Treaty Rights FAQ
Why do tribal members get to come onto private property and harvest shellfish?
Washington state is one of the few states in the nation where tidelands are privately owned. Most states have kept tidelands in public hands so everyone can enjoy them. The state sold off the tidelands several decades after the treaties were signed in the 1850s that promised the tribes half of the shellfish. The treaty right to harvest shellfish was never extinguished; the sale of tidelands did not change the tribes’ treaty right.
In what kind of harvesting do the tribes participate?
The tribes conduct commercial, ceremonial and subsistence harvest for shellfish and finfish. Commercial harvests allow tribal members the opportunity to sell the shellfish products they harvest. Ceremonial harvests are intended for use in weddings, funerals and other traditional gatherings, while subsistence harvests are intended to provide tribal members with food.
How will a property owner know when a shellfish harvest is going to occur?
Several steps must be taken before any tribal harvesting can occur on a beach, and the property owner will get notice of these steps. The tribes are required to conduct shellfish population surveys and estimates before any harvesting can occur. It would be impossible to determine what the tribes’ share of naturally occurring shellfish is on a beach without current information.
A population survey can occur no more than once every year, and its cost must be paid for by the tribes. All information will be shared with the property owner and the Washington Department of Fish and Wildlife (WDFW). Surveys will be generally be conducted during low tide episodes in the spring and summer.
If the population survey indicates there is sufficient shellfish on the property to sustain a tribal harvest, then a tribal regulation opening that property for shellfish harvesting will be issued. Notice will be sent to the property owner and WDFW.
The notice will include the quantity of shellfish that may be taken, the purpose of the harvest (commercial, subsistence or ceremonial), and the dates and times when the harvest will take place. The name, address, and telephone number of the tribal representative responsible for the harvest will also be included in the notice.
What if there aren’t many clams or oysters on a beach?
If the shellfish surveys indicate a beach doesn’t contain shellfish in sufficient quantity, no harvesting would occur. The tribes may be interested in entering into cooperative enhancement projects with specific property owners to bolster shellfish populations, providing more resource for both the tribes and tideland owners.
Do property owners have any recourse if they disagree with a population assessment?
Yes. Property owners are entitled to have their own scientifically valid population assessment done at their own expense. If such an assessment differs from the tribe’s results, the property owner may bring that discrepancy to the attention of the tribe in writing. If the property owner and the tribe cannot resolve the difference, either the property owner or the tribe can initiate a dispute resolution process through the federal court.
Which tribes will be able to harvest shellfish from a particular beach?
Fifteen western Washington tribes are covered by the ruling: Jamestown S’Klallam, Lower Elwha Klallam, Lummi, Makah, Muckleshoot, Nisqually, Nooksack, Port Gamble S’Klallam, Puyallup, Skokomish, Squaxin Island, Suquamish, Swinomish, Tulalip, and Upper Skagit.
Each tribe has a “usual and accustomed” harvest area (U&A) that reflects the historical region in which finfish, shellfish, and other natural resources were collected. All tidelands in Puget Sound are within the usual and accustomed harvest areas of one or more tribe. Tribal members are allowed to exercise their treaty-protected harvest rights only within their tribe’s U&A. All tribal members must have a valid identification card to be eligible to harvest. The number of harvesters must be commensurate with the resource available for harvest.
Can non-Indian property owners harvest commercially from their property?
Yes. Under state law, commercial harvests from privately owned tidelands can take place only from aquatic farms licensed by the state, or with a specific permit issued by the director of Washington Department of Fish and Wildlife. Also, private tidelands owners must have their beaches certified from the state Department of Health, and they must have signed authorization from a registered clam farmer in order to harvest clams commercially on intertidal ground. If the tidelands owner is a registered clam farmer, no authorization is necessary. If they lease the beach to a third party, that third party must be a registered clam farmer. If someone is hired to harvest, the harvester must have written authorization from the registered clam farmer.
Once a tidelands owner has received notice from a tribe, the tidelands owner is limited to taking no more than half of the harvestable naturally occurring shellfish.
How will tribal shellfish harvesters access shellfish beds?
The primary access to a harvest area will be via water or public access points, like parks, streets, or public boat launches. Upland access to harvest areas is allowed only with the upland owner’s permission, or unless no other safe means of access is available. Disagreements regarding access can be addressed through the dispute resolution process developed by the court.
Who will ensure tribal harvesters won’t break any harvesting or access rules?
Shellfish monitors and/or enforcement personnel will ensure the rules of the court’s decision and other tribal fishing regulations are followed.
What happens if a tribal shellfish harvester breaks a law while harvesting?
If there are specific objections to the way a tribal member was using the beach, including littering, being disruptive or otherwise disobeying tribal fishing rules, contact the harvest monitor or tribal fisheries enforcement officer present on the beach, or contact the fisheries office listed on the regulation received prior to harvest.
Tribal members suspected of breaking harvest guidelines or other tribal policies are subject to prosecution in the tribal court system. If found guilty, they can face a loss of fishing privileges and/or monetary fines.
How often will tribal harvesters be on a beach?
According to Judge Rafeedie’s implementation plan, the tribes are allowed to harvest no more than five days per year on any given beach. One additional day of harvest opportunity will be granted for every additional 50 feet of beach over 200 feet in length. In most cases, the tribes will harvest fewer days per year than the maximum permitted by the court.
Won’t tribal shellfish harvesting deplete the resource?
No. Judge Rafeedie’s ruling allows the tribes to harvest up to 50 percent of the harvestable surplus of shellfish, that is up to half of the shellfish not needed to sustain the species. Sound fisheries management practices will safeguard overall shellfish populations by only harvesting what can be taken without jeopardizing any particular species. The tribes employ fisheries scientists, managers, technicians and enforcement officers who work together to ensure resource populations are managed to provide a long-term sustainable harvest.
How can the public be assured that shellfish harvested by the tribes is safe to consume?
The federal district court adopted a court order based on a 1994 tribal and state agreement which established a program to protect the public from contaminated shellfish. This court order ensures all shellfish harvested in the state meet federal health standards.
The tribes are working on several levels to protect the public health. For several years, tribal shellfish biologists and technicians have been working with their counterparts in the Washington State Department of Health and federal Food and Drug Administration to ensure protection of public health. Only those growing areas that meed federal standards as approved harvest areas are open to tribal commercial harvesting.
How will the tribes know if changes in water quality occur and either worsen and contaminate shellfish, or improve and make more shellfish safe for harvest?
The tribes and state collect samples of water and shellfish and have them analyzed for various contaminants prior to each harvest. The tribes monitor for the algae that cause paralytic shellfish poisoning (“red tide”) and amnesic shellfish poisoning (domoic acid), and for fecal coliform bacteria.