8019-S AMH NR H2669.3

8019-S AMH NR H2669.3

SSJM 8019 - H COMM AMD ADOPTED 4/10/95

By Committee on Natural Resources

On page 1, beginning on line 1, strike the remainder of the joint memorial and insert the following:

"TO THE HONORABLE BILL CLINTON, PRESIDENT OF THE UNITED STATES, AND TO THE PRESIDENT OF THE SENATE AND THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, AND TO THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES, IN CONGRESS ASSEMBLED, AND TO BRUCE BABBIT, SECRETARY OF THE INTERIOR:

We, your Memorialists, the Senate and House of Representatives of the State of Washington, in legislative session assembled, respectfully represent and petition as follows:

WHEREAS, The United States Congress has in this new session entertained, debated, and passed legislation that would prohibit federal mandates upon states without the coincident provision of the means necessary to implement the mandates; and

WHEREAS, To open the Washington territory to settlement, the United States entered into a series of treaties with Indian tribes in the Washington Territory in 1854 and 1855; and

WHEREAS, These federal treaties became binding on, indeed, a federal mandate on, the State of Washington upon its entry into statehood; and

WHEREAS, The following treaty clause secured fishing rights for the tribes: "the right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands; provided, however, that they shall not take shellfish from any beds staked or cultivated by citizens;" and

WHEREAS, In 1974, federal district court Judge Boldt held, and the United States Supreme Court later affirmed, that this clause entitled the treaty tribes to harvest up to fifty percent of each run of anadromous fish passing through ancestral tribal fishing areas; and

WHEREAS, In December 1994, federal district court Judge Rafeedie interpreted this same treaty provision to hold that the treaties also include the tribal harvest of shellfish on ancestral tribal fishing areas, including shellfish from natural beds on privately owned tidelands; and

WHEREAS, This federal treaty provision, a mandate imposed on the state of Washington by the federal government, has already cost the state and numerous other parties millions of dollars in litigation costs. This most recent decision is having a significant negative impact on the state's economy, particularly on private citizens who depend on shellfish harvesting for their livelihood. The decision threatens to erode private property rights to tidelands and other privately held natural resources, and may deprive many Washington citizens of the opportunity for recreational shellfish harvesting; and

WHEREAS, Judge Rafeedie has issued an interim order which states that "the State of Washington and the United States should recognize and acknowledge their particular responsibility toward innocent purchasers of tidelands and the Tribes and should take affirmative steps to help reach a resolution of the matter;" and

WHEREAS, the United States government bears the overwhelming responsibility for the negotiation, implementation, and subsequent interpretation of the treaties; and

WHEREAS, In developing a remedy to this pending litigation, the United States should seek a solution that fulfills not only its trust responsibility to Indian citizens but also its trust to non-Indian citizens. The United States should not strip Washington tideland owners of their property rights, thereby creating a new class of victims; and

WHEREAS, Several property rights bills are now being considered in Congress, several of which could serve as vehicles for amendment to prevent this government "taking" of more than three thousand miles of privately owned beachfront properties in Western Washington;

NOW, THEREFORE, Your Memorialists respectfully request that the United States federal government act to fulfill its obligations to the state of Washington and all its citizens by doing the following:

(1) Acting promptly to clarify, interpret, or amend federal law including treaties as necessary, to assure that the exercise of Indian treaty rights does not extend to privately owned property, that Indian tribal members or employees may have access to private lands only with prior written permission of the owner, and that all citizens enjoy the same harvest rights except upon tribal reservation lands and federal lands set aside for tribal purposes by the United States;

(2) Being part of the solution to the conflicts caused by this federal treaty by offering federally owned tidelands for tribal shellfish harvest as part of any implementation plan, for example, offering tidelands on Indian Island and at the Bangor Naval Base;

(3) Assisting the state of Washington with funds to help offset the costs of the state's appeal of the shellfish decision; and

(4) Providing funds for the purchase of tidelands for tribal and public recreational shellfish harvesting;

BE IT RESOLVED, That copies of this Memorial be immediately transmitted to the Honorable Bill Clinton, President of the United States, Bruce Babbit, Secretary of the Interior, the President of the United States Senate, the Speaker of the House of Representatives, and each member of Congress from the State of Washington."