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.