Fishing

WARM SPRINGS TRIBAL CODE

CHAPTER 340

FISHING CODE

Table of Contents

340.010 General
340.100 Definitions
340.200 Fishing – On-Reservation
340.210 On-Reservation Fishing by Members
340.220 On-Reservation Fishing By Non-Members
340.300 Fishing Off-Reservation
340.310 Off-Reservation Fishing by Members
340.320 Off-Reservation Fishing By Non-Members
340.400 Prior Ordinances Repealed
340.700 Penalties
340.800 Columbia River Inter-Tribal Code

WARM SPRINGS TRIBAL CODE

CHAPTER 340

FISHING CODE

340.010 General. Since time immemorial the various tribes and bands of Indians now confederated as the Confederated Tribes of the Warm Springs Reservation of Oregon held Indian title to and right of occupancy based upon aboriginal possession of certain lands along the Columbia River and its tributaries. Since time immemorial these areas have been historic usual and accustomed fishing places of the members of the said tribes and bands and of the members of the Confederated Tribes of the Warm Springs Reservation since its organization pursuant to the provisions of § 16 of the Act of June 18, 1934 (48 Stat 984) as amended by the Act of June 15, 1935 (49 Stat 378). The Tribes and Bands of Middle Oregon executed a treaty with the United States at Wasco, in Oregon Territory, on June 25, 1855 which Treaty set apart the Warm Springs Reservation for our people’s use forever, and reserved the exclusive right of taking fish in the streams running through and bordering the Reservation and guaranteed to our people the right to take fish at all usual and accustomed fishing stations off the reservation in common with the citizens of the United States.

These fishing rights and the fish resources on which they depend, constitute an invaluable and irreplaceable asset to the members of the Confederated Tribes. They form an important cultural, historical and economic asset of the Tribe and its members. The Tribal Council, in order to protect and preserve the tribal property for the benefit of tribal members both in the present and future generations and in the exercise of its sovereign powers finds it necessary to regulate and control all fishing on the Warm Springs Reservation of Oregon and the exercise of treaty reserved fishing rights by tribal members off the Reservation.

340.100 Definitions. For purposes of this chapter, the following terms shall have the following definitions:

1. “Department” means the Natural Resources Department of the Confederated Tribes of the Warm Springs Reservation of Oregon.
2. “Family” means all persons related by blood or marriage plus any foster children not related by blood or marriage living together in a single household.
3. “Fish and Wildlife Committee” means the Tribal Fish & Wildlife Committee appointed by the Tribal Council.
4. “Member” means a duly enrolled member of the Confederated Tribes of the Warm Springs Reservation of Oregon.
5. “Nonmember” means any person who is not a duly enrolled member of the Confederated Tribes of the Warm Springs Reservation of Oregon.
6. “Off-Reservation” means all areas outside the exterior boundaries of the Warm Springs Reservation wherein the Tribes have treaty reserved hunting and fishing rights.
7. “Police” means duly authorized officers of the Confederated Tribes of the Warm Springs Reservation of Oregon and the United States of America.
8. “Reservation” means all areas within the exterior boundaries of the Warm Springs Reservation of Oregon.
9. “Subsistence Fishing” means the taking of fish by members for the personal use of members, including the sale or exchange with other treaty Indians for their personal use but not sale or trade with non-Indians.
10. “Tribal Council” means the duly elected Tribal Council of Tribe.
11. “Tribe” means the Confederated Tribes of the Warm Springs Reservation of Oregon.

340.200 Fishing – On-Reservation. By treaty of June 25, 1855, the Tribes reserved “the exclusive right of taking fish in the streams running through and bordering said Reservation” and it shall be unlawful for any person to fish within the Reservation in violation of this Code.

340.210 On-Reservation Fishing by Members. All waters on the Reservation and bordering streams shall be open to fishing by members year around with no bag limit, subject only to such closed season, closed area, gear restriction, or bag limit restrictions as may from time to time be imposed by the Tribal Council or its designee.

340.220 On-Reservation Fishing By Non-Members. All waters on the Reservation, including bordering streams, shall be closed to all fishing by non-members except for those areas and during those time and subject to such further conditions and restrictions, including bag limit and gear restrictions, as may be established by the Tribal Council or its designee.

340.300 Fishing Off-Reservation. By the Treaty of June 25, 1855, the Tribes reserved “the exclusive right of taking fish in the streams running through and bordering said Reservation” and the right to fish “at all other usual and accustomed stations, in common with citizens of the United States”. It shall be unlawful for any member to exercise such off- reservation reserved fishing rights in violation of this Code.

340.310 Off-Reservation Fishing by Members.

1. No member of the Tribes shall exercise treaty fishing rights unless he has in his possession an identification card issued by the Tribal Registrar showing him to be a duly enrolled member of the Confederated Tribes of the Warm Springs Reservation of Oregon. Such card shall be carried on the person of the member at all times and upon demand shall be shown to any federal, state or tribal officer. Any lending or unauthorized alteration or use of identification cards is prohibited.
2. Fishing shall be permitted during open seasons, in such areas and subject to such gear restrictions established by the Tribal Council or its designee or established in accordance with the laws and regulations of the States of Oregon and Washington applicable to treaty Indians, as may be modified by the action of the Tribal Council or its designee.
3. The Treaty Fishing Rights belong to the Confederated Tribes of the Warm Springs Reservation of Oregon and not to individual members. If members have been fishing in the same location for a number of years, other tribal members shall respect the rights of such long time users. All members engaging in gill net or set net fishing shall register their gill net or set net sites with the Department on forms provided by the Department. All registered sites shall be shown on maps maintained by the Department. In the event of a dispute between members as to right to use a fishing site, the members involved in such dispute shall submit the dispute to the Tribal Council or its designee.
4. Members of the Tribes carrying an identification card as referred to in paragraph number 1 may fish for subsistence purposes with dip net or bag nets, of a mesh size not exceeding five inches attached to a hoop 26 feet or less in circumference, or by spear, gaff, club, fouling hook or hook and line or such other gear as may be authorized by the Tribal Council or its designee, at any time of the year at the usual and accustomed fishing stations. Members of the Tribes carrying an identification card as referred to in paragraph number 1 may fish for commercial purposes at the times and places as provided by the regulations of the Tribal Council or its designee or of the States of Oregon and Washington, as may be modified by the action of the Tribal Council or its designee, with set nets, gill nets, dip nets, bag nets, hoop nets and any other gear expressly authorized by the
   States or Tribal Council or its designee for commercial or subsistence fishing.1
5. No tribal member shall use or operate any gill net, set net, or hoop net which does not have the Tribal affiliation and Tribal enrollment number of the owner of the net placed upon or adjacent to any end cork or float of the gill net or set net and upon the upper side of the hoop net.
6. No tribal member shall fish a set net or gill net which is more than 400 feet in length, or fish more than one set net at any one location or operate more than five set nets at any one time.2
7. No tribal member shall have any spoiled salmon or other spoiled fish in a set net or hoop net.
8. All subsistence fishing gear must be attended at all times.
9. No fishing is permitted in fish ladders except that this prohibition shall not apply to the taking of lampreys. Lampreys may be taken in the existing fish ladders or by any other method, or at any other place; provided that such harvest from fish ladders shall be conducted in such a manner as to not interfere with the passage of anadromous fish species.
10. While no specific limits on the number of fish that may be taken is established by this ordinance, the Tribal Council reserves the right without notice, to close all fishing at any site in the event that the Tribal Council determines it is necessary for the proper conservation of the fish runs.
11. Any member fishing shall, upon request, furnish any and all information requested as to the number of and types of fish taken to any authorized federal, state, or tribal officer. Any Tribal member taking fish for subsistence purposes shall keep a record of species of fish taken, numbers, areas of fishing, and individuals participating and furnish such records to the Fish and Wildlife Committee at the end of each calendar year.
12. No permanent structures shall be erected at the fishing sites except scaffolds.
13. No member of the Tribes shall fish under claim of Treaty Rights while under the influence of intoxicating liquor or controlled substances.
14. No member of the Tribes shall be on any scaffold without having attached to such member a safety rope of not less than ½ inch in diameter, adequately anchored.

340.320 Off-Reservation Fishing By Non-Members. Non-members shall be permitted to fish those portions of streams bordering the Reservation outside the exterior boundaries of the Reservation in accordance with state laws.

340.400 Prior Ordinances Repealed. Ordinance No. 38 adopted November 9, 1976, and all other prior ordinances governing fishing on the Reservation and off the Reservation by tribal members are hereby repealed.

340.700 Penalties.

1. Persons Subject to Jurisdiction of Warm Springs Tribal Court: (a) Tribal members and all other Indians subject to the jurisdiction of the Warm Springs Tribal Court, found guilty of violation of any of the provisions of this Chapter or regulations promulgated to carry out the provisions of this Chapter shall, upon a first conviction, be subject to a fine of not more than $150.00 or by imprisonment for not more than twenty (20) days, or both such fine and imprisonment; for a second conviction such person shall be punished by a fine of not more than $250.00 or by imprisonment for not more than sixty (60) days or both fine and imprisonment. Upon the third or subsequent conviction such person shall be punished by a fine of not more than $500.00 or by imprisonment for not more than six (6) months or by both fine and imprisonment. (b) The Tribal Council or its designee shall have authority to issue a citation to any member to appear before the Committee and show cause why such member should not have his identification card suspended in which event such member shall have no right to claim treaty rights and shall be subject to the application of State law. In the event that the member shall fail to appear before the Tribal Council or its designee at the time and place set for such show cause hearing, or shall fail to satisfy the Tribal Council or its designee why such action should not be taken, such member’s identification card may be suspended for such period as the Tribal Council or its designee deems appropriate, not exceeding a period of six (6) months.
2. Persons Not Subject to Criminal Jurisdiction of the Warm Springs Tribal Court: (a) Persons other than tribal members or other Indians subject to the criminal jurisdiction of the Warm Springs Tribal Court, shall be punishable pursuant to the provisions of 18 USC § 1165, which provides as follows: “Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any Indian or Indian Tribe, Band or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined not more than $250 or imprisoned not more than 90 days or both and all game, fish and peltries in his possession shall be forfeited.” (b) Persons other than tribal members or other Indians subject to the jurisdiction of the Warm Springs Tribal Court, shall also be punishable pursuant to applicable State of Oregon criminal trespass laws and/or laws prohibiting hunting and fishing on the enclosed lands of another. (c) Persons other than tribal members or other Indians subject to the criminal jurisdiction of the Warm Springs Tribal Court who violate the provision of this Chapter may be subjected to a civil penalty in Tribal Court for a civil infraction. Such civil penalty shall not exceed the sum of $500.00 for each such infraction. Equipment used in connection with such infraction including but not limited to fishing gear, boats, and motor vehicles, may be seized and held as security for such person’s appearance before the Tribal Court and may be subject to sale or other disposition by the Tribe in the event that such person fails to pay the amount of any civil penalty imposed by the Court in accordance with the procedures contained in WSTC Chapter 200. The Tribal Council hereby specifically finds that such civil penalties are reasonably necessary and are related to the expense of governmental administration necessary in managing, protecting, and developing the wildlife resources on the Reservation. It is the legislative intent of the Tribal Council that such violation by non-Indians be considered civil in nature rather than criminal.

340.800 Columbia River Inter-Tribal Code. In addition to the other provisions of this Chapter of the Law and Order Code, Tribal members shall comply with the provisions of the “Columbia River Inter-Tribal Code” hereinafter set out.

1 WSTC 340.310(4) was amended by Tribal Council Resolution No. 10266 on March 10, 2003, changing the maximum circumference on hoop nets from 18 to 26 feet.
2 WSTC 340.310(6) was amended by Tribal Council Resolution No. 10266 on March 10, 2003, changing the maximum length of gill nets from 300 to 400 feet.