Wash. Supreme Court upholds tribal fishing rights

YAKIMA, Wash. (AP) – State wildlife authorities had no right to cite a Yakama Nation fisherman for catching undersized fish at a Columbia River tribal fishing site, the Washington Supreme Court ruled Thursday in a split decision.

The case stems from a 2008 citation at the Maryhill Treaty Fishing Access Site, one of several sites set aside by Congress exclusively for five Northwest tribes to exercise their treaty fishing rights.

The state had argued it rightfully assumed criminal jurisdiction there, but the high court disagreed in a 6-3 decision from Olympia, Wash.

“The state lacks criminal jurisdiction at Maryhill because the treaty fishing access site is tribal land, established and reserved by Congress for the exclusive use of tribal members,” the court wrote.

In 1998, Congress established several fishing sites along the Columbia River to replace accustomed tribal fishing areas that had been previously guaranteed by treaty but were destroyed by dams.

At the Maryhill site, state wildlife officials cited Lester Ray Jim, an enrolled Yakama, on June 25, 2008 for unlawfully retaining undersized sturgeon.

Jim caught five undersized sturgeon in his gill net while fishing commercially from the Maryhill site, and said he planned to follow tribal practice and release the live fish to the river from shore.

Sturgeon can survive out of water for several hours.

Both state and tribal laws bar fishermen from retaining undersized sturgeon, but only state law requires that the unauthorized fish be returned to the water immediately.

Jim filed a motion in Klickitat County District Court, challenging the state's jurisdiction to prosecute him. The court dismissed the case, and the state appealed. Higher courts alternately ruled in both sides' favor, with the state ultimately appealing a Washington state Court of Appeals ruling to the high court.

Three justices dissented from the majority opinion.

Creation of an Indian reservation must be “more purposeful” than simply authorizing the Army to purchase sites and improve them for fishing access, Justice Charles K. Wiggins wrote.

The Nez Perce, Warm Springs, Umatilla and Colville tribes, which also have rights to fish at those sites, filed briefs in support of the Yakama case.