[atlas:bill]

AN ACT Relating to the responsibilities of the department of fish and wildlife in relation to native American fishing rights; adding new sections to chapter 77.12 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature recognizes that the right of each treaty tribe to take anadromous fish on their reservations is rooted in the historic Stevens treaties. Federal courts have found this right was reserved and protected under the supreme law of the land, is distinct from rights or privileges held by others, and may not be qualified by any action of the state. Treaty fishing rights are also a right reserved for off-reservation fishing, but it is to be in common with the citizens of Washington state. The legislature also finds that the state has been given the police power to regulate off-reservation fishing only to the extent reasonable and necessary for conservation of the resource. The legislature further recognizes that federal court orders allow treaty tribes to become self-policing of off-reservation fishing by their tribal members if the tribe meets and maintains certain qualifications and conditions. The legislature finds that codification of United States v. Washington, 384 F. Supp. 312 (1974) (Boldt I) and subsequent case law is in the best interest of all citizens of Washington state, tribal and nontribal alike, in order to minimize misunderstandings, identify costs associated with compliance with federal court orders, clearly define departmental responsibilities in implementing the Boldt decision and subsequent case law, and maximizing opportunity for seeking new areas of fisheries management cooperation between the tribes and states.

NEW SECTION. Sec. 2. A new section is added to chapter 77.12 RCW to read as follows:

It is reasonable and necessary for the conservation of the state's wildlife resources to control poaching. It is therefore necessary for the state to identify those who are fishing legally. To comply with federal court orders and enable the state to readily differentiate between treaty right and nontribal fishers and to assist in minimizing the burden on both treaty and nontreaty fishers:

(1) Each tribe must provide for tribal membership certification. At a minimum it shall include a tribal member's identification by photograph in a suitable form that shall be carried on the person of each tribal member when approaching, fishing in, or leaving either on or off-reservation waters. The department shall request from each federally recognized fishing tribe a sample identification document to be carried by its tribal fishers by June 30th of each year.

(2) Failure of an individual tribal fisher to have proper identification on his or her person when fishing, or when going to or from the fishing site, will cause the fisher to be subject to state authority.

(3) For the purpose of exercising treaty fishing rights, an Indian may only be enrolled in one tribe. The department shall request an officially approved tribal membership roll from each federally recognized fishing tribe by June 30th of each year.

(4) A treaty right fisher may secure the assistance of other tribal fishers with off-reservation treaty fishing rights in the same usual and accustomed places, whether or not such fishers are members of the same tribe or another treaty tribe. His or her spouse, forebears, children, grandchildren, and siblings may also assist a fisher, but all assisting the fisher must possess the proper identification.

(5) If any person shows identification that he or she is exercising the fishing rights of a treaty tribe, and if he or she is fishing in a usual and accustomed place, he or she is protected under federal law against any state action that effects the time, place, manner, purpose, or volume of their harvest of anadromous fish and naturally occurring clams, oysters, geoduck, shrimp, and sea cucumbers, unless the state has previously established that such an action is an appropriate exercise of its power.

NEW SECTION. Sec. 3. A new section is added to chapter 77.12 RCW to read as follows:

Federal court orders authorize the department to monitor off-reservation fishing by treaty tribes with fishing rights. Monitoring is a reasonable and necessary tool to assist the treaty tribes and the department as comanagers of the anadromous resources of Washington state in readily identifying illegal off-reservation treaty right fishing. The department shall request an officially approved gear identification code from each federally recognized fishing tribe by June 30th of each year so that department personnel and tribal enforcement officers can readily distinguish legal fishing gear on the waters of the state.

NEW SECTION. Sec. 4. A new section is added to chapter 77.12 RCW to read as follows:

The legislature recognizes that federal court orders provide legal descriptions of usual and accustomed fishing grounds for the federally recognized fishing tribes in Washington. The legislature also recognizes that disputes exist between western Washington treaty tribes over the federally adjudicated usual and accustomed fishing places designated for each tribe. It is the responsibility of the treaty tribes to resolve these disputes, have the federal courts approve the decisions, and have the courts transmit the changes to the state. The state has no ability to recognize claims of changes to these usual and accustomed fishing places unless federal court action changes the boundaries.

NEW SECTION. Sec. 5. A new section is added to chapter 77.12 RCW to read as follows:

The legislature recognizes that federal court orders stipulate the conduct of treaty fishing in usual and accustomed places. The department shall recognize:

(1) That the exercise of a treaty tribe's right to take anadromous fish and naturally occurring clams, oysters, geoduck, shrimp, and sea cucumbers is limited only by the geographical extent of the usual and accustomed places, the limits of the harvestable stock, the tribes fair need for these species, and the opportunity for non‑Indians to fish in common with Indians outside reservation boundaries.

(2) That in order for Washington anadromous fishing rules not to discriminate against treaty tribes, the department's harvesting plan must provide for an opportunity for treaty tribes to take, at their off‑reservation usual and accustomed fishing places, a share of the harvestable fish as defined under United States v. Washington, 384 F. Supp. 312 (1974) (Boldt I) and contemplated under RCW 75.08.530.

(3) That the state of Washington, or its officers, is authorized to arrest a member of one of the federally recognized treaty tribes fishing in contravention of state law outside of the area of his or her tribe's usual and accustomed ground, even though the individual may prove, in their defense in any criminal proceeding resulting from his or her arrest, that such an area in which they were fishing is a usual and accustomed fishing ground of their tribe.

(4) That in order to achieve the monitoring requirements of section 2 of this act, it is reasonable and necessary for the department to be apprised of all arrangements between tribes with overlapping usual and accustomed fishing areas to avoid overharvest of the fisheries resource. The department shall request that the treaty tribes provide details on the arrangements between tribes with overlapping usual and accustomed fishing areas to avoid overharvest of the fisheries resource.

NEW SECTION. Sec. 6. A new section is added to chapter 77.12 RCW to read as follows:

The legislature recognizes that federal court orders stipulate the number of fish allowed for ceremonial purposes is limited to the number of fish actually used for traditional tribal ceremonies. The department shall count ceremonial fish in the share of fish that treaty right fishers have an opportunity to take. To minimize misunderstandings and simplify comanagement responsibilities, the department shall request tribes taking ceremonial fish off-reservation to notify the department as to time and area of ceremonial fishery.

NEW SECTION. Sec. 7. A new section is added to chapter 77.12 RCW to read as follows:

The legislature recognizes that federal court orders stipulate that fish taken for subsistence shall be limited to the number of fish actually used for personal subsistence consumption by tribal members and their immediate families. The department shall count subsistence fish in the share of fish that treaty right fishers have an opportunity to take. To help minimize public misunderstandings of the tribal subsistence harvest right, the department shall seek to develop jointly with each federally recognized fishing tribe, as a component of its comanagement plan, agreements as to how subsistence fish will be separated from commercial fish harvests and how the combined ceremonial, subsistence, and commercial catch will impact the watersheds in which the harvest occurs.

NEW SECTION. Sec. 8. A new section is added to chapter 77.12 RCW to read as follows:

The legislature recognizes that federal court orders stipulate that the regulation of off‑reservation Indian fishing by the United States, the state of Washington, or northwest Indian tribes does not preempt the regulation by either of the other two. Jurisdiction of each entity to regulate is unimpaired by the exercise of another entity's jurisdiction.

NEW SECTION. Sec. 9. A new section is added to chapter 77.12 RCW to read as follows:

The legislature recognizes that federal court orders permit federally recognized treaty tribes to become self-policing under the following conditions:

(1) Treaty tribes may become self‑policing off the reservation if they meet and maintain specific qualifications and conditions as specified under United States v. Washington, 384 F. Supp. 312 (1974) (Boldt I) and subsequent case law. Before self‑regulation is authorized, a tribe must establish to the satisfaction of the department or the court, that the tribe has:

(a) A competent, responsible, and well‑organized tribal government able to adopt and apply off‑reservation fishing regulations that, if strictly enforced, will not adversely affect conservation;

(b) Personnel trained for and competent to provide effective enforcement of all tribal fishing regulations;

(c) Qualified experts in fishery science and management who are either on the tribal staff or whose services are arranged for and readily available to the tribe;

(d) An officially approved tribal membership roll;

(e) A provision for tribal membership certification. Each individual must have photographic identification in a suitable form, and each individual must carry the photographic identification when approaching, fishing in, or leaving either on or off-reservation waters;

(f) Full and complete tribal fishing regulations, which before adoption, have been discussed in their proposed final form with the department and include in the regulations any state rule that has been established to the satisfaction of the tribe, or upon hearing by or under direction of the court, to be reasonable and necessary for conservation;

(g) A provision for the monitoring of off-reservation Indian fishing by the department to the extent reasonable and necessary for conservation; and

(h) Fish catch reports, as to both on and off-reservation treaty right fishing, when requested by the department for the purpose of establishing escapement goals and other reasonable and necessary conservation purposes.

(2) When a tribe has fully met the qualifications and conditions of subsection (1) of this section, the tribe shall be relieved of state regulation except to the extent specified in the stated conditions. Failure of a tribe to either maintain its required qualifications or to abide by and adhere to prescribed conditions when established and not promptly corrected, shall suspend self‑regulation by such tribe until that time as all required qualifications and conditions are fully established.

(3) A self-regulating tribe does not have the authority to enforce its off‑reservation fishing regulations against persons who are not members of the tribe. However, tribes should report an apparent misuse of the fishery to the state if a non‑Indian is involved or to the tribe of a treaty fisher. If appropriate action is not taken by the state, the report should be brought to the court for such action as the court deems appropriate.

NEW SECTION. Sec. 10. A new section is added to chapter 77.12 RCW to read as follows:

The legislature recognizes that federal court orders permit state regulation of the treaty fishing right in certain circumstances.

(1) Except for tribes entitled to self-regulation of tribal fishing, the right of treaty tribes to take anadromous fish may be regulated by the department in the following manner:

(a) State regulation of fishing rights must not discriminate against Indians and must meet appropriate due process standards;

(b) Every regulation of treaty right fishing must be strictly limited to specific measures that before becoming effective have been established by the department, either to the satisfaction of all affected tribes or upon hearing by or under direction of the district court, to be reasonable and necessary to prevent demonstrable harm to the actual conservation of fish. In order for a state fishing rule to be reasonable and necessary for conservation, it must, when considered in the context of the total regulatory plan, be designed to preserve and maintain the resource;

(c) State treaty right fishing rules shall be published either separate and apart from other state fishing rules or as a separate and plainly labeled part thereof readily distinguishable from other fishing rules;

(d) No state fishing rules applied to off‑reservation treaty fishing can be valid unless and until it has been shown to be reasonable and necessary for conservation;

(e) Arrest or seizure of property owned or in permitted custody of a treaty right fisher under a rule not previously established to be reasonable and necessary for conservation is unlawful and may be actionable as to any official or private person authorizing or committing such an unlawful arrest or seizure; and

(f) To meet appropriate standards, state fishing rules that affect the harvest by Indian tribes on future runs must receive a full, fair, and public consideration and determination in accordance with the requirements of chapter 34.05 RCW.

(2) If any person shows identification that he or she is exercising the fishing rights of a treaty tribe and if he or she is fishing in a usual and accustomed place, they are protected under federal law against any state action that affects time, place, manner, purpose, or volume of his or her harvest of anadromous fish, unless the state has previously established that such an action is an appropriate exercise of its power.

(3) If a member of a nonself‑regulating tribe is alleged to be guilty of misuse of the treaty fishery, such an incident is to be reported to his or her tribe for adjudication, and failing prompt and appropriate action there, the matter must be brought to the court for such action as the court finds appropriate.

(4) Any person who would qualify under chapter 34.05 RCW as having standing to obtain judicial review of the department's failure to enforce any provision of sections 2 through 13 of this act may file a petition for civil enforcement seeking an order requiring performance and reasonable attorneys' fees.

NEW SECTION. Sec. 11. A new section is added to chapter 77.12 RCW to read as follows:

The legislature recognizes that it is in the best interest of all of the citizens of the state to have rules that clearly spell out tribal and nontribal fishing responsibilities.

(1) The department shall meet with federally recognized fishing tribes to develop a state treaty right fishing agreement. The agreement shall be completed annually in time to be incorporated into the submission of tribal regulations as required by federal court order for tribes seeking to obtain or maintain off-reservation self-policing authority.

(2) The department shall annually publish a state treaty right fishing agreement that is either separate and apart from other state fishing rules or as a separate and plainly labeled part that is readily distinguishable from other fishing rules.

(3) The department shall assist federally recognized Indian tribes to meet the federal court-ordered requirements to become self-policing of off-reservation fisheries enforcement. An Indian tribe, seeking to satisfy the qualifications that its fishing regulations will not adversely affect conservation, must promptly prepare its regulations and submit them to the department, which will examine the proposed regulations for alleged inadequacies. Failing agreement between the parties, the proposed regulations will be reviewable by the court on application of either party.

(4) The department may adopt fishing regulations of a self‑regulating tribe, but only if state adoption is consistent with chapter 34.05 RCW. Before a state rule can be enforced against any treaty fisher, the state must demonstrate that the rule is designed to preserve, conserve, and maintain the resource.

NEW SECTION. Sec. 12. A new section is added to chapter 77.12 RCW to read as follows:

The department shall review a tribe's application to obtain or maintain off-reservation self-policing authority within forty-five days and provide the tribe, the governor, the leadership of the legislature, and the attorney general with the findings of the review in writing. The department shall deny the tribal request for self-policing authority solely for failure to meet the federal court-ordered requirements in section 9 of this act.

NEW SECTION. Sec. 13. A new section is added to chapter 77.12 RCW to read as follows:

The department shall determine which department activities are directly attributable to compliance with United States v. Washington, 384 F. Supp. 312 (1974) (Boldt I) and its subproceedings and provide a cost for those activities to the natural resources committees of the house of representatives and senate annually.