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].