Who Owns Offshore Fisheries and Bodies of Water?

Page 6

Guest Column

The issue of fisheries is becoming more and more important, especially with the tremendous depletion of important species in virtually all parts of North America.

Native nations need to take a good, hard look at the marine and lake fisheries issue, along with the related issues of shellfish, sea vegetables, and crustaceans.

Why? Because most treaties with First Nations seem to have failed to provide for a cession of large bodies of water including the ocean shore from mean high tide line out to the rocks, islands, and fishing-hunting zones of Native people.

Similarly, treaties often failed to cede ownership of inlets, bays, rivers, wetland, larger lakes, etc.

What this means is that under the Firth Amendment of the United States Constitution the Native Nations are still the owners of the unceded waters and of the fishing and gathering rights therein.

I would think that the same would apply in Canada, in that "Crown Lands" could not include that which was never ceded to Britain.

Of course, the language of each treaty and each claims case will need to be examined to see if water areas were specifically ceded or not. If research confirms that large areas of water and ocean were not ceded, then several possibilities present themselves.

Let us suppose, for example, that the Washoe Nation has never been paid for Lake Tahoe. We would know this by checking the Washoe claims case settlement to see if the computation of acreage included only land acreage. If the area of Lake Tahoe itself was not included, then the Washoe Tribe can form a Lake Tahoe Authority, which can assume direct control over the use of the lake's surface and fishery.

For example, the tribe can charge for all of the docks which extend beyond the edge of the lake, can charge a fee or license for all boats placed in the lake, and can require fishing licenses for all who seek to fish in the lake. Washoe tribal licenses and fees would replace all California and Nevada state fees currently collected.

Along the entire Pacific Coast, from San Diego to the Arctic Ocean it is very likely that native groups retain complete title to all ocean waters, bays, sounds and river mouths, up to the mean high tide line.

My knowledge is not complete, but the maps I have seen do not include any substantial water areas. This means that all coastal tribes should carefully examine their treaties and claims cases to see what bodies of water are not included. Each tribe must also determine how far out to sea their traditional ownership extended (usually out to any islands or rocks or generally out to the boundary claimed by the United States and Canada.)

If this research proves fruitful then the next step would be for coastal tribes to sponsor a conference of tribal chairs and other key persons to discuss organization.

Some tribes, such as the Nootka, might wish to claim their own historic area as their exclusive zone. It might be wiser, however, for nations in common ecological regions to form a "joint powers agency" to administer their oceanic reserves jointly and to share all coasts and revenues. Thus, the Puget Sound area might be a joint area, the coast of Oregon might be a joint area, etc.

Other regions to be carefully examined would include the entire Inuit zone from Alaska to Greenland and Labrador, the Hudson's Bay, the Great Lakes and the Texas-Southern Gulf coast. In all of these areas it is likely that Inuit and other rights have never been surrendered to Canada or the United States.

The Atlantic seaboard presents a more complicated problem because of the existence of colonial treaties. Nonetheless, it would seem quite clear that the Powhatan-Renape tribes have never surrendered ownership of the Chesapeake Bay and the tidal rivers of that area, nor have the Micmac ever surrendered the waters off Nova Scotia and New Brunswick.

Asserting indigenous ownership over all ocean shores, tidal waters, and large lakes should be much easier than assertig ownership over land areas, since there are not white cities, towns, and farms on the water itself. Nonetheless, it will be a legal struggle but one well worth the effort, in my judgement. Let's get on with it, you young attorneys and coastal nations.