Neah Bay in Washington. Photo from Makah Nation

A federal judge has scheduled a trial to resolve a dispute over the "usual and accustomed fishing grounds" of three treaty tribes in Washington.

The Makah Nation accused the Quileute Nation and the Quinault Nation of fishing beyond their boundaries. The two tribes countered by claiming the Makahs waited too long to assert their rights and by raising other defenses that have previously have never been allowed in treaty cases.

For that reason, Judge Ricardo Martinez rejected the attempt by the Quileute and Quinault tribes to dismiss the Makah Nation's complaint. He noted that the Makahs were trying to resolve the dispute amicably out of court and shouldn't be penalized for doing so.

"Far from sleeping on their rights, the Makah actively worked with the Quinault and Quileute since the 1980's to obtain amicably negotiated solutions to conflicts over their respective ocean fisheries, all the while preserving their right to seek adjudication in this court should informal methods of dispute resolution reach an impasse," Martinez wrote in the 29-page decision.

The dispute is a sub-proceeding in the long-running U.S. v Washington treaty rights case. In 1974, the late Judge George Hugo Boldt held that tribes in the state were entitled to half of the entire catch.

Since then, several tribes have been litigating the areas where they can and cannot fish. Martinez set a March 2 trial to resolve this particular dispute.

Turtle Talk has posted documents from Sub-proceeding 09-01 of United States v. Washington. Like Judge Martinez, professor Matthew Fletcher questioned the attempt to apply the negative U.S. Supreme Court decision in Sherrill v. Oneida Nation to a treaty case but he had more harsh words for the Quinault and Quileute tribes.

"I find this personally horrifying and disturbing — that any tribe would claim that Sherrill and its Second Circuit progeny apply to treaty rights," Fletcher wrote.

The 2nd Circuit Court of Appeals has repeatedly extended the Sherrill decision to other tribes in order to deny their land claims. Fletcher warned that the 9th Circuit Court of Appeals or the Supreme Court could act negatively if tribes pursue the matter further.

Get the Story:
Native Fishing Rights Headed to Trial (Courthouse News Service 2/24)