IPC Condition Report Addendum   Page 1 

Condition Report Addendum 

An overview of Tribal, state, and federal co-management relationships 

in Washington1

Jurisdictional Overview

When the National Oceanic and Atmospheric Administration established the Olympic Coast 

National Marine Sanctuary (OCNMS) under the Marine Protection, Research, and Sanctuaries 

Act in 1994, it recognized that the primary mandate for the regulation and management of fish 

stocks for a healthy fishery rests with existing fishery management agencies and will be in 

accordance with U.S. v. Washington2

and other applicable law. The Designation Document and 

the 1994 Management Plan, which were part of the Final Environmental Impact Statement 

establishing the OCNMS, specifically affirm the continued management of fisheries by fishery 

management agencies.3

The management of marine resources found in the OCNMS is part of a comprehensive, complex 

mixture of federal, state and tribal jurisdictions. The OCNMS lies within the Usual and 

Accustomed treaty fishing areas of the Quileute, Makah and Hoh tribes, and the Quinault Indian 

Nation (Coastal Tribes). The Coastal Tribes are the co-managers, with the State of Washington 

                                                           

1 The Intergovernmental Policy Council developed this overview to assist in understanding the historical and

cultural significance of fishing activities in the sanctuary as management plan review begins.  The

Intergovernmental Policy Council was formed in 2007 by the Hoh Indian Tribe, Makah Indian Tribe, Quileute Indian

Tribe, Quinault Indian Nation, the State of Washington, and the National Marine Sanctuaries Program of the

National Oceanic and Atmospheric Administration.  It is a forum for marine resource managers with regulatory

jurisdiction over the marine resources and activities within the boundaries of the Olympic Coast National Marine

Sanctuary to enhance their communication, policy coordination and resource management strategies.

2 United States vs. State of Washington, 384 F. Supp. 312 (W.D. Wash. 1974), and subsequent subproceedings.  

3

 The Olympic Coast National Marine Sanctuary’s Final Environmental Impact Statement, the 1994 Management Plan, and the 

Designation Document, are available online at: http://olympiccoast.noaa.gov/protection/pubdocs/welcome.html 
IPC Condition Report Addendum   Page 2 

and the United States, of fishery and related marine resources off the Olympic Coast. All four 

tribes are federally recognized and independent sovereign governments, representing peoples 

with whom the United States of America has entered into a treaty relationship through the Treaty 

of Olympia (1855) or the Treaty of Neah Bay (1855). 

In the Pacific Northwest, each co-manager is responsible for managing natural resources and 

regulating the fisheries within its jurisdiction to collectively create a coordinated and 

comprehensive approach to management. The State of Washington and the treaty tribes have 

cooperatively managed fisheries since the early 1980’s. The mission statement for the 

Washington Department of Fish and Wildlife contains a provision for the agency to work with 

tribal governments to ensure that fish and wildlife management objectives are achieved. This 

involves jointly determining optimal spawning abundance and annual harvest levels. Each comanager then adopts and enforces regulations for its fishers to harvest within these levels. 

Historical Reliance

The environment and abundant resources of the Olympic Peninsula and associated marine waters 

form an economic base for many coastal communities and are essential to the coastal treaty 

tribes’ economies and cultures. For thousands of years, native peoples have made their homes 

along the Olympic Coast, shifting location with the season to establish villages at the best food 

producing sites (Barbara Lane - U.S. exhibits in U.S. v. Washington). The Coastal Tribes 

maintained extensive commerce and trade networks in the Pacific Northwest. 

In the mid 1800’s, Isaac Stevens, governor and superintendent of Indian affairs of the 

Washington Territory, was authorized to conduct treaty negotiations with the Coastal Tribes on 

behalf of the United States government. The Treaty of Olympia (1855) and the Treaty of Neah 

Bay (1855) were eventually signed by representatives of the Coastal Tribes and Governor 

Stevens and subsequently ratified by the United States. Through the treaties, the Coastal Tribes 

ceded title to thousands of acres of land to allow for the peaceful settlement of the Washington 

Territory by non-Indian settlers and to provide for a peaceful co-existence by recognizing tribal 

resource rights. In return, the Coastal Tribes were to receive reservation homelands for their 

exclusive use and were promised assistance from the United States. Importantly, the treaties 

reserved the rights of the Coastal Tribes to continue to hunt and gather resources at their usual 

and accustomed places to maintain their life styles and economies. 

At treaty times, the Coastal Tribes had a strong reliance on their surrounding natural resources. 

Fish was a staple food of the communities and fishing constituted the principal economic activity 

(Barbara Lane - U.S. exhibits in U.S. v. Washington): 

“The right to fish for all species available in the waters from which, for so many ages, 

their ancestors derived most of their subsistence is the single most highly cherished 

interest and concern of the present members of the plaintiff tribes...” U.S. v. Washington

384 F. Supp. 340. 

From the earliest known times, up to and beyond the time of the Stevens’ treaties, the 

Indians comprising each of the treating tribes and bands were primarily a fishing, 
IPC Condition Report Addendum   Page 3 

hunting, and gathering people, dependent almost entirely upon the natural animal and 

vegetative resources of the region for their subsistence and culture...The treaty-secured 

rights to resort to the usual and accustomed places to fish were a part of larger rights 

possessed by the treating Indians, upon the exercise of which there was not a shadow of 

impediment, and which were not much less necessary to their existence than the 

atmosphere they breathed. The treaty was not a grant of rights to the treating Indians, 

but a grant of rights from them, and a reservation of those not granted.” U.S. v. 

Washington 384 F. Supp. 406-407. 

Wealth, power and maintenance of cultural patterns were indelibly linked to the tribes’ 

surrounding natural resources. The Coastal Tribes enjoyed a high standard of living as a result 

of their marine resources and extensive marine trade and sought to retain the right to continue 

these activities. Freedom to continue traditional practices was a primary concern of the tribes 

during the treaty negotiations. The treaty negotiators for the United States were aware of and 

acknowledged the commercial nature and value of the maritime economy (U.S. v. Washington, 

384 F. Supp. 350, 406). 

Both the Treaty of Olympia and the Treaty of Neah Bay contain common language: “the right of 

taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in 

common with the citizens of the territory ....together with the privilege of hunting, gathering 

roots and berries, and pasturing their horse on open and unclaimed lands.” An additional clause 

regarding traditional practices was contained in the Treaty with the Makah (1855) reflective of 

the coastal tribes’ extensive connection to marine resources: “and of whaling or sealing” (U.S. v. 

Washington, 384 F. Supp. 312, 349-350 (W.D. Wash. 1974)). 

Treaty Rights 

Under Article VI, Section 2 of the United States Constitution, treaties with Indian tribes are 

considered the supreme law of the land: “the Constitution... of the United States... and all 

Treaties made, or which shall be made, under authority of the United States, shall be the supreme 

Law of the Land; and the Judges in every State shall be bound thereby, anything in the 

Constitution or Laws of any State to the contrary notwithstanding.” 

These treaties were not a grant of rights to the tribes, but rather a grant of rights from the tribes 

and a reservation of those rights not expressly granted (United States v. Winans, 198 U.S. 371 

(1905)). Because the right of taking fish is a reservation of the tribes’ pre-existing rights, and 

because the right to take any species, without limit, predated the Stevens Treaties, the right of 

taking fish is without any species limitation (Rafeedie Decision 1994). 

Clarification and implementation of treaty fishing rights in the Pacific Northwest has a long legal 

history. Conflicts over the management and regulation of treaty fisheries arose by the mid1880’s and continued for the next one hundred years. Throughout this time, the federal court 

system has been a consistent guardian of Indian treaty fishing rights, affirming them on seven 

separate occasions. Below are some of the key cases involving treaty Indian fishing rights: 
IPC Condition Report Addendum   Page 4 

United States v. Winans (1905) - the right to fish and to access traditional fishing grounds 

off-reservation; 

State v. Towessnute (1915), State v. Alexis (1915), State v. Tulee (1939) – the right to fish 

without state license; 

Makah Indian Tribe v. McCauly (1941), Makah Indian Tribe v. Schoettler (1951) - 

prohibit enforcement of state restrictions on fishing gear; 

Department of Game v. Puyallup Tribe I, II &I II (1968, 1973, 1977) - prohibit state 

management of treaty fishing; 

United States v. Oregon - Belloni Decision (1969) and United States v. Washington - 

Boldt Decision (1974) - determination of “fair and equitable” share; 

Washington v. Washington State Commercial Passenger Fishing Vessels Ass’n (1979) 

and Hoh v. Baldrige (1981) – refinement of accounting for 50 percent harvest sharing; 

and 

United States v. Washington - Rafeedie Decision (1994) – extension of treaty rights to 

shellfish. 

The courts have determined that tribes are entitled to a specific share of the available harvest of 

resources available at their usual and accustomed grounds and stations and to manage the use of 

those resources. 

“The state may regulate fishing by non-Indians to achieve a variety of management or 

‘conservation’ objectives. Its selection of regulations to achieve these objectives is 

limited only by its own organic law and the standards of reasonableness required by the 

Fourteenth Amendment. But when it is regulating the federal right of Indians to take fish 

at their usual and accustomed places it does not have the same latitude in prescribing the 

management objectives and the regulatory means of achieving them. The state may not 

qualify the federal right by subordinating it to some other state objective or policy. It 

may use its police power only to the extent necessary to prevent the exercise of that right 

in a manner that will imperil the continued existence of the fish resource. The measure of 

the legal propriety of a regulation concerning the time and manner of exercising this 

‘federal right’ is, therefore, ‘distinct from the federal constitutional standard concerning 

the scope of the police power of the State.’ To prove necessity, the state must show there 

is a need to limit the taking of fish and that the particular regulation sought to be 

imposed upon the exercise of the treaty right is necessary to the accomplishment of the 

needed limitation.” U.S. v. Washington 384 F. Supp. 346. 

“The State’s police power to regulate the off-reservation fishing activities of members of 

the treaty tribes exists only to the extent necessary to protect the resource. This power 

does not include the authority to impair or qualify the treaty right by limiting its exercise 
IPC Condition Report Addendum   Page 5 

to State-preferred times, manners or purposes except as such limitation may be necessary 

for preservation of the resource and protection of the interests of all those entitled to 

share it. This power does not include the power to determine for the Indian tribes what is 

the wisest and best use of their share of the common resource.” U.S. v. Washington 384 

F. Supp. 401-402. 

Trust Responsibility

The treaties, associated federal statutes, Executive Orders, and court rulings have established a 

unique legal relationship, an overarching federal trust responsibility of the United States to 

Indian tribes. The trust responsibility establishes legal obligations of the United States to Indian 

tribes, including the protection of treaty fishing rights. The United States government recognizes 

the sovereignty of Indian tribes and as a matter of policy, works with Indian tribes on a 

government-to-government basis to address issues concerning Indian tribal self-government, 

tribal trust resources and treaty fishing and other rights. 

Co-management

Fisheries of the Coastal Tribes, by tradition, tribal law, and by their nature, are primarily placeoriented, depending upon fish being available at their respective usual and accustomed areas. 

Each of these tribes regulates and controls tribal fishing at these locations in accordance with 

tribal law and judicially prescribed fishery management responsibilities. Each tribe regulates its 

fisheries with the objectives of maintaining the long-term productivity of the resource and 

carrying out its determinations regarding the use of its share of the fishery resources. 

Each of the Coastal Tribes maintains its own fisheries management and enforcement staffs, 

regulate fisheries and engage in a wide variety of research, restoration, and enhancement 

activities to improve the scientific basis for resource stewardship. These tribes also participate in 

domestic and international multi-jurisdictional processes such as the International Pacific Halibut 

Commission, the Pacific Fishery Management Council, and the Pacific Salmon Commission. 

Tribal, state and federal resource managers operate within a management framework that has 

sufficient flexibility to meet the following requirements: 1) resource conservation: 2) sustainable 

fisheries; and 3) assure that treaty and non-treaty fishers are afforded the opportunity to harvest 

or utilize (subject to their respective regulatory authorities) their share. This is the basic 

approach that the co-managers follow whether participating within international management 

forums (e.g., International Pacific Halibut Commission or United States/Canada Pacific Salmon 

Commission), regional management forums (e.g., Pacific Fishery Management Council or North 

of Cape Falcon), or localized state/tribal management processes. 

This cooperative management approach has proven to be effective in meeting the conservation 

needs of the resources and social, economic, and cultural needs of treaty and non-treaty fisheries. 

Undoubtedly, Co-management will continue to evolve to address changing resource and 

management needs. This co-management framework has provided a reliable and transparent 

planning forum for addressing resource conservation and allocation issues. Its success and 

functionality over the past decade led the National Oceanic and Atmospheric Administration to 

conclude that primary responsibility for fisheries management should remain within existing 
IPC Condition Report Addendum   Page 6 

tribal, state and federal authorities and not with the National Marine Sanctuary Program or the 

OCNMS. It was envisioned that the OCNMS would focus on research to enhance the 

management and conservation of fishery and other resources within the boundaries of the 

OCNMS to assist the primary fishery co-managers4

. 

The Intergovernmental Policy Council (IPC), an advisory body established by the Coastal Tribes, 

State of Washington and the OCNMS in 2007, is an example of the coordination envisioned. 

Implementation planning is currently under way within the IPC forum regarding the tribal/state 

Ocean Ecosystem Initiative. This initiative seeks to strengthen management practices of the 

ocean and coastal resources along the northern Washington Coast. Of primary focus is 

improving the regional capability of forecasting stock status and abundance of rockfish stocks. 

This will be accomplished by developing a finer scale biological database through the 

application of genetic stock identification research conducted by the Makah Fishery Program, 

expansion of the rockfish stock assessment program of the Washington Department of Fish and 

Wildlife, and augmentation of the existing fishery sampling programs conducted by the state and 

Coastal Tribes. An essential element of this effort includes collaborating on a research plan with 

OCNMS that assists in completion of seafloor relief and substrate mapping of the northern 

Washington Coast, a necessary first step to determine the extent and distribution of rockfish 

habitat. 

                                                           

4 This was an initial goal of the OCNMS; see OCNMS Final EIS, Part V, Management Plan, available at:

http://olympiccoast.noaa.gov/protection/pubdocs/welcome.html