Current through Register Vol. 63, No. 3, March 1, 2024
AMONG THE STATE OF OREGON, THE UNITED STATES OF AMERICA AND THE
CONFEDERATED TRIBES OF GRAND RONDE COMMUNITY OF OREGON TO PERMANENTLY DEFINE
TRIBAL HUNTING, FISHING, TRAPPING, AND ANIMAL GATHERING RIGHTS OF THE TRIBE AND
ITS MEMBERS
1
Parties and
Definitions.
a. The following entities
are the parties to the agreement and they shall be defined for the purposes of
this agreement as follows:
i. "Tribe" shall
mean the Confederated Tribes of the Grand Ronde Community of Oregon, as
referred to in Public Law
95-165, 97 Stat. 1064 (currently codified at
25 USC §
713 -
713g
), and all
tribal members, present and future.
ii. "State" shall mean the State of Oregon acting
through the Oregon Department of Fish and Wildlife, and administrative agency
of the State of Oregon; the Department of Justice of the State of Oregon; the
Oregon State Police; and any successor agencies or officials of the State of
Oregon that may have regulatory jurisdiction over the harvest of fish or
wildlife within the State of Oregon.
iii. "Department" shall mean the Oregon
Department of Fish and Wildlife and any successor agencies that may have
regulatory jurisdiction over the harvest of fish or wildlife within the State
of Oregon.
iv. "The United States"
shall mean the United States of America; the United States Department of the
Interior and agencies within that department; and the United States Department
of Justice and agencies within that department. The United States is a party to
this agreement solely in its capacity as trustee for the Tribe and its
members.
b. The term
"cultural" shall describe the tribal fishing, hunting, or gathering rights and
opportunities set forth in this agreement.
2.
Statement of Purpose. This agreement
has been negotiated because of the following factors:
a. The nature and extent of tribal hunting, fishing,
animal gathering, and trapping rights are presently unknown. They have not been
defined by any court. The question is exceedingly complex, involving numerous
acts of Congress, executive orders, and treaties. There is disagreement about
the Tribe's hunting and fishing rights. The Tribe contends that it possesses
tribal hunting, fishing, trapping and animal gathering rights. The State, on
the other hand, disagrees and presently enforces state law whenever the Tribe
or its members hunt, fish, trap, or gather animals, contrary to any provision
of the law.
b. Thus, in order to
resolve this controversy and to promote sound and orderly management and
conservation of fish and wildlife resources, it is the desire of the parties to
define, specifically and permanently, the nature and extent of the Tribe's
rights.
3.
Controlling Principles. This agreement shall be construed in
accordance with the following principles:
a.
This agreement shall fully and completely define the tribal hunting, fishing,
trapping, and animal gathering rights, and no additional tribal rights shall
hereafter exist except those which are specifically set forth in this
agreement.
b. Any hunting, fishing,
trapping, and animal gathering, including method, time, and place, which is
conducted by the Tribe or its members and which is not specifically permitted
by this agreement shall be subject to regulation under applicable state
laws.
c. Resolution of questions
regarding the existence or extent of any tribal right to gather plants is
specifically excluded from this agreement.
d. The parties are determined to implement
this agreement in a cooperative and positive manner. The parties intend to
assist each other in the implementation of this agreement and to exchange among
themselves all documents and other information concerning the implementation of
this agreement.
e. All of the
parties have negotiated this agreement voluntarily; have signed it free of any
pressure, coercion or duress of any kind; and have been extensively advised by
counsel, all of whom are intimately familiar with the legal issues addressed by
this agreement. The parties have all had full access to all of the relevant
facts, legislative history, and judicial precedent. The parties, therefore,
intend this agreement to be the sole, exclusive statement of any tribal
hunting, fishing, trapping, and animal gathering rights which the Tribe does
possess and of those which it does not possess. The parties expressly intend
that this agreement shall not be contested or reopened at any time.
f. The Tribe is a sovereign government and is
legally empowered to represent its members in this agreement. This agreement,
therefore, shall be permanently binding on all tribal members, present and
future.
g. The parties agree that
the State shall retain the sovereign authority to manage fish and wildlife
resources under applicable provisions of Oregon law, both on and off any
reservation, established for the Tribe, subject to the provisions of this
agreement.
h. This agreement is
based on the special circumstances surrounding the relationships of the parties
and does not affect the rights of any persons, tribes, or groups who are not
parties to this agreement.
4.
Fishing Rights. In addition
to those fishing rights or privileges accorded to citizens or licensees of the
State under state law, the Tribe shall have the rights set forth in this
paragraph.
a.
The Cultural
Fishery.
(1) Fishing by Tribal members
shall be subject to all applicable state laws, except that a valid tribal
license issued pursuant to this agreement may be used in lieu of a state
fishing license within the following area:
Beginning at McMinnville; southwest on State Highway 18 to
Salmon River; west along Salmon River to Pacific Ocean; north along Pacific
Ocean coastline to the south shoreline at mouth of Tillamook Bay; east along
south shoreline of Tillamook Bay; east along Wilson River to State Highway 6 at
Lee's Camp; northeast on State Highway 6 to State Hightway 8 near Gales Creek;
southeast on State Highway 8 to State Highway 47 at Forest Grove; south on
State Highway 47 to State Highway 99W; southeast on State Highway 99W to the
McMinnville point of beginning. Cultural fishing is permitted in the Salmon
River and its estuary to the Pacific Ocean, and in the Wilson River to
Tillamook Bay.
(2) All
fishing pursuant to this agreement shall occur only during the fishing seasons
prescribed for all citizens in the geographic area described in section 4(a)1
above.
(3) All tribal fishing
pursuant to this agreement shall be subject to all the rights of landowners and
tenants under state trespass laws and other applicable provisions of
law.
b.
The
Subsistence Supply. In addition to the cultural right to fish as set
forth above, the Tribe shall have the right to receive, at its option, 4000
pounds annually of surplus salmon carcasses from a source to be determined by
the Department. These fish shall be fit for human consumption and grade one
fish shall be supplied if available. After the Department has sorted the
surplus salmon and has determined which fish are available for consumption, the
Tribe at its option may participate in the final selection of these fish. An
authorized agent of the Tribe shall be responsible for pickup of salmon
carcasses at an appropriate location or locations designated by the Department
and reasonably convenient to the Tribe. The Tribe shall make all arrangements
for the consumption of such fish, but such fish shall not be used for any
commercial purpose.
c.
Prohibited Acts. The following acts shall not be included within
the Tribe's cultural fishing rights and are subject to regulation under
applicable state or federal law:
(1) The
taking of salmon, steelhead, or other game fish that require, now or in the
future, a state tag, stamp or similar control over and above a state fishing
license.
(2) Net fishing, including
gill netting, and dip netting.
(3)
The use of fish, or parts thereof, for commercial purposes.
(4) The taking of fish in a geographic area
other than that established pursuant to this agreement.
(5) The taking of fish in violation of any of
the limitations set forth in this section 4 or of the licensing and tagging
provisions as set forth in section 7 below.
5.
Hunting Rights. In addition
to those hunting rights or privileges accorded to citizens or licensees of the
State under state law, the Tribe shall have the rights set forth in this
paragraph.
a
Cultural Hunting.
(1) The Tribe shall have the opportunity to
harvest a total of 395 deer and elk (which total shall not include more than 45
elk) and 5 bear per year within the area described in section 4(a)(1) above.
The parties acknowledge that the annual harvest may be less than 395 deer and
elk and 5 bear and that there shall be no makeup of deer or elk or bear harvest
in subsequent years. No state license shall be required for game taken pursuant
to this section. Tribal hunting shall be subject to the State's right to
regulate for conservation purposes.
(2) All hunting pursuant to this agreement
shall occur only during deer and elk and bear seasons prescribed by the
Department for all citizens in the geographic area described in section
4(a)(1), above. If the Department prescribes a controlled deer or elk season in
the described geographical area whereby participants must draw for permits, and
all of the hunt will be within the geographic area described in section
4(a)(1), the Department shall provide permits to the Tribe, at the Tribe's
option, for the controlled hunt of up to 10 percent of the total controlled
permits authorized for all citizens. If the section 4(a)(1) geographic area is
only a percentage of a larger controlled hunt area, the Tribe shall be entitled
to 10 percent of that percentage of the total permits issued. For instance, if
the portion of the 4(a)(1) geographic area included in a controlled hunt is
determined to be 47 percent of the total area designated for the controlled
hunt, and 100 permits are available for the total hunt area, the Tribe's
allocation will be calculated on 47 percent of 100, or 47, permits. Ten percent
of 47 permits would yield five (5) controlled permits allocated to the Tribe
(rounding 4.7 to the nearest whole number).
(3) The Tribe shall have no right to
additional deer or elk permits under the landowner preference provisions of ORS
496.146(4).
(4) Permits issued to the Tribe for
controlled hunts shall be valid only when used with an unused tribal tag. Thus,
total harvest of deer and elk cannot exceed 395 animals, as provided for in
section 5(a)(1). Weapons, antler regulations, methods, and other regulations
for tribal hunting shall be the same as established by the State for all
citizens.
(5) All tribal hunting
pursuant to this agreement shall be subject to all of the rights of landowners
and tenants under state trespass laws and other applicable provisions of
law.
(6) All hunting pursuant to
this section shall be in accordance with the licensing and tagging procedures
set forth in section 7 below.
b.
Prohibited Acts. The
following acts shall not be included within the Tribe's cultural hunting rights
and are subject to regulation under applicable state or federal law.
(1) The hunting or trapping of animals other than deer
and elk and bear.
(2) The use of
deer or elk or bear meat for commercial purposes.
(3) The taking of deer or elk or bear in a
geographic area other than that described in section 4(a)(1), above.
(4) The taking of deer or elk or bear in
excess of the number specified in this agreement.
(5) The taking of deer or elk or bear in violation of
any of the limitations set forth in this section 5 or of the licensing and
tagging provisions, as set forth in section 7
below.
6.
Trapping and Cultural Animal Gathering. In addition to those
trapping and animal gathering rights or privileges accorded to citizens or
licensees of the state under state law, the Tribe shall have the rights set
forth in this paragraph. The Tribe shall have no tribal trapping rights. The
Tribe and its members shall have the right to gather eels (lampreys) and fresh
water mussels for non-commercial uses subject to the State's right to regulate
for conservation purposes, within the area described in section 4(a)(1), above.
Gathering of sea anemones, rock oysters (piddocks), crawfish, and saltwater
mussels by tribal members within, or in the ocean adjacent to, the area
descibed in section 4(a)(1) shall be subject to all applicable state laws,
except that upon request of the Tribe, the Department may issue special
gathering permits which will provide the Tribe an opportunity to gather these
animals for ceremonial and subsistence purposes. The Department shall designate
the number of special gathering permits to be issued annually, the quantity of
animals to be harvested, size limits, gear, degree of allowable removal, and
area of harvest. A valid tribal license issued pursuant to this agreement may
be used in lieu of any personal use state license that may be required for such
gathering of the above listed species and clams.
7.
Licensing and Tagging System.
The Tribe and its members shall not exercise any of the tribal rights provided
for in this agreement to harvest fish, deer, elk or bear (referred to as
"animals" in this section), except pursuant to the terms of this section. Any
person who has not complied fully with the provisions of this section shall be
subject to prosecution under state law. Except for the provisions of this
section, no state licenses or tags shall be required for animals taken pursuant
to this agreement.
a. Every tribal member
exercising tribal fishing or hunting rights shall have in possession a valid
tribal license (containing at a minimum the member's name, photograph, and
enrollment number). Every tribal member exercising tribal hunting rights shall
also have in possession a valid tag issued pursuant to this section for the
type of animal being sought.
b. The
Department shall annually issue without charge to the Tribe 350 deer tags, 45
combination tags valid for taking either one deer or one elk, and 5 bear tags.
The Tribe shall control the issuance of such tags to its members.
c. Whenever an animal is taken, the tag shall
be promptly filled out by the tribal member and promptly affixed to the animal.
The information listed on the tag shall be provided to the tribal office within
a time period prescribed by the Tribe.
d. The Tribe shall keep accurate, current
records concerning the number and the persons to whom tags have been
issued.
e. Any tribal member shall
be subject to state regulation under state law if (1) the tribal member does
not have a valid tribal license and a valid applicable tag in possession, (2) a
tribal member has not properly filled out a tag and affixed it to the animal,
or (3) a tribal member has not complied with all other state tagging,
possession, and transportation regulations, so long as they are not
inconsistent with this agreement.
f. All tribal records kept pursuant to this
section shall be complete and current in all respects, and shall be subject to
inspection by the State upon reasonable notice.
g. If the State believes that the tribal
licensing and tagging system is inadequate in whole or in part, the State shall
so notify the Tribe. The Tribe shall take necessary corrective measures. If the
State believes that such corrective measures are inadequate, the State shall
negotiate with the Tribe for the assumption of licensing and tagging
responsibilities by the State. If agreement is not reached by the parties, the
State may petition the United States District Court for an order directing that
full control of licensing and tagging be assumed by the State until necessary
corrective measures have been taken by the Tribe.
8.
Relationship of this Agreement to
the Establishment of a Tribal Reservation.
a. This agreement shall contain the exclusive
definition of tribal hunting, fishing, trapping, and animal gathering rights.
The creation of a tribal reservation, or the addition of lands to an existing
reservation, shall not in any way add to or detract from the provisions of this
agreement. All hunting, fishing, and trapping by the Tribe, on or off any
tribal reservation or lands of any tribal member, shall be in accordance with
the terms of this agreement.
b.
This agreement does not imply any state position on proposals for designation
of particular lands as a reservation. If a reservation is created, the State
shall have the right, subject to the specific provisions of this agreement, to
manage all fish and wildlife resources on the tribal reservation, in accordance
with applicable provisions of Oregon law.
c. The Tribe intends to leave any reservation
established open to the public for hunting and fishing and general recreation.
The Tribe does not by this agreement waive any rights it may have to close all
or part of such reservation when necessary in the future. If there is to be any
closure, or partial closure, the Tribe shall consult with the Department before
taking action. If the Tribe acquires any land containing any watercourse on
which there is now a public right to float or fish from a boat, such public
right shall be unaffected by the acquisition of such lands.
d. The Tribe reserves the right to regulate
or prohibit the public's gathering of plants on any reservation
established.
e. Whenever the Tribe
plans to engage in any activity for which a permit would normally be required
from the Department, the Tribe shall consult with the Department and meet the
minimum standards established by the Department for such activities.
f. The Tribe agrees that it will meet minimum
environmental standards established by state and local laws for resource
development activities which may impact fish and wildlife habitat, including
but not limited to water development, fill and removal, and timber harvesting.
The parties recognize that the Tribe intends to use most of its lands
identified in the Grand Ronde Reservation Plan dated November, 1985, for the
purpose of harvesting timber. The Tribe shall conduct land use planning in an
environmentally sound manner generally consistent with state and local land use
goals as they relate to fish and wildlife habitat.
9.
Effective Date of Agreement.
No part of this agreement shall be effective until this agreement is approved
by the United States District Court and merged into a final and permanent
decree and order issued by such Court. If such action is taken by the Court,
the provisions of the agreement shall go into effect immediately except that
the provisions relating to the cultural fishery (section 4(a), above) and
cultural hunting (section 5(a), above), and cultural animal gathering (section
6, above) shall go into effect 30 days after the Tribe notifies the State in
writing of the establishment of its licensing and tagging procedures (section
7, above).
DATE SIGNED: November 29, 1986.
BY:
Don Barth, Chairman,
Oregon Fish and Commission
Wildlife Commission
DATE SIGNED: December 1, 1986.
BY:
Anne W. Squier
Assistant Attorney General
State of Oregon
Of Attorneys for Oregon
Department of Fish and Wildlife
George d. Dysart
Special Assistant United States Attorney
United States Department of Justice
DATE SIGNED: December 1, 1986.
BY:
Mark Mercier, Chairman
Confederated Tribes of
the Grand Ronde Community of Oregon
DATE SIGNED: December 1, 1986.
BY:
Sande Schmidt, Attorney
Confederated Tribes of the
Grand Ronde Community of Oregon
DATE SIGNED: December 2, 1986.
BY:
Stanley Speaks
Portland Area Director
Bureau of Indian Affairs
Department of the Interior
United States of America
Stat. Auth.: ORS
497.075,
496.138,
506.036,
506.109,
506.119,
506.129
Stats. Implemented: ORS
506.109,
506.129,
508.111