What is the current state of the law on the right of Native American tribes to take shellfish off their reservations?

There is no evidence the tribes have ever presented a court with evidence and arguments to make a preliminary determination of their rights to shellfish. Because no determination has been made, the law on the right to take shellfish off the reservations cannot be "clearly established." "If the controlling law is not clearly established, a reasonable person would not be expected to know how to structure his conduct in order to avoid liability. In such a case the defendant will be immune from suit." Todd v. United States, 849 F.2d 365, 368-69 (9th Cir.1988).