Ok lawyer fly fishers, what is the legality. Don't get me wrong the Skoke can be crazy but it is a beautiful river and needs to be cleaned up and respected. Saying it is all tribal land now seems like a power play.
I found this at
http://www.msaj.com/papers/TribalRights.htm
It seems they lost this argument a while back in Skoke v France. See bottom of section.
. TRIBAL RIGHTS TO RIVER BEDS, LAKE BEDS AND TIDELANDS HABITAT.
Indian rights in riverbeds, lakebeds and tidelands within or adjacent to reservations may also give rise to habitat protection rights. Tribal rights to such areas depend upon the particular circumstances of the tribe or reservation.
The main inquiries involve the questions of intent and the original purposes of the reservation. For example, a tribe may own the bed of a navigable river within its reservation where the government intended to reserve such to the tribe in the original establishment of the reservation. That intent may be implied from the surrounding facts. In
Puyallup Indian Tribe v. Tacoma, 717 F.2d 1251 (1983)
cert. denied, 104 Sup. Ct. 1324,
reh'g denied, 104 Sup. Ct. 2162, the Ninth Circuit held that the Puyallup Tribe was the beneficial owner of a tract of property which had constituted the bed of the Puyallup River at the time the reservation was set aside by the federal government. Following an avulsive change in the watercourse, the tribe had claimed the old bed on the grounds that the bed had been set aside for the tribe due to its importance for fishing purposes.
In
Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918), the Court held that an 1891 statute establishing the Annette Island Reserve in Alaska for the Metlakatla Indians included adjacent waters and submerged land. There, the Court relied on the purpose of the reservation to sustain the Indians by fishing in the waters adjacent to the islands and on the canons of construction favoring Indians.
On the other hand, in
Montana v. United States, 101 Sup. Ct. 1245 (1981), the Court found that the bed and banks of the Bighorn River, a navigable stream flowing through the Crow Reservation, had not been included in the original reservation and the tribe did not hold beneficial title. The Court found that there was no indication of intent to confer beneficial ownership nor any basis to infer such an intent from the other purposes of the reservation, since the Crow Tribe historically had not relied on fishing or other uses of the river for their subsistence or economic support.
In
State v. Edwards, 188 Wash. 467 (1936), the court held that the reservation of the Swinomish Reservation included tidelands to the low water mark where it was clear that such was the intent and understanding in setting aside the reservation.
See also,
United States v. Romaine, 255 F. 253 (9th Cir. 1919)(re: tidelands on the Lummi Reservation);
Moore v. United States, 157 F.2d 760 (9th Cir. 1946)(re: riverbed on the Quileute Reservation).
In
Skokomish v. France, 320 F.2d 205 (9th Cir. 1963), however, it was held that the tribe did not have a claim of title to a strip of tidelands adjoining the reservation where there was no intention to grant, give or convey to them such title.
Notwithstanding ownership of the real property, however, still retain access rights to tidelands for the purpose of treaty-guaranteed shellfish harvesting.
United States v. Washington, 157 F.3d 630 (9th Cir. 1998).
