1 Treaty with Canada Concerning Pacific Salmon and Memorandum of Understanding, Jan. 28, 1985, S. Treaty Doc. 2, 99th Cong., 1st Sess. (1985) (entered into force Mar. 18, 1985) [hereinafter Treaty]. The two persons primarily responsible for concluding the Treaty are Theodore Kronmiller, U.S. negotiator and former Deputy Assistant Secretary of State, and Edward Derwinski, Under Secretary of State, who was then Counselor to the Secretary and was designated to oversee the negotiations. Derwinski joined the Department of State after serving for 24 years in the U.S. Congress.

2 Sohappy v. Smith, 529 F.2d 570, 572–73 (9th Cir. 1976). Such measures must be the least restrictive of Indian treaty rights necessary to satisfy conservation requirements. See also United States v. Washington, 384 F.Supp. 312, 333, 345–47 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir.), cert, denied, 423 U.S. 1086, rehearing denied, 424 U.S. 978 (1976).

3 Magnuson Fishery Conservation and Management Act, §§304–306, 16 U.S.C.A. §§1854– 1856 (West Supp. 1985). Generally, the territorial sea of the United States extends 3 nautical miles from U.S. coasts. Submerged Lands Act, §4, 43 U.S.C. §1312 (1982).

4 Magnuson Fishery Conservation and Management Act, §§101–102, 16 U.S.C. §§1811–1812 (1982).

5 United States v. Washington, 459 F.Supp. 1020 (W.D. Wash.) (Compilation of Major Post-Trial Substantive Orders), appeal dismissed, 532 F.2d 1119 (9th Cir. 1978).

6 Treaty, supra note 1, Art. II.

7 Id., Art. III, para. 1(c).

8 Pub. L. No. 99-5, 99 Stat. 7 (codified at 16 U.S.C. §§3631–3644 (Supp. III 1985)) [hereinafter Act].

9 605 F.Supp. 833 (W.D. Wash. 1985).

10 For a detailed analysis of the Treaty text, see Letter of Submittal from Secretary of State Shultz to President Reagan, Feb. 4, 1985, S. Treaty Doc. 99–2, supra note 1, at V.

11 See notes 2 and 5 supra.

12 The 11 so-called Stevens and Palmer Treaties were negotiated in 1854–1855 by Governor Stevens of the Territory of Washington and Governor Palmer of the Oregon Territory. The pertinent provision of each of those treaties provides in part: “The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the territory . . . .” See United States v. Washington, 384 F.Supp. at 331 & n. 8 and 353–58.

13 Historically, the average Indian share was about 2% overall and 1.4% of the Fraser River sockeye fishery. United States v. Washington, 459 F.Supp. at 1032, 1051. The new allocation was deemed to be about 45–50% of qualifying runs. Washington v. Fishing Vessel Ass’n, 443 U.S. 658, 685(1979).

14 Puget Sound Gillnetters Ass’n v. United States District Court, 573 F.2d 1123, 1126 (9th Cir. 1978), quoted in Washington v. Fishing Vessel Ass’n, 443 U.S. at 696 n.36.

15 The IPSFC was established by the Convention between the United States and Canada for the Protection, Preservation and Extension of the Sockeye Salmon Fishery of the Fraser River System, May 26, 1930, 50 Stat. 1355, TS No. 918, as amended Dec. 28, 1956, 8 UST 1057, TIAS No. 3867, and Feb. 24, 1977, 32 UST 2475, TIAS No. 9854. The Convention was terminated Mar. 1–8, 1985 by Article XV, paragraph 2 of the Pacific Salmon Treaty, with a savings clause that continued the operation of the IPSFC for a transition period of about a year.

16 459 F.Supp. at 1050–56.

17 Id. at 1052. In fact, the initial U.S. proposals sought to give the tribes 27.5% rather than 50% of the U.S. share, ostensibly because tribes lacked the capacity to harvest their full share. See Memorandum of Understanding between Department of Commerce and Department of the Interior on Regulation of Treaty Indian Fishing for Fraser River Convention Salmon, June 19, 1979. That accord provided that regulations applicable to U.S. treaty Indian tribes on the Fraser River would seek to increase their share to 27.5% of the U.S. allotment of sockeye and to 15% of the U.S. allotment of pink salmon, rather than to the 50% mandated by the court. The tribes claimed that they had adequate harvesting capacity, and that any impediments were regulatory.

18 Authority for the parties to withhold approval was established by Article VI of the Convention. 41 Fed. Reg. 22,392 (1976). The U.S. Indian fishery was regulated by the Department of the Interior pursuant to 25 U.S.C. §§2, 9; see 25 C.F.R. §256.11 (1978), 50 C.F.R. §371.1 (1978), 25 C.F.R. §256.11 (1979). The Commerce Department enforced these regulations directly. These developments are described in Washington v. Fishing Vessel Ass’n, 443 U.S. 658 (1979).

19 459 F.Supp. at 1028–35.

20 Puget Sound Gillnetters Ass’n v. Moos, 88 Wash. 2d 677, 565 P.2d 1151 (1977); Fishing Vessel Ass’n v. Tollefson, 89 Wash. 2d 276, 571 P.2d 1373 (1977), rev’d by Washington v. Fishing Vessel Ass’n, 443 U.S. 658 (1979).

21 Purse Seine Vessel Owners Ass’n v. United States Dep’t of State, No. C77-471 M (W.D. Wash. July 8, 1977), aff’d 584 F.2d 931, 933 (9th Cir. 1978); United States v. Decker, 600 F.2d 733, 736 (9th Cir. 1979).

22 Letter from Assistant Secretary of State Patsy T. Mink to IPSFC Chairman Donald R. Johnson (June 17, 1977), cited in Purse Seine Vessel Owners Ass’n v. United States Dep’t of State, 584 F.2d at 933–34, and United States v. Decker, 600 F.2d at 736.

23 Purse Seine Vessel Owners Ass’n v. United States Dep’t of State, 584 F.2d at 934, and United States v. Decker, 600 F.2d at 781.

24 United States v. Washington, 459 F.Supp. 1020 (W.D. Wash. 1978); Puget Sound Gillnetters Ass’n v. United States District Court, aff’d, 573 F.2d 1123 (9th Cir. 1978), discussed in United States v. Washington, 433 U.S. at 672–74.

25 42 Fed. Reg. 30,842 (1977) (Commerce); id. at 31,450 (Interior).

26 Letter from Secretary of the Interior Cecil Andrus to Secretary of State Edmund Muskie (July 1, 1980); Letter from the Counselor, Edward Derwinski, to IPSFC Chairman Rolland Schmitten (Feb. 6, 1985).

27 It was several years before the tribes’ share approached 50%. By 1979, their share of all salmon had not passed 27% of the U.S. allocation. Seattle Times, Feb. 12, 1984, at A1.

28 Canada, for its own unrelated reasons, exempted its Indian fishery from IPSFC quotas. United States v. Washington, 443 U.S. at 690–91. That “subsistence” fishery, harvesting an estimated three hundred thousand fish, was then far more substantial than the U.S. Indian fishery.

29 Treaty, supra note 1, Art. VI, para. 5 (emphasis added).

30 Letter from Derwinski to Schmitten, supra note 26.

31 U.S. Dep’t of State Demarche to Canada (June 12, 1985).

32 Act §14, 16 U.S.C. §3643 (Supp. III 1985). See also §9(c), 16 U.S.C. §3638(c).

33 Confederated Tribes, 605 F.Supp. at 835.

34 Act §3(a), 16 U.S.C. §3632(a) (Supp. III 1985). By contrast, the IPSFC never had a commissioner who was a member of a U.S. treaty Indian tribe.

35 Act §3(f), 16 U.S.C. §3632(f) (Supp. III 1985).

36 Act §3(g)(2) and (3), 16 U.S.C. §3632(g)(2) and (3) (Supp. III 1985).

37 605 F.Supp. at 835.

38 United States v. Washington, Request for Determination Re: Accounting for Non-Treaty Catch, Civ. No. 9213-Phase 1 (W.D. Wash, filed Sept. 28, 1983). Confederated Tribes does not settle the issue as between the tribes and the states of Washington and Oregon.

39 Article II, paragraph 19 of the Treaty permits the Commission to establish panels specified in Annex I to the Treaty. One of these panels, the Fraser River Panel, also has direct management authority, whereas Article IX, paragraph 7 reserves regulatory authority for all other fisheries to the parties.

40 Annex IV requires the parties to establish Joint Technical Committees for each fishery regime except the Fraser River regime; the parties felt it unnecessary for the latter because they expected that IPSFC staff would be hired to serve that function.

41 Act§3(a), 16U.S.C. §3632(a)(Supp. III 1985). The principal consultant to the delegation in drafting the legislation, State Department Assistant Legal Adviser David Colson, was appointed by the President to be the first federal commissioner to serve in this sensitive role.

42 The U.S. section of the Southern Panel is composed of an official from each of the governments of the United States, Washington and Oregon; two from treaty Indian tribes; and one, nominated by the governors of Washington or Oregon, from either the commercial or the recreational sector, the two sectors to rotate annually. Id. §3(c) and (f), 16 U.S.C. §3632(c) and (f)(Supp. III 1985).

The U.S. section of the Northern Panel is composed of an official from each of the governments of the United States and Alaska, and four individuals “knowledgeable and experienced in salmon fisheries” nominated by the governor of Alaska. Id. §3(d), 16 U.S.C. §3632(d).

The U.S. section of the Fraser River Panel is composed of one official each from the United States and Washington, a nominee of the treaty Indian tribes, and a representative of the commercial fishing sector nominated by the governor of Washington. Id. §3(e), 16 U.S.C. §3632(e).

Alternate members are to have the same qualifications and are to be nominated or appointed by the same persons as the corresponding members. Id. §3(f), 16 U.S.C. §3632(f).

43 Treaty, supra note 1, Art. IV, para. 7.

44 See notes 3–4 supra and accompanying text.

45 Magnuson Fishery Conservation and Management Act, §§101 and 102(2), 16 U.S.C. §§1811 and 1812(2) (1982).

46 Act §6, 16 U.S.C. §3635 (Supp. III 1985).

47 Treaty, supra note 1, Art. III, para. 1 (emphasis added).

48 Letter from Commissioner of Fish and Game Don Collinsworth to Deputy Assistant Secretary of State Edward E. Wolfe (Nov. 15, 1984).

49 131 Cong. Rec. S2669–90 (daily ed. Mar. 7, 1985).

50 Canada: working paper on the special case of salmon—the most important anadromous species [which was “submitted to provide the basis in fact and in equity for the development of an appropriate regime” on salmon conservation and management], UN Doc. A/CONF.62/ C.2/L.81 (1974), 3 Third United Nations Conference on the Law of the Sea, Official Records 240 (1975) [hereinafter Official Records]. The record of the Third UN Conference on the Law of the Sea, where these Canadian views were presented, is now largely public. (The bilateral record is not.)

51 Both Canada and the United States participated in the Third UN Conference on the Law of the Sea, which, though protracted, started after the Treaty negotiations and ended prior to their conclusion. The conference resulted in the 1982 Convention on the Law of the Sea, opened for signature Dec. 10, 1982, reprinted in United Nations, The Law of the Sea: United Nations Convention on the Law of the Sea (UN Pub. No. E.83.V.5). Canada signed the Convention on Dec. 10, 1982; the United States has not signed, but subscribes to its provisions insofar as they embody customary international law. Statement on Oceans Policy, Mar. 10, 1983, 1983 Pub. Papers: Ronald Reagan 378–79.

52 1982 Convention on the Law of the Sea, supra note 51, Art. 63, para. 1.

53 Treaty, supra note 1, Ann. IV, ch. 1.

54 1982 Convention on the Law of the Sea, supra note 51, Art. 66, para. I.

55 Id., Art. 66, para. 4.

56 Treaty, supra note 1, Art. VIII, para. 1; Memorandum of Understanding, supra note I, paras. C(1)(f) and (3).

57 Convention on the Law of the Sea, supra note 51, Art. 66, para. 3(b). See also Article 66, paragraph 3(a), which prohibits high seas salmon fishing seaward of the exclusive economic zone, “except in cases where this provision would result in economic dislocation.” This provision was adopted to accommodate the interests of states like Japan, whose fishermen harvest salmon on the high seas. Japan had proposed that conservation and management of anadromous species be regulated by “States participating in the exploitation of such species.” Japan: draft article on anadromous species, UN Doc. A/CONF.62/C.2/L.46 (1974), 3 Official Records, supra note 50, at 221.

58 Treaty, supra note 1, Art. III, para. 3(b).

59 Id., Ann. IV, ch. 4, para. 1(g).

60 See Washington v. Confederated Tribes, 447 U.S. 134, 154 (1979).