FROM THE ARCHIVE

Appeals court rejects Makah 'diplomacy'

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WEDNESDAY, MARCH 6, 2002

Siding with two states and representatives of the fishing industry, a federal appeals court on Tuesday rejected an agreement governing the treaty rights of the Makah Nation of Washington.

While conceding that a 1999 agreement between the tribe and the federal government could indeed be fair, a three-judge panel of the 9th Circuit Court of Appeals said not enough science was presented to back it up. The judges said the National Marine Fisheries Service (NMFS), an agency of the Department of Commerce, has to come up with a new deal or justify one that complies with federal law and the tribe's 19th century treaty.

"In sum, the best available politics does not equate to the best available science," wrote Judge Sidney R. Thomas for the majority.

At issue is the allocation of Pacific whiting, a species of fish, to tribal fishermen. Under the 1855 Treaty of Neah Bay, the tribe's fishing rights are reserved.

But there was dispute over how to interpret the treaty provisions. In 1996, the NMFS sought to allocate fish based on a "biomass" concept while the tribe wanted a harvest-based approach.

Under the government's proposal, the tribe would receive 6.5 percent of the entire harvest of whiting fish. The tribe's alternative sought up to half of the fish on the Pacific coast, or 25 percent of the total United States harvest.

Due to litigation, the government never moved forward with its proposal. Eventually, the tribe and the government in 1999 agreed to a 14 percent allocation, or 32,500 metric tons of fish, for five years.

The fishing industry and the states of Oregon and Washington objected to the arrangement. A federal judge first dismissed the complaint in favor of the government and the tribe.

Yesterday, the appeals court largely upheld that action. The court rejected the claims regarding the tribe's "usual and accustomed" fishing area and affirmed the tribe's treaty rights.

The court, however, found no proof that the five-year agreement was based on anything but "pure diplomacy." The government's reasoning "is devoid of any stated scientific rationale," the court said.

The decision isn't the first time the NMFS has run into trouble with the way it handles the tribe's affairs. In 2000, the court ruled the agency entered into an agreement governing the tribe's highly controversial whale hunt without proper justification.

Yet in that case, a subsequent environmental analysis recognized an even greater authority of the tribe's rights. Yesterday's ruling could also backfire on the states and industry and lead to an agreement more in line with the tribe's initial 50 percent proposal.

Get the Story:
MIDWATER TRAWLERS COOP. v. DEP'T OF COMMERCE, No. 00-35717 (9th Cir. March 05, 2002)

Relevant Links:
The Makah Nation - http://www.makah.com

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