Historical Perspective: CILS’ Protection of Tribal Fishing Rights

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By Jay Petersen, CILS Sacramento office Senior Staff Attorney

Over the years, CILS has played an important role in protecting Tribal fishing rights against large-scale irrigation, hydroelectric power, and surface water storage needs.

In the 1980’s, California and the United States mounted numerous prosecutions against Tribal members fishing in the Klamath River under the pretext of protecting dwindling fish populations. State and federal courts appointed CILS attorneys from the Oakland, Ukiah, and Eureka offices to defend Tribal members in felony prosecutions based on restrictions against some fishing methods and off-Reservation fish sales.  CILS’ successful defense work in these prosecutions helped end the unwarranted and unlawful prosecution of Tribal members harvesting their fish on their Reservation. One CILS case stands out.  (People v. McCovey)

People v. McCovey: Backstory

The Klamath River felony prosecutions took place against the backdrop of a series of United States Supreme Court decisions from the 1970’s to the early 1980’s that vindicated Tribal fishing rights against the rights of competing fishing interests and significantly limited the scope of state restrictions against Tribal fishing. It is believed these cases, arising in Washington State, encountered more strenuous resistance to their enforcement than any series of United States Supreme Court decisions other than the 1960’s racial desegregation decisions.

The 1980’s felony prosecutions grew out of strong resistance to Tribal fishing rights. In the McCovey case, CILS attorneys represented a Yurok fisherman, Walter McCovey Jr. He was charged in State court with felonies based on allegations that he sold fish off-reservation in violation of state law. The California Supreme Court decided that McCovey’s felony prosecution was unsupported by any evidence showing adverse impacts of Tribal fishing on California’s fish resources. As a result, the Court dismissed the felony charges against McCovey, finding that California’s prosecution was incompatible with Tribal fishing rights and prohibited by federal law.

 Outcomes and Lessons Learned

The McCovey decision cemented the idea that protecting threatened fish populations cannot be achieved through the random felony prosecution of Tribal members. Tribes must be involved in managing their fishing resources, and effective Tribal resource management can prevent adverse impacts to competing fishing interests like California’s.

The current climate disruption and drought cycles will continue to pit the protection of threatened fish populations and Tribal fishing rights against competing fishing interests. Thanks to CILS’ representation in the McCovey case and in similar cases, felony prosecutions of Tribal members cannot be used as a primary conservation tool to protect the fish populations that are so central to Tribal culture and economics in the Klamath River Basin.

  • See People v. McCovey 36 Cal.3d. 521 (1984) [State criminal prosecution of Tribal member for off-reservation fish sales alleged to violate state law dismissed for lack of jurisdiction].

California Stimulus Check

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By Ryan Buuck, LMU Loyola Law School, J.D./M.B.A. Dual Degree Candidate

Last week, Governor Gavin Newsom announced a new economic recovery package that will include $12 billion of direct payments to residents of the State of California. These payments will be like the three stimulus checks sent by the federal government during the CoVID-19 Pandemic. Under this new California plan, many residents who earn up to $75,000 per year will qualify for a one-time check. California expects two out of every three residents to receive economic relief from the state this year.

Do I qualify?
To qualify, you must be a resident of the State of California, you must have already filed your 2020 taxes, and you must earn between $30,000 and $75,000 per year. If you are married and file your taxes jointly with your spouse, you must make less than $75,000 combined to qualify. If you earn less than $30,000 per year, you will not be able to get this check because you qualified for the Golden State Stimulus check that was announced in February, and you can still claim that payment up until October 15, 2021. The $75,000 threshold is measured by “California Adjusted Gross Income,” which means you could make more than $75,000 per year, but if you make less than $75,000 after deductions, you will still qualify for the check.
Unlike the federal stimulus checks, undocumented immigrants and their families and non-resident and resident aliens who use an Individual Taxpayer Identification Number (ITIN) are eligible for the California stimulus check.

How much will I get?
Each Californian that qualifies for the stimulus check will get $600. If you are married and file jointly, you and your spouse will get $600 total. If you are eligible and you have dependents, you will receive an extra $500. This additional amount will be the same no matter how many dependents you have. For example, if you have one child, you will get an extra $500, and if you have five children, you will also get an additional $500. If you received the Golden State Stimulus earlier this year and you have dependents, you will not be getting the $600 check, but you will qualify for the extra $500 for your dependent.

When will I get it?
Although the e state has announced this payment plan, our legislature still needs to approve it, which may take some time. If the Golden State Stimulus earlier this year is a good indicator, you should expect the state to move quickly on processing these payments. Once a taxpayer is deemed eligible, it takes between two and six weeks to receive the check. Taxpayers who set up direct deposit for their taxes will get theirs faster than those waiting on a check to come in the mail. You can set up a direct deposit at ftb.ca.gov.

How can the state afford this?
In 1979 Californians voted to create a limit on the amount of money the state is legally allowed to spend every year. We pay high taxes in California, and this cap, called the Gann Limit, ensures that our state government is responsible for our tax money. When the state reaches the Gann Limit, the rest of the funds must be returned – half goes to our public schools, and half goes straight back to the taxpayers. The only time this has happened before was 1989, and we got a 15% cut on our taxes. This year, there was a ton of money left over, and it is coming back to many of our bank accounts.

AB 1869 – Eliminating Criminal Adminstrative Fees

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This bill repeals the authority to collect many of these fees, among others. The bill makes the unpaid balance of these court-imposed costs unenforceable and uncollectible and requires any portion of a judgment imposing those costs to be vacated. If you qualify or have questions contact any CILS office nearest to you.

AB 1869 Flyer