Hunting and Fishing Legal Rights of Native Americans
For many centuries, Native American tribes have relied on hunting and fishing for subsistence and trade. Some tribes even migrated according to the movements of fish. The federal government generally guaranteed hunting and fishing rights when signing treaties with tribes in which the tribes gave up their lands. Sometimes a treaty permitted a Native American tribe to hunt and fish only on their reservation, but other treaties allowed tribes to continue using their accustomed hunting and fishing locations off reservations. Moreover, Native American tribes implicitly retained hunting and fishing rights when they were not addressed by treaties. The principle of reserved rights, which is related to tribal sovereignty, provides that tribes hold all rights that have not been explicitly removed by a treaty or a federal law.
Hunting and Fishing Rights Off Reservations
Greater friction has arisen in the area of hunting and fishing rights off reservations. A Native American tribe may have received these rights in the specific language of a treaty, as discussed above. (This frequently occurred when the federal government signed treaties with tribes in the Pacific Northwest and the Great Lakes.) In other cases, a tribe may hold hunting and fishing rights off a reservation when their reservation has been eliminated or greatly reduced, but the federal government did not terminate their hunting and fishing rights for the original area of the reservation.
State environmental agencies have opposed off-reservation rights for Native Americans on the grounds that over-hunting or over-fishing can prevent the conservation of wildlife species. Meanwhile, non-Native Americans engaged in these activities feel that restrictions under state laws should apply to tribal members with equal force. These opposition groups have faced an uphill battle in court. The Supreme Court has upheld off-reservation hunting and fishing rights guaranteed by a treaty, even when these locations are on private land. The Court also has prevented a state from requiring Native Americans to get fishing licenses for activities in areas designated by a treaty.
State Regulation of Native American Hunting and Fishing
In the 1960s and 1970s, the Supreme Court reviewed three cases surrounding the fishing rights of the Puyallup Indian tribe, who live mostly in the state of Washington. The first decision provided that the state interest in conserving wildlife allowed the state government to regulate fishing activities by Puyallup members if it refrained from discriminating against them. A few years later, the Court reviewed one of these regulations and found that the state had discriminated against the tribe in essentially reserving all harvestable steelhead trout for non-Native American sports fishermen. (The state had banned net fishing for steelhead, which was the only manner used by Native Americans.)
The second Puyallup case involved the concept of a fair apportionment of fish between Native Americans and non-Native Americans. Courts generally have determined that a fair apportionment means that tribes with treaty fishing rights hold a right to a certain percentage of the harvestable run of fish. The Supreme Court set the maximum percentage for a fair apportionment at 50 percent, finding that treaty rights guarantee an amount of fish that is necessary to provide a tribe with a moderate living, but no more than that amount. In the final Puyallup case, the Court determined that tribal fishing on reservations could count toward the share in a fair apportionment.
In the aftermath of the Puyallup cases and related decisions, states must not restrict tribal rights to hunt and fish unless they can show that a conservation measure is reasonable and necessary, and that its application to Native Americans is necessary in the interest of conservation. Any regulations must not discriminate against Native Americans. However, states may impose neutral, purely regulatory restrictions that are necessary for conservation, such as those that affect the time and manner of fishing off reservations.
