Tag Archives: shellfish case

Wandering back into the history of the shellfish dispute

I started writing a little history about the tribal shellfish dispute in response to a comment made by Sharon O’Hara in the post about tidelands. My comment grew to such length that I decided to write a new entry.

I hope my explanation is accurate, but I’ve never put myself up as an expert in treaty rights. I invite anyone to add or correct the following, but please be kind.

Thanks, Sharon, for your interest. Sometimes events are happening so fast that I neglect to pause and bring everyone up to speed, so indulge me as I offer a little perspective.

Of course, private property owners don’t wish to have any uninvited person harvesting shellfish on their beaches. That’s only natural.

But let’s look at the tribes’ point of view. (I try to see all sides.) When tribal leaders signed the treaties in the 1850s, they agreed to move onto relatively tiny reservations. In return, territorial leaders promised that they would be allowed to continue their way of life, travel throughout the region, and hunt and fish among the white settlers.

From the Treaty of Point No Point: “The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians, in common with all citizens of the United States… Provided, however, that they shall not take shellfish from any beds staked or cultivated by citizens.”

When the resource seemed unlimited, people could take what they needed and there would always be something left. But as more and more settlers moved in, they began to exclude Native Americans from their tidelands. Why wouldn’t they? Their property deeds said nothing about sharing with the Indians.

It wasn’t until the 1970s that federal courts began to consider the validity of those treaties and their meaning today. Given limited fish and shellfish resources, the courts held that the only fair way to share was 50-50. We can argue about whether that decision was right, but the equal split was upheld more than once by the U.S. Supreme Court.

To non-Indians, it appears that the ruling suddenly diminished their property rights in favor of Native Americans. But the court said those rights were never given up by the natives.

So why didn’t people’s deeds explain that tribes retained these rights on private lands, something like a person retaining mineral rights when selling his property?

Given the courts’ rulings, the only answer can be that state and federal governments made a mistake when they first transferred ownership to private owners. The $33 million settlement is an attempt to address such concerns on commercial shellfish beds not covered by the “staked and cultivated” clause.

Nobody has yet addressed the issue for other private tidelands, however. I have heard legal experts say that the only resolution may come from a massive lawsuit against the governments. The case would involve complex issues of property rights and title requirements. Whether state and federal governments could be held liable by today’s tidelands owners remains undetermined.