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Washington High Court Says State Has No Legal Jurisdiction Over Tribes At Treaty Fishing Access Site
Posted on Friday, February 10, 2012 (PST)

Washington High Court Says State Has No Legal Jurisdiction Over Tribes At Treaty Fishing Access Sites


Four Columbia River basin tribes’ right to police themselves at congressionally designated treaty fishing access areas was upheld Thursday in a decision released by the state of Washington’s Supreme Court.


The court, in a 6-3 vote, affirmed a state appellate court decision that said the state of Washington erred in citing Lester Ray Jim, a member of the Yakama Nation, in 2008 for illegally retaining undersized sturgeon at the Maryhill access site, which is located in Washington across the river from Biggs, Ore., in The Dalles Dam reservoir.


“We hold that Maryhill is reserved and held by the United States for the exclusive use of tribal members and that the State therefore lacks criminal jurisdiction,” the Washington Supreme Court opinion says.


The state’s high court said, “The basic facts of this case are undisputed.”


Jim caught the five sturgeon incidentally on June 25, 2008, while gill-net fishing commercially, under right of treaty, in the Columbia River.  Jim took the undersized sturgeon ashore at Maryhill.


There he was issued citations by the Washington State Department of Fish and Wildlife for unlawful use of a net and unlawfully retaining the undersized sturgeon.


Jim argued that it is the usual practice among Yakama fishers to wait until coming ashore to release sturgeon and said he told the WDFW officers that he planned to release the sturgeon, which can survive out of water for several hours, and that the officers in fact released the live fish back into the river.


Both state and tribal law restrict the retention of sturgeon that are not above a certain size, but only the state makes it unlawful to fail to “return unauthorized fish to the water immediately," The Supreme Court decisison says. Tribal law allows Yakama members “a reasonable opportunity to release alive any sturgeon of prohibited length incidentally caught in authorized fisheries."


Jim challenged the State's jurisdiction to prosecute him for an alleged criminal violation at Maryhill, asking the Klickitat County District Court to dismiss the case.


On Oct. 21, 2008, the district court granted Jim's motion.


The state then appealed to the Klickitat County Superior Court and it concluded that the state has jurisdiction because "[t]he Maryhill Treaty Fishing Access Site is not within the boundary of the Yakama Reservation.”


The state Court of Appeals, however, reversed the superior court. The appellate court cited legal precedent that the state did not have criminal jurisdiction at such “in-lieu” fishing sites as Maryhill.


Maryhill is one of several treaty fishing access sites established by Congress in 1988. The treaty fishing access sites were created by Congress in response to the devastation of many accustomed fishing grounds of Columbia River tribes that were flooded when the Bonneville Dam was built.


“The State lacks criminal jurisdiction at Maryhill because the treaty fishing access site is tribal land, established and reserved by Congress for the exclusive use of tribal members.  The State does not dispute that the site is tribal land,” the Feb. 9 Supreme Court opinion says. “Rather, this case turns most prominently on whether Maryhill is an established reservation.


“Accordingly, because we find that Maryhill is an established reservation held in trust by the United States for the benefit of tribes, we hold that RCW 37.12.010 precludes state criminal jurisdiction.”


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