Nez Perce Tribe

Department of Fisheries Resources Management

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CRITFC Code

TREATY RIGHTS OF 1855

The United States from its inception has entered into treaties with many nations pursuant to Article VI, Section 2 of the United States Constitution.  These treaties were not only with foreign nations but with the Indian nations who occupied vast areas of the United States.  Treaty making with Indian tribes was discontinued by Act of Congress of 1871 and formal agreements between Indian tribes and the Federal Government were substituted for treaties.  Those treaties which were made with Indian tribes prior to the Act of 1871, however, still remain the "supreme law of the land."


In construing the language of Indian treaties, we are governed by three principal cannons of construction:  (1) Indian treaties are to be interpreted as the Indians themselves would have understood them, (2) Indian treaties are to be liberally construed in favor of the Indians, and (3) ambiguous expressions are to be resolved in favor of the Indian parties concerned.  To these considerations we should add one more consideration.  It is important to emphasize that the treaties were "not a grant of rights to the Indians, but a grant of rights from them - reservation of those not granted."  Stated more explicitly, the Indians retained all those rights of sovereign powers which have not been taken by the Federal Government.


"The Supreme Court had said that the right to fish at all usual and accustomed places may not be qualified by the state...I interpret this to mean that the state cannot so manage the fishery that little or no harvestable portion of the run remains to reach the upper portions of the stream where the historic Indian places are mostly located...In prescribing restrictions upon the exercise of Indian treaty rights the state may adopt regulations permitting the treaty Indians to fish at their usual and accustomed places by means which it prohibits to non-Indians...the treaty Indians, having an absolute right to that fishing, are entitled to a fair share of the fish produced by the Columbia River system... The state must recognize that the Federal rights which Indians have is distinct from the fishing rights of others over which the state has a broader latitude of regulatory control and that the tribal entities are interested parties to any regulation affecting the treaty fishing right.  They are entitled to be heard on subject and consistent with the need for dealing with emergency or changing situations on short notice, to be given appropriate notice and opportunity to participate meaningfully in the rule-making process...In order to be necessary, such regulations must be the least restrictive which can be imposed consistent with assuring the necessary escapement of fish for conservation purposes; the    burden of establishing such facts is on the state."  ~(Judge Belloni) U.S. v. Oregon.

"In all the circumstances shown by the evidence, including those briefly sketched above, this court hereby finds and holds that any one of plaintiff tribes is entitled to exercise its governmental powers by regulating the treaty rights fishing of its members without any state regulation thereof..."  ~(Judge Boldt) U.S. v. Washington.

Columbia River Inter-Tribal Enforcement Code

 

CHAPTER I - GENERAL PROVISIONS
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This code shall be entitled the "Columbia River Inter-Tribal Code" hereinafter referred to as the "code".
This code shall be effective when approved and adopted by resolution of three of the Columbia River treaty tribes exercising treaty fishing rights on the mainstem Columbia River, namely, the Confederated Tribes of the Warm Springs Indian Reservation of Oregon, (The Warm Springs Treaty, 12 Statutes 963), the Confederated Tribes of the Umatilla Indian Reservation in Oregon (The Umatilla Treaty, 12 Statutes 945), and the Nez Perce tribe of Idaho, (The Nez Perce Treaty, 12 Statutes 957), hereinafter referred to as the "approving treaty tribes".
The provisions in this code shall govern fishing by members of the three approving treaty tribes exercising fishing rights in and on the mainstem Columbia River in the area bounded by Bonneville Dam on the west and McNary Dam on the east.  This code shall not abridge or diminish any rights and powers reserved to the approving treaty tribes or members of the tribes or deprive the Tribal Councils of the right to modify, amend or repeal this code or any included sections of this code.  This code shall not abridge any rights and powers vested in the treaty tribes to regulate treaty fishing in waters other than the mainstem Columbia River as indicated by the boundaries described in this code.  This code does not change, modify, amend, or create new fishing sites for any tribes other than those sites which are Usual and Accustomed sites or In-Lieu sites as have been previously determined.  This code does not create reciprocal fishing rights or privileges for any member of any tribe to fish in or on any treaty fishing water of any approving treaty tribe.

It is the purpose of this code that each of the approving treaty tribes is, by sovereign right, a manager or co-manager of the fishing resource; that each approving treaty tribe is exercising its inherent sovereign power to regulate the tribal fishing rights of its respective members without state regulations thereof; and that the regulation provisions of this code are deemed necessary to the conservation of the fishing resource reserved to the treaty tribes.

It shall be the purpose of this code to provide for the protection of treaty fishing rights on the mainstem Columbia River and to ensure the personal safety of individual tribal members exercising treaty rights by providing them freedom from harassment by any person, Indian or non-Indian, or by any organization private or governmental.

It shall be the purpose of this code to provide a set of uniform regulations for use by the approving treaty tribes in the enforcement and protection of treaty fishing rights on the mainstem Columbia River.

The Columbia River Inter-Tribal Fish Commission shall, as directed by the approving treaty tribes, coordinate efforts pursuant to this code and perform such other functions as directed by the treaty tribes from time to time for the effective enforcement of this code, and for the effective operation of the Inter-Tribal Court.

A.  Nothing in this code, regulations, or amendments thereto, shall diminish the rights reserved to any of the approving treaty tribes to modify, amend or repeal this code or subsequent amendments thereto.

B.  In order to amend, alter, make additions to, or otherwise change this code, the approval thereto by the governing body of each approving treaty tribe as required by the constitution of each tribe shall be required; provided  however, that no amendment or alteration in this code shall be effective until agreed to by all three approving treaty tribes.

C.  When reference is made to any portion of this code, the reference shall apply to all amendments and additions hereafter made, as well as to any rules or regulations promulgated pursuant hereto.

In construing the provisions of this code, the present tense included the past and future tenses and the future tense include the present.

In construing the provisions of this code, the masculine gender includes the feminine and neuter genders.

For the purposes of this code, the terms:

A.  "Ceremonial Fishing" shall mean fishing with gill nets, or with legal gear other than normal subsistence fishing gear when such fishing has been authorized in advance by one of the approving treaty tribes for the purpose of taking fish for use in traditional tribal ceremonies or religious occasions which are sponsored by a treaty tribe or a tribally recognized traditional or religious group within a treaty tribe.

B.  "Arraignment" shall mean a proceeding in which the accused is brought before the Court to plead guilty or not guilty to violations charged against him.

C.   "Bail" shall mean an amount of money or other security set by the judge which must be posted by a defendant in order to gain his release until trial.

D.   "Bail Bond" shall mean case, some type of surety arrangement or other type of security posted or pledged by a defendant to meet the bail set by the judge as a prerequisite to defendant's release from custody until trial.

E.   "Citation" shall mean a document issued to a person by an enforcement officer in lieu of physical arrest charging that a violation of this code has been committed.  It shall contain the requisites of both a summons and complaint.

F.   "Code" shall mean the provisions set out in the Columbia River Inter-Tribal Code.

G.   "Commercial Fishing" shall mean fishing for the purpose of selling, trading, or bartering the fish for money, property or other consideration, except to the extent that such fishing may constitute "Subsistence Fishing" as defined in this code.

H.   "Commission" shall mean the Columbia River Inter-Tribal Fish Commission.

I.   "Complaint" shall mean a written statement alleging a violation of the Columbia River Inter-Tribal Code.

J.   "Complainant" shall mean any person signing a complaint alleging a violation of the Columbia River Inter-Tribal Code.

K.   "Court" shall mean the Columbia River Inter-Tribal Court.

L.  "Fishing" shall mean any effort to take fish from the waters of the mainstem Columbia River.

M.  "Fishing Gear" shall include all nets, boats, lights, and other equipment used when engaging in fishing subject to the jurisdiction of this code.

N.  "Fishway" shall mean any structure or facility designed to facilitate or provide passage for fish over a natural or artificial barrier or obstruction.

O.  "Individual Rights" shall mean those rights set forth in the Indian Civil Rights Act (25 U.S.C.      1302) as construed by federal courts of controlling jurisdiction.

P.  "Law Enforcement Officer" shall mean an officer authorized and/or deputized by the appropriate tribal or agencies authorized to act under this code.

Q.  "May" shall mean a power or requirement which is discretionary rather than mandatory.

R.  "Member" shall mean a person who is duly enrolled with one of the treaty tribes.

S.  "Motions" shall mean any request, oral or written made to the Court for an Order.

T.  "Person" shall mean any natural person or artificial entity, including but not limited to any partnership, corporation or association.

U.  "Personal Recognizance" shall mean a promise by a defendant to appear at trial, upon which promise the judge orders his release from custody.

V.   "Probable Cause" shall mean such a state of facts and circumstances known to the prosecutor or to a law enforcement officer personally or by information from others, as would, in the judgement of the Court, lead a man of ordinary caution, acting conscientiously in light of such facts and circumstances, to believe the appropriate judicial proceedings are warranted.

W.  "Shall" means a power or requirement which is mandatory rather than discretionary.

X.  "Subsistence Fishing" shall mean the taking of fish for the personal use of treaty Indians.

Y.    "Summons" shall mean a notice to appear before the Court.

Z.  "Summons & Complaint" shall mean a single document containing all the requisites of both a summons and complaint.

AA.  "Treaty Fishing Rights" shall mean the Indian treaty fishing rights secured by the Warm Springs Treaty (12 Statutes 963) The Umatilla Treaty (12 Statutes 945), and the Nez Perce Treaty (12 Statutes 957).

BB.  "Treaty Tribes" shall mean the Confederated Tribes of the Warm Springs Reservation, the Confederated Tribes of the Umatilla Indian Reservation and the Nez Perce Tribe of Idaho.

CC.   "Warrant, Arrest-Search" shall mean a document issued by the appropriate tribal court expressly authorizing and directing a law enforcement officer to execute an arrest or conduct a search of specifically delineated premises.

DD.  "Regulatory Body" shall mean the governing body of the respective approving treaty tribes.  The Fish & Wildlife Committees of each approving tribe shall jointly consider the biological data and recommended action provided by tribal and commission staff.  The Fish & Wildlife Committee actions and recommendations shall become effective when ratified by the governing body of each approving treaty tribe.


Chapter II


CHAPTER II - COLUMBIA RIVER ENFORCEMENT OFFICERS
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A.   The Commission shall designate one enforcement officer as the Fisheries Protection Director to have general administrative responsibility for the Fishery Enforcement Program and supervisory authority over the activities of the officers enforcing the provisions of this code.  The Fisheries Protection Director shall be responsible for recruiting, hiring, training, supervising and disciplining law enforcement officers employed under the auspices of this code.

B.   When possible, law enforcement officers under this code shall be duly deputized by all necessary enforcement agencies or government units to enforce the provisions of this code, and to undertake such other duties as might be assigned to them from time to time.

C.  Any tribal law enforcement officer of an approving tribe who has not been duly deputized under this code shall possess authority to enforce this code against members of the approving treaty tribe the officer is employed by.

A.   Any person who meets the following qualifications and conditions shall be eligible for appointment as a law enforcement officer under this code:

  1. Is in sound physical condition, and is of sufficient size and strength to perform the duties of an enforcement officer; and
  2. Is possessed of courage, self-reliance, intelligence, and a high sense of loyalty and duty; and
  3. Has not been convicted of a felony and has not been convicted of a misdemeanor involving moral turpitude for one (1) year proceeding his appointment and who has not been convicted of violating a Compact regulation; and
  4. Meets minimum training requirements; and
  5. Is at least twenty-one (21) years of age.

The Commission shall contract with an attorney to prosecute those cases in the Court necessary for the protection of tribal interest; appear in proceedings relating directly or indirectly to the interests of the approving treaty tribes on the mainstem Columbia River and its tributaries, and advise and assist the enforcement officers.

The Commission may contract with one or more detention centers located in proximity to the mainstem Columbia River or on any reservation of any approving treaty tribe whenever the use of detention facilities may be required or necessary to insure a defendant's presence in Court.

A summons and complaint, also known as a citation, may be issued by an enforcement officer for an offense constituting a violation which was committed in his presence or if not committed in his presence, when he has probable cause for believing that the offense was committed in fact by the accused. A copy of the summons and complaint so issued shall be filed immediately with the Court before which appearance is required. A second copy shall be supplied to the prosecutor.

A.   In lieu of a summons, an arrest warrant may be issued by the judge at his discretion following the filing of a sworn complaint by a complainant or by an enforcement officer.

B.   A warrant issued in accordance with this Section shall be executed by an enforcement officer within the jurisdiction of the Court.

C.  When an accused is arrested under a warrant, he shall be taken without unnecessary delay before the judge who issued the warrant and at such time a copy of the complaint and warrant shall be given to him.  Also at such time, the judge shall either:

  1. Admit the accused to bail or release him upon personal recognizance and give a summons to him; or
  2. Order the accused held in custody and proceed without unnecessary delay with arraignment.

A.  Arrest without Warrant

In lieu of issuing a summons, an enforcement officer may arrest any person without a warrant for an offense committed in his presence.  When an accused is arrested without a warrant, he shall either be issued a citation in lieu of arrest or taken into custody and held for arraignment.

B.  Arrest Upon Probable Cause

An enforcement officer may arrest a person without a warrant if the officer has probable cause to believe that the person has committed an offense in the officer's presence.

C.  Arrest - Notification of Existing Warrant

An enforcement officer may arrest a person without a warrant when he is notified by telegraph, telephone, radio or other mode of communication by another enforcement officer that there exists a duly issued warrant for the arrest of a person charged with a crime committed within his jurisdiction or within any jurisdiction for which he is deputized.

Whenever a person is taken into physical custody or whenever a person who is a suspect is to be questioned about a violation for which he is a suspect, the enforcement officer or officers shall advise such a person of his rights prior to the time the person is asked any questions. The person shall be advised that:

A.  He has the right to remain silent;

B.   That anything he says can and will be used against him in a court of law;

C.  That he has the right to have an attorney with him during any questioning;

D.  The he must obtain an attorney at his own expense if he wishes to have an attorney; and

E.  The he can stop the questioning at any time.

An enforcement officer may search for and seize evidence within the framework allowed by law and under authority as enunciated in applicable Federal Court decisions.


Chapter III


CHAPTER III - SUBSTANTIVE OFFENSES
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A.   Any Indian exercising treaty fishing rights pursuant to this code shall be required to have in his possession a tribal enrollment and identification card issued by either the Bureau of Indian Affairs or by his treaty tribe which identifies him as a duly enrolled member and authorized to exercise treaty rights of the Warm Springs, Umatilla or Nez Perce Tribe.

B.   Any treaty Indian fishing or selling or transporting fish under claims of right of treaty fishing of one of the approving treaty tribes shall, upon demand by any federal, state, or local law enforcement officer, or by a purchaser, transporter or warehouseman of fish show such enrollment card.  Refusal or failure to do so shall be prima facie evidence that such person is not a member of one of the approving treaty tribes and shall be a violation of these regulations.

C.  The loaning of a tribal enrollment card or unauthorized use or alterations of any enrollment card for the purpose of allowing a person other than the person to whom the card is issued to take fish purportedly pursuant to the treaty of one of the approving tribes shall be a violation of these regulations.

A. It shall be lawful to take any fish for commercial purposes from the mainstem Columbia River during the times, in the areas, with the gear and for the species as allowed by the regulating body.

B. The Regulating Body may, upon 24 hours notice, cause an emergency closure of a season when necessary, based upon sound biological data, to assure adequate escapement for conservation purposes.

C. The Regulating Body may also extend seasons based upon sound biological data that runs (abundance) will exceed the earlier estimates and that additional fishing will not harm the established escapement goal.

D. The Regulating Body may in the setting of any  season prescribe the minimum size net webbing necessary for conservation based upon sound biological data.

E. It shall be unlawful to engage in commercial treaty fishing except as provided by these seasons set on a run by run basis and specie by specie basis.

F. The Chairman, Regulating Body or his representative shall notify the appropriate State and Federal management and enforcement agencies of all seasons set, closed periods set, or any amendments to regulations made pursuant to this code.

The Regulating Body may, upon the advice of the Commission and/or tribal biologist, from time to time set regulations pertaining to minimum size of net webbing.

A.  Any gear that is found to be missing shall be reported immediately, but no later than (24) twenty-four hours from the time of such discovery to tribal or inter-tribal law enforcement personnel along with a description, location last known and any other information that will aid in its identification and recovery.

B.  The false reporting of any gear as missing or stolen shall be unlawful.

A.  Each piece of commercial or unattended fishing gear shall be identified by a method approved and furnished by the fisherman's tribe, containing the name, tribe, and enrollment number of the fisherman owning or authorized to operate such gear.  Such marking shall be in such a manner and location as may be specified by tribal regulation.

B.  It shall be unlawful for any Indian fishing pursuant to a treaty fishing right to use any commercial or unattended fishing gear that is not marked and identified at all times while in use as herein provided.

It shall be unlawful for any person to take or appropriate fishing gear or other property used in fishing activity belonging to an enrolled member of an approving treaty tribe with the intent to deprive another of said gear or property.

It shall be unlawful for any person to destroy, deface, tamper or interfere with the fishing gear of an enrolled member of an approving treaty tribe with the intent to cause inconvenience to the owner of said fishing gear.

A.  Any boat used for treaty fishing purposes shall be operated or manned only by enrolled members of the treaty tribes authorized to exercise treaty rights upon the mainstem Columbia River namely the Confederated Tribes of the Warm Springs Indian Reservation in Oregon, the Confederated Tribes of the Umatilla Indian Reservation in Oregon, the Tribes and Bands of the Yakima Indian Nation in Washington, and Nez Perce Tribe of Idaho.

B.  No person fishing under treaty rights upon the mainstem Columbia River shall employ or use any person who is not a member of one of the tribes having adjudicated treaty fishing rights upon the mainstem Columbia.

A.  No person shall intentionally or knowingly cause the waste of any fish taken pursuant to a treaty right.  Waste is defined as the deterioration of those portions of fish normally utilized for human consumption to the point where they are no longer fit for such use.

B.  Every net shall be lifted or inspected and all fish removed therefrom at least once daily.

It shall be unlawful for any person to take or appropriate any fish from the fishing gear or property of another Indian with the intent to permanently deprive the owner of said fish without having prior consent of the owner.

No person engaging in activity governed by this code shall willfully resist, delay or obstruct a duly authorized enforcement officer in discharging or attempting to discharge any legal duty of his office.

It shall be unlawful for any person engaging in activity governed by this code to seek to elude an enforcement officer by motor cycle, motor boat, or otherwise, if, when given visual or audible signal to stop, such person knowingly flees or attempts to elude the pursuing enforcement officer.  The signal given by the enforcement officer may be hand, voice, emergency light or siren.

It shall be unlawful to attempt to violate any provision of this code. A person is guilty of attempt when he intentionally engages in conduct which constitutes a substantial step toward the commission of any violations contained in this code.


Chapter IV


CHAPTER IV - CLOSED AREAS
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The responsible management of the fishery resource requires that there shall be, for conservation measures, certain areas closed to gillnetting.  The following areas are closed to gillnetting: The regulating body shall from time to time review these and other areas and reserve the right to open or close areas based upon biological data.

A.  On the Columbia River downstream from a line one (1) mile above the spillway section of the Bonneville Dam.

B.  On the Columbia River upstream from a point one (1) mile below McNary Dam.

C.  On the Columbia River within the area between the eastern bank of the John Day River and Preachers Eddy light below the John Day Dam.

D.   On the Columbia River between one-half (½) mile upstream and one (1) mile downstream from the shores of the mouth of the Deschutes River.

E.  On the Columbia River between the Five-Mile Rapids navigation light on the Washington shore above a line one (1) mile above the exit of the Oregon fish ladder at The Dalles Dam and The Dalles Interstate Bridge; except the dipnet fishing shall be permitted from the river at the Lone Pine In Lieu Fishing Site, Oregon.

F.  On the Columbia river between one-half (½) mile upstream and one and one-half (1-1/2) miles downstream from the shores of the mouth of the Klickitat River.

G.  On the Columbia River between one-half (½) miles upstream from the eastern shore of the mouth of the Big White Salmon River and one and one-half (1-1/2) miles downstream from the fish ladder of the Spring Creek Hatchery.

H.  On the Columbia River between one-half (½) mile upstream and three-fourths (3/4) mile downstream from the shores of the Little White Salmon River.

I.  On the Columbia River between one-half (½) mile upstream and one and one-half (1-1/2) miles downstream from the shores of the mouth of the Wind River.

The restricted areas on the Columbia River mentioned in paragraph "D" and paragraphs "F" through "I" above extend halfway across the Columbia River from the shore on which the tributary stream is located. The regulating body shall endeavor to have the upstream and downstream limits of the closed areas on the Columbia River marked on the shore with orange and white paint.


Chapter V


CHAPTER V - SUBSISTENCE FISHING BY MEMBERS OF APPROVING TREATY TRIBES
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It shall be unlawful to take any fish for subsistence purposes from the mainstem Columbia River except during the times, in the areas, with the gear and for the species as allowed by the appropriate (regulating body).


Chapter VI


CHAPTER VI - CEREMONIAL FISHING
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No Indian shall engage in ceremonial fishing pursuant to this code without an authorized original ceremonial permit issued by his treaty tribe.  The tribe shall notify the Inter-Tribal enforcement section and appropriate state agencies upon the issuance of a ceremonial permit.

It shall be the responsibility of each fisherman fishing pursuant to a valid ceremonial permit to record the numbers of fish taken for ceremonial purposes and submit this information in writing to the tribe which issued the permit.

It shall be unlawful to:

A.   Fish for ceremonial purposes with commercial fishing gear except in those areas where such fishing gear is authorized for commercial fishing;

B.   Engage in ceremonial fishing during any portion of a week within a commercial fishing season which is closed to commercial fishing;

C.  Sell or barter; offer for sale or barter; buy; or, for a commercially licensed fish buyer or wholesale fish dealer to have in his possession, fish taken for ceremonial purposes;

D.   Fish for ceremonial purposes without having in possession a signed original copy of a written tribal notification;

E.  Fish for ceremonial purposes with commercial fishing gear which is not marked and identified in a permanent manner with the fisherman's tribal identification number as required by the approving treaty tribe.