrogate the Stevens Treaties, and there is nowhere near the amount of it necessary to even touch them, much less ditch 'em.
The Stevens Treaties that the fed gov't entered into with the local tribes, and the Boldt Decision (not to mention the dozens of related cases pre- and post-Boldt) are, as Gooose pointed out, simple facts of life that are not going anywhere...they are going to have to be dealt with.
While it would be perfectly legal for Congress to abrogate the treaties, with specific language, it is tough on credibility for a nation to enter into a treaty and then down the road decide they don't want to play anymore...that's why it doesn't happen all that often.
What good is treaty power if no one trusts you to stick to your word under it?
Fish on...
Todd
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AuntyM
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I think Congress is more likely to modify the ESA, weakening protections, than the treaties.
Too much big money pushing it that direction and too many humans that won't sacrifice personal comfort.
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hmitchel
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Quote:
Todd R said:
It's just inherent Congressional power...they have the sole authority among the branches of government to enter into, or leave, treaties made with other nations. It doesn't have to be in the document.
That being said, so long as the treaty is still in force the government (executive branch) is bound to its terms, and that is enforced by the judicial branch. It would take some serious political will to get Congress to abrogate the Stevens Treaties, and there is nowhere near the amount of it necessary to even touch them, much less ditch 'em.
The Stevens Treaties that the fed gov't entered into with the local tribes, and the Boldt Decision (not to mention the dozens of related cases pre- and post-Boldt) are, as Gooose pointed out, simple facts of life that are not going anywhere...they are going to have to be dealt with.
While it would be perfectly legal for Congress to abrogate the treaties, with specific language, it is tough on credibility for a nation to enter into a treaty and then down the road decide they don't want to play anymore...that's why it doesn't happen all that often.
What good is treaty power if no one trusts you to stick to your word under it?
Fish on...
Todd
Todd:
While it is true that Congress is vested with the sole authority to enter into, and leave, treaties, it is a completely different question whether they can simply change the terms and have the treaty remain in force and effect. Without the consent of the other side (express or implied), they cannot. In essence, it is an all or nothing question. Either they are part of the treaty as negotiated, or they are not. They cannot simply unilaterally change the terms of the treaties with the tribes anymore than they could unilaterally change the terms of the SALT treaties with the old Soviet Union.
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AuntyM
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If you have read the treaties, you will see that changes CAN be made by the President himself. The executive has reserved several powers in the treaties. Would it ever happen? I doubt it.
Here's the law.
http://www.senate.gov/artandhistory/history/common/briefing/Treaties.htm
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hmitchel
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Great points, Aunty!
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AuntyM
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Oops... I forgot to add, if such a thing occured, the land would not revert back to the tribes. They could however, declare war on us.
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Trouthead
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The treaties can and have been modified in the past but there was negotiation involved. An example would be the use/possession of alcohol on the reservation.
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Mojo
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Hell Marsha, with all our troops deployed overseas or on reconstitution leave, they would probably win... 
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AuntyM
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Hey, I can shoot perty gud fer a girl if I have to.
One thing that bugs me. Calling Boldt the law of the land is absurd. The Supreme Court is the law of the land and if they can overturn themselves, they can overturn Boldt.
Of course, I'm still agonizing over the emminant domain thing. They crapped all over us and the Constitution.
If the tribes are smart, they will NEVER appeal anything to this Supreme Court.
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Todd R
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hmitchel,
You are mistaken about the treaties with the various tribes in the U.S., Congress does indeed have the sole and vast power to unilaterally abrogate them, with no one's permission whatsoever, much less the tribes.
I'll give you some examples, if you'd like...
Fish on...
Todd
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hmitchel
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Quote:
Todd R said:
hmitchel,
You are mistaken about the treaties with the various tribes in the U.S., Congress does indeed have the sole and vast power to unilaterally abrogate them, with no one's permission whatsoever, much less the tribes.
I'll give you some examples, if you'd like...
Fish on...
Todd
I absolutely agree they can abrogate a treaty. That's what I have been saying. Aunty made the point that, in the case of the Stevens treaties, the treaties themselves gave the President the power to modify them. I said early on in our discussion that I did not know if the treaties contained that type of language but that if they did not, then they could not be changed on the whim of Congress and still remain in force without the consent of the tribes. However, since the treaties contain that type of language, my point is moot as to the Stevens treaties.
As to other treaties with tribes, I stand by my point that, without language granting authority, or consent obtained by some other means from the tribes, any modification amounts to an abrogation and neither the tribes nor the US would be bound by the treaty. I'm sure I could find some case law if you'd like me to.
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AuntyM
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Heh... here's MY question. If Congress had never given the Tribes US citizenship, would they have been able to seek redress under the US Constitution?
I am curious, because as a soveriegn nation, I would think they wouldn't have Constitutional protections if they weren't made citizens.
Was there ever a case brought by the states against the Federal Government for negotiating/signing treaties, giving sovereignty to Native Americans and forcing a state to have a foreign country within it's boundaries?
I an aimlessly wandering while wondering. Maybe because I'm pondering what the US Supreme Court is going to decide about the Gitmo detainees who are not US citizens.
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hmitchel
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Aunty:
If the indians had never been made citizens, they would have had some, although likely reduced, rights under the U.S. constitution. Those individuals who are legally in the U.S. still have certain rights, although generally not the full panoply of rights granted to U.S. citizens. The Gitmo detainees rights, or lack thereof, will likely hinge, to a certain extent on the extent to which Guantanamo Bay is considered U.S. soil.
As for any lawsuits against the U.S., I have not done the research, but it is unlikely a lawsuit would have been brought on those grounds since the powers you are talking about are those that are specifically reserved to the feds in the constitution. However, lawsuits have been brought regarding specific terms, enforcement, etc. . ., of those treaties.
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AuntyM
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It would seem that the existence of the treaties violate states rights in some situations though, by creating new nations within the US. Because some were US territories and not states at the time, there likely wouldn't have been many, but there had to be some.
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hmitchel
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I could be wrong, but my gut tells me that the view would be that it did not create new nations within the states, but rather recognized their existence. In other words, the nations existed regardless of the treaties. If they did not, there would have been nobody for the U.S. to negotiate or enter into treaties with.
I think the question you are asking is whether there were any lawsuits because of the feds' appropriation of state or territorial lands for the exclusive use of the tribes. I suspect that if the reservations were created in territories, the answer would be no since a territory exists at the pleasure of the federal government and it can essentially do as it pleases within the territory. If the reservations were created in states, then I suspect that the feds had to make concessions to the states as part of the treaty process. That's just my gut talking, though, and it frequently makes odd noises.:)
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AuntyM
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The problem I see with your line of thinking is that many reservations were created for specific tribes in places they did not formerly occupy, so they didn't already exist there.
I'm not even sure creating a different countries (sovereign nations) within a country WAS Constitutional, to tell you the truth.
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hmitchel
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Good point on the fact that many tribes were moved out of their traditional areas. I still think that, from a legal perspective, the view would be the treaties could originally be negotiated with the tribes because a.) they were sovereign nations; and b.) had some claim to the lands the government was negotiating for. If either one of those did not exist, there would be no basis to enter into a treaty since they would not have any authority to make the agreements in the first place.
I suspect, but do not know, that the treaties were negotiated while the tribes were in their traditional areas, and they were moved after-the-fact. So, the question is then whether the feds had the authority to create the reservations (as opposed to nations) vis-a-vis the states. I suspect that there were a lot of smoke filled room meetings and greased palms, in order to get the job done.
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AuntyM
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WOW!
I found an interesting link and they claim tribes aren't actually soveriegn because;
Quote:
The United States Congress has complete authority over Indian affairs. It can disband the Indian tribes as it did under the Indian General Allotment[Dawes] Act of 1887 . . . or it can permit them to organize as it did under the Indian Reorganization Act of 1934. Congress can overrule court decisions dealing with Indian tribes."
http://www.citizensalliance.org/links/pages/articles/Expose_Part_2.html
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Todd R
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The Indian Tribes in the U.S. are "dependent sovereigns", not sovereign nations, and not just US citizens...and if you can wrap your brain around that, then you are a better person than I, or most of the legal minds I've talked to about it...so far the best I can come up with is that if the Indians need something from the Government, they refer to themselves as "dependents" with a trust relationship and say the feds owe it to 'em...when they want to assert their own authority, they refer to themselves as a sovereign nation.
Just to be fair, the feds refer to them as dependents when they want something from them, and refer to them as sovereigns to avoid giving them stuff, too...
hmitchel,
The treaties don't need any language giving anyone the authority to change or abrogate them for Congress to do it...they would require language in order for the President to do it, since the President has no inherent power to enter into treaties without the advice and consent of Congress.
Treaties are no more, and no less, than federal laws. Federal laws are created, modified, and abolished by Congress, and Congress alone...they need no permission from anyone to do it.
"One of the least understood facts about Indian treaties is that they may be abrogated unilaterally by Congress."
"Indian treaties as well as international treaties stand on the same footing as federal statutes, they can be repealed or modified by later federal statutes."
*Those quotes are from "American Indian Law" by William Canby, oft-cited and nationally recognized American Indian Law expert and commentator.
"The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entereed into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power may be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians."
Lone Wolf v. Hitchcock, 187 US 553, 566 (1903).
Abrogating treaty rights may, however, lead to the duty of compensation on the part of the government...the feds may have to pay for whatever rights they have abrogated. See, generally, Menominee Trive v. United States, 391 U.S. 404 (1968), and U.S. v. Creek Nation, 295 U.S. 103 (1935).
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AuntyM
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Thanks Todd. I can tell you that some of the thoughts expressed in the link I posted had never even occurred to me. Pretty confusing stuff.
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hmitchel
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Todd:
As I've said before, I agree with you that they can be abrogated. I also agree with you that the tribe's relation is extremely difficult to get a complete grasp of and, in fact, has always seemed to be a bit of a moving target. After looking at some case law, they appear to be a quasi-sovereign nation, whatever that means.
Here are some direct quotes from the U.S. Supreme Court:
"A treaty, including one between the United States and a Native-American Indian tribe, is essentially a contract between two sovereign nations."
As for the Lone Wolf v. Hitchcock quote, that is something I also came across and, like I've said before, I don't disagree that Congress can abrogate (withdraw from) the treaties as they deem appropriate.
"We find it difficult to believe that Congress, without explicit statement, would subject the United States to a claim for compensation 14 by destroying property rights conferred by treaty, particularly when Congress was purporting by the Termination Act to settle the Government's financial obligations toward the Indians." Menominee Tribe of Indians v. United States, 391 U.S. 404. Given this language, it looks as though if Congress takes any act contrary to the express language of the treaties, the US would be subject to a claim for damages, typical of breach of contract action.
After looking briefly at U.S. Supreme Court case law, I have not been able to find anything that definitively states whether Congress can change the terms of a treaty without the consent of the tribe (although I will admit it is suggested and at least one circuit court has expressly held they can modify the terms as they can a statute.) The fact that the US would be subject to a claim for damages for failing to comply with those terms suggests that, at a minimum, there are consequences for either modifying or abrogating the terms of a treaty, just as there would be for any other treaty or contract. That fact alone suggests that, all political considerations aside, there are substantial economic disincentives for unilaterally modifying a treaty, even if Congress can do so.
Thanks for the nice little intellectual exercise!
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Todd R
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Financial, social, or integrity reasons to stick to the terms of the treaty are another whole ball of wax, which is why I stated above that the treaties aren't going anywhere...they are, after all, a solemn promise that our government made to the treaty tribes in exchange for commitments from them.
The fact that Congress can unilaterally modify or abrogate the treaties does not change that promise into something else...and the fact that sportfishermen and commercial fishermen don't like Indian treaty rights falls about 99.9% short of a good reason to do so.
Fish on...
Todd
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hmitchel
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Fish on . . .
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AuntyM
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Quote:
The fact that Congress can unilaterally modify or abrogate the treaties does not change that promise into something else...and the fact that sportfishermen and commercial fishermen don't like Indian treaty rights falls about 99.9% short of a good reason to do so.
I wouldn't push the feds too far though. There is always a breaking point and Congress has been known to be just as fickle as the Supreme Court over the years.
The more tribal casinos make, the less sympathy the feds will have. A lot of Boldt's decision was based on the tribes economic outlook, which has changed considerably.
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"The more tribal casinos make, the less sympathy the feds will have."
I disagree, because when we say "the feds", what we mean is "Congress", and when we say "Congress", what we mean is those who vote for legislators...and 99% of the country could care less about fishing in the Northwest, and most of them that do have an opinion would probably support tribal netting before they'd support sportfishing or commercial fishing.
I agree that there is language in the Boldt Decision regarding a "moderate living", but with the exception of the very few, most tribal members are pretty damn poor still...not every tribe has a casino, not everyone who belongs to a tribe who does has a job there, and not everyone who has a job at a casino makes more than $10 an hour, either.
I think people around here would suffer some serious culture shock if they were to leave the PNW and start asking people about tribal fishing rights...they don't see or know the things that we do, and even if they did they probably wouldn't care.
Fish on...
Todd
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I have to disagree also. Over turning Boldt would also require negating all that has stemmed from his decision including Judge Orricks decision in Boldt II and the most recent decision regarding the Culvert case along with several other agreements/settlements regarding water and habitat agreed upon following Boldt I. Plus the Rafeedie Shellfish ruling which is an extension of Boldt and the recent settlement agreement regarding commercial shellfish tidelands. Might as well throw in U.S. vs Oregon also as that is intertwined with U.S. vs Washington. No conceivable Congress is going to touch it.
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Quote:
I disagree, because when we say "the feds", what we mean is "Congress", and when we say "Congress", what we mean is those who vote for legislators...and 99% of the country could care less about fishing in the Northwest, and most of them that do have an opinion would probably support tribal netting before they'd support sportfishing or commercial fishing.
I wasn't giving sport fishing any thought at all Todd. I was thinking about the dams on the Columbia and perpetual mitigation for the lost tribal fisheries, and now the tribes wanting the dams breached, federal hatchery funding, the culvert issue that our Senators will sympathize with... That kind of stuff.
The same Congress that WILL eventually tell disabled vets that they're VA entitlements will have to be reduced will be the same Congress that tells the tribes to suck eggs. Not that I want to get political about it, but sooner or later, they're going to have to cut back. Not all tribes have casino's, but most do and you can bet the feds are interested in who gets how much and where it's all going.
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The dam breaching issue would require negating U.S. vs Oregon. The Culvert case is a part of Boldt aka U.S. vs Washington. Politicians will love it as it's another way to route public funds to the habitat restoration Mafia. Those funds will be routed thru the counties and municipalities whom of course will get their share of those funds. Realize that those public funds won't be real dollars but will be derived from selling bonds aka public debt. 
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Todd R
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Paying VA benefits costs money...real money...keeping the status quo with tribal fisheries and all the legal cases surrounding them also costs money...really really real money...but that money also funds political cronyism which is part and parcel the American Way...funding VA Benefits is just another bottomless entitlement that doesn't buy much in the way of votes or economic support, at least not anywhere near the league that cronyism and pork barrelism does...
I don't think there's any problem with "push the feds too far", because they're being pushed in the direction they already want to go...pushing them in the direction of environmentalism, conservation, and resource equity is the direction they will fight being pushed towards.
Fish on...
Todd
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AuntyM
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...pushing them in the direction of environmentalism, conservation, and resource equity is the direction they will fight being pushed towards.
That's my point. That's basically what the tribes are demanding is environmentalism, conservation and resource equity. It will eventually cost more than Congress thinks is reasonable. Maybe not this Congress today, but the pendulum ALWAYS swings.
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Mojo
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Quote:
AuntyM said:
Quote:
...pushing them in the direction of environmentalism, conservation, and resource equity is the direction they will fight being pushed towards.
That's my point. That's basically what the tribes are demanding is environmentalism, conservation and resource equity. It will eventually cost more than Congress thinks is reasonable. Maybe not this Congress today, but the pendulum ALWAYS swings.
Really Marsha? If that is the case, why are they going to net 61,000 steelhead from the Snake and Clearwater in Idaho (soon), with wild impacts approaching 5% (which will shut down all sport fishing since we have a combined 4% wild impact per NMFS)? Where is the environmentalism and conservation in that? Answer me this, what the hell are they gonna do with 61,000 boot Idaho steelhead? I guess there must be a huge market for catfood somewhere...
GRRRRRR....
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AuntyM
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Where is the environmentalism and conservation in that? Answer me this, what the hell are they gonna do with 61,000 boot Idaho steelhead? I guess there must be a huge market for catfood somewhere...
You sound pissed. They just want the ones with decent egg skeins. They'll toss the rest.
You know damn good and well some tribes say one thing and do another. Everything is the white man's fault and they're going to make us pay. Until Congress says no. Congress will say no when tribal interests threaten big business profits.
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When you think about how much it costs to produce those steelhead, we'd be better off just giving the tribes $10/fish and ask them not to net. $610,000 is nothing compared to $400 million spent per year on the Big C.
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Trouthead
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Check this out. What if the Tribes want to eliminate the treaty?
http://news.yahoo.com/s/afp/20071220/lf_...gpFedBS8VN34T0D
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hmitchel
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An interesting thought, but, in the view of the Courts it is the United States that owns the land on which the indians live. If they do not own the land and so do not have sovereign territory, and have otherwise renounced their citizenship, they may be in risk of being deported to who knows where. In likelihood it is just an academic exercise, though, without anything likely to come of it.
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AuntyM
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Send them to Gitmo. They might decide they're citizens after all.
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Gooose
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Reservation lands are held in trust by the U.S. Ownership resides with the tribes. Bit of a difference there.
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AuntyM
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If they own it, how is it that the treaties give the president the authority to move them someplace more convenient?
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Gooose
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Then they'd own wherever the president moved them to and the Fed's would hold those lands in trust. Likelihood of a president being actually able to do such a thing is a bit less than zero.
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AuntyM
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I don't believe one would try, today. 75 years ago? It would have been possible.
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Gooose
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About 64 years ago the President at the time relocated a whole bunch of U.S. citizens.
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Not only did he do so, but they not only didn't own the land they were relocated to, but they lost an awful lot of the land and property they owned before they were relocated.
IMHO, comes second to slavery as the most embarassing part of US history.
Fish on...
Todd
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Quillback
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Here's an interesting read, I wonder how many of the Lakota are part of this?
http://blogs.usatoday.com/ondeadline/2007/12/lakota-withdraw.html
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FWC_Cliff
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I just want to know if they area sovereign nations, does that mean I can invade them?
I know I sure as hell embargo their products
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Gooose
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Cliff they wouldn't have just bows and arrows this time.
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As a South Dakota transplant, my reading of the Lakota story is that it doesn't appear that there is any tribal government involvement. Russel Means is one of the founders of the American Indian Movement, which started in Minneapolis in the late sixties. AIM has quite a few members on the Lakota reservations, but they are a minority. They frequently issue press releases declaring their independence and claiming land, and occasionally stage an "occupation" of some area for the media, but I doubt the Tribes are involved in this.
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Trouthead
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" think people around here would suffer some serious culture shock if they were to leave the PNW and start asking people about tribal fishing rights...they don't see or know the things that we do, and even if they did they probably wouldn't care."
Maybe not. Talk to people in the Great Lakes area about Indians spearing Walleyes at night during the spawn. In-Fisherman did a whole show about it a few years ago.
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Todd R
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Perhaps, but my point doesn't change...of the millions of people in the US of A, there aren't more than a relative handful that give a rip...some here on the west coast, some in Alaska, some in the midwest...I'm sure there are some pockets of 'em around in other areas, too, but I doubt it all adds up to more than a drop in the bucket overall.
Fish on...
Todd
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Trouthead
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Your probably right, Todd. Our fish are not as important to the general public as a basketball team moving or a football team wanting a new stadium. Now, that is some important stuff right there.
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I worked for a company that was headquartered in San Jose, CA. I would sometimes have conversations with some of the folks down there about salmon/steelhead issues, and I can tell you the average non-NW Fisherperson is completely clueless when it comes to fish issues. And many of those that somewhat understood the issues were sympathetic to the tribes as far a fishing rights.
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chumstick1
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Sorry about the late post on this; just saw the subject. Basically, any legal ruling against a bonafide tribal member must pass 2 tests: cannot pre-empt federal law and cannot infringe upon the right of the tribe to govern themselves. In this case it looks like the tribe is taking responsibility to pass judgement on the accused.
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The current status of the Makah prosecution of their tribal members is that they retired their tribal judge and replaced her with a new tribal judge who then recused herself from the case. Now they have asked the Quileute tribe to provide a judge. Of course the Quileutes and the Makahs don't have what one would call a friendly relationship so I wouldn't place any bets on that ever happening. So yes the Makah tribe in the end can tell a story that they certainly tried to prosecute the case against their 5 members but for some reason they just can't find a judge to preside over the case. Drag it out a couple years and it will just go away. But hey they were showing responsibility.
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pwcleaner
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Couldn't killing a whale be something like cattle rustling?? People get hung for that don't they??
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AuntyM
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I haven't read anywhere that the federal charges have been dropped.
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boater
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Quote:
Salmo_g said:
While treaties are the supreme law of the land, they are still like other laws in that they can be modified.
salmo g, if a treaty is the supreme law of the land why is sportfishing considered a privilege and not a right when according to the following the courts have ruled that under the treaty there is no difrence ?
Q: Why aren't tribal members required to follow the same state hunting regulations as non-tribal hunters?
A: Many of Washington's tribes signed treaties with the United States in the 1850s in which they "ceded" or gave up title to their lands but reserved the privilege of hunting on "open and unclaimed lands." Courts have ruled that under the treaty there is no difference between a privilege and a right. Each treaty tribe has the ability to set hunting regulations for its members. Federal treaties are recognized as the supreme law of the land under the U.S. Constitution and thus supersede most state laws and regulations. Only Congress can change the terms of a federal treaty.
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Todd R
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boater,
The strange fact about that particular passage is that they are talking about a treaty...and within a treaty reserving rights to the tribes to hunt, they have ruled that calling that reservation of the right to hunt to be a "right", whether they call it a "right" or a "privilege".
The non-tribal "privilege" to hunt is not "under the treaty"...it's a different type of right altogether.
Simply put, the courts have ruled that if your ability to hunt is contained within a treaty, then it is a "right", no matter what they call it.
If your ability to hunt (or fish) is not contained within a treaty (us, for example), then no matter what they call it, it is a privilege that can be extended, restricted, modified, or done away with by the State.
Fish on...
Todd
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