Morihiro Ichikawa

*Editor's Note: This article relies heavily upon sources available only in Japanese.
Such sources are cited following Blue Book Rule 19, with the Japanese title first
(transliterated to the English alphabet), followed by an English translation of the title in brackets. See, e,g., EMORI, infra note 1. The Editorial Board of the Journal relied on the author's translations for these sources; therefore, the author is responsible for the accuracy of the quotations from and citations to these works.
** The author is deeply grateful to Professor Charles F. Wilkinson and Kathryn
Mutz of the Natural Resources Law Center for their valuable suggestions and comments

1. Most archaeologists and anthropologists agree that on Hokkaido Island, ancestors
of the Ainu people enjoyed their distinctive culture, known as Satumon culture, since the
eighth century. The economic bases for the culture were hunting and gathering, with a
particular emphasis on salmon fishing. The Japanese called them Emishi or Ezo until the
mid-nineteenth century. Emishi or Ezo means an enemy or a different race in Japanese.
See SUSUMU EMORI, NIHON MlNSYU NO REKISHI, AINU NO REKISHI. HOKKAIDO NO HITIBITO
[THE PEOPLE IN HOKAIDO] 12-31 (1987). See also FRED C.C. PENG & PETER GEISER,
THE AINU: THE PAST IN THE PRESENT 9-10 (1977).

The origin of the present-day Ainu is not determined with certainty. .
Although a relatively late Mongolian admixture occurred, the Ainu have a
[T]he Ainu's material
marked physical resemblance to the Australoid. . . .
culture, including clothing, 'handcraft, household implements, weapons,
ornament, religious ceremony and cult have a strong resemblance to those of
people living in the Philippines, Indonesia, and Melanesia. .
The first known written account of the natives' presence of [sic] Japan
refers to the Ainu in the prefecture of Akita [northern part of the Honshu
Island] during the year 642. One of the earliest accounts of relation between
the Ainu and wajin [Japanese] is the description of strife between them. . . .
At the end of the Ninth Century, the Ainu who had been powerful were
almost exterminated from Honshu.
Id.

2. See Kayano v. Hokkaido Syuyouiinkai [Hokkaido Land Expropriation
Committee], 1598 HANREI JIHO 33, 46 (Sapporo District Court, Mar. 27, 1997). 'The
Ainu people have been in Hokkaido since before the Japanese government ruled
Hokkaido, and they have developed their own inherent cultures." Id. This case is the
first case in which the Japanese Court recognized the Ainu people as an indigenous
group in Japan. See id. See also PENG & GEISER, supra note l, at 9. 'The origin of the
present-day Ainu is not determined with certainty." Id.

3. See SINICHIRO TAKAKURA, AINU SEISAKU SHI [HISTORY OF AINU POLICY] 1945
(1942); TOSHIMITSU MIYAJIMA ET AL., LAND OF ELMS: THE HISTORY, CULTURE, AND
PRESENT DAY SITUATION OF THE AINU PEOPLE 10 (Robert Witmer trans., 1998). "The
Ainu people lived an unusually stable life as hunters, fishers, and gatherers. One reason
for this may be the diversity of the forests of Hokkaido that allowed for the existence of a
wide variety of wild animals." Id.

4. Kayano v. Hokkaido Syuyouiinkai, 1598 HANREI JIHO 33, 41 (Sapporo District
Court, Mar. 27, 1997).

5. See Shiro Kayano, Who Owns the Salmon7, in FIRST FISH FIRST PEOPLE: SALMON
TALES OF THE NORTH PACIFIC RIM 41, 41 (Judith Roche & Meg McHutchison eds., 1998)
[hereinafter FIRST FISH FIRST PEOPLE] .

6. Id. at 127.

7. Id.

8. Id.

9. Id.

10. See id. at41.

11. See id. at 42; NIBUDANI DAMU SAIBAN No KIROKU [THE DOCUMENT OF
NIBUDANI CASE] 446 (Hiroshi Tanaka et al. eds., 1999) [hereinafter NIBUDANI CASE].
"The Japanese government took salmon from the Ainu people by force, and we, the Ainu
people, who had been taking salmon to support our families customarily, were regarded
poachers." Kayano v. Hokkaido Syuyouiinkai, 1598 HANREI JIHO 33 (Sapporo District
Court, Mar. 27, 1997). For more information on the Meiji Era~ see infra Section III (B).

12. See TAKAKURA, supra note 3, at 483-84.

13. See NIBUDANI CASE, supra note 11, at 235, 395-96. In 1888, the use of
traditional Ainu tools was also prohibited under the regulation of Hokkaido. See id.

14. During the Meiji era, Ainu men were prohibited from wearing earrings, and
women were prohibited from wearing their traditional tattoos. The use of poisoned
arrows was also prohibited, as were other traditional hunting practices. See infra Section
III (B) (2).

15. See id.

16. Kayano v. Hokkaido Syuyouiinkai, 1598 HANREI JIHO at 46 (Sapporo District
Court, Mar. 27, 1997). See also EMORI, supra note 1, at 218-26.

17. See NIBUDANI CASE, supra note 11, at 194.

18. This case was brought by Shigeru Kayano and Tadasi Kaizawa in response to a
government effort to expropriate their lands. In 1978, the Japanese central government
planned the construction of a dam on the Saru River to prevent flooding and to supply
water to the Tomakomai industrial area. The Ministry of Construction acquired all the
proposed lands for a dam site and a reservoir from land owners in 1984, with the
exception of the lands owned by Kayano and Kaizawa. Kayano and Kaizawa, both Ainu,
opposed the dam construction because it was proposed to be located on Thinomishiri, an
area of land held sacred by the Ainu and which would be destroyed by the construction.
In 1989, however, the Hokkaido Land Expropriation Comntittee took the lands forcibly.
Thereafter, the Ainu brought an administrative action against ' the Committee. The
Japanese central government was allowed to intervene for the Hokkaido Land
Expropriation Committee. After Tadasi Kaizawa died in 1994, his son inherited his
position.

19. Shigeru Kayano, Traditional Ainu Life: Living off the Interest 23, 24 (Jane
Corddry Langill & Rie Taki, trans.), in FIRST FISH, FIRST PEOPLE, supra note 5
[hereinafter Traditional Ainu Life] .

20. Donald T. Hornstein, Comment, Indian Fishing Rights Return to Spawn:
Toward Environmental Protection of Treaty Fisheries, 6 1 OR. L. REV. 93, 95-96 (1982).
See also CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN: LAND, WATER, AND
THE FUTURE OF THE WEST 175-87 (1992) (describing Northwest Indians' traditional
fishing and salmon practices at Celilo Falls on the Columbia River).

21. See Michael C. Blumm & Brett M. Swift, The Indian Treaty Piscary Profit and
Habitat Protection in the Pacific Northwest: A Property Rights Approach, 69 U. COLO.
L. REV. 407, 409 (1998).

22. Id. at 409. See, e.g., United States v. Winans, 198 U.S. 371 (1905); Seufert
Bros. Co. v. United States, 249 U.S. 194 (1919); Tulee v. Washington, 315 U.S. 681
(1942); Puyallup Tribe v. Department of Game, 391 U.S. 392 (1968); United States v.
Washington, 384 F. Supp. 312 (W.D. Wash. 1974).

23. While a discussion of the hunting and fishing rights of other North American
Indians may be useful as well, in this article I will concentrate on comparison between
the Ainu and the Northwest Indians of what is now the United States. The shared
dependence on salmon products between the two groups makes for a more precise
analogy with respect to the arguments for the preservation of hunting and fishing rights.

24. See United States v. Washington, 384 F. Supp. at 350. The court stated that
these fish "were vital to the Indian diet, played an important role in their religious life,
and economy. . . . [S]almon was a staple food and steelhead were also taken, both
providing essential proteins, fats, vitamins, and minerals in the native diet." Id. at 350.

25. Id.

26. Anadromous fish are hatched in fresh water and spend much of their lives in the
ocean, returning to fresh water to spawn. See JIM LICHATOWICH, SALMON WITHOUT
RJVERS: A HISTORY OF THE PACIFIC SALMON CRISIS 11 (1999). The Pacific salmon fall
into the family Salmonidae and the genus Oncorhynchus. See id. at 9. "Five [salmon]
are found in North America: pink (O. gorbuscha), chum (O. keta), sockeye (O. nerko),
coho (O. kisutch), and chinook (O. tshawytscha). . . . Pacific trout within the genus
Oncorhynchus include the anadromous steelhead, O. mykiss." Id.

27. See Blumm & Swift, supra note 21, at 421; United States v. Washington, 384 F.
Supp. at 350.

28. See United States v. Washington, 384 F. Supp. at 350-51.
In the winter . . . people remained in their villages and lived more or less on
stored food. Fresh fish and other foods were harvested during the winter . . . .
During this time people congregated into the largest assemblages and
occupied long, multifamily houses. . . .
[T]he rest of the year individual
families dispersed in various directions to join families from other winter
villages in fishing, clam digging, hunting, gathering roots and berries, and
agricultural pursuits.
ld.

29. See id. at 351.
[The] utilization of the rich fishery resources required an intimate knowledge
of . . . local available species as well as the development of a variety of
specialized techniques for 'taking fish. . . . Adequate Indian food preservation
techniques had been developed . . . and fish were able to be stored for use
throughout the year and transported over great distances. . . . The first-
salmon ceremony, which with local differences in detail was general through
most of the area, was essentially a religious rite to ensure the continued return
of salmon. . . . Religious attitudes and rites insured that salmon were never
wantonly wasted and that water pollution was not permitted during the
salmon season.
ld.

30. See Elizabeth Woody, TWANAT, to follow behind the ancestors, in FIRST FISH
FIRST PEOPLE supra note 5, at 76, 76-87.

31. See United States v. Washington, 384 F. Supp. at 353. "The United States
claimed the area now embraced within the State of Washington by discovery and
settlement and by the treaty extinguishment of conflicting claims of Spain (Treaty of
February 22, 1819, 8 Stat. 252), Russia (Convention of April 17, 1824, 8 Stat 302), and
Great Britain (Treaty of June 15, 1 846, 9 Stat. 869)." Id.
After Lewis and Clark explored the [Columbia River] in 1 805-1806, settlers
soon followed, and by the 1 840s thousands of people were utilizing the
Columbia River as a water highway to the Pacific Northwest. . . .
By 1846
the Hudson Bay Company estimated that at least 68 people had drowned in
the river. . . .
Steamboats were used for transportation until the arrival of the
Northern Pacific and the Union Pacific railroads in the 1 880s.
DAN LANDEEN & ALLEN PlNKHAM, SALMON AND HIS PEOPLE: FISH & FISHING IN NEZ
PERCE CULTURE 21 (1999).

32. See United States v. Washington, 384 F. Supp. at 353, discussing the Act of
August 14, 1848, 9 Stat. 323.

33. See id. (quoting the Northwest Ordinance of 1787, I Stat. 51).

34. Id. at 353-54.

35. See id. (discussing the Act of Mar. 2, 1853, 10 Stat. 172).

36. 10Stat. 172 (1853).

37. See id.

38. See Thomas C. Galligan Jr. & Michael T. Reynvaan, Pacific Northwest Indian
Treaty Fishing Rights, 5 U. PUGET SOUND L. REV. 99 (1981).
39. See id. at 102.

40. See Blumm & Swift, supra note 21, at 426.

41. Id.

42. United States v. Washington, 384 F. Supp. 355 (W.D. Wash. 1974). "Both
parties recognized that the treaties were designed to protect both the Indians and the
white settlers." Blumm & Swift, supra note 21, at 427.

43. See United States v, Washington, 384 F. Supp. 312 (W.D. Wash. 1974). "[A]
primary concern of the Indians whose way of life was so heavily dependent upon
harvesting anadromous fish, was that they have freedom to move about to gather food,
particularly salmon, . . . at their usual and accustomed fishing places." Id. at 355.
"During a number of negotiating sessions the tribes made clear that protection of their
fishing rights was a prerequisite to signing the treaties." Blumm & Swift, supra note 21,
at 429.

44. See Blumm & Swift, supra note 21, at 427-28.

45. See id. at 430. These treaties promised the Indians (1) the exclusive right to fish
on the lands they retained, and (2) "the right of taking fish at all usual and accustomed
grounds and stations . . . '
in common with all citizens" off their reservations. Id. For
example, the Treaty with the Yakima Nation of Indians provided "[t]he exclusive right of
taking fish in all the streams, where running through or bordering said reservation, is
further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory. . . ."
Treaty with the Yakima Nation of Indians, June 9, 1 855, art. 3, 12 Stat. 951.

46. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n,
443 U.S. 658, 668 (1979). The first salmon hatchery in Washington was built in 1895,
and the first steelhead hatchery activity commenced in 1903. See United States v.
Washington, 506 F. Supp. 187, 196 (W.D. Wash. 1980). '

47. See United States v. Washington, 384 F. Supp. at 334. "The first other than
naturally caused threat to volume or species came from non- Indian population growth
and non-Indian industrial development in the rapid westward advance of civilization."
Id.
Perfection of the canning process and the 'development of transcontinental
railroads made salmon available to eastern markets in the 1 880s. The first
cannery on the Columbia was constructed in 1 866; by 1 883, some forty
canneries packed over six hundred thousand cases of salmon, which
accounted for two-thirds of the West Coast harvest.
Blumm & Swift, supra note 21, at 434. Other causes of salmon reduction were habitat
degradation by logging, mining, grazing, and irrigation, dams, and the like. See generally
LICHATOWICH, supra note 26.

48. See Blumm & Swift, supra note 21, at 435. After Washington achieved
statehood in 1 889, the state legislature frequently enacted laws to curtail tribal fishing in
the name of conservation. However these laws were often actually designed to protect
white fisheries. See id. "States have consistently opposed the rights of some Indians to
fish free of state conservation laws outside the reservations." DAVID H. GETCHES ET AL.
CASES AND MATERJALS ON FEDERAL INDIAN LAW 872 (4th ed. 1998).

49. 198 U.S. 371 (1905). Before United States v. Winans, the territorial court
decided United States v. Taylor, 13 P. 333 (Wash. Terr. 1 887), which held that under the
Treaty with the Yakima Indians, the right to take fish at all usual and accustomed places
was reserved to the Indians, and settlers obtained title to such land subject to those rights.

50. See United States v. Winans, 198 U.S. 371 (1905).

51. See id. at 379.

52. See id, at 377.

53. Id. at 379.

54. See id. at 381.
They were given 'the right of taking fish at all usual and accustomed places,'
and the right 'of erecting temporary buildings for curing them.' [I]n other
words, the Indians were given a right in the land, the right of crossing it to the
river, the right to occupy it to the extent and for the purpose mentioned.
ld. See also FELIX S. COHEN ET AL., COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 450
(1982); Blumm & Swift, supra note 21, at 444. The Supreme Court interpreted the treaty
provisions as reserving a right for the Indians, and interpreted the treaty in their favor,
rejecting the argument that states could divert treaty rights. "[T]he chief legacy of the
Winans case was its conclusion that the treaty right created a property right; in the words
of the Court, a 'servitude,' a 'right in land."' Id.

55. See United States v. Winans, 198 U.S. at 381 (1905). See also COHEN ET AL
supra note 54, ~at 444.

56. Winans, 198 U.S. at 381 (1905).

57. State v. Coffee, 556 P.2d 1 185, 1 189 (Idaho 1976). The Court discussed
Indians' aboriginal rights in detail.
The concept of aboriginal title is well established. The right of sovereignty
over discovered land was always subject to the right of use and occupancy
and enjoyment of the land by Indians living on the land. This right of use and
occupancy by Indians came to be known as "Indian title." It is sometimes
called "original title" or "aboriginal title" . .
Aboriginal title was founded on the notion that Indian occupancy and
use of the land prehistorically predated the present sovereign. Justice
demanded that until some more compelling exigence was recognized, the
Indian should be allowed to continue his way of life on his traditional tribal *
lands. . . . It was a right to continue, at least temporarily, a way of life. To the
extent that hunting or fishing was an integral part of the Indian's way of life
prior to the coming of the white man, it became a part of the way of life
allowed to continue after establishment of the sovereign. Thus, hunting and
fishing rights are part and parcel with aboriginal title. In Pioneer Packing Co.
v. Winslow, 159 Wash. 655, 294 P. 557 (1930), the court held that Indians
own reservation fish by the same title and in the same right as they owned
them prior to the time of the making of the treaty. Further, treaties provide for
retention by the Indians of hunting and fishing rights, both on and off the
reservation, indicating that hunting and fishing rights are part of the
aboriginal title which may be ceded by treaty or reserved by Indians.
Id.
58. COHEN ET AL., supra note 54, at 442.
By the time of the Revolutionary War, several well-defined principles had
been established governing the nature of a tribe's interest in its property and
how those interests could be conveyed. It was accepted that Indian nations
held 'aboriginal title' to lands they had inhabited from time immemorial. . . .
The ' doctrine of discovery' provided, however, that discovering nations held
fee title to these lands, subject to the Indians' right of occupancy and use.
County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 233-34 (1974) (citations
omitted).
59. See COHEN ET AL., supra note 54, at 443.
It is well established that only the United States government, in its capacity as
the sovereign, can extinguish the Indian right to their historical land. . . . By
far most usual method of terminating Indians rights was by treaty. In treaty
situations, the Government and Indian tribes were able to negotiate and reach
common grounds of agreement. . . .
The Indians could negotiate to give up
only those parts of land, or those rights, which they desired to surrender, and
could keep such other areas or rights as they desired to retain. Thus, treaties
normally retained land for occupancy, the reservation, and often allowed the
Indian some form of hunting and fishing right.
Coffee, 556 P.2d at 1 189 (Idaho 1976).
60. See Coffee, 556 P.2d at 1 191 (Idaho 1976). The court elaborated on the nature
of aboriginal rights, stating that original Indian title is "not a property right but amounts
to a right of occupancy which the sovereign grants and protects against intrusion by third
parties but which right of occupancy may be terminated and such lands fully disposed of
by, he sovereign itself without any legally enforceable obligation to compensate the
Indians " Id at 1 190 9 1 Further, the court stated that "[T]he scheme of government
dealing with aboriginal Indian title . . . has rendered the Indian aboriginal right of
occupancy essentially a revocable privilege granted by the United States." Id. at 1191.
"[The 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."
County of Oneida, 470 U.S. at 226 n.3 (citing Johnson v. McIntosh, 8 Wheat. 543, 573
74, 5 L.Ed. 681 (1823)).
61. 315 U.S. 681 (1942).
62. Id.
63. Id. at 685.
64. 443 U.S. 658 (1979).
65. See United States v. Washington, 384 U.S. 3 12 (1974). This Supreme Court
decision came after years of controversy accompanying Judge Boldt's lower court
decisions.
66 See id at 343 The Court also said "fish taken to serve ceremonial and
subsistence needs also shall not be counted in the share of fish that treaty right fishermen
have the opportunity to take . . . because taking these fish has "a special treaty
significance distinct from and superior to the taking of fish for commercial purposes." Id.
67. Id.
68. See Martin H. Belsky, Indian Fishing Rights: A Lost Opportunity for Ecosystem
Management, 12 J. LAND USE & ENVTL. L. 45 (1996).
69. See id. at 50.
70. See id. This was despite a Ninth Circuit Court of Appeals ruling affirming the
lower court's decision in United States v. Washington. "We affirmed the conclusion of
the district court that . . . treaty Indians are entitled to an opportunity to catch one-half of
all the fish which, absent the fishing activities of other citizens, would pass their
traditional fishing grounds." United States v. Washington, 520 F.2d. 676, 688 (9th Cir.
1975).
71. See Belsky, supra note 68, at 5 1. The court held that "a Federal District Court
[cannot] order a state official to act beyond the power vested in the state official by the
legislature " Id at 52 quoting Washington Commercial Fishing Vessel Ass'n v.
Tollefson, 571 P.2d 1373, 1375 (Wash. 1977). Further, "allocating an equal share, rather
than' providing equal access, violated the Equal Protection Clause of the United States
Constitution." Id.
72. See Washington v. Washington State Commercial Passenger Fishing Vessel
Ass'n, 443 U.S. 658, 673 (1979). "The simplest answer to this argument is that this
Court has already held that these treaties confer enforceable special benefits on signatory
Indian tribes." Id. The Court also stated that "[s]tate-law prohibition against compliance
with the District Court's decree cannot survive the command of the Supremacy Clause of
the United States Constitution." Id. at 695.
73. See Belsky, supra note 68, at 52.
74. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n,
443 U.S. at 686.
75. See COHEN ET AL., supra note 54, at 444. "We have held that Indian treaties are
to be interpreted liberally in favor of the Indians. . . ." Minnesota v. Mille Lacs Band of
Chippewa Indians, 526 U.S. 172, 200 (1999). In United States v. Washington, 384 F.
Supp. 3 12, 401 (W.D. Wash. 1974), Judge Boldt stated "treaties with Indian tribes must
be construed liberally in accordance with the meaning they were understood to have by
tribal representatives at the treaty council and in a spirit which generously recognizes the
full obligation of this nation to protect the interests of a dependent people." Id. See also
Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S.
at 675-76; United States v. Winans, 198 U.S. at 380 (1905).
76. United States v. Washington, 384 F. Supp. at 330-3 1 (quoting Jones v. Meehan,
175 U.S. 1, 10-11 (1899)).
77. See Winans, 198 U.S, at 378 (1905).
78. See United States v. Washington, 384 F. Supp. at 332.
79. See Winans, 198 U.S. at 381 (1905). "As a mere right it was not exclusive in
the Indians." Id.
80. See COHEN ETAL., supra note 54, at 450; Winans, 198 U.S. at 381.
81. See COHEN ET AL., supra note 54, at 446-47. "[N]et fishing by these Indians for
commercial purposes was covered by Treaty." Department of Game v. Puyallup Tribe,
414 U.S. 44, 48 (1973) [hereinafter Puyallup In. Because treaties reserved aboriginal
rights, the extent of the treaty rights is determined by aboriginal use prior to or at the time
of the treaties. See COHEN ET AL., supra note 54, at 443. In United States v. Washington,
384 F. Supp. at 406, the court also recognized Indian commercial fishing under the treaty
rights, stating, "Indians, fishing under their treaty-secured rights, also participated in this
expanded commercial fishery and sold many fish to non-Indian packers and dealers?'
82. See United States v. Washington, 384 F. Supp. at 401. A treaty right is not
limited as to species of fish or the origin of fish. The court provided that the definition of
anadromous fish is "[a]ny fish which spawns or is artificially produced in freshwater."
Id at 405 Later, United States v. Washington concluded clearly that the treaty fishing
right included hatchery fish: "It is now beyond dispute that natural fish have become
relatively scarce, due at least in part to the commercialization of the fishing industry and
the degradation of the fishing habitat caused primarily by non-Indian activity in the case
area." United States v. Washington, 506 F. Supp. 187, 197-99 (W.D. Wash. 1980).
During the 1978-1979 season, about 371 million salmon and 8,755,000 steelhead were
released into the waters in Washington and hatchery fish presently account for 60 percent
of the steelhead and 17 percent of the salmon. See id. at 197.
Hatcheries [that produce salmon and steelhead] are intended to replace the
production of streams destroyed by dams, diversions, pollution, or
obstructions, and to build up the runs and streams that are not producing to
full capacity. . . .
[I]f hatchery fish were to be excluded from the allocation, the Indians'
treaty-secured right to an adequate supply of fish the right for which they
traded millions of acres of valuable land and resources would be placed in
jeopardy.
Id. at 198.
83. See United States v. Washington, 384 F. Supp. at 402; Puyallup Tribe v.
Department of Game, 391 U S 392 398 (1968) [hereinafter Puyallup n "[W]here
Indians had a history of adopting new methods of pursuing and capturing fish, they will
not now be limited to methods used at the time the treaty was signed." COHEN ET AL.,
supra not~ 54, at 447.
84. See United States v. Washington, 384 F. Supp. at 3 12; Washington v.
Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. at 658, 658
(1979). "Judge Boldt excluded from this equal sharing formula fish harvested by tribes
on reservations, fish not destined to pass the tribe's historic fishing sites, and fish caught
outside Washington waters, even if they were bound for the tribe's fishing grounds."
Blumm & Swift, supra note 21, at 456. However the holding in Washington State
Commercial Passenger Fishing Vessel Ass 'n modified the computation of allocable fish
by including fish taken on-reservation, taken off-reservation (locations other than the
tribe' s usual and accustomed fishing sites), and taken for ceremonial and subsistence
needs. See also United States v. Washington, 506 F. Supp. 187, 193 (1980).
85. Winans, 198 U.S. at 381 (1905).
86. United States v. Washington, 384 F. Supp. at 406.
87. See United States v. Washington, 520 F.2d 676, 688 (9th Cir. 1975).
Each tribe bargained as an entity for rights which were to enjoyed
communally. The reservations were reserved to each tribe qua tribe. Not until
1 887 was the President authorized to allot reservation land to individual
Indians. Individual Indians had no individual title to property, but
participated in the communal rights of the tribe. 'The right of the individual
Indians is, in effect, a right of participation similar in some respects to th9
rights of a stockholder in the property of a corporation."
Id. (citation omitted).
88. See Whitefoot v. United States, 293 F.2d 658, 663 - (Ct. CI. 1961). The court
held that
the condemnation award to the entire Indian tribe for destruction of 'usual and
accustomed fishing stations' had included compensation for the tribal rights
of individual Indians, under historical custom, to fish at certain fishing
stations located outside the reservation, and that individual Indians of the tribe
had no separately compensable property right.
Id. See also COHEN ET AL., supra note 54, at 45 1.
89. Whitefoot, 293 F.2d at 666.
Specific fishing stations amounted primarily to a right, infrequently exercised,
to exclude others from using the same stations. It was a right which the
Indians recognized by custom and usage as passing down from one
generation to the next through the family line. The right could not be sold or
transferred by its immediate holder. . . .
It is reasonable to conclude that the
right to occupy certain fishing stations was coupled with a corresponding
duty, subject to control by the Chief, to supply subsistence fish for the
tribe. .
Id.
90. However, individual Indians had an interest in the controversy and had standing
to maintain actions seeking decrees defining their treaty-based fishing rights. See
Sohappy v. Oregon, 302 F. Supp. 899 (D. Or. 1969). A narrow individual aboriginal
right to land use was recognized in United States v. Dann, 105 S.Ct. 1058 (1985).
91. United States v. Washington, 384 F. Supp. at 407. See also Ralph W. Johnson,
The States Versus Indian Off-Reservation Fishing: A United States Supreme Court Error,
47 WASH. L. REV. 207 (1972).
92. See United States v Washington 520 F 2d at 684 "[A] state may enact and
enforce no statute or regulation in conflict with treaties in force between the United States
and Indian nations . . . . [I]t thus is 'express federal law' preempting all state regulation
of Indian fishing at the treaty fishing grounds, except hereafter stated." Id. For this
reason, the application of the state's hunting and fishing laws to the reservation is
preempted. See id. In New Mexico v. Mescalero Apache Tribe, the court held that state
jurisdiction over hunting or fishing within the reservation was preempted and said "[t]he
traditional notions of Indian sovereignty provide[d] a crucial 'backdrop' against which
any assertion of state authority must be assessed." New Mexico v. Mescalero Apache
Tribe, 462 U.S. 324 (1983) (citation omitted). See also Tulee v. Washington, 3 15 U.S.
681 (1942).
93. United States v. Washington, 520 F.2d at 685. See also Puyallup I, 391 U.S.
392, 401 n.14 (1968); Tulee v. Washington, 315 U.S. at 684. "Without reason or
analysis, the United States Supreme Court has held the states have the power to regulate
Indian off-reservation fishing when necessary for conservation." Johnson, supra note 91,
at 236. An Indian treaty fishing right
can be controlled by the need to conserve a species. . . . The police power of
the State is adequate to prevent the steelhead from following the fate of the
passenger pigeon; and the Treaty does not give the Indians a federal right to
pursue the last living steelhead until it enters their nets
Puyallup II, 414 U.S. at 49.
94. United States v. Washington, 520 F.2d at 684 (quoting Mescalero Apache Tribe
v. Jones, 41 1 U.S. at 148-49 (1973)).
95. See Charles F. Wilkinson, To Feel the Summer in the Spring: The Treaty
Fishing Rights of the Wisconsin Chippewa, 1991 WIS. L. REV. 375, 401-02, n.156 (1991).
"The state, however, may regulate tribal off-reservation hunting and fishing on a
narrowly-defined basis for resource conservation and public safety concerns." Id. at 401
However, the state may regulate for these reasons "only if it meets its burden of
demonstrating the need for the particular proposed regulatory measure." Id., cit. ing Lac
Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 740 F. Supp.
1400, 1421-22 (W.D. Wis. 1990).
The state must show first that a substantial hazard exists; second, that a
particular measure sought to be enforced is necessary to the prevention of the
safety hazard; third, that application of the particular regulation to the tribes is
necessary to effectuate the particular safety interest; fourth, that the regulation
is the least restrictive alternative available to accomplish the public safety
purpose; and fifth, that the regulation does not discriminate against Indians or
favor non-Indian harvesters.
Lac Courte Oreilles Band of Lake Suporior Chippewa Indians, 740 F. Supp. at 1422
(W.D. Wis. 1990).
96. See COHEN ET AL., supra note 54, at 466-68. "When, therefore, treaties were
entered into between the United State and a tribe of Indians it was never doubted that the
power to abrogate existed in Congress." Lone Wolf v. Hitchcock, 1 87 U.S. 553 (1903).
For a historical examination of court decisions on this subject, see Charles F. Wilkinson
& John M. Volkman Judicral Review of Indian Treaty Abrogation "As Long as Water
Flows, or Grass Grows Upon the Earth "-How Long a Time Is That, 63 CAL. L. REV.
601 (1975).
97. 476 U.S. 734 (1986).
98. Id. at 738.
99. Id. at 740. The Court held that the Eagle Protection Act (amended in 1962)
abrogated the Indian treaty hunting right to take eagles, because of legislative history and
provisions that exempt by permit takings of bald or, golden eagles for the religious
purposes of Indian tribes. See id.
100. 497 S0.2d 889 (Fla. Dist. Ct. App. 1986). Billie, a member of the Seminole
tribe, was prosecuted under the Endangered Species Act for killing a Florida panther on-
reservation. See id, at 890. He argued he was able to hunt Florida panther under the
treaty hunting right. See id. at 891. '
l0l. 667 F. Supp. 1485 (S.D. Fla. 1987).
102. See id. at 1490-91.
[The ESA's] general comprehensiveness, its nonexclusion of Indians, and the
Limited exceptions for certain Alaskan natives . . . demonstrate that Congress
considered Indian interests, balanced them against conservation needs, and
defined the extent to witch Indians would be permitted to take protected
wildlife.
The Act's legislative history provides additional evidence that Congress
intended to subject Indians to its prohibitions. In 1972, Congress considered
but did not pass two companion bills (H.R. 13081, 92d Cong., 2d Sess.; S.
3199, 92d Cong., 2d Sess.) that closely parallelod the bill enacted in 1973
which became the Act. Those unpassed bills contained broader exemptions
encompassing the taking of protected species for Indian religious purposes
pursuant to a treaty, executive order, or statute. . . .
In the House hearing on H.R. 1 3081, a subcommittee member asked for
a list of the species which might be endangered on Indian lands on the
American continent. . . . Addressing the question of the constitutionality of a
provision which would extinguish Indian treaty rights to hunt and fish,
Interior Department offircials spoke only of Alaskan natives.
-- Id. at 1490. See also Endangered Species Act S 10(e) (1). 16 U.S.C. S1539 (1994).
l03. Robert J. Miller, Speaking with Forked Tongues: Indian Treaties. Salmon, and
the Endangered Species Act, 70 OR. L. REV. 543, 571 (1991).
104. For a list, see National Marine Fisheries Service,
March 1 6, 1 999 Announcements (visited A pr. 4, 200 1)
. _ .
105. See Blumm & Swift, supra note 21, at 409. Because several salmon. runs have
been listed under the ESA, "a central promise of the treaties=that tribal members could
earn livelihoods from fishing has gone unfulfilled." Id. Indian tribes "have invoked the
treaty right of taking fish in order to protect salmon habitats that are so critical to
preserving the salmon populations necessary to sustain a livelihood from fishing." Id.
106. See Conrad A. Fjetland, The Endangered Species Act and Indian Treaty
Rights: A Fresh Look 13 TUL. ENVTL. L.J. 44 (1999). "[A] recent survey, completed by
the author in the spring of 1999, did not find any issues concerning conflicts between the
ESA and Indian treaty rights scheduled for judicial resolution." Id. at 46. Fjetland sent
letters to regional directors of IWS and NMFS, and none indicated any issues headed for
courts. See id. at 46 n.9.
107. See Charles F. Wilkinson, The Role of Bilateralism in Fulfilling the Federal-
Tribal Relationship: The Tribal Rights-Endangered Species Secretarial Order, 72 WASH.
L. REV. 1063 (1997) [hereinafter The Role of Bilateralism].
108. See Interior Order No. 3206: American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act S I (June 5, 1997), reproduced in
The Role of Bilateralism, supra note 107.
109. See The Role of Bilateralism, supra note 107, at 1063.
110. Id. at 1083-84.
111. See id. at 1084-85. Wilkinson points out five such disappointments: (1)
refusal to acknowledge the duties of the affirmative trust obligation; (2) refusal to include
Alaska Native tribes; (3) application of the principles "only in a highly attenuated fashion
with respect to Section 7 consultations;" (4) Limited special tribal rights; and (5)
authorization for agency involvement only "when determined necessary for . . . law
enforcement activities." Id. See also Carl H. Johnson, Balancing Species Protection with
Tribal Sovereignty: What Does the Tribal Rights-Endangered Species Order
Accomplish?, 83 MINN. L. REV. 523, 549-52 (1998).

112. See The Role of　Bilateralism, supra note 107, at 1081.
l13. See HEISEI 11 NEN HOKKAIDO UTARI SEIKATHU ZITTAI THYOSA [HOKKAIDO
AINU LIFE CONDITION SURVEY REPORT IN 1999], HOKKNDO PREFECTURE (Mar. 2000)
[hereinafter SURVEY REPORT] . In this report, Utari means Ainu, and Ainu refers to
people of Ainu descent, and those who live with the Ainu through marriage or adoption.
Those who prefer not to self-identify as Ainu are excluded from the category. The report
is based on a limited survey conducted in Hokkaido, therefore Ainu living in other
regions, for example Tokyo or Osaka, are not included.
114. See id. at 3. Two thousand four hundred and twenty four Ainu people live in
the Ishikari region which means the place in and around Sapporo city. See id.
115. See id.
116. See id. at5.
117. See ld. at 8.
118. See id. at6.
119. See id. at 29. -
120. See id. at 40. Only 6.8 percent of the Ainu people responded that they know
and would be able to teach elements of traditional Ainu culture, for example language,
dances, weaving, or traditional fishing techniques. See id. Yet "a lifestyle based on
hunting and gathering was maintained in these regions until the last century." Shigeru
Kayano, Kamuy Yukar: Song of the Wife of Okikurmi, in FIRST FISH, FIRST PEOPLE, supra
note 5, at 29. ~
121. See generally MARIUS B. JANSEN, THE MAKING OF MODERN JAPAN 2-3 (2000).
Tokugawa rule was not Japan's first experience of unity and order. In the
seventh and eighth centuri6s the introduction of institutions of central
government [ruled by Emperor] modeled on those of China had also been
followed by several centuries of peace broken only by border conflict to the
In the twelfth century a series of wars among those aristocratic
north. . . .
warriors . . . ended with victory for the Minamoto clan, which installed itself
in headquarters at Kamakura on the Saganai Bay in eastern Japan. The office
of shogun, theretofore a temporary commission used in pacification
campaigns against Ainu to the north, now became a permanent and hereditary
title used to designate the head of warrior houses. Japan entered a period of
warrior rule from which it did not emerge until the fall of the Tokugawa in
l868.
Id.
There has always been a lively argument about the nature of the Ja
panese
policy during the Tokugawa, or Edo, period. . . . Chinese-style institutions
introduced into Japan in the seventh century had produced a centralized
government under the emperor, but warrior rule had led to feudalism
thereafter . . . . [F]amiliarity with Western historical writing in the nineteenth
century was quickly followed by attempts to fit Japan's history into world
history. This produced a large volume of writing, some of which argued the
case for the Tokugawa shogun as having had the "power of kingship" on the
order of feudal monarchs in the West. Those who agreed held that it made
more sense to compare the place of the emperor, whose functions were ritual
and who held no political power, with that of the pope in the West.
Id. at 32.
122. See EMORI, supra note 1, at 71-80.
123. See id, at 75; NIBUDANI CASE, supra note 11, at 377. The Ainu people were
free in Ezo-chi of the Matumae lords' management. See id.
124. See EMORI, supra note 1, at 74; NIBUDANI CASE, supra note 11, at 377.
125. See EMORI, supra note 1, at 74.
126. See id. Unfair trade practices perpetrated by the Maturates' vassals caused
conflicts between the Maumee lords and the Ainu people, leading to the Shakusyain
_ Wars (1648 and 1669) and the Kunashiri-Menashi Rebellion (1789).
127. See id. at 96.
128. See id. at 96-100.
129. See id.
130. See id. at 76, 79-80.
131. See id. at 101-04.
132. See id. at 79-80.
133. See id. at 98. Neither the Tokugawa Shoguns nor the Matumae lords taxed the
Ainu people like other Japanese. See id.
134. PENG & GEISER, supra note 1, at 11.
135. See EMORI, supra note l, at 98.
The Bakufu [Tokugawa], in 1799, reversed this policy, asserting that the
national objectives were to include the acculturation but not assimilation of
the Ainu into Japanese society. Steps were to be taken to introduce and instill
Japanese customs and values with respect to economic organization, family,
religious practices. The policy implementation was largely unsuccessful and
was shortly thereafter abandoned.
PENG & GEISER, supra note 1, at 11.
136. See TAKAKURA, supra note 3, at 1 10-12, 186. "The Lords Matumae did not
rule in Ezo-chi." Id.
137. See id. at 110. The Ainu people were prohibited from speaking Japanese as a
means of limiting their ability to trade. See id.
138. See id. at 54, 1 12; EMORI, supra note 1, at 96-98.
139. See TAKAKURA, supra note 3, at 17-24. The Ainu people settled at specific
places, usually along rivers, and they moved to hunting and fishing areas seasonally. See
id. at 27; EMORI, supra note 1, at 46-47. "The Ainu word for salmon is shipe. It comes
from shi-e-pe, which means 'the real thing we eat' - our staple food." Traditional Ainu
Life, supra note 19, at 23. When they took salmon before spawning, they caught only the
amount needed to eat that day because before salmon spawn they tend to be very fatty.
See id. "We also harvested, split and dried salmon to help us through the long winter
months. For this, we only took fish that had already fulfilled their mission. The leaner
flesh of these fish was not quite as tasty, but more than adequate for preservation." Id. at
27. In other words, the Ainu took from nature the optimal amount and type of fish to
feed themselves without damaging the fish runs.
140. See EMORL supra note 1, at 45. The Ainu people traded in hides and furs with
the Japanese in exchange for knives and lacquered ware. See id.
141. See TAKAURA, supra note 3, at 19.
142. See NIBUDANI CASE, supra note 11, at 362. A Kotan usually consisted of
about 20 families, and rarely over 100 families. The organization is analogous to the
American Indian band or tribe. See TAKAKURA, supra note 3, at 27.
143. See TAKAKURA, supra note 3, at 21.
144. See id. at 36-38.
145. See id. at 30. The chief of the Kotan conducted ceremonies, settled disputes,
managed their fishing or hunting, and negotiated as a representative. See id.
146. See id. at 3441.
147. See NIBUDANI CASE, supra note 11, at 384. Even in 1 878 (in the Meiji era) the
Ainu continued their traditions in some regions. See EMORI, supra note l, at 115.
148. See JANSEN, supra note 121, at 495.
149. See id.
150. See id.
151. See id. at 78-79. There were five principal decrees, one of which forbade the
dispatch of Japanese ships overseas. The Portuguese were exiled, and sent to Macao.
The Dutch ships, belonging to the only country allowed to trade with Japan under
Japanese trade policy of the time, were ordered to vacate their factory at Hirado. They
moved onto the man-made island of Deshima in Nagasaki Harbor in 1641. See id. at 80.
152. See id. at 274-77.
American interest in Japan was twofold. Until the discovery of oil in
Pennsylvania in 1 858 the country was illuminated by whale oil lamps; Pacific
waters were busy fleets of whalers, some of whom inevitably ended up on the
shores of Japan. . . .
Accounts of the mistreatment of shipwrecked sailors and
the failure to help ships in need fired public indignation. Americans had also
entered the competition for the China trade. Speedy clipper ships bound for
China by the Great Circle route had long moved close to Japanese shores, for
Japan lay astride that course. The advent of steam navigation brought with it
need for a Pacific source of coal, and hopes of a coaling station en route to
China added importance to contact with Japan. . . .
Slogans of manifest
destiny stirred popular imagination and led easily to Pacific adventures. For
all these reasons Japan was more important to Americans than it was to
English.
Id. at 274-75. See also SURYS PRAKASH SINHA, JURISPRUDENCE LEGAL PHLSOPHY 54
(NUTSHELL SERIES, 1993).
153. See SINHA, note 152, at 54.
154. See JANSEN, supra note 121, at 294.
It was clear to Japan's leaders that the threats posed to the country by foreign
expansion, foreign trade, and diffusion of foreign culture could not be
countered without centralization. But it was also the case that Japan's
peculiar institutions [such as the Shogun system]- division into feudal
domains, lord-vassal relations within the samurai elite, and separation of
social classes-classes- posed difficult problems for centralization. It was fortunate
that Japan's historical memory included an era of unification under a central
government headed by the emperor. . . .
Id. at 343.
The problem has its origins in the fact that Tokugawa Japan was pacified and
bureaucratized but not really unified. The daimyo [Lord] domains, with their
administrative structures, armies, and fiscal systems, retained important
elements of autonomy although they were dependent on shogunal favor . . .
analyzing the Tokugawa system as a baku-han kokka, or "bakufu-han state,"
to indicate the duality between central shogun (bakufu) and regional daimyo
(han) policies.
Id. at 33.
155 See id at 310-11 "On January 3, 1 868, the court proclaimed the Restoration
of Imperial Rule of Old." Id. at 3 12, The Restoration War (Boshin senso), between the
ex-shogun's samurais and those of Lords Shimazu, Mouri, and Yamanouchi, began on
January 27 and continued until the surrender of the last naval units of the ex-shogun's
samurais in Hokkaido in the spring of 1869. See id.
156. See MASAMI ITO, KENPO [THE CONSTITUTION] 37 (1995); JANSEN, supra note
121, at 336. Because the Meiji Restoration began as a coup organized by domain
officials and court nobles, their first problem was to establish confidence on the part of
other domains that the regime they proposed to construct would be something more than
a new bakufu under Satsuma [Shimazu] domination. For information about these leaders
see Jansen, supra note 121, at 364170. "In Japan, no less than in many Western
countries, imperialism came to occupy a central place in politics, economy, and culture."
Id. at 436-37.
157. See JANSEN, supra note 121, at 350. 'The invocation of the theocratic
pretensions of a state headed by a ruler descended from the sun goddess provided
- important support for consensus and centralization." Id.
158. See EMORL supra note 1, at 150-60.
159. See NIBUDANl CASE, supra note 11, at 387-88. Japanese occupation of the
island was an essential prong in the Japanese strategy to establish itself as the rightful
government of this region. See id.
160. See JANSEN, supra note 121, at 359.
161. See TAKAKURA, supra note 3, at 396. See also Proclamation of September 26,
1869, in MOTOMICHI KONO, TAI AINU SEISAKU HOKIRUISYU [STATUTORY BOOK OF THE
AINU POLICY] (1981), at 32. This Proclamation established Kaitaku-si. ･The Kaitaku-si
had the exclusive authority to manage Hokkaido. Kaitaku-si was abolished in 1 8~2.
162. See EMORI, supra note 1, at 105; NIBUDANI CASE, supra note 11, at 388-94.
163. See TAKAKURA, supra note 3, at 404. "Hokkaido is the most important island
for the Empire as northern defense [against Russia]. . . ." Proclamation of September
1869 by Tenno, in STATUTORY BOOK OF THE AINU POLICY, supra note 161, at 31
[hereinafter Tenno Proclamation].
164. See TAKAKUI~A, supra note 3, at 441-42; EMORI, supra note 1, at 109; PENG &
GEISER, supra note 1, at 12.
165. See TAKAKURA, supra note 3, at 404･06. "[A]s northern defense (against
Russia), we must educate the Ainu as the subject of Tenno." Tenno Proclamation, supra
note 163.
Russian exploration in Central Asia began in the Urals and ultimately
extended to North America. As the pioneers reached Kamchatka and the
northern Kurils, they traded with Ainu for the pelts of sable and fox. These
barren outposts had continuous need for food resources, however, and this led.
to moves to the south toward Japan and ultimately east toward the coast of
northern California. . . .
These efforts continued after Peter' s death in 1725,
though the contact was for the most part fortuitous. In 1728 a . . . grain
ship . . . was driven off course and shipwrecked on the southern point of
Kamchatka. Fifteen of its crew of seventeen were killed by a troop of
Cossacks[･]
In the years around 1 800 Russian probes south to the Kurils and Japan
became more purposeful. In 1799 they were delegated to a new company, the
Russian-American Company. . .
. Because it was so difficult to supply distant
posts across the land mass of Central Asia there was a new priority on
developing Pacific coast sources; this also held the possibility of trade with
China and secondarily, Japan.
On the side of Japan, [Tadataka] Ino [who was a surveying engineer]
was commissioned by bakufu [the shogun government] in 1800 to conduct a
serious geographic exploration of Hokkaido. . . .
With Ino's work as a start,
additional first-hand probes of southern Kurils were made by Mogami
Tokunai, a surveyor who had been attached to Ino's mission. . . .
Japan's
concern with its northern borders naturally led to ideas about the defense of
Ezo. '
JANSEN, supra note 1 21, at 259-61. At the beginning of the Meiji era, Russia occupied
the northern Kurils and built churches and schools there to encourage assimilation of the
Kuril Ainu into Russian culture. See TAKAKURA, supra note 3, at 5 1 1-12. The Japanese
occupied the southern Kurils. With respect to Sakhalin, Russia and Japan in 1 867 signed
a treaty agreeing that both Japanese and Russians would be allowed to live in this area,
however conflicts between both people continued. See id. at 398. In 1 875, the two
countries agreed the Kurils would be given to Japan and Sakhalin to Russia. See id. at
5 12. This arrangement created, some stability in the region. "Russia should be satisfied
with the Sakhalin-for-Kurils exchange, and even if it tried to take advantage of the
occasion by moving on Hokkaido, Britain and France would probably join to prevent it."
JANSEN, supra note 121, at 363.
166. The border definition under the exchange agreement described supra in note
165 played a substantial role in diminishing Japanese concern about a Russian threat. See
JANSEN, supra note 121, at 423. Increased immigration and military preparedness also
played a role in diminishing concern about potential Ainu alliances with Russia. See
TAKAKURA, supra note 3, at 405.
167. See TAKAKURA, supra note 3, at 404-06.
168. See id. at 405; EMORI, supra note 1, at 109. The Ainu people ware given equal
legal status with the rest of the Japanese population, and were therefore no longer treated
as a separate class or group of people by the Japanese government. See id.
169. See EMORI, supra note 1, at 109; NIBUDANI CASE, supra note 11, at 383. The
bakufu [Shogun] recognized that the assimilation policy they had attempted to implement
was unsuccessful, and recognized the Ainu as an independent nation. See id. ; see also
KAZUO OTA ET AL., HOKKAIDO TO KENPO [HOKKAIDO AND THE CONSTITUTION] 91 n. 12
(2000).
170. See EMORL supra note 1, at 109.
171. See TAKAKURA, supra note 3, at 405.
172. See id. at 442; Proclamation of October 8, 187 1 by Kaitaku-si, in STATUTORY
BOOK OF THE AINU POLICY, supra note 161, at 49.
173. See Proclamation of October 8, 1 871, supra note 172; NIBUDANI CASE, supra
note 11, at 391. House burning was also considered a "savage custom." TAKAKURA,
supra note 3, at 442.
174. See OTA ET. AL., supra note 169, at 91.
175. See TAKAKLTRA, supra note 3, at 442.
176. See id. at428.
177. See id.
178. The Ainu re-instituted traditional agricultural practices, which involved
successive small scale slash and burn techniques, until the land upon which these
activities was conducted began to be granted with increasing frequency to Japanese
settlers. See id. at 428-30. This relegated traditional Ainu agricultural practices to a very
minor status, where it could be practiced at all. See id, at 43 1-33.
179. See Proclamation of Oct. 8, 1871, supra note 172, at 35.
180. See id. at 36.
181. Id.
182. See Proclamation of September 1 872 by Kaitaku-si, in STATUTORY BOOK OF
THE AINU POLICY, supra note 161. Thirty-seven thousand hectares (92,500 acres) were
sold to Japanese settlers between 1 872 and 1 885. See EMORI, supra note 1, at 1 10-12
l83. See Proclamation No. 15 of December 13, 1877 by Kaitaku-si, in STATUTORY
BOOK OF THE AINU POLICY, supra note 161, at 41. This Proclamation was named
Hokkaido Chiken Hakko Jyorei [Hokkaido Land Deeding Regulation]. '
l84. See TAKAKURA, supra note 3, at 432. Takakura, who was an assimilationist,
explained this point: "Ainu did not have a notion of ownership, therefore the Government
needed to guard the Ainu." Id.
185. The area of Hokkaido is 20,610,000 acres, and most of Hokkaido was Ezo-chi
occupied by the Ainu people.
186. See EMORI, supra note 1, at 1 17. "The nobility . . . got much of the land." Id.
at 118. With development, the population of Hokkaido increased. In the period between
1869 and 1 897, the Hokkaido population increased from 58,467 to 786,211. See id.
187. See id. at 119.
188. See TAKAKURA, supra note 3, at 258. The Ainu traded with Japanese
merchants in bear hides and deer, fox pelts and otters, fresh and dried salmon, shiitake
mushrooms, seaweeds, woven goods, and so on. See Shiro Kayano, supra note 5, at 41.
They also made their shoes from salmon skin. There are two dozen traditional Ainu ways
of preparing salmon to eat. See Traditional Ainu Life, supra note 19, at 27.
189. See TAKAKURA, supra note 3, at 437, 483. The Ainu used poisoned arrows for
hunting deer, and weirs or nets for fishing 'salmon. They extracted poison for arrows from
roots of Monkshood (Aconitum yesoense). See NIBUDANI CASE, supra note 11, at 252.
"We call Monkshood suluku in Ainu language. We gather its roots in end of September
or October, and dry them. We crush them on a hollow stone, and apply it on arrows.
When the arrow sticks a bear, the bear will die in 10 to 15 minutes. Although the bear
die of poison, we can eat the meat. I don't know the reason why we can eat." Id.
190. See Traditional Ainu Life, supra note 19, at 26-27. Kayano also stated about
salmon spear, "I believe may be unique in the world is the marep, a spear with a
revolving hook. The marep is just one of some fifteen special salmon-catching tools and
devices we have developed." Id.
191. See TA~KURA, supra note 3, at 436.
192. See id. at 483.
193. See id. at 436.
194. See id.
195. See TOMAKOMAISHI-SHI [THE HISTORY OF TOMAKOMAl], TOMAKOMAI CITY
1789 (1976).
196. See TAKAKURA, supra note 3, at 482. In the east area from Tokachi over
1 60,000 antlers were picked up in next year.
197. See id. at 436. In 1881, a total of only l0,000 deer could be hunted. See id. at
482. The deer meat cannery produced only 21,000 cans in 1 879, and closed down in
1880. See TOMAKOMAISHI-SHI, supra note 195, at 1791.
198. See TAKAKURA, supra note 3, at 437.
199. Proclamation of November 11, 1876 by Kaitaku-si, in STATUTORY BOOK OF
THE AINU POICY, supra note 161, at 56. Article 4 provided that only 600 Licenses
(including licenses to Ainu) would be issued. See id.
200. See TAKAKURA, supra note 3, at 483.
201. See id.
202. See id. at 483.
203. See id.
204. See id. at 507 n.18.
205. See ISHIIKARITYO-SHI [THE HISTORY OF ISHIKARITYO], ISHIKARITYO (1985).
These canneries were operated by two American engineers called in by the Kaitaku-si.
See id.
206. See id. at 505.
207. See id. at 483.
208. See Proclamation of August 29, 1 873 by Kaitaku-si, in STATUTORY BOOK OF
THE AINU POLICY, supra note 161, at 69. N'
Toyohira River. See id. right use of nets was prohibited in the Toyohira River. See id.
209. These nets are called urai by the Ainu. See TAKAKURA, supra note 3 at 506 n. 16.
210. See Proclamation of August 29, 1 873, supra note 208, at 69
211. The Proclamation of October 10, 1 876 by Kaitaku-si, in STATUTORY BOOK OF
THE AINU POLICY, supra note 161, at 71.
212. Proclamation of December 17, 1 878 by Kaitaku-si, in STATUTORY BOOK OF
THE AINU POLICY, supra note 161, at 69.
213. See TA~KURA, supra note 3, at 483
214. See id, at 483. The Ainu traditionally used gill nets (called tesu) and weirs
(called urai) for fishing. The regulations prevented the Ainu from taking salmon by these
traditional methods, but they were allowed to use the marep, a spear with a revolving
hook to fish for the few remaining salmon in their waters. See id. at 506 n. 16.
215. Id. at 484. "Forbidden to catch their staple food, the Ainu fell into
indescribable hardship, with many starving to death. This accelerated the precipitous
decline in population." Traditional Ainu Life, supra note 19, at 24.
216. See .TAKAKURA, supra note 3, at 474. The Kaitaku-si was abolished in 1 882,
after which Hokkaido was divided into three administrative regions, which remained in
effect until 1 886. Hokkaido-Cyo, the administrative regional organization, whose
governors were appointed by Tenno, was established in 1 886. The policy of encouraging
agriculture was pursued on an unparalleled scale in Hokkaido during this time. See id.
217. See id. at 502.
218. See EMORI, supra note 1, at 138-39; MOTOMICHI KONO, AINU-SHI GAISETU
[OVERVIEW OF AINU HISTORY] 187 (1996).
219. OVERVIEW OF AINU HISTORY, supra note 218, at 187.
220. Meiji 32-nen houritu dai 27 go [Law No. 27 of 1 899].
221. See EMORI, supra note 1, at 142-44. However, only 28 percent of these lands
were farmed by the Ainu people in 1916, and most of the other lands were occupied by
Japanese. Because the best parcels of land were conveyed to Japanese settlers and
nobility, the lands remaining for distribution to the Ainu were mostly badlands, often on
slopes. See supra note 1 86. Ten percent of these lands were unsuitable for farming. See
EMORI, supra note l, at 142. When the lands were leased to the Japanese, the rents were
appropriated to interest on loans in most cases, which actually constituted illegal security
in violation of Article 2. See NIBUDANI CASE, supra note I l, at 400.
222. OVERVIEW OF AINU HISTORY, supra note 218, at 174. In 1937 the Act was
amended and Article 2(2) was added to provide that when Ainu people developed the
land disposed of by Article I and fanned them for fifteen years, the lands could be
transferred or offered as security with the Governor' s permission. See id.
223. See EMORI, supra note 1, at 144-45.
224. See id. at 145-46. Some scholars have noted that the passage of the Hokkaido
Indigenous People Protection Act followed shortly after the passage of the United States
General Allotment Act (Dawes Act) of 1887. See OTA ET AL., supra note 169, at 91 n. 13.
For a description of how Yale educated Zenichiro Koyabe reported to the Japanese on the
Indian School format used in the United States, see TAKAKURA, supra note 3, at 608.
Indeed there were similar articles and similar results in some instances, but in contrast to
the United States case, the Ainu people had not made reservations, and the Act did riot
affect Japanese citizenship. The General Allotment Act provided a grant of 1 60 acres to
each family head, and allowed for every allotment to be held in trust by the Government
for 25 years, during which time the land could not be alienated or encumbered. See
GETCHES ET AL., supra note 48, at 171; CHARLES F. WILKINSON, AMERICAN INDIANS,
TIME, AND THE LAW 19, 20 ( 1987). "In addition to allowing for allotments, the 1 887 act
made provisions for opening so-called surplus lands for homesteading by non-Indians."
Id, at 20. See also GETCHES ET AL., supra note 48, at 171. "Thirty-eight million acres of
unallotted tribal lands were thereby declared 'surplus' to Indian needs and were ceded to
the federal government for sale to non-Indians." WILKINSON, supra this note, at 151 n. 65.
The government opened another 22 ' million acres of "surplus" tribal lands to
homesteaders. See id.
225. The Ainu people, as subjects of Tenno under the Hokkaido Indigenous People
Protect Act, were mobilized in the war effort as soldiers or to assist on the home front.
226. See EMORI, supra note 1, at 219.
227. See OVERVIEW OF AINU HISTORY, supra note 218, at 176.
228. See id. at 184.
229. See id. at 175.
230. See Jisakuno Sousetu Tokubetu-soti Ho [Landed Farmer Establishment
Special Measures Act] (1946).
231. See EMORI, supra note 1, at 144.
232. See id. at 220.
233. See id. Thirty-four percent of the lands Ainu people obtained through the
Hokkaido Indigenous People Protection Act were conveyed to Japanese tenant farmers.
See id.
234. See Koreyasu v. Governor of Hokkaido, 16 MINSHU 1787 (Sup. Ct., Aug. 21,
1961)
235. See EMORI, supra note 1, at 226. As the term "racial" refers only to Inherited
characteristics and "ethnic" refers to all biological, cultural, and historical characteristics,
the word "ethnic" is more appropriate to describe the difference between the Ainu and
other Japanese. See Francesco Capotorti, Study of the Rights of Persons Belonging to
Ethnic, Religious and Linguistic Minorities, Sub-Commission on the Prevention of
Discrimination and Protection of Minorities, U.N. ESCOR, 30th Sess., at 16-26, U.N.
Doc. E/CN.4/Sub.2/384/Rev.1 (1979) [hereinafter Capotorti Study]. However Nakasone
intended to emphasize that the Japanese were actually a race called Yamato, by denying
the existence of Ainu as ethnic minority, based an ideology of imperialism. See EMORI,
supra note 1, at 225-26. This Yamato or Yamato damasii [spirit] ideology is permeated
by racist themes and an ideology of Japanese racial superiority and invincibility. This
ideological perspective was "indissolubly linked to Japan's national polity . . . centered
on the emperor" in World War ll. HERBERT P. BIX, HIROHITO AND THE MAKING OF
MODERN JAPAN 52 (2000).
236. See NIBUDANI CASE, supra note 11, at 346.
237. See EMORI, supra note 1, at 225.
238. THE HOKI~IDO UTARI [AINU] SOCIETY CORPORATION, KOKUSAI KAIGI
SIRYOSYU [INTERNATIONAL MEETING DOCUMENTS] 283, 284 (1998). The International
Covenant on Civil and Political Rights Article 27 provides:
In those States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with
the other members of their group to enjoy their own culture, to profess and
practice their own religion, or to use their own language.
International Covenant on Civil and Political Rights, Dec. 19, 1966, art. 27, 999 U.N.T.S.
- 17 l, reprinted in 6 I.L.M. 368 (1967) [hereinafter ICCPR].
239. The government submitted the Second Periodic Report in 1987. It stated:
As for the question of the people of Ainu raised in relation to Article 27,
while it is recognized that these people reserve their own religion and
language and maintain their own culture, they are not denied enjoyment of the
right mentioned above, as Japanese nationals who are guaranteed equality
under the Japanese Constitution.
Second Periodic Report of Japan on December 24, 1987, reprinted in INTERNATIONAL
MEETING DOCUMENTS, supra note 238, at 283-84. This report was not clear on the
question of whether the Ainu were an ethnic minority. The government submitted a third
report in 1991. It stated:
As for the question of the people of Ainu raised in relation to Article 27 of the
Covenant~ they may be called minorities under that Article because they
preserve their traditional religion, language culture. The Ainu are allowed to
enjoy the rights outlined by Article 27 as Japanese nationals whose equality is
guaranteed under the Japanese Constitution.
Third Periodic Report of Japan on December 16, 1991, reprinted in INTERNATIONAL
MEETING DOCUMENTS, supra note 238, at 285-86.
240. See MOTOMICHI KONO, AINU - SONO SAININSIKI [NEW UNDERSTANDING] 2 1 3
(1999).
241. See OTA ET. AL., supra note 169, at 94.
242. MIYAJIMA ET AL., supra note 3, at 141.
243. See MINISTRY OF AGRICULTURE, FORESTRY, AND FISHERIES, SUISAN TOKEI
HEISEI 11 NENBAN [FISHERY STATISTICS 2000] 90 (2000). $447 million worth of salmon
and trout was harvested on coastal in Hokkaido. See id. Note that there are Ainu among
these commercial fishermen.
244. See id. at 80.
245. See id. at 227; MINISTRY OF AGRICULTURE, FORESTRY, AND FISHERIES,
GYOOYO YOSYOKU SEISAN TOKEI [FISHERY FISH RAISING STATISTICS] 204 (2000).
246. See Gyogyo-ho [The Fishery Act], arts. 10, 16(8) (on file with author). Article
10 of the Fishery Act provides that fishing is permissible only with a license issued by the
governor, and Article 16(8) provides that fishermen's cooperatives have priority for these
licenses. The cooperatives are usually successful in obtaining licenses to take salmon
both on coastal and inland waters. Ainu members of fishermen's cooperatives can take
salmon for commercial purposes under these cooperative licenses, but do not have any
fishing rights distinct from their cooperative memberships or stemming from their Ainu
identity. See id.
247. The Hokkaido Inland Water Fisheries Adjustment Regulation, Article 4
provides that the governor's permission is required to take fish using certain means. The
article further prohibits salmon fishing in any season except with gubernatorial
permission. "For the Ainu people, fishing in order to feed our families is completely
forbidden on . . . rivers Shiro Kayano, supra note 5, at 43.
.,'
248. Generally the only Ainu who can take salmon are those Ainu who, as
commercial fishermen, are members of licensed cooperatives. Non-commercial Ainu
fishermen cannot take salmon at all. See The Fishery Act, supra note 246, arts. 10, 16(8);
The Hokkaido Inland Water Fisheries Adjustment Regulation, supra note 247, arts. 4, 22.
249. See supra Section 111(B) (3). By 1 878 the Ainu people were forbidden from
taking a single salmon from the rivers of their homeland. See Shiro Kayano, supra note
5, at 42.
250. See supra Section 111. "A Lifestyle based on hunting and gathering was
maintained in these regions up until the last century." Kamuy Yuhar: Song of the Wife of
Okikurmi (transcribed by Shigeru Kayano; Jane Corddry Langill & Rie Taki trans.), in
FIRST FISH FIRST PEOPLE, supra note 5, at 29.
25l. See supra Section III (B) (4).
252. Some examples include Ashiri-Chepe-Nomi [first salmon harvest ceremony],
and Chipe-Sanke [canoe launching].
253. The Hokkaido Inland Water Fisheries Adjustment Regulation Article 27
provides that the governor can permit persons to take salmon for research or education, in
any season, by any means, and at any place. Ainu claims have been granted using an
education justification. See Regulation of Hokkaido No. 133, Nov. 12, 1964.
254. See MASIHO CHIRI, 2 CHIRI MASIHO CHOSAKUSYU [THE WORKS OF MASIHO
CHIRI] 68 (1973). A marep or marek is a spear with revolving hook. See id.
255. An op is a spear. See id. at 390.
256. See HOKKAIDO PREFECTURE FISHERY MANAGEMENT OFFICE, AINU SPECIAL
PERMITS LIST (2000).
257. See id.
258. Shiro Kayano, supra note 5, at 24-25.
259. See TAI~KURA, supra note 3, at 1 5-44.
260. See id.
261. See, e.g., ICCPR, supra note 238, art. 27; NIHOMKOKU KEMPO [CONSTITIJTION
OFJAPAN] (1946), art. 13.
262. See supra text, Section II (B) (2)
263. See State v. Coffee, 556 P.2d 1185, 1 188 (Idaho 1976). "Unquestionably it has
been the policy of the Federal Government from the beginning to respect the Indian right
of occupancy, which could only be interfered with or determined by the United States."
United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 345 (1941).
[A] right of occupancy in the Indian tribes was nevertheless recognized. That
right sometimes called Indian title [aboriginal title] and good against all but
the sovereign could be terminated only by sovereign act. . . . Indian title,
recognized ･ to be only a right of occupancy, was extinguishable only by the
United States.
Oneida Indian Nation of New York v. County of Oneida, 414 U.S. 661, 667 (1974).
The Court also said "The Santa Fe case also reaffirmed prior derisions to the effect
that a tribal right of occupancy, to be protected, need not be 'based upon a treaty,
statute, or other formal government action."' Id. at 669.
264. See Oneida Indian Nation, 414 U.S. at 667.
The courts consistently have held that the exclusive right to extinguish
original Indian title rests with Congress irrespective of who holds the
. [A] s the Court observed in Johnson,
underlying fee title in the lands. . .
unless Indian title to the land has been extinguished, any grant of the lands,
even by the United States, is subject to original Indian title and does not
extinguish or interfere with the Indian right of occupancy.
COHEN ET AL., supra note 54, at 489.
265. See Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955); COHEN ET AL.,
supra note 54, at 491.
266. COHEN ET AL., supra note 54, at 489-90 (quoting Santa Fe Pac. R.R. Co., 3 14
U.S. at 354 and others). "Twentieth century cases have applied this principle to hold that
leasing or alienation of lands by federal officials does not terminate Indian property rights
unless those rights first have been extinguished by a clear and specific act of Congress."
COHEN ET AL., supra note 54, at 490.
267. See Coffee, 556 P.2d at 1188. For example, in County of Oneida v. Oneida
Indian Nation, the Court stated, "It was accepted that Indian nations held ' aboriginal title'
to lands they had inhabited from time immemorial." County of Oneida v. Oneida Indian
Nation, 470 U.S. 226, 233-34 (1985). The Court also discussed the doctrine of discovery
and said, "the 'doctrine of discovery' provided, however, that discovering nations held
fee title to these lands, subject to the Indians' right of occupancy and use. As a
consequence, no one could purchase Indian land or otherwise terminate aboriginal title
without the consent of the sovereign." Id. at 234.
268. See Proclamation of August 29, 1873 by Kaitaku-si, supra notc 208;
Proclamation of October 10, 1877 by Kaitaku-si, in STATUTORY BOOK OF THE AINU
POLICY, supra note 161; Proclamation of December 17, 1 878 by 1Caitaku-si, supra note
- 212.
269. See Traditional Ainu Life, supra note 19, at 24. "[T]he Japanese invaded the
land of the Ainu, calmly took from the indigenous Ainu their main food, and even made
catching salmon a crime poaching subject to arrest." Id.
270. See supra Section II (B) (1) & n.59.

271. See NIBUDANI CASE, supra note I l, at 446. "The Ainu who had not been able
,
to understand Japanese, had been forced not to take salmon. . . ." TAKAKUI~, supra note
3, at 445. Kaitaku-si emphasized education as an element of the assimilation policy,
because the Ainu's language was completely different from the Japanese. See id.
However it was not successful. See id. at 446. It seems that most Ainu could not
understand Japanese.
272. See NIBUDANI CASE, supra note 11, at 343.
273. See EMORI, supra note 1, .at 109.


274. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 542 (1832).
275. County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 234 (1985) (quoting
Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 573-74 (1823)). "A weak state, in order to
provide for its safety, may place itself under the protection of one more powerful, without
stripping itself of the right of government, and ceasing to be a state." Worcester v
Georgia, 31 U.S. (6 Pet.) at 561 (1832).
276. Worcester, 31 U.S. (6 Pet.) at 559-60.
- 277. WILKINSON, supra note 224, at 56. "Internal self-government was preserved;
in consequence, although dealing with other nations and matters concerning trade and
extinguishment of title to lands occupied by tribes became subject to the exclusive
authority of the European nation claiming the territory." COHEN ET AL., supra note 54, at
232.
278. See, e.g., GETCHES ET AL., supra note 48, at 981-1021. In Canada, one
example is Guerin v. the Queen [1984] S.C.R. 335. In Calder v. Attorney General of
British Columbia [1973] S.C.R. 3 1 3, the Court recognized aboriginal title as a legal right
derived from the Indian's historic occupation and possession of their tribal lands. In this
respect Calder is consistent with the position of Chief Justice Marshall in the leading
American cases of Johnson v. McIntosh and Worcester v. State of Georgia. See Johnson
v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823); Worcester v. Georgia, 31 U.S. (6 Pet.) 515
(1832). In the Australian case of Mabo v. Queenland (1992) 107 A.L.R. I, the Australian
High Court said,
The Great voyages of European discovery opened to European nations the
prospect of occupying new and valuable territories that were already
inhabited. As among themselves, the European nations parceled out the
territories newly discovered to the sovereigns of the respective
discoverers. . . .
Where a clan or group has continued to acknowledge the
laws and (so far as practicable) to observe the customs based on the traditions
of that clan or group, whereby their traditional connection with the land has
been substantially maintained, the traditional community title of that clan or
group can be said to remain in existence.
Mabo v. Queenland (1992) 107 A.L.R. 1.
[T]he most basic principle of all Indian law, supported by a host of decisions,
is that those powers which are lawfully vested in an Indian tribe are not; in
general, delegated powers granted by express acts of Congress, but rather
inherent powers of a limited sovereignty which has never been extinguished.
COHEN ET AL., supra note 54, at 231. There is no reason this principle of tribal
sovereignty ought not to be accepted by other nations.
279. COHEN ET AL., supra note 54, at 233-34. In Cherokee Nation v. Georgia, 30
U.S. (5 Pet.) I (1831), Chief Justice Marshall stated with regard to the tribal-federal
relationship that the tribes were domestic nations whose relationship to the United States
resembles that of a ward to his guardian, and in Worcester v. Georgia, 3 1 U.S. (6 Pet.)
5 15 (1 832), he stated that the guardian-ward relationship did not abolish preexisting tribal
powers or make the tribes dependent upon federal law for their powers of self-
government. "[T]he United States had assumed the role of 'protector' of the Indian
tribes, acknowledging and guaranteeing their security as distinct political communities in
exchange for their friendliness to the United States." CoHl3N ET AL., supra note 54, at
234.
280. See COHEN ET AL., supra note 54, at 246-59. The tribes exercise their
sovereignty for example, to determine tribal governmental form to determine tribal
membership, and to administer justice. See WILKINSON, supra note 224, at 73. "[T]he
court has allowed tribes to exercise modern governmental activity and complete with
state and local governments and with･ private development interests." Id.
281. See COHEN ET AL., supra note 54, at 246. The Northwest tribes reserved the
power to regulate tribal fishing "at ail usual and accustomed places," even those off the
reservations because the treaty was a grant of rights from the Indians. See id. at 457;
WILKINSON, supra note 224, at 72. In Washington v. Washington State Commercial
Passenger Fishing Vessel Ass 'n, 443 U.S. 658, 658 (1979), the Supreme Court upheld the
Indian monofilament gillnet fishery. Other Supreme Court decisions (Puyallup I, 391
U.S. 392, 398 (1968), Puyallup II, 414 U.S. 44, 48 (1973). Puyallup Tribe, Inc. v. Dep't
of Game, 433 U.S. 165 (1977), Mattz v. Arnett, 412 U.S. 481 (1973)) have approved the
use of modern fishing gear by Indians. These decisions indicate that the modern Court
has described tribes not as entities with enumerated or delegated powers but as
governments possessing in the first instance all of the powers inherent in sovereigns. See
id.
282. The Constitution of Japan chapter VIII provides "local self-government."
Article 92 provides that regulations concerning organization and operations of local
public entities shall be fixed by law in accordance with the principle of local autonomy.
In accordance with the Constitution of Japan Article 92, Local Self-Government Act
Article 3(1) provides Hokkaido is one of the prefectures as the local public entities.
Article 94 provides that local public entities shall have the right to manage their property,
affairs and administration and to enact their own regulations within law. The ordinance
that regulates salmon fishing is based on the Constitution Article 94. The Fishery Act
(Law No. 267 of 1949) delegates regulation of fishery in Hokkaido to Hokkaido
Prefecture, and Hokkaido Prefecture enacted this ordinance.
283. See CONSTITUTION OF JAPAN. The Local Self-Government Act Article l (2)
provides that the local public entities basically promote well-being of the local residents 284. Using the American reasoning, if native rights are to be extinguished, it must
be done by the national, not local government, and the extinguishment must be clear and
unambiguous, see supra Sections II (B) (1) and IV (A) (2) and (3).
285. See ITO, supra note 156, at 610. Local governments cannot manage state
sovereignty. See id. The Local Self-Government Act provides that each local self-
government manages affairs that do not belong to the Central governmental affairs in
each territory. It was amended in 2000, so that each local government manages local
affairs and the other affairs delegated by acts. Under this Act the Hokkaido government
have never had the power that extinguish Ainu aboriginal rights, and the Japanese
government has never delegated such power to the Hokkaido government.
286. United States v. Washington, 520 F. 2d. at 688 (9th Cir. 1975).
287. TAI~KURA, supra note 3, at 21.
288. Under American Indian law "tribalism continues until the members
themselves extinguish it. Tribalism depends on a .tribe's own will." WILKINSON, supra
note 224, at 77. Whether the Ainu still maintain remnants of tribal organization is a
question that under American law would be left to the Ainu to decide. See id.
289. See SURVEY REPORT (1999), supra note 1 13, at 3. Kayano established an Ainu
language school at Nibutani in Hidaka, and is attempting to promote Ainu culture. See
FIRST FISH. FIRST PEOPLE, supra note 5, at 38. Oda Ito, one of the few living informants
on traditional Ainu culture, has been an active member of the Chitose Ainu Culture
Preservation Society and a teacher in the Chitose Ainu Language School at Chitose in
Iburi. See id, at 131.
290. See SURVEY REPORT (1999), supra note 1 13, at 3. These areas are the places
where many Kotans existed before.
291. See NIBUDANI CASE, supra note 11, at 347.
292. See HOKKIDO PREFECTURE FISHERY MANAGEMENT OFFICE, supra note 256.
293. The Hokkaido Ainu Society was established in 1946, but it was not long
before stopped its activities. See OVERVIEW OF AINU HISTORY, supra note 218, at 150-5 1.
In 1960 it was rebuilt and changed its name to Hokkaido Utari Society, Inc. See id. at
154.
294. See id. 160-61.
295. See COHEN ET AL., supra note 54, at 147. The Indian Reorganization Act was
an attempt to encourage economic development, self-determination, cultural plurality and
a revival of tribalism. See id.
296. See id. at 8 17-18. Some examples are the Menominee Restoration Act of
1973, the Siletz Restoration Act of 1977, the Oklahoma Indians Restoration Act of 1977,
the Paiute Indian Tribe of Utah Restoration Act of 1980, the Area Redevelopment Act of
- 1961, the Public Works and Economic Development Act of 1965; and the Economic
Opportunity Act of 1964. See id. at 188-90, 817-18. After the termination policy was
abandoned in 1 958, the self-determination policy that replaced it represented a return to
the basic philosophies of the Indian reorganization period. It is premised on the notion
that Indian tribes are the basic governmental units of Indian policy. See id. at 180.
297. 1 598 HANREI JIHO 33 (Sapporo District Court Mar. 27, 1997).
298. See id. at 33, 40-43.
299. See id. at 37.
300. Editor's Note: No pun intended.
301. See id. at 41-43.
302. See id. at 41.
303. See EMORI, supra note 1. The International Covenant on Civil and Political
Rights is part of the International Bill of Rights, which consists of the Universal
Declaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A, U.N. GAOR, 3d Sess., Pt.
I, Resolutions, at 71, U.N. Doc. A/810 (1948), the ICCPR, supra note 238, and the
International Covenant of Economic, Social, and Cultural Rights, Dec. 16, 1966, art. 27,
993 U.N.T.S. 3. The latter two instruments came into force in 1976, when the required
number of states ratified both instruments. They are considered binding upon signatories.
The Optional Protocol to the International Covenant on Civil and Political Rights
establishes procedures for implementing the Covenant. Under the Optional Protocol, the
Committee that is established under Article 28 can receive individual complaints filed
against state parties to the covenant that have separately ratified the protocol. See
Optional Protocol to the International Covenant on Civil and Political Rights, Mar. 23,
1976, 999 U.N.T.S. 302.
304. The Constitution of Japan, Article 13 provides that "All of the people shall be
respected as individuals. Their right to life, Liberty, and the pursuit of happiness shall, to
the extent that it does not interfere with the public welfare, be the supreme consideration
in legislation and in other governmental affairs." The Emperor Tenno accepted the
Potsdam Declaration on August 14, 1945. According as Potsdam Declaration, Japanese
Government started to amend the Constitution. The new constitution was based on the
'MacArthur draft.' General Douglas MacArthur was appointed supreme commander for
the Allied Powers (SCAP) on August 30, 1945. See BIX, supra note 235, at 568-69
(2000). According to BIX, it took
one full week, February 3-10, to write a new draft of a model Japanese
constitution. The drafters set to work, intent on realizing the goal of
preventing Japan from ever again becoming a military threat to the United
States. They concentrated first on reforming the monarchy. The emperor,
severed from real political power, became (and was defined as) only a
'symbol' of unity. . . .
Next, the imperial armed forces were eliminated by
inserting into the constitution an Article-the famous Article 9 renouncing
. Thanks to the American drafters, guarantees of civil liberties went
war . . .
right into the text of the constitution; women were enfranchised. The modus
operandi of the Japanese state was partially reshaped. The draft weakened in
theory the power of bureaucrats, strengthened that of the Diet, and enhanced
the power of the judiciary. The final product permitted Japan its monarchy,
and shifted political power to the Diet and the cabinet, should such a need
arise.
Id.
305. Kayano v. Hokkaido Syuyouiinkai, 1598 HANREI JIHO at 37 (Sapporo District
Court, Mar. 27, 1997).
306. See id. at 47.
307. See id. at 38-40.
308. See id. at 43.
309. See id.
310. See id. at 44.
311. See id.
312. Id. at 48. However the Court dismissed the plaintiffs' claims because of the,
dam was completed. See id. at 49.
313. See Capotorti Study, supra note 235, at 57. See Kayano v. Hokkaido
Syuyouiinkai, 1598 HANREI JIHO at 44 (Sapporo District Court, Mar. 27, 1997). See S.
James Anaya. Indigenous Rights Norms in Contemporary International Law, 8(2) ARIZ.
J. INT'L & COMP. L., l, 16-17 (1991):
Article 27 affirms in universalist terms the right of persons belonging to
"ethnic, Linguistic or religious minorities . . . to enjoy their own culture, to
profess and practice their own religion [and] to use their own language" . .
[T]he norm . . . cover[s] all aspects of an indigenous group's survival as a
distinct culture, understanding culture to include economic or political
institutions, land use patterns, as well as language and religious practices. The
norm is also held to require states to act affirmatively to protect the cultural
matrix of indigenous groups and not simply to refrain from coercing
assimilation or abandonment of cultural practices.
Id.
314. See Capotorti Study, supra note 235, at 35.
315. Id. at 36. States are not obliged to take positive measures, for example,
administrative action or financial support, as a means of enforcing these rights. The only
obligation is to refrain from denying or impeding the enjoyment and exercise of these
rights stipulated for members of minorities. See id. at 98.
316. Kayano v. Hokkaido Syuyouiinkai, 1598 HANREI JIHO at 44-45 (Sapporo
District Court, Mar. 27, 1997). "The Ainu had inhabited Hokkaido before the Japanese
government ruled the island, and they developed an indigenous culture. Although they
were damaged by the assimilation policy, they still exist as social unit that has an
indigenous culture and identity." Id.
317. See id.
318. See id. at 46. The court recognized that restrictions on Ainu salmon fishing
had caused their poverty.
319. Capotorti Study, supra note 235, at 37.
320. See Traditional Ainu Life, supra note 19, at 27.
321. Kayano v. Hokkaido Syuyouiinkai, 1598 HANREI JIHO at 44 (Sapporo District
Court, Mar. 27, 1997).
322. Traditional Ainu Life, supra note 19, at 23-24.