Historical Perspective: CILS’ Protection of Tribal Fishing Rights

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].

Governor Newsom’s Order Regarding Tribal Lands

By Dorothy Alther, Executive Director

On September 22, 2020, Governor Newsom signed “A Statement of Administration Policy on Native American Ancestral Lands” acknowledging and reiterating that Native Americans occupied California long before statehood and were forced to relinquish their lands and sacred sites,  through violence or other means, to the newcomers descending upon the state. The Policy’s purpose is to “partner with California tribes to facilitate tribal access, use, and co-management of State-owned or controlled natural lands and to work cooperatively with California tribes that are interested in acquiring natural lands in excess of State needs …” This defined purpose is to be accomplished through facilitating Native American access to their sacred and cultural sites located on state lands, improve the ability of California Native Americans to engage in traditional and sustenance gathering, hunting and fishing; manage state lands through co-management agreements that utilize “Traditional Ecological Knowledges” and foster “opportunities for education, community development, economic diversification, and investment in public health, information technology, and infrastructure, renewable energy, water conservation, and cultural preservation or awareness.”

This directive to state agencies means that Native Americans will hopefully no longer be denied access to their sacred and cultural sites on state lands in order to carry out their traditional practices. Native gathering, and substance hunting and fishing will be easier to engage in on state lands. Tribes will be allowed to voice and be involved in applying their traditional knowledge of maintaining natural resources on state lands through co-management agreements with state agencies. Most importantly, tribes may acquire excess state land not needed for a state purpose, meaning areas of cultural importance may be returned to Native American ownership.

Protect Your Cultural Resources

By Dorothy Alther, Executive Director

Protecting Native American cultural resources comes in two forms: “proactive” and “reactive.” I encourage tribes to engage in both approaches.

Proactive: Sign up for consultation early when a project or undertaking is in the planning stages. Early consultation allows you to build in mitigation measures, tribal monitoring requirements, and protocols for inadvertent discoveries. But state cultural resource protection laws require you to take proactive steps before consultation is required by a state agency, county, or city.

1. SB 18, passed on 2004, requires counties and cities who are proposing amendments to their “General Plan,” contact and consult with any tribe that might or does have cultural sites or places that could be impacted by the amendments. Bringing tribes into the process early will provide better guidance (and avoid less legal challenges later) for the city and county in the amendment process.

In order for your tribe to avail itself of this early consultation process, you must contact the Native American Heritage Commission (NAHC) and inform them that you want to be consulted with pursuant to SB 18. You will also need to provide the name of the tribal contact person and provide maps or some other descriptive means that identifies the area(s) that are important to the tribe. All tribal maps and designated areas provided to NAHC are kept confidential.

2. AB 52, passed in 2014, is more expansive than SB 18 and has early tribal consultation as its centerpiece. The law requires state agencies contemplating an undertakings on state lands to consult with tribes when the agency has issued a: (a) Notice of Preparation; (b) Notice of Mitigated Negative Declaration; or (c) Notice of Negative Declaration for a project. However, no consultation is required unless you have submitted in advance a written request to the agency that you want to be contacted and consulted with when an undertaking or project is being proposed in an area defined and described by the tribe.

3. “Most Likely Descendent (MLD)” make sure that your tribe has submitted to the NAHC the tribal contact person who will act as the tribe’s MLD for inadvertent discoveries of cultural resources.

Reactive: What do you do if a state agency, county, or city notifies you they have inadvertently unearthed or uncovered Native American remains or artifacts during project development? Under the law, work on the project must cease, and the government entity must contact the NAHC to determine who the tribal MLD is for the area where the remains were discovered.

You need to be ready to work with the government entity and formulate a plan on what the tribe wants done. Some recommendations: (a) dispatch tribal monitors and your archaeologist (if possible) to the site to protect the area; (b) develop a repatriation plan on how and when the human remains will be given to the tribe; (c) determine the disposition of the remains once they are turned over to the tribe; (d) make arrangements on where the remains will be stored until final disposition can be completed. Ensure tribal monitors are kept on-site during the remaining course of the project.

CILS is here to assist you with protecting your cultural resources. Contact your local CILS office for more information and assistance.

Ninth Circuit Court of Appeals Hands the Kumeyaay Cultural Repatriation Committee Another Victory

On August 21, 2015, the 9th Circuit Court of Appeals denied three University of California professors’, Timothy White, Robert L. Bettinger, and Margaret Schoeninger, Petition for an En Banc Hearing. The professors sought a full Court review of a decision by a three member panel of the Court that affirmed the dismissal of the professors’ law suit against the University of California, its officials and the Kumeyaay Cultural Repatriation Committee (KCRC). At the heart of the professors’ law suit are human remains dated at over 9,000 years old that were excavated from the University of San Diego’s property in 1975. After the passage of the Native America Grave Protection and Repatriation Act (NAGPRA) in 2000, KCRC sought repatriation of the remains it believes are Kumeyaay and were removed from Kumeyaay aboriginal lands. The University resisted KCRC’s claims and denied repatriation until 2010 when new regulations were adopted by the National Park Service (NPS) that instructed facilities and institutions to repatriate human remains to a tribe whose aboriginal lands the remains were removed from, regardless of whether “cultural affiliation” could be demonstrated.

On the eve of the Public Notice, published by NPS, announcing the University’s intent of repatriate the remains to a member tribe of KCRC, the professors sued the University. Initially the educators were successful in obtaining an injunction stopping the University from transferring the remains to KCRC until the professors’ law suit was concluded, but ultimately lost at the 9th Circuit.

Both the University and KCRC moved to dismiss the professors’ law suit on the grounds that KCRC was an indispensable party to the action and could not be joined because of tribal immunity. The lower court granted both motions to dismiss and the professors appealed the ruling. The 9th Circuit Court affirmed the dismissal. The professors then sought an en banc hearing to review the Court panel’s decision, their request was denied on August 21, 2015.

The Court victory was short lived, as the professors have notified KCRC that it will be filing a Writ of Certiorari to Supreme Court and seeking a stay of any repatriation of the remains to KCRC until the Supreme Court has acted on their Writ.”

“KCRC was happy to hear the Court’s ruling as this has been a very long road with numerous delays in repatriating their ancestors. With the announcement that the professors will be filing a Writ to the Supreme Court will only mean further delay, but we remain optimistic that someday this matter will be resolved,” said Dorothy Alther, Executive Director for California Indian Legal Services.

Victory for the Kumeyaay Tribes

The Ninth Circuit Court of Appeals issued a decision in the White et.al. v. University of California et.al. Kumeyaay Cultural Repatriation Committee (KCRC) upholding the lower court’s dismissal of plaintiffs’ case. At the center of the litigation are two Native American human remains, estimated to be 9,000 years old, discovered in 1976 on the campus of the University of California San Diego (UCSD.) KCRC was formed by the Kumeyaay Tribes of San Diego California in 1997 to protect tribal cultural resources and to ensure proper repatriation of tribal remains. Pursuant to the Native American Grave Protection and Repatriation Act (NAGPRA), California Indian Legal Services represented KCRC in its efforts for repatriation of the remains from the UCSD, to no avail. Through a lengthy and often bitter battle with the UC’ internal NAGRPA review committees, the committees determined that the remains could not be “culturally affiliated” to the Kumeyaay, a determination that is necessary before repatriation is required under NAGPRA.

In 2010 the National Park Service, the federal agency charged with implementing the NAGPRA, issued long awaited regulations directing federal agencies and certain institutions in possession of Native American remains that were “culturally unaffiliated” to repatriate them to the tribe from whose aboriginal lands the remains were found. It was undisputed that the area where the two Native American remains were discovered are part of the Kumeyaay’s aboriginal lands. Under the new regulations, UCSD agreed that the remains should be repatriated to KCRC and proceeded with the final administrative actions necessary to complete the transfer. On the eve of the expiration of the public notice announcing the repatriation to KCRC, three UC professors: Timothy White from UC Berkeley, Margaret Schoeinger from UCSD and Robert Bettinger, from UC Davis, successfully filed a restraining order to stop the transfer. The UC Board of Regents and CILS, on behalf of KCRC, successfully moved to dismiss the case on grounds of tribal sovereign immunity and that KCRC was an indispensable party.

On appeal the 9th Circuit Court of Appeals upheld the lower court’s dismissal of the plaintiffs’ case affirming: (1) NAGPRA does not provide a congressional waiver of sovereign immunity; (2) KCRC was an “arm of the tribe(s)”; (3) KCRC had not waived its tribal immunity by incorporating under state law or by filing a federal law suit against the UC Board of Regents prior to the plaintiffs’ action; and (4) that KCRC was an indispensable party to the action who could not be joined. The Court’s decision is a great victory for the Kumeyaay Tribes and hopefully an end to the battle for repatriation of the human remains long held by the Tribes to be their native ancestors.