Understanding the Fishing Rights
of the Ainu of Japan: Lessons
Learned from American Indian
Law, the Japanese Constitution,
and International Law *

=========================
Morihiro Ichikawa**

　　　　　　　　　　　　　　　　　　　　　　　　　*>>>>Note

I . INTRODUCTION
In Japan, particularly on Hokkaido Island, the northern-most island
in the Japanese archipelago, indigenous people called Ainu have lived
Since time immemorial, (1) developing cultures distinct from those of
Mainland Japan. (2) The ancestors of today's Ainu people made a living by
fishing for salmon, hunting deer and bears, and gathering plant roots. (3)
Salmon were especially vital for the Ainu people not only as a source
Of food but also for reasons stemming from their cultural value to the
Ainu. Salmon had economic, religious, ceremonial and spiritual value
for the Ainu people. The importance of salmon to the Ainu was outlined
in Kayano v. Hokkaido Syuyouiinkai. "Salmon are called shipe in the
Ainu language, which means 'the staple food for the Ainu people.' It
was important to the Ainu. They had a unique culture centered on
salmon which included special fishing techniques, cooking methods, and
a religious salmon eating ceremony."(4) Ainu villages were usually
located along salmon rivers near spawning grounds.(5) In the Ainu *(6？)
language, another word for salmon is kamuy cheep, or "fish of the gods,"
and many traditional Ainu ceremonies mark the importance of salmon to
the Ainu people. The Ainu conduct an annual ceremony, called asir
chep nomi or inawkorchep which means "first fish ceremony.”(7)
Inawkorchep is a family ceremony for the first returning salmon, (8) in
which a salmon is adorned with shaved-wood decorations "and then
respectfully and ceremoniously sent back to the land of the gods."(9) The
Ainu even made salmon skin shoes. (10)
Despite the centrality of the salmon to the Ainu way of life, the
Japanese government has prohibited the Ainu from taking salmon since
the 1870s, when the Meiji regime first began instituting assimilation
policies. (11) During this period, it became illegal for the Ainu people to
take salmon even for use in traditional religious ceremonies. The taking
of salmon was first prohibited in the Sapporo area in 1878 under the
colonial governor's order, and this prohibition was expanded gradually. (12)
By 1888 only commercial fishermen were allowed on the rivers in
Hokkaido. Consequently, the Ainu people who relied on salmon to
support their families were prohibited from taking salmon from
traditional places.(13) That prohibition continued under a Hokkaido
prefecture ordinance.
When World War II ended, the assimilation policies of the Meiji era
also came to an end. However, the new Japanese government did not
revise its policies with respect to the Ainu at that time. Although the
specific prohibitions against the Ainu were discontinued, (14) the Ainu
people still could not fish for salmon in fresh waters, and were subject to
numerous policies aimed at deterring adherence to traditional Ainu
culture. (15)
Although much of the Ainu's traditional culture has disappeared as
a result of Japanese assimilation policies, some traditional Ainu culture
still remains. Today, the Ainu people are engaged in a movement to re-
establish their rights as indigenous people and to restore important
elements of their traditional culture. (16) As part of this re-establishment,
the Ainu are beginning to assert their fishing rights. (17)
On December 14, 1995, Shigeru Kayano testified as follows at the
Sapporo Chiho Saibansyo (Sapporo District Court) about the impact of
the assimilation laws on the traditionai Ainu of modern Japan: (18)


One night [in 1932] a policeman stepped inside [my home] , I looked at
my father and said "Shall we go, Seitaro?" My father prostrated
himself on the floor and said "Yes I m coming." Without raising
his head, he let large tears fall onto the wooden floorboards . . . .
My father was being taken away by the police for catching salmon. . . .
As my father was led away, I ran after him, sobbing. (19)


The Ainu assimilation experience has been difficult for all those
involved.
In contrast to the Ainu experience in Japan, many Native Americans
in the United States enjoy fishing and hunting rights preserved by
treaties. In the Pacific, Northwest, an abundance of salmon "provided the
economic and cultural foundations on which the Northwest Indians based
their way of life. The social customs, religious practices, diet and trade
of western Washington tribes all centered on the capture of fish."(20) The
Northwest Indian tribes succeeded in preserving their fishing rights
through written treaties with the U.S. government.
Since these rights were not limited in a geographical sense to tribal ~
reservations, the exercise of these rights spawned numerous disputes and
lawsuits over the years. (21) Tribes preserved their fishing rights on and
off-reservation through litigation designed to "assure the tribes access to
their historic fishing grounds, insulate them from state license fees,
protect them against discriminatory regulation, and guarantee them one-
half of the harvestable fish, including fish produced from federal and
state hatcheries."(22)
Although both the Ainu people and the American Indians are
indigenous peoples, their situations are very different. Many Indian
tribes entered into treaties with the United States government, but the
Ainu people did not enter into any written agreements with the Japanese
government. Is it fair to say that the lack of a treaty should justify the
conclusion that the Ainu people should not be allowed to fish for salmon
anymore while American Indians can? Can the Ainu people assert their
fishing rights using theories other than those based on the explicit
preservation of fishing rights through treaties?
This article explores these questions. Part H is an overview of the
Northwest American Indians' fishing rights, (23) provided by reviewing the
significant litigation delineating the scope of Indian fishing rights. Part
III explores the history of the Ainu people and provides an overview of
the Ainu fishing situation of today. Part IV compares the situations of
the Ainu and the Native Americans with respect to fishing rights, and
considers the establishment of Ainu fishing rights as a human rights
issue.



II. OVERVIEW OF NORTHWEST INDIAN FISHlNG
RIGHTS
A. Salmon and the Negotiation of Indian Treaties


Before Europeans came to the Northwest, Native Americans
enjoyed the plentiful salmon and steelhead of the American waters for
food, trade, and use in religious life. (24) "[O]ne common cultural
characteristic among all of these Indians was the almost universal and
generally paramount dependence upon the products of an aquatic
economy, especially anadromous fish, to sustain the Indian way of
life."(25) There are five species of Pacific salmon and steelhead, all of
which are anadromous fish. (26) Migrating salmon provided the tribes with
a substantial basis for their livelihood because they were available for
harvest at predictable times and could be preserved for later
consumption. (27) The Pacific Northwest Indians moved seasonally to
harvest salmon, (28) and developed techniques for taking and preserving
fish, along with unique ceremonies related to the consumption of
salmon. (29) These Native American groups literally built their lives around
salmon for thousands of years. (30)
The European population in the Northwest began to grow
substantially in the 1 840s. (31) The Oregon Territory was established in
1848 by the Act of August 14, 1848. (32) Section 14 of this Act placed the
Oregon Territory under the Northwest Ordinance of 1 787, (33) which
provided that "good faith shall always be observed toward the Indians,
[and that] their lands and property shall never be taken . . . without their
consent."(34) In 1853, the Washington Territory was formed out of the
Oregon Territory. (35) The Act of March 2, 1 853(36) provided that nothing in
the Act would affect the authority of the United States to make any
regulations respecting the Indians, their lands, property, or other rights
by treaty, law, or otherwise. (37)
During this period of rapid settlement, the settlers began to demand
that the federal government negotiate treaties with the Northwest Indians
to free the land for unimpeded settlement. (38) In 1853, Isaac Ingalls
Stevens was appointed as the first governor and superintendent of Indian
affairs of the Washington Territory by President Franklin Pierce. (39) By
1 854, Stevens was negotiating treaties with tribes throughout the
territory. He negotiated eleven treaties with dozens of Indian tribes
before 1 855, and actually completed nine treaties governing relations
with approximately ten thousand Indians. (40) These treaties "extinguished
Indian title to more than sixty-four million acres of land that now makes
up much of the states of Oregon, Washington, Idaho, and Montana."(41)
The purpose of these treaties was to extinguish Indian claims to the land
and to provide for peaceful and compatible coexistence of Indians and
non-Indians. (42) As the treaties were negotiated, the Indians insisted on
preserving their fishing rights not only on the future reservations, but
also off-reservation. (43) It was thought that this would also benefit the
region's economy, as government negotiators clearly anticipated that the
tribes would continue to participate in the region's economy through
their fisheries. (44) As a result, each treaty contained provisions designed to
protect the Indians' rights to take fish. (45)"[F]or several decades after the
treaties were signed, Indians continued to harvest most of the fish taken
from the waters of Washington, and they moved freely about the
Territory and later the State in search of that resource."(46) As over-fishing ~
eventually led to a decrease in the number of fish inhabiting
Washington's rivers and streams, Indian fishing rights became impaired
by non-Indians and by state regulations aimed at conservation. (47)


B. The Nature of Treaty Fishing Rights


1. Evolution of the Rights

Reduction of Northwest salmon and domination of the fisheries by
non-Indians substantially reduced Indian fishing in practice, despite the
treaty protection afforded Native American fishing. (48) Consequently, the
Indian tribes sought judicial relief to enforce their treaty-based fishing
rights. The first U.S. Supreme Court decision on Native American treaty
fishing rights was United States v. Winans. (49)
Audubon Winans and other non-Indians operated fish wheels
pursuant to a license from the State of Washington. (50) They excluded
Members of the Yakima Indian Nation from the fishing sites and refused
To permit them to cross over other non-Indian land to reach them. (51) The
case was brought by the United States on behalf of the Yakima Indian
Nation to enjoin Winans and others from obstructing off-reservation
fishing at the tribe's usual and accustomed fishing grounds. (52)
Respondents argued the treaty "confer[red] only such rights as a white
man would have under the conditions of ownership of the lands
bordering on the river, and under the laws of the state, . . . [therefore]
they have the power to exclude the Indians from the river by reason of
such ownership."(53) The Court held the Indians could not be barred from
their usual and accustomed fishing places and that an implied easement
existed over private as well as public land to gain access to and fish in
these areas. (54) The Court rejected the argument that the treaty gave the
Indians no rights but those that any inhabitant of the territory or state
would have. (55) Instead, the Court held that the treaty preserved Indian
fishing rights.

The right to resort to the fishing places in controversy was a part of
larger rights possessed by the Indians, upon the exercise of which
there was not a shadow of impediment, and which were not much
less necessary to the existence of the Indians than atmosphere they
breathed. New conditions came into existence, to which those rights
had to be accommodated. Only a limitation of them, however, was
necessary and intended, not a taking away. In other words, the treaty
was not a grant of rights to the Indians, but a grant of right from
them a reservation of those not granted.(56)

Indian fishing rights in a tribe's aboriginal area can exist even in the
absence of a treaty. "[W]here established by historical use, aboriginal
title includes the right to hunt and fish and where those rights have not -
been passed to the United States, by treaty or otherwise, the rights
continue to adhere to the current members of the tribe which held them
aboriginally."(57) The existence of aboriginal fishing rights "does not
necessarily turn upon the existence of original title to lands and is not
dependent upon recognition in a treaty or act of Congress."(58) Further,
Native Americans may retain aboriginal fishing rights unless they grant
those rights to the United States by treaty, abandon them, or have the
rights extinguished by statute. (59) When aboriginal rights have not been
ceded by treaty, aboriginal title is not protected by the Fifth Amendment
but is nonetheless a valuable property right that allows Native Americans
to continue to live, fish, and hunt on their aboriginal lands. (60)


2. Defining the Rights


a. The Scope of the Rights

In the aftermath of United States v. Winans, the Supreme Court
ruled that the Yakima Treaty foreclosed the state from charging the
Indians a license fee in Tulee v. Washington. (61) In this case, an Indian
was prosecuted for taking salmon in a "usual and accustomed place" off-
reservation under the Yakima Treaty without purchasing a fishing license
from the state. (62) The Court said "we believe that such exaction of fees as
prerequisite to the enjoyment of fishing in the 'usual and accustomed
places' cannot be reconciled with a fair construction of the treaty."(63)
The leading decision on the fishing rights issue is Washington v.
Washington State Commercial Passenger Fishing Vessel Association, (64)
in which the Supreme Court affirmed Judge Boldt's reasoning in United
States v. Washington regarding the sharing of the salmon runs between
Indian treaty fishers and non-Indian sports and commercial fishers. In
United States v. Washington, the Court held that the tribes had the right
to take up to fifty percent of all the salmon passing their off-reservation
fishing ground. (66)

By dictionary definition and as intended and used in the Indian
treaties and in this decision "in common with" means shoring equally
the opportunity to take fish at "usual and accustomed grounds and
stations"; therefore, non-treaty fishermen shall have the opportunity
to take up to 50'~o of the harvestable number of fish that may be taken
by all fishermen at usual and accustomed grounds and stations and
treaty right fishermen shall have opportunity to take up to the same
percentage of harvestable fish, as stated above. (67)

The aftermath of this decision was visible on many fronts. (68)
In the period following the ruling, the Indian salmon harvest more
than doubled, and non-Indian fishermen vocally protested both the
decision and the sharp increase in salmon harvest. (69) Washington state
officials openly defied the United States v. Washington ruling. (70) The
Washington Supreme Court held the federal court actions invalid and
forbade the Department of Fisheries from complying with the federal
injunction. (71) The United States Supreme Court could not ignore this
State court challenge to federal authority, (72) and affirmed the concept of
An equal share of fish for treaty and non-treaty fishers. (73) In Washington
v Washington State Commercial Passenger Fishing Vessel Association,
the Court held that "the Indians' present-day subsistence and commercial
needs should be met, subject, of course, to the 50% ceiling . . . [and that]
the 50% figure imposes a maximum but not a minimum allocation."(74)

b. The Construction of the Treaty Language

The extent of Indian fishing rights in the United States has also been
influenced by certain canons of statutory construction. The federal
courts have generally held that ambiguities in the language of treaties
with Native American tribes must be construed in favor of the Indians.(75)
In the first United States v. Washington decision, Judge Boldt discussed
this premise at length.

The treaties were written in English, a language unknown to most of
the tribal representatives, and translated for Indians by an
interpreter . . . using Chinook Jargon, which was also unknown to
some tribal representatives. Indians are a weak and dependent
people, who have no written language and are wholly unfamiliar with
all the~forms of legal expression, and whose only knowledge of the
terms in which the treaty is framed is that imparted to them by the
interpreter employed by the United States; and that the treaty must
therefore be construed, not according to the technical meaning of its
words to learned lawyers, but in the sense in which they would
Naturally be understood by the Indians. (76)


Using this principle of treaty construction, courts have elaborated upon
the extent of fishing rights in treaties with the Northwest Indian tribes
with the following results:
(A) Native Americans enjoy the exclusive right to take fish in all
streams on reservations.(77)
(B) Off-reservation fishing rights encompass fishing at all usual and
accustomed grounds and stations, (78) and include the right to erect
temporary buildings for curing fish. (79)
(C) With regard to off-reservation fishing rights, Indians cannot be
barred from their usual and accustomed fishing places, and have an
easement over private as well as public land to gain access to and fish
in these areas.(80)
(D) Where Native Americans engaged in commercial fishing prior to
and at the time of their treaties
treaties. (81)
commercial fishing is protected by
(E) Native Americans have the right to take salmon not only from
natural runs, but also from bred salmon stocks. (82)
(F) Native Americans may utilize improvements in traditional fishing
techniques, methods, and gear. (83)
(G) Last, and of great importance, is the rule that tribes are entitled to
a half share of the resource: the, treaties guarantee the Indians up to
50 percent of the harvestable salmon passing through the tribes' usual
and accustomed fishing grounds. (84)

c. Tribal Rights

Given this summary of the rights of Native American tribes to fish
in certain waters, it is important to explore where the fishing rights vest
under the American model, and what the implication of group-based
rights are for individual Indians.
The courts have heard several cases in which individual Native
Americans have asserted fishing rights on their own behalf, rather than
on behalf of their tribes. Such claims have met with mixed results. In
United States v. Winans the Court said that the tribes "reserved
rights . . . to every individual Indian, as though named therein."(85) In
United States v. Washington, the Court found that "[t]he right of taking
fish, at all usual accustomed grounds and stations, is further secured to
said Indians."(86) These phrases seemed to indicate that fishing rights vest
in the individual Indian person. However, in United States v.
Washington, the Court held that the right to fish at usual accustomed
grounds was a communal property right pertaining to the tribe. (87) In
Whitefoot v. United States the Court also found that Indian fishing rights
were communal tribal property.(88)
Because American Indian fishing rights treaties were designed to
preserve existing aboriginal fishing rights, whether the fishing right is
individual private property or a part of the communal property of the
tribe depends on traditional Indian laws and customs with respect to
fishing rights. In Whitefoot v. United States, the Court stated:

Each of the tribes owned from ancient times -its own fishing
grounds. . . . The Chief of the tribe customarily designated the
fishermen. . . . These Indians did not have a private ownership
concept as to real property as it is known in more sophisticated
societies. Fishing stations were deemed to be the communal property
of the tribe. (89)

The combination of judicial interpretation of the treaties governing
fishing rights and Indian law and custom regarding the communal versus
individual ownership of land and water rights makes it clear that fishing
rights belong to tribes in the American Northwest, not to individual
Indians. (90)


3. Limits on Treaty Fishing Rights


a. State Regulation

In the United States, only the federal government may negotiate
treaties, therefore individual states have no power to regulate treaty-
based fishing rights for Indians. The Supremacy Clause also makes
United States treaties binding on individual states. "[T]hat right is
preserved and protected under the supreme law of the land, [and] does
not depend on State law. . . ."(91) Although the state generally has
authority to regulate the taking of fish and game, the federal government
may also preempt state control over fish and game by executing a valid
treaty. (92)
On the other hand, some courts 'have held that "the state may
regulate the time and manner in which the Indians take their catch when
'necessary for the conservation of fish."'(93) In United States v
Washington, the court held that the state has initial authority to regulate
the taking of fish and game, and that "[a]bsent express federal law to the
contrary, Indians going beyond the reservation boundaries have generally
been held subject to nondiscriminatory state law otherwise applicable to
all citizens of the State."(94) Today the state right to regulate Indian off-
reservation treaty fishing is sharply limited to regulation for conservation
purposes. (95)

b . Federal Abrogation

Congress, unlike the states, has the authority both to regulate and
extinguish Indian fishing rights. (96) However in United States v. Dion, (97)
the Court stated "[w]e have required that Congress intention to abrogate

Indian treaty rights be clear and plain."(98) The standard for determining
such a clear and plain intent is the existence of "clear evidence that
Congress actually considered the conflict between its intended action on
one hand and Indian treaty rights on the other, and chose to resolve that
conflict by abrogating the treaty."(99) The courts in State v. Billie. . (100) and
United States v. Billie. . (101) held that the Endangered Species Act. . (ESA)
abrogated the Indian treaty right to hunt Florida panther, basing their
decisions on the exemption of Alaskan natives and certain non-native
people considered by Congress and legislative history of other bills. (102)
The two Billie cases have been criticized in that they "chose to 'infer'
Congress' intent and 'presume' what Congress meant in order to
determine intent." (103)
In the Pacific Northwest, most of the salmon runs are listed as
endangered or threatened species under the ESA, (104) and yet the Indians
take salmon for religious and commercial purposes. (105) This presents a
clear example of a conflict between Indian treaty fishing rights and a
federal regulatory scheme. However, to date no issues concerning
conflicts between the ESA and Indian treaty rights to take salmon have
been adjudicated in the courts. (106) One of the reasons for the lack of
litigation on this type of conflict is that in 1 997 the Secretary of the
Interior and the Secretary of Commerce signed Secretarial Order:
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act. (107) This Order removed some of the
ambiguity inherent in questions of conflict between Native American
hunting and fishing rights and the ESA, by clarifying the responsibilities
of the Departments of Commerce and the Interior when actions under the
ESA affect or may affect Indian lands, tribal trust resources, or the
exercise of Indian tribal rights. (108) These agencies carry out their
responsibilities under the ESA in a manner that harmonizes the federal
trust responsibility to tribes, tribal sovereignty, and the statutory missions
of the departments, and strive to ensure that Indian tribes do not bear a
disproportionate burden for the conservation of listed species. (109)"The
order recognizes the unique characteristics of tribes and tribal lands. It
establishes a special place for tribes tailored to the characteristics of
tribal sovereignty and the trust duty in all the key areas of administration
of the ESA "(110) Although there were some disappointments with this
arrangement, (111) Indian tribes and federal agencies both stand to gain a
great deal from this order. If the order is implemented as intended,
management and administration by both federal and tribal officials will
proceed more smoothly and effectively. The tribes will have
considerably greater autonomy in managing the resources of their
homelands, and animal species and the ecosystems upon which they
depend will benefit as well. (112)
The American approach to the construction of Indian fishing rights
is therefore instructive with respect to the Ainu case because the groups
were so similarly situated prior to the settlement of their lands by
outsiders. Further, the American analysis of Native American fishing
rights clearly indicates that there is not necessarily a need to have a treaty
serve as the basis for an aboriginal fishing right.


III. JAPANESE POLICY TOWARD AINU FISHING RIGHTS

Today there are 23,767 Ainu. . (7,755 families) living in Hokkaido. (113)
Ten percent of the Ainu population lives, in and around Sapporo. (114)
However, half of the Ainu population still lives in or adjacent to rural
places scarcely changed since ancient times, such as Hidaka and Iburi. (115)
Eight hundred and eighty-three. . (3 .72 percent) receive public assistance,
compared with 1.84 percent for the Hokkaido population as a whole. (116)
Two thousand, six hundred and four. . (19.3 percent) are working as
fishermen and 2,561. . (19.0 percent) are working as construction laborers,
compared with I .3 percent and 1 2.9 percent for the Hokkaido population
as a whole respectively. (117) The proportion of students who go on to
undergraduate school is 1 6. I percent, compared with 34.5 percent for the
Hokkaido population as a whole. (118) In an opinion poll given to the Ainu
people, 3 1.0 percent of them categorized themselves or their families as
needy, compared with 15.3 percent for Hokkaido people as whole (119)
These facts indicate that a disproportionately large percentage of the
Ainu live in poverty.
The Ainu people have been in Hokkaido for centuries. Today,
however, much of the Ainu traditional culture has been lost due to long-
standing Japanese assimilation policies. (120) For the purposes of relating
Ainu history to the issue of aboriginal hunting and fishing rights and
assisting the reader in understanding Japanese policies with respect to the
Ainu, I will consider Ainu history in three parts. First, I will address the
pre-Meiji era as a means of describing Ainu culture before assimilation.
Second, I will look at the Ainu as they existed in the' period between the
Meiji era and World War II. Finally, I will describe post-World War II
Ainu life.

A. Traditional Ainu Life Before the Meiji Era
The Tokugawa Shoguns ruled Japan from 1603 to 1 868. (121)
Hokkaido, which was called Ezo at this time, was divided into two parts.
The Matumae lords were permitted to govern one of them, called Wajin-
chi [Japanese land], by the first Shogun Ieyasu Tokugawa in 1604. (122)
The other part, called Ezo-chi [Ainu land], remained under Ainu's
governance (123) The Tokugawa Shoguns also granted the Matumae lords
an exclusive trading right with the Ainu, prohibiting anyone else from
trading with them. (124) These trades were conducted by Matumae's
vassals at specific trade spots called Akinai-ba [trading spots] in Ezo-
chi. (125) The Ainu people were not allowed to enter Wajin-chi or to trade
freely (126)
Between 1 799 and 1 821, Ezo was temporarily ruled directly by the
Tokugawa Shoguns in order to defend it from Russia. (127) The Matumae
lords regained control in 1 821, and managed an old akinai-ba, called
Basyo, directly instead of through vassals. (128) He contracted the
management and administration of these trade spots to large
merchants, (129) and obtained fees from these merchants. (130) At the same
time, the merchants obtained power over the Ainu people through their
positions as controllers of trade. They forced many of the Ainu people
into slavery at the trade outposts. (131)
At this time, the Ainu country was subordinated to the Tokugawa
Shoguns and to the Matumae lords, affecting Ainu societies
economically and politically (132) However, neither the Tokugawa
Shoguns nor the Matumae lords governed individuals directly. (133) "The
practices of this early period of Japanese colonization may not have been
intended to change the Ainu's basic way of life; indeed, there is evidence
that until the end of the Eighteenth Century all matters in Ezo were
settled according to [Ainu] custom."(I34) Although the Tokugawa Shoguns
ruled from 1799 to 1821 and ostensibly took control over the
assimilation project, the fundamental principles of the policies were not
changed because the Tokugawa rule was more focused on the defense of
Ezo against foreign countries than it was upon the acculturation of her
inhabitants (135) The Matumae lords' policy goal was merely to control
trade in favor of the Japanese, not to acculturate the people of Ezo into
Japanese culture. (136) Therefore the Ainu were able to maintain their
traditional customs, their own language, (137) and their sovereignty in Ezo-
chi. (138)
Before the Meiji Era, which began in 1868, the Ainu people
depended on hunting wildlife, fishing for salmon, and gathering berries
and roots, for their livelihood. (139) These native people traded in furs and
salmon with Northern Asian and the Japanese. . (140) until the Tokugawa
Shoguns prohibited such trade except trading with Japanese at trading
spots (141) A group called a Kotan identified as kin or clan and very
similar to a band of an American Indian tribe would own hunting and
fishing areas called Ioru, (142) and members of the Kotans possessed
exclusive hunting and fishing rights in their Kotans' areas. (143) When
persons took deer or salmon in another Kotan's area, they were punished
and required to compensate for their trespass. The Kotans' jurisdictions
were territorially defined, and sovereign authority was exercised by the
Kotan chiefs in accordance with local civil and criminal laws. (144) The
Kotans owned their lands, and the chief of each Kotan, (145) known as the
Kotan-kar-kuru, managed the lands for the group. (146) Before the Meiji
era, both the Tokugawa Shoguns and the Matumae lords recognized the
Kotans as sovereign entities, and the Ainu as an ethnic group distinct
from the Japanese. Although the Ainu society and economy were
affected by the policies of the Tokugawa Shoguns and the Matumae
lords, the Ainu essentially maintained their self-determination and their
distinctive traditions. (147)


B. From the Meiji Era to World War II

The Meiji period is the term typically used to refer to the period
from 1868 to 1912, during which the emperor Meiji Tenno ruled. (148)
Between 1 9 1 2 and 1 926, Taisyo Tenno ruled Japan, therefore this period
is known as the Taisyo period. (149) Syowa Tenno ruled Japan from 1926
to 1945, in what is now referred to as the Syowa period. (150) However,
because Ainu policies remained fairly consistent throughout the period
encompassed by the regimes of these leaders, in this article I will treat
the period between 1 868 and 1945 as one historical era, which I will
refer to as the Meiji Era.
The Tokugawa Shoguns developed an isolationist approach to
foreign policy in the period between 1633 and 1639, and this policy
persisted through the next two centuries, until the arrival of Commodore
Matthew C. Perry in 1853. (151) Commodore Perry came to Japan in 1853
with four American ships carrying sixty-one guns and 967 men to
demand that Japan let the United States use its ports for trade and as
coaling stations for US ships. (152) Japan entered into a treaty with the
United States, known as the Kanagawa Treaty, accepting these terms in
1854. (153) This caused a civil war in Japan. (154) Lord Shimazu, Lord Mouri,
their samurai warriors, and some nobles advocated the restoration of
imperial rule as a means of strengthening the nation's defense, which
brought them into confrontation with the Tokugawa Shogun. In 1868,
Yoshinobu Tokugawa Shogun returned the government to Tenno, and
Tenno rule was restored. (155) Emperor Tenno became the highest ruler in
Japan, supported by the Meiji leaders who were mostly court nobles and
samurais of Lord Shimazu, Lord Mouri, and Lord Yamanouchi. (156) The
nature of this new government was reflected in its policy toward the
Ainu. (157) The Meiji government valued imperialism and the
centralization it entailed, and made the Ainu subjects of the emperor
(Tenno). (158)
Another important element of the early Meiji government's policies
from the perspective of the Ainu was the Meiji's focus on the defense of
the northern reaches. (159) During this period, the Japanese and Russians
were in a quiet contest for control of Sakhalin and the Kuril Islands, and
the Japanese worried about the fate of Ezo itself. (160)


1 . Hokkaido Management


Dramatic changes in Ainu societies were caused by governmental
policies in the Meiji Era. Tenno proclaimed that the traditional name for
the Ainu region, "Ezo," would be changed to Hokkaido, and also
established the office of Kaitaku-si . . (Colonial Governor of Hokkaido and
Sakhalin), who would manage Hokkaido on behalf of Japan in 1869. (161)
The Hokkaido Colonization Office pursued vigorous policies
encouraging Japanese immigration and development as a means of
securing control of the island. This had a dramatic effect on the lives of
the Ainu. (162) The fundamental purposes of Hokkaido management were
the maintenance of the territorial integrity of Hokkaido against Russia,
the development of natural resources in Hokkaido, and the supply of
lands to samurai warriors who had lost their positions at the end of
Tokugawa's rule. (163) With respect to the Ainu people, the fundamental
policy goal of the Hokkaido management was assimilation, which served
both to defend the island against potential claims of ownership by Russia
and to open the lands to Japanese settlers. (164) At the beginning of the
Meiji Era, the Japanese government needed to prevent the Ainu people
from entering into an alliance with Russia. (165) Once this was no longer a
pressing concern, (166) assimilation policies evolved to focus on opening
lands and natural resources to settlers and companies. (167)

2. Japanese Policies Toward the Ainu

The Ainu people were first entered in the Japanese Family Register
in 1871. (168) They were registered as Japanese, and therefore denied a
distinct political identity with indigenous rights recognized in the pre-
Meiji era. (169) They also became free from the merchants' management by
the abolition of the institution of Basyo in 1869. (170) As a result of their
new legal status as Japanese, the Ainu lost their indigenous hunting and
fishing rights in Ezo-chi, which the Tokugawa Shoguns and the
Matumae lords had previously recognized. (171) Kaitaku-si also prohibited
Ainu women from piercing their ears or wearing earrings, and prohibited
Ainu women from tattooing themselves because these were "savage
customs" inconsistent with Japanese cultural norms in 1871. (172) Kaitaku-
si further prohibited the Ainu from observing their traditional custom of
burning a house and leaving when a family member. (173) Kaitaku-si also
regulated many other cultural norms and customs, required the Ainu to
use Japanese names,　. . (174) and encouraged them to learn the Japanese
language. (175) Kaitaku-si encouraged the maintenance of Ainu agricultural
practices. (176) When Ainu persons wished to reclaim lands for farming,
Kaitaku-si provided houses and farm implements,　. . (177) as well as
agricultural engineers to teach the Ainu people farming techniques. (178)
The issuance of several regulations in the early 1 870s substantially
altered the situation of the Ainu. In 1872, Kaitaku-si issued two land
regulations known as Tochi Baitai Kisoku [Land Sale or Lease
Regulation]. . (179) and Jisho-Kisoku [Land Regulation]. (180) Article I of Tochi
Baitai Kisoku provided, "All lands in Hokkaido belong to the
Government except lands owned by Japanese already, and the
Government will sell lands to private individuals."(181) Article 7 of Jisho
Kisouku provided that "even deep forests or watersheds, which the Ainu
people have occupied for hunting or gathering places, will be
sold."(182) In 1877 Kaitaku-si issued a further regulation, (183) stipulating that the places where the Ainu lived would also be subject to Japanese
management (184) In 1897 Hokkaido Kokuyu Mikai-ti syobun Ho (Land
Disposition Act) was enacted, conveying approximately 1,830,000
hectares. . (ha). . (4,570,000 acres). . (185) of pre-Meiji Ainu hunting, fishing, and
gathering grounds to Japanese settlers and nobility by 1908. (186) As the
Japanese settlers increased their land holdings, the Ainu gradually lost
their traditional hunting, fishing and gathering grounds. This trend
caused not only poverty but also the destruction of Ainu traditional
cultures. (187)


3. Ainu Hunting and Fishing

Deer. . (Cervus hortulorum) and salmon. . (Oncorhynchus keta) were
vital food for the Ainu, integral for the production of clothes, and
generally valuable trade goods to the Ainu people in the pre-Meiji era. (188)
The Ainu developed techniques for hunting and fishing, including
poisoned arrows. . (189) and a unique salmon spear with a revolving hook. (190)
Before the Meiji Era, Japanese were prohibited from killing deer and
entering the grounds each Kotan owned as its customary hunting area. (191)
During the Meiji Era, however, many Japanese hunters entered into Ainu
hunting areas and hunted deer with rifles. (192) In the Tokachi area. . (central
Hokkaido), before the Meiji-Era, 600 to 700 deer were killed each year,
but by 1878, 12,500 deer were being killed annually. (193) In all the
Hokkaido territories, hunters killed 76,500 deer in 1875. (194) The Kaitaku-
si established a deer meat cannery in 1878, and in that first year 76,313
cans of deer meat were produced. (195) In February 1880, a particularly
heavy snowfall led to many deer freezing to death. (196) Combined with
increased hunting, this caused a decrease in the deer population. (197)
Kaitaku-si regulated hunting areas, hunting season, and hunting practices
to conserve deer in 1876, but excepted the Ainu from these
regulations. (198) The following year, Kaitaku-si instituted a licensing
requirement for deer hunting with a license fee of 2.50 yen, and this time
included Ainu hunting in the regulatory scheme. (199) Kaitaku-si further
prohibited the use of poisoned arrows in deer hunting. (200) In 1 899, deer
hunting was prohibited entirely, and the Ainu lost raw materials essential
to their ability to provide themselves with food and clothes. (201)
With respect to fishing rights, before the Meiji era Japanese salmon
fishing had been limited to ocean waters, and Ainu fresh water fishing
was protected by the Tokugawa Shoguns and the Matumae lords. During
the Meiji Era, however, many Japanese fishermen began to use the
traditional Ainu fishing fields in Hokkaido. . (202) Japanese fishermen also
took a large number of salmon in the mouths of rivers when salmon
returned for spawning. (203) In the Tokachi River, Japanese fishermen had
established seven fishing places in 1 876, but over the next six years that
number increased to forty-six. (204) In 1 877, the first fish cannery was
established on the banks of the Ishikari River by Kaitaku-shi, and by
1879 four more canneries had been established in Hokkaido (205) The
Ishikari cannery produced 13,246 cans of salmon in 1877 and 74 356
cans in 1881. (206) Over-harvesting by Japanese fishermen resulted almost
immediately in a rapid decrease in the number of salmon. (207)
Kaitaku-si began regulating salmon fishing in 1873, with a direct
effect on the Ainu. The regulation started with a prohibition on the use
of nets. . (208) and weirs (209) at the Hassamu River, the Kotoni River, and the
Sinoro River. . (210) At the Nishibetu River, fishermen were allowed to use
only one net on one fishing ground in 1877. . (211) In 1878 the taking of
salmon was prohibited entirely at all rivers in the Sapporo area. . (212)
Because, most of the Ainu fishing grounds were located on the upper
reaches of streams, as Japanese fisherman harvested salmon at the
mouths of rivers and in the middle courses, became difficult for the Ainu
to take salmon at all. . (213) The net effect of these restrictions on the Ainu
was severe. . (214)

Poverty and starvation, the effect [of prohibiting salmon fishing], was
terrible. By the report of an officer Thugano, "They boiled deer bones
that they had thrown away, and drank its soup . Over ten Ainu people
died in one Kotan." By another report by an officer of Hidaka
County, 716 families were threatened with starvation. . (215)


4. Assimilation Policy

The government moved ahead with the policy encouraging
agriculture among Ainu on a large scale in 1883. . (216) With this policy, the
government intended to assimilate the Ainu into mainstream Japanese
life and convert the Ainu culture from one based on fishing and hunting
to one centered on farming. . (217) In 1899, a comprehensive assimilation act
known as the Hokkaido Kyudojin hogo Ho . . (Hokkaido Indigenous People
Protection Act) was passed. The cabinet outlined the purpose of this act
before Parliament, making it clear that the assimilation policy was meant
to make the Ainu people subjects of Emperor Tenn. (218) "It is reasonable
that the Ainu people, who have low intelligence, are going on dying from
the cold. However, because they are also subjects of the Emperor Tenno,
we have to develop remedial systems. It's a governmental obligation." (219)
The contents of the Indigenous People Protection Act were as follows.

Article I : The Government will grant land to Ainu who wish to be
fanners in the amount of 5 ha . . (8.3 acres) per a person.

Article 2: Ainu people who obtain a parcel of land in accordance with
the provisions of Art. I may not dispose of it except through
inheritance and may not offer it as security.

Article 3: Any parcel disposed of according to Art. I and remaining
undeveloped after 1 5 years will escheat to the Japanese government.

Article 4: The Government may give farming implements and seeds
to poor Ainu people.

Article 5 : The Government may provide poor Ainu people with
medical care and medicine.

Article 6: The Government may provide support for Ainu people who
cannot work for reasons of illness, disability, age, or minority, and
may also provide a disbursement for burial of the dead.

Article 7 : The Government may provide poor Ainu people with
tuition.

Article 8: The Government may establish Ainu elementary schools in
Ainu regions. . (220)

In accordance with the Act, 7,000 ha . . (17,000 acres) were conveyed
to the Ainu people as of 1910, and about 10,000 ha . . (25,000 acres) were
conveyed as of 1916. . (221) However, the government terminated the policy
of conveying lands to the Ainu people in 1 937 and has not conveyed any
land since to them since. . (222) The government established twenty-one
Ainu elementary schools, and educated Ainu children as Japanese. . (223)
Japanese language and loyalty to Tenno were given more weight than
other subjects, and the Ainu were prohibited from practicing many of
their traditional customs. (224)

C. Policy After World War II

After World War II, . (225) the pressure to assimilate the Ainu people
decreased with the decline of imperialism. . (226) The Hokkaido Indigenous
People Protection Act of 1 899 remained in effect, but was later
amended. . (227) Articles 4, 5, and 6 were eliminated in 1946, (228) and
thereafter the welfare of the Seikatu Hogo Ho [Daily Life Security Act]
of 1946, governed the management of Ainu welfare. . (229) In 1946,
Jisakuno Sousetu Tkubetu-sochi Ho [Landed Farmer Establishment
Special Measures Act] was enacted to eliminate the feudal system and
create a population of landed fanners. . (230) Although many Ainu people
obtained land through the Hokkaido Indigenous People Protection Act,
some of them leased their lands to Japanese farmers because they lacked
the agricultural skills required to make good use of the land. . (231) The
Landed Farmer Establishment Special Measures Act established that
tenant farmers had a right to buy their tenant lands at a low cost. . (232) The
Act thus forced the Ainu landowners to sell their lands to their Japanese
tenant farmers. . (233) The Japanese Supreme Court upheld this law upon
challenge. (234)
These acts and the Japanese post-World War II policies treated the
Ainu people the same as other Japanese, rather than as people with a
special indigenous status. Prime Minister Yasuhiro Nakasone claimed at
the Parliament in 1986, "in Japan there is no racial minority. Japan is a
racially unified state." (235) The Ainu are certainly an ethnic minority
distinct from other Japanese . (236) Nakasone's statement not only denies
the Ainu status as an indigenous people and ethnic minority but also
supports Japanese nationalist views, which were a key element of
Japan's entry into World War II. (237) In keeping with this spirit, the
Japanese government rendered a series of reports to the United Nations
under the International Covenant on Civil and Political Rights Article 40
( I )(b) in the 1980s, arguing that no ethnic minority as contemplated
under Article 27 of that instrument existed in Japan . (238) In the 1 990s the
government finally admitted to the existence of the Ainu people as a
distinct ethnic minority subject to protections, outlined in Article 27, in a
revised report to the United Nations . (239)
In 1997, the Ainu Bunka Suisin Ho . . (Promotion of Ainu Culture and
Spread of Ainu Tradition Act) was enacted, and the Hokkaido
Indigenous People Protection Act was repealed . (240) The new Act, also
referred to as A Law Concerning the Promotion of Ainu Culture and the
Dissemination and Preservation of Knowledge Concerning Ainu
Traditions, does not mention anything about the indigenous rights of the
Ainu people . (241)"There is not one article dealing with the guarantee of
political, social, and economic rights of the Ainu as indigenous
people."(242) This lack of consideration for the potential indigenous
hunting and fishing rights of the Ainu makes the question of how such
rights may be asserted a difficult one.

D. Ainu Fishing Today

In 1999, commercial fishermen harvested roughly U.S. $643 million
worth of salmon and trout off the coasts of Japan . . (243) and U.S. $ 14 million
worth of salmon and trout in the Japanese inland waters . (244) Of the
1 8,000 tons of salmon and･trout harvested from the inland water fisheries
of Japan, 66 percent came from Hokkaido . (245) Fishermen who are
members of cooperatives usually have the right to take salmon both on
coastal and inland waters . (246) However, non-commercial fishermen,
including many Ainu who would fish for subsistence and ceremonial
purposes, are prohibited by Hokkaido ordinance, Hokkaido Naisuimen
Gyogyo Chosei Kisoku . . (Hokkaido Inland Water Fisheries Adjustment
Regulation) from taking inland water salmon . (247) Therefore only
commercial fishermen who have fishing rights stemming from
membership in cooperatives harvest most of the salmon at the mouths or
lower courses of rivers . (248)
The Ainu people's access to river salmon has been restricted since
the late nineteenth century . (249) Before the Meiji era, the Ainu people
harvested salmon on many rivers, and salmon constituted the basis of
economy and culture, (250) but the Japanese government's assimilation
policies during the Meiji era prohibited these practices . (251) The post-
World War H movement to restore Ainu traditional culture has included
an attempt to restore traditional ceremonies celebrated by the ancestors
of the present day Ainu, among which are many ceremonies relevant to
fishing . (252) Today, although salmon fishing is still prohibited by a
Hokkaido Prefecture ordinance, the Ainu may take salmon with special
permission from the Hokkaido Governor, who regulates fishing grounds,
and the manner and quantity in which fish may be taken . (253) In 2000, five
such permits were issued for the following takes:

1 . The Noboribetu River: from August 28 to September 4, fifty
salmon by ten mareps, (254) for promotion of fishing tradition and
ceremonies.

2. The Chitose River: from September 2 to September 4, 100 salmon
by two mareps and one op, (255) for the promotion of fishing tradition
and ceremonies.

3. The Ishikari River: from September 2 to October 20, 450 salmon
by two gillnets, for the promotion of fishing tradition and ceremonies.

4. The Toyohira River: September 15, fifty salmon by four mareps,
for the promotion of fishing tradition and ceremonies.

5. The Kushiro River: from September 17 to October 16, 100 salmon
by ten gillnets and two mareps, for the promotion of fishing tradition
and ceremonies . (256)

In all, the Ainu people were allowed to take 750 salmon for the
promotion of fishing tradition and ceremonial use, but were not allowed
to take any salmon for commercial fishing purposes except to the extent
allowed under commercial fishing licenses. (257) While this policy is a step
in the right direction, the situation in which Ainu may take salmon only
through special permission of the governor is plainly not a true
recognition of Ainu indigenous fishing rights. The following passage
from Kayano reflects the difficulty the fishing restrictions have created
for the Ainu.

More than seventy years have passed since my father [Seitaro] was
led off, but today, Ainu rights to salmon are not yet recognized, and if
we attempt to catch a single fish without permission, we can be
arrested. . From the age of the gods, from the age of the ancestors,
the Ainu people have lived on salmon. So I raise my voice to say to
the Japanese who invaded our land and stole our fish, "Give us back
our staple food !". . (258)


Complicating the situation of the Ainu fishing enterprise today is
the fact that the assimilation policies of the Meiji era virtually destroyed
the institution of the Kotan. As a social and governmental unit, the
Kotan was instrumental in managing specific fishing and hunting
grounds. (259) The Ainu people developed customary laws within the
Kotan, and the Kotan chief administered those laws in much the same
way any other sovereign would . (260) When the Kotans were diminished,
the Ainu effectively lost the sovereignty that, under American law,
would be the backdrop of the fishing right.

IV. TOWARD A FULLER AND FAIRER RECOGNITION OF
AlNU FISHIG RIGHTS

The situation of the Ainu people is similar to that of the Native
Americans in the Western United States because both groups faced
conflict with encroaching foreign settlers and the accompanying race to
obtain and utilize vast quantities of natural resources during the
nineteenth century. Indian law and policy in the United States, which
recognizes important elements of indigenous sovereignty and
concomitant natural resource rights for Indian tribes, developed not only
through the passage of legislative acts but also through judicial decisions
made in response to specific conflicts. In Japan, international law and
the Constitution of Japan provide a similar basis for the recognition of
the rights of indigenous people. (261) In the final section of this article, I
consider the prospects for the recognition of Ainu fishing rights through
analogy with the American model, and as a function of several
provisions of international law and Japanese constitutional law that may
provide valid legal bases for the recognition of Ainu fishing rights in
Japan.

A. Ainu Fishing Rights As Aboriginal Fishing Rights

In the United States, Indian tribes reserved title to certain lands,
property rights, and sovereignty through numerous treaties. (262) However,
under United States law, aboriginal rights need not be based upon a
treaty, statute, or other formal government action, (263) and the exclusive
right to extinguish aboriginal rights rests with the federal government. (264)
Aboriginal rights are distinguishable from other tribal rights in that they
may be extinguished without triggering a federal duty to compensate the
loss of rights as a. taking under the Fifth Amendment. (265) Further, to
acknowledge an aboriginal right as extinguished, courts "have generally
required the same 'clear and specific' indication of congressional intent
to extinguish Indian title as to abrogate 'recognized' tribal property
rights." (266) Although in Japan there have been no treaties reserving
aboriginal rights, there has also not been an extinguishing of aboriginal
rights. Applying this reasoning to the Ainu situation supports the
proposition that aboriginal hunting and fishing rights for the Ainu are in
fact still in effect.

1. Fishing Rights as Inherent in Pre-Meiji Aboriginal Title

Did the Ainu people have aboriginal title to the Hokkaido region in
the pre-Meiji era? In State v. Coffee, the Idaho Supreme Court held that
aboriginal title under United States law is founded on the notion that
Indian occupancy and use of the land predated the present sovereign. (267)
Borrowing this reasoning and applying it to the Ainu case, the Ainu
people should be allowed the right to continued use of their lands, as they
have inhabited them since prehistoric times. In the pre-Meiji era, the
Ainu undoubtedly exercised their rights as the indigenous inhabitants of
Hokkaido to fish in the waters in and around the island. By analogy,
there is an argument to be made that the Ainu , as the indigenous group
who occupied Ezo prior to the Japanese, should still enjoy the right to
fish the island's waterways.

2. Prohibition of Fishing During the Meiji Era

The Kaitaku-si, as Colonial Governor of Hokkaido during the
beginning of the Meiji Era, prohibited Ainu fishing through gubernatorial
order. (268) There were no treaties between the Ainu people and the
Japanese Government, and the Ainu people did not abandon their
aboriginal fishing rights by discontinuing their exercise.269 The question
I will consider in this section is whether Kaitaku-si's orders extinguished
the Ainu's aboriginal fishing rights.
The application of American law (270) to the question of Ainu fishing
rights would result in the conclusion that the Kaitaku-si orders arguably
did not extinguish the Ainu's aboriginal fishing rights. There are several
reasons for this. First, the gubernatorial orders did not come from the
central government, and were only administrative, rather than executive
or legislative orders. It is not even clear that the national government of
Japan delegated the authority to regulate fishing to the governor. Even if
the Kaitaku-si did have delegated authority to prohibit salmon taking,
there is no evidence of the national government expressing any clear and
specific intent expressed to extinguish the Ainu's aboriginal fishing
rights. Given these problems, the prohibition on Ainu fishing might be
convincingly argued to be an invalid exercise of a power inherent in the
sovereign by a provincial government.
Second, the Ainu people did not abandon their fishing rights in the
face of the prohibitions. There is no evidence that the Ainu read,
understood, or consented to any action by the government to limit their
aboriginal fishing rights. Most Ainu did not understand Japanese at the
time the gubernatorial orders were issued, and there is no evidence of
any sort of informed consent to the abrogation of fishing rights. (271) This
fact argues once again in favor of the persistence of the Ainu’s aboriginal
fishing rights, despite any action taken by Japan or her provincial
governments.

3. Ainu Sovereignty and the Meiji Era

The Japanese government conquered and subdued Hokkaido and the
Ainu people during the Meiji-Era, (272) never recognizing Ainu sovereignty
and instead governing the Ainu as Japanese. Because the Japanese. (273)
entered into no treaties with the Ainu, we are left with the question of
how to analyze Ainu sovereignty in the Meiji era and beyond without the
benefit of a treaty. Here again, the United States' model is useful. In
United States decisions that rely heavily on principles of international
law, Indian tribes' aboriginal sovereignty has generally been conceived
in three ways:

1 . America, separated from Europe by a wide ocean, was inhabited
by a distinct people, divided into separate nations, independent of
each other and of the rest of the world, having institutions of their
own, and governing themselves by their own laws. (274)

2. Discovery gave title to the government by whose subjects, or by
whose authority, it was made, against all other European
governments, which title might be consummated by possession. The
exclusion of all other Europeans, necessarily gave to the nation
making the discovery the sole right of acquiring the soil from the
natives, and establishing settlements upon it. . In the establishment
of these relations, the rights of the original inhabitants were, in no
instance, entirely disregarded; but were necessarily, to a considerable
extent, impaired. [Indians] were admitted to be the rightful occupants
of the soil, with a legal as well as just claim to retain possession of it,
and to use it according to their own discretion; but their rights to
complete sovereignty, as independent nations, were necessarily
diminished. (275)

3. The Indian nations had always been considered as distinct,
independent political communities, retaining their original natural
rights, as the undisputed possessors of the soil, from time
immemorial, with the single exception of that imposed by irresistible
power, which excluded them from intercourse with any other
European potentate than the first discoverer of the coast of the
particular region claimed. .We have applied them to Indians, as
we have applied them to the other nations of the earth. They are
applied to all in the same sense. (276)

In other words, "tribes in aboriginal times possessed a sovereignty as
complete as that of any European nation. After forming political
alliances with United States, they surrendered their external sovereignty
but remained sovereigns in the sense that the term has generally been
used since the early nineteenth century."(277)
Although Japanese law has not yet addressed the issues of
aboriginal sovereignty and the doctrine of discovery, these principles are
soundly reasoned and broadly accepted among nations. (278) Japanese law
should officially recognize that aboriginal sovereignty was diminished by
the doctrine of discovery when the Japanese claimed Hokkaido but that
the Ainu continued to exercise sovereign prerogatives as a "domestic
dependent nation."(279) Following such an approach, the Ainu would have
retained many rights inherent in a sovereign, (280) including the right to
hunting and fishing by tribal members under Ainu law. (281)
These contemporary aboriginal rights would be aligned in the
manner indicated by the Ainu's pre-Meiji political organizational
structure, the Kotan. Among the Ainu people, each Kotan was
sovereign, self-governing, and in possession of its own set of laws. Even
though the Japanese government conquered the Ainu people and
diminished their external sovereignty, the Kotans should retain their
status as domestic sovereigns with authority over internal Ainu matters,
much as Indian tribes do in the United States. Ainu sovereignty would
persist if the American analysis applied for two principal reasons. First,
the Ainu continued to exist as a people without ceding sovereignty to the
Japanese government. Second, Japan never passed a law explicitly
extinguishing Ainu sovereignty. In conclusion, applying the American
model, the governmental actions of the Meiji Era did not disturb Ainu
sovereignty.

B. Survival of Ainu Fishing Rights After the Meiji-Era

1. Hokkaido Regulation
Today, in addition to being restricted by the Meiji era laws, the
Ainu people are arguably still prohibited from salmon fishing under a
1964 ordinance of the Hokkaido Prefecture. (282) The prefecture’s authority
is limited to the management of its property, affairs and administration,
and to the enactment of regulations governing Hokkaido in accordance
with the Constitution of Japan Articles 92 and 94. (283) Can this ordinance
extinguish, abrogate, or regulate the Ainu fishing rights? I conclude that
the Hokkaido ordinance, which is merely a regulation of the local public
entity, cannot affect Ainu fishing rights, for the reasons discussed
above. (284) The prefecture has no power over the Ainu fishing rights
because the Constitution of Japan does not grant prefectures such
power. (285)

2. Communal Rights

Courts in the United States have held that Indian fishing rights are
in the nature of communal property right belonging to the tribe. (286)
Likewise, the Ainu's aboriginal fishing rights were also communal
property belonging to the Kotan historically, and providing exclusive
rights to Kotan members to hunt and fish on their territory. (287) However,
because the assimilation policies have created a situation in which the
continued existence of Kotans in which to vest these communal rights
has become problematic, it becomes difficult to discern how the
communal rights would be allocated and administered were Ainu fishing
rights recognized today.
Although all Kotans were affected by assimilation policies from
Meiji-Era, they were not completely destroyed. (288) Ainu culture and
tradition are still alive in the sites former Kotans traditionally
inhabited. (289) Roughly one half of the Ainu population still lives in or
adjacent to places untouched by modern living, including Hidaka, lburi,
Kushiro, and Nemuro. (290) Anthropologists believe that in these places the
Ainu continue to observe some of their traditions. (291) Indeed, the groups
that were permitted to take salmon by the Hokkaido governor in 2000 are
organized groups located in places formerly controlled by Kotans. (292)
Further, the Hokkaido Utari [Ainu] Society was rebuilt in 1960, (293) and in
1994 it encompassed 4,196 families and fifty-seven branches, most of
which are located in former Kotans. (294) Although these groups or
branches are not the same as former Kotans, they fill an analogous role.
This shows that there are at the very least a series of foundations upon
which to establish new Kotans as governmental organizations for internal
Ainu affairs, in a manner similar to that by which Indian tribal governing
structures were revived through the Indian Reorganization Act of 1934. . (295)
and other modern restoration statutes. (296) In conclusion, if the American
model were applied, it would be reasonable to expect that were Ainu
fishing rights recognized by the Japanese government, they would be
communal rights vested in what remains of the Kotans, domestic
sovereign entities similar to the American Indian tribes.

C. Ainu Fishing Rights Based in International Law and in the
Japanese Constitution

Separate from the analogy between Ainu and American Indian
status is the question of whether fishing rights might be understood as a
basic human right guaranteed under international law and under the
Japanese Constitution. Japanese law seems to have taken the first step in
recognizing Ainu rights under international and domestic law. The
following case is a good example of the integration of new legal theories
based on Japanese constitutional law and international law into the
advocacy of Ainu indigenous rights.
In Kayano v. Hokkaido Syuyouiinkai,. . (297) the Ainu plaintiffs claimed
that a proposed dam construction would destroy the Ainu lands with
deleterious effects on Ainu culture. (298) The Land Expropriation Act
Article 20.3 provides that a proposed land use project must contribute to
proper and reasonable use of the land. To "contribute to proper and
reasonable use of the land" has been interpreted by the Japanese courts to
mean that the benefits of an undertaking would be superior to the cost
resulting from the construction. (299)
In this case, the plaintiffs claimed their rights to enjoy the Ainu
culture, secured by the Japanese Constitution and the International
Covenant on Civil and Political Rights Article 27, would be breached by
the dam. (300) Because the land which would be affected by the proposed
dam included a site long inhabited by the Nibutani Kotan, the plaintiffs
argued that the damage the dam would inflict on Ainu culture exceeded
the benefits the dam could be expected to create. (301) In particular, several
sacred sites were at risk. These include the traditional site for the
performance of the Chipsanke launching ritual, the traditional place of
worship known as Chinomisiri, and a ruin called Chasi. (302) These
threatened sites constituted the substance of the threat to Ainu culture
alleged by the plaintiffs to violate the International Covenant on Civil
and Political Rights Article 27. . (303) and the Constitution of Japan Article
13(304)
The Court held that when the Minister of Construction considers a
dam construction, he must consider whether the benefits of a dam would
be superior to the benefits lost as a result of the construction. (305) In this
case, the benefits of a dam construction were the prevention of floods;
the maintenance of a sufficient water supply in the Saru River; water
supply for irrigation, drinking water, and industrial use; and the provision
of hydroelectric power. '
On the other hand, the costs of dam construction included the
damage to the Ainu culture, including their dispersion from their
traditional lands, loss of access to religiously significant lands and the
damage which would be sustained to the environment; (306) the loss of
opportunity to conduct chipsanke at the traditional site; and the
destruction of the Chinomisiri and Chasi sites. (307) Although the Minister
of Construction has discretion in this review process, if he neglects some
important elements or values, the discretion will be arbitrary and
unlawful. (308)
The costs associated with the dam fall almost entirely upon the
shoulders of the Ainu people, therefore the Minister of Construction
must consider the proposal prudently for two reasons. (309) First, the Ainu
people as an ethnic minority have a right to enjoy their own culture under
the International Covenant on Civil and Political Rights Article 27 and
the Japanese government may not impede the enjoyment of this right. (310)
Second, the Ainu also have a right to enjoy their own culture under the
Constitution of Japan Article 13. (311)
Consequently the Minister of Construction has an obligation to
consider thoroughly the Ainu's culture in determining whether to
approve the plan for the dam. The Minister did not survey the Ainu who
would be affected by the dam construction. He ignored that which
should have been regarded as most important, and found that the benefits
of the dam would be greater than the benefits lost as a result of the
construction. This consideration was arbitrary and unlawful. (312)
This decision came in the first case addressing a claim for an Ainu
right to enjoy their indigenous culture grounded in the International
Covenant on Civil and Political Rights Article 27 and the Constitution of
Japan Article 13, and represents a step toward a fairer approach to Ainu
interests in Japanese land management.
I will now examine the question of whether the International
Covenant on Civil and Political Rights Article 27 and the Constitution of
Japan Article 1 3 could be used to ~ establish a treaty-based or
constitutionally-based justification for the recognition of Ainu
indigenous fishing rights.

l. Article 2 7 of the International Covenant on Civil and Political
Rights

The Japanese Government ratified the International Covenant on
Civil and Political Rights in 1979. Article 27 of the covenant guarantees
indigenous peoples the right to enjoy their indigenous culture, profess
and practice a particular religion, and use their own languages. (313) These
rights are individual rights, not group rights, despite the fact that they
stem from membership in a particular group. (314) Although governments
incur no obligation to enforce these rights, they are required to ensure
that the enjoyment of these rights is unimpeded by government action. (315)
In Kayano v. Hokkaido Syuyouiinhai, the court held that the Ainu are an
indigenous ethnic minority. (316) As the Ainu people have an indigenous
culture and language, and a history predating Japanese rule, the Ainu are
considered an ethnic minority under the International Covenant on Civil
and Political Rights Article 27, and therefore have a right to enjoy their
indigenous culture. (317) The next question, left unresolved in Kayano v.
Hokkaido Syuyouiinkai is whether Ainu fishing practices are included as
part of the cultural enjoyment guaranteed by Article 27. (318) The
International Covenant on Civil and Political Rights Article 27 provides
no definition of culture, however there is no dearth of attempts
throughout the anthropological and social science literature to define the
term.

[Culture] is essentially . tradition in the broadest sense, which
includes the formal training of the young in a body of knowledge or a
creed, the inheriting of customs or attitudes from previous
generations, the borrowing of techniques or fashions from other
countries, the spread of opinions through propaganda or conversation,
the adoption=0r "selling"-~f new products or devices, or even the
circulation of legends or jests by word of mouth. (319)

Because salmon was the principal element of the Ainu diet,
prompting the development over generations of special salmon-catching
tools, two dozen traditional ways of preparing salmon to eat, and
religious ceremonies centered on salmon, (320) fishing figures
predominantly in Ainu indigenous culture. Given this, Ainu fishing
rights should be guaranteed to the Ainu people as a part and parcel of the
right to enjoy their culture under the ICCPR. The Japanese government
is obliged under the treaty not to prevent the Ainu from fishing for
salmon.

2. Article 13 of the Constitution of Japan

Article 1 3 of the Constitution of Japan is a comprehensive
provision. In the Constitution of Japan, there is no explicit provision to
secure the rights of indigenous or ethnic minority and the Ainu's fishing
right, however Article 1 3 has been argued to provide this protection
implicitly. .

[Article 1 3] recognizes that individuals are respected substantially,
not superficially. It stands for the proposition that the government is
obliged to respect differences between individuals with regard to age,
sex, or property ownership status, for example. Ethnic majority
groups are sometimes inclined to ignore the cultures, interests or
existence of ethnic minorities. But members of ethnic minorities
must be respected as individuals, and the importance of their culture
to their individual identities must be respected. Accordingly the right
to enjoy an indigenous culture is guaranteed the Ainu people under
Art. 13 of the Constitution of Japan. This construction is consistent
with international law provisions requiring respect for members of
ethnic minority groups. (321)

Despite the Kayano court’s progressive stance on the question of an Ainu
right to enjoy their indigenous culture, the court's ruling does not
explicitly address the question of whether that right necessarily includes
the right to fish. A careful analysis of the central place of fishing in Ainu
culture demonstrates that it should.

V. CONCLUSION

"The Japanese who immigrated into our land in overwhelming
numbers unilaterally imposed a ban on the harvest of salmon, an act of
Ainu-killing foolishness that robbed our people of the right to a living,
and thereby the right to life."(322) This ban has persisted and remains in
effect today. However, fishing is as culturally and historically important
for the Ainu as it has been for the United States' Northwest Indians. A
comparison with the United States' approach to indigenous hunting and
fishing rights for American Indians supports the argument for the
recognition of Ainu fishing rights. Ainu fishing rights should be
recognized because neither the Hokkaido Prefecture nor the Japanese
government has ever effectively extinguished these rights or Ainu
sovereignty, and such rights should be vested in the remaining Kotans, as
communal rights.
In addition, Ainu fishing rights should be protected by international
law and the Constitution of Japan as an individual human right. The
Ainu people have been the subject of unreasonable discrimination for
many years, suffering severe poverty. Recognizing Ainu fishing rights
would be a significant first step toward improving the Ainu situation.
The Japanese government must recognize that its policies have very
nearly destroyed the very rich culture and traditions of the Ainu people.
When the Japanese government recognizes Ainu fishing rights, it will be
able to say with pride that Japan has become truly a member of the
community of democratic countries in the world.