MLPA Position Paper – Inter-Tribal Water Commission

MLPA Position Paper – Inter Tribal Water Commission | PDF for Download

The Inter-Tribal Water Commission recommends that the Dept. Fish & Game utilize their administrative authority as described in Section 200 of the California Fish and Game Code: “There is hereby delegated to the (fish and game) commission the power to regulate the taking or possession of birds, mammals, fish, amphibia, and reptiles to the extent and in the manner prescribed in this article.” Section 205 of the California Fish and Game Code is clear in its description of the Commission’s authority: Any regulation of the commission pursuant to this article which relates to fish, amphibia, and reptiles, may apply to all or any areas, districts, or portions thereof, at the discretion of the commission, and may do any or all of the following as to any or all species or subspecies:

(a) Establish, extend, shorten, or abolish open seasons and closed seasons.

(b) Establish, change, or abolish bag limits, possession limits, and size limits.

(c) Establish, and change areas or territorial limits for their taking.

(d) Prescribe the manner and the means of taking.

The unique political status, acknowledgement and description of trust responsibilities between the United States and California Tribes are addressed in federal law or policies. In Morton v. Mancari, 417. U.S. 535 (1974), the Supreme Court upheld preferential treatment of Indians thus deciding these actions in this case would not violate the Equal Protection Clause. This was based on political status rather than racial status. Thereby Tribes retain this explicit right that do not infringe upon the general population.

The United States recently signed the United Nations Declaration Rights of Indigenous Peoples. This internationally accepted doctrine protects and preserves aboriginal rights of Indigenous People and sovereign traditional practices throughout the world. Article 30: “Indigenous Peoples have the right to determine and develop priorities and strategies for the development or use of their land, territories and other resources, including the right to require that states obtain their free an informed consent prior to the approval of any projects affecting their lands, territories and other resource, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”

Federally recognized Tribes and Tribal communities cannot remain under the same category as “Recreational.” Why? California’s First Peoples have a life of purpose that was dictated before first European contact. We are not recreational in the sense that our relationship with the Ocean and marine habitat is purely for recreational purposes. The application of traditional fishing and gathering techniques have shown to be successful stewardship ideologies that continue to sustain healthy marine ecologies. Unbroken cultural traditions are foundational to the very survival and identity of every Tribe. The ability to provide dietary and nutritional subsistence promotes physical activity, intertidal knowledge, habitat identification, geographic formations and weather conditions, just to name the basic information one requires to fish and gather in a culturally appropriate manner. Each Tribe and Tribal community’s understanding and respect to the uses of marine environment is not based on longitude and latitude but rather unwritten acknowledged Tribal agreements since time immemorial. Should the Dept. Fish & Game Commission decide not to create a separate category for Tribes this would interrupt the natural fishing and gathering inherent rights of California Tribes.

Executive Order 13158, 69 Federal Register 76591, signed by President Clinton, May 26th 2000, states “Marine protected area” means any area of the marine environment that has been reserved by Federal, State, territorial, TRIBAL or local laws or regulations to provide lasting protection for part or all of the natural and cultural resources therein.” This order also requires cooperation with tribes, stating that federal agencies “shall consult with . . .tribes, Regional Fishery Management Councils, and other entities, as appropriate, to promote coordination of federal, state territorial, and tribal actions to establish and manage MPAs.”

Executive Order 13366, 69 Federal Register 76591, signed by President George W. Bush, signed on Dec. 17th, 2004 states in regard to management of coastal waters: By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: It shall be the policy of the United States to: …facilitate, as appropriate, coordination and consultation regarding ocean-related matters among Federal, State, tribal, local governments, the private sector, foreign governments, and international organizations.

The Dept. Fish & Game Commission also has added authority through the Marine Life Protection Act. “The commission may regulate commercial and recreational fishing and taking of marine species in MPAs.” California Fish & Game Code § 2860 (West 2010).

The Inter-Tribal Water Commission wholeheartedly supports and advocates the sovereign right of Tribal Peoples to practice religious rites integrated in natural origins with cultural traditions that are intertwined with water, physical environments, habitat, air, and the gathering of regalia from marine ecosystems for ceremonial continuity. Religious aspects are private matters that should not be governed or interrupted nor limited by the “recreational” category currently used. The American Indian Religious Freedom Act (42 U.S.C. 1996), must be recognized and brought into any discussions that may or will infringe upon that right.

The Commission has provided on five instances for special allowances for Tribes. Listed:

(1) Pit River Indians special access to certain fish. Cal Code Regs. tit. 14, § 2.12 (2010)

(2) Hoopa Valley exempting from certain bag limits. Cal. Code Regs. tit. 14, § 5.86 (2010)

(3) Karuk Tribe exempting from seasonal fishing prohibitions. Ca. Code Regs. tit. 14, § 7.50 (2010)

(4) Maidu Tribe to take fish in Feather River. Cal. Code Regs. tit. 14, § 8.20 (2010)

(5) Kashia Band of Pomo. “APA” “GOV.Code, § 11340 et seq.”

The Inter-Tribal Water Commission strongly recommends that the Dept. Fish & Game Commission apply administrative measures that are well within their authority as defined by statues, regulations and Executive Orders, and thereby severe Tribes from the “Recreational” category.

This action should be adopted into the language of the California Marine Protection Areas (MPA) regulations immediately to prevent disruption of inherent sovereign fishing and gathering rights. The protection and preservation of ancient cultures is the very fabric that should be embraced by all Californians to ensure the rich, diverse stewardship practices in its rightful place in new regulation. The motion submitted to the Dept. Fish & Game Commission for their consideration is upholding the trust responsibilities of the federal and state agencies on many levels.  The inclusion of Tribal rights into the regulation meets the goals of MLPA stakeholder participation and creates fair and equitable marine user activities within specific MPAs.

The Dept. Fish & Game Commission must exercise its administrative authority by designating a specific “Traditional Tribal non-commercial Fishing & Gathering category” that must be in perpetuity to ensure acknowledgment and protection on behalf of California’s first Indigenous people.

Respectfully submitted,

Inter-Tribal Water Commission & California Indian Heritage Council

Ms. Atta P. Stevenson, President ITWC & CIHC

Mr. Randy Yonemura, Vice President ITWC / Project Director CIHC

Mr. Bill Jacobson, ITWC Treasurer / Water Commissioner /CIHC Board of Directors

Ms. Shanti Warlick, ITWC Secretary/ Water Commissioner/ CHIC Board of Directors