Or. Admin. Code ch. 635, div. 41, exh. 1

Current through Register Vol. 63, No. 10, October 1, 2024

Exhibit 1 - (635-041-0500) AGREEMENT

AMONG THE STATE OF OREGON, THE UNITED STATES OF AMERICA AND THE CONFEDERATED TRIBES OF SILETZ INDIANS OF OREGON TO PERMANENTLY DEFINE TRIBAL HUNTING, FISHING, TRAPPING, AND GATHERING RIGHTS OF THE SILETZ TRIBE AND ITS MEMBERS

1Parties. The following entities are the parties to the agreement and they shall be defined for the purpose of this agreement as follows:

a. "Tribe" shall mean the Confederated Tribes of Siletz Indians of Oregon, as referred to in Public Law 95-195, 91 Stat. 1415 (currently codified at 25 USCS § 711-711f), and all tribal members, present and future.

b. "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.

c. "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.

d. "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.

2.Statement of Purpose. This agreement has been negotiated because of the following factors:

a. The nature and extent of tribal hunting, fishing, 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. Siletz hunting and fishing rights have been and are now the subject of significant controversy. The Tribe contends that it possesses tribal hunting, fishing, trapping and 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, 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 gathering rights, and no special tribal rights shall hereafter exist except those which are specifically set forth in this agreement.

b. Any hunting, fishing, trapping, and 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. 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.

d. 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 special hunting, fishing, trapping, and 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.

e. 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.

f. The parties agree that the State shall retain the sovereign authority to manage fish and wildlife resources, both on and off Tribe's reservation, subject to the provisions of this agreement.

g. 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) The Tribe shall have the opportunity to harvest 200 salmon, regardless of size, per year from sites on tributaries of the Siletz River according to the provisions of this agreement. The parties acknowledge that actual annual salmon harvest may be less than 200 salmon because of water conditions, varying run sizes, and fishing effort. Furthermore, the parties agree that there shall be no makeup of salmon harvest in subsequent years if harvest is less than 200 salmon in any single year. No state license shall be required for salmon taken pursuant to this section.

(2) The only permissible means of harvest shall be dip nets, spears, and gaffhooks. "Dip net" shall mean a net with a mesh size no larger than 5 inches (measured from the inside of one vertical knot to the outside of the opposite vertical knot), attached to a hoop no larger than 4 feet in diameter and attached directly to a handle; dip nets shall be attended at all times. "Spear" shall mean a hand-propelled barbed single or multiple point device attached directly to long shaft; no multiple pointed spear shall have an overall width greater than 8 inches. "Gaffhook" shall mean a large, strong, single point hook attached directly to a handle.

(3) Harvesting by the Tribe shall occur only during salmon runs as set forth herein. The tribal fishing season, up to but not to exceed 60 days, shall be established by the Department after consultation with the Tribe each calendar year during the period of the more active part of the fall salmon run. All tribal salmon fishing shall occur during those regular hours set for salmon angling by the Commission. The establishment of any special tribal fishing season is subject to the State's authority to regulate for conservation purposes and for protection of steelhead.

(4) The harvest of salmon shall be permitted only at the following specific tributary locations:

(a) Euchre Creek Falls, which is a single falls, and a site located approximately between river mile 2.8 and 3.0 in Section 11, T9S, R10W, W.M.;

(b) Dewey Creek Falls, which is a series of falls located approximately between river mile 0.4 and 0.5 in Section 7, T10S, R10W, W.M.; and

(c) A single site on Rock Creek, as agreed upon in writing by the Tribe and the Department.

The Tribe and the Department may agree in writing upon replacement sites on tributaries of the Siletz River if fishing or management at any of the above sites becomes impractical. The Department shall manage, and where appropriate, enhance the salmon resource in each designated stream, consistent with sound principles of fishery science.

(5) All tribal fishing pursuant to this agreement shall be subject to all of the rights of private landowners and tenants under state trespass laws and other applicable provisions.

(6) All harvesting of salmon shall be in accordance with the licensing and tagging procedures set forth in section 7, below.

b.The Subsistence Supply. In addition to the right to harvest salmon from tributaries of the Siletz River 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 State has sorted the surplus salmon and has determined which fish are available for consumption, the Tribe may at its option 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 special fishing rights and are subject to regulation under applicable state or federal law:

(1) The taking of steelhead or game fish other than salmon.

(2) Net fishing, including gill netting, except that dip netting will be permitted as defined in this agreement.

(3) The use of fish, or parts thereof, for commercial purposes.

(4) The taking of fish in a geographic area other than those established pursuant to this agreement.

(5) The taking of fish in excess of the number specified in this agreement.

(6) 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.

aCultural Hunting.

(1) The Tribe shall have the opportunity to harvest a total of 400 deer and elk per year (which total shall not include more than 25 elk) within the following two units, as those units were defined as of the date at this agreement: The Stott Mountain Management Unit and that portion of the Alsea Management Unit which lies north of Oregon Highway 34 and west of Oregon Highway 223. The parties acknowledge that the annual harvest may be less than 400 animals and that there shall be no makeup of deer or elk 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 seasons prescribed by the State for all citizens in the geographic area described in section 5(a)(1), above. If the State prescribes a controlled deer or elk season in the described geographical area whereby participants must draw for permits, the State shall provide permits to the Tribe, at the Tribe's option, for the controlled hunt of up to 10 percent of the total controlled tags authorized for all citizens. Such permits for controlled hunts shall be valid only when used with an unused tribal tag and shall be counted as part of the 400 total tags issued pursuant to section 5. Weapons, antler regulations, methods, and other regulations for tribal hunting shall be the same as established by the State for all citizens.

(3) All tribal hunting pursuant to this agreement shall be subject to all of the rights of private landowners and tenants under state trespass laws and other applicable provisions.

(4) All hunting pursuant to this section shall be in accordance with the licensing and tagging procedures set forth in section 7 below.

b.The Subsistence Supply. In addition to the Tribe's right to harvest deer and elk as set forth above, the State shall make available to the Tribe, at the Tribe's option, a substantial portion of the deer and elk carcasses received by State agencies in Lincoln County. The State shall promptly advise the Tribe of available carcasses. The Tribe shall be responsible for pickup and any costs for processing.

c.Prohibited Acts. The following acts shall not be included within the Tribe's special hunting and trapping rights and are subject to regulation under applicable state or federal law:

(1) The hunting or trapping of animals other than deer and elk.

(2) The use of deer or elk meat for commercial purposes.

(3) The taking of deer or elk in a geographic area other than that described in section 5(a)(1), above.

(4) The taking of deer or elk in excess of the number specified in this agreement.

(5) The taking of deer or elk 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 Gathering. The Tribe shall have no special trapping rights. The Tribe and its members shall have the right to gather eels (lampreys), seaweed, and fresh water mussels within Lincoln County for non-commercial uses subject to the State's right to regulate for conservation purposes. Gathering of sea anemones, rock oysters (piddocks), and saltwater mussels by tribal members 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 within Lincoln County 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 special rights provided for in this agreement to harvest salmon, deer, or elk (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) and a valid tag issued pursuant to this section for the type of animal being sought.

b. The State shall annually issue without charge to the Tribe 200 salmon tags, 375 deer tags, and 25 combination tags valid for taking either one deer or one elk. 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 of animals taken 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 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, trapping, and gathering 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. 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 its reservation open to the public for hunting and fishing and general recreation. The Tribe does not, however, waive any of its rights to close all or part of the 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. 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.

e. The Tribe agrees that it will meet minimum standards established by state and local laws for resource development activities 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 reservation 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 planning goals.

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 injunction issued by such Court. If such action is taken by the Court, the provisions relating to subsistence fish (section 4(b), above) and subsistence game (section 5(b), above) shall go into effect immediately; the provisions relating to the cultural fishery (section 4(a), above), cultural hunting (section 5(a), above), and cultural 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: April 22, 1980.

BY:

Beverly Hall Assistant Attorney General

State of Oregon

Sharon Gordon

Charles F. Wilkinson

Don B. Miller

Attorneys, Confederated Tribes

of Siletz Indians of Oregon

George D. Dysart, Attorney

United States Department of Justice

Arthur S. Bensell, Chairman

Confederated Tribes of Siletz

Indians of Oregon

Herbert Lundy, Chairman

Oregon Fish and Wildlife

Commission

Doyce L. Waldrip

for Department of Interior

United States of America

Or. Admin. Code ch. 635, div. 41, exh. 1

DFW 34-2016, f. & cert. ef. 4/25/2016

Stat. Auth.: ORS 497.075, 496.138, 506.036, 506.109, 506.119, 506.129

Stats. Implemented: ORS 506.109, 506.129, 508.111