Tough Questions on Indian Fishing -- by The Northwest Indian Fisheries Commission
A SIMPLE REQUEST
Many of our files are unique and/or copyrighted by The Center For
World Indigenous Studies and The Fourth World Documentation
Project. All FWDP files may be reproduced for electronic
transfer or posting on computer networks and bulletin boards
1. All text remains unaltered.
2. No profit is made from such transfer.
3. Full credit is given to the author(s) and the Fourth World
4. This banner is included in the document if being used as a
file on a BBS, FTP site or other file archive.
Thank you for your cooperation.
Center For World Indigenous Studies
|| The Fourth World Documentation Project runs entirely on grants ||
|| and private donations. If you find this information service ||
|| useful to you in any way, please consider making a donation to ||
|| help keep it running. CWIS is a non-profit [U.S. 501(c)(3)] ||
|| organization. All donations are completely tax deductible. ||
|| Donations may be made to: ||
|| The Center For World Indigenous Studies ||
|| ATTN: FWDP ||
|| P.O. Box 2574 ||
|| Olympia, Washington USA ||
|| 98507-2574 ||
|| Thank You, ||
|| CWIS Staff ||
:: This file has been created under the loving care of ::
:: -= THE FOURTH WORLD DOCUMENTATION PROJECT =- ::
:: A service provided by ::
:: The Center For World Indigenous Studies ::
:: THE FOURTH WORLD DOCUMENTATION PROJECT ARCHIVES ::
:: http://www.halcyon.com/FWDP/fwdp.html ::
:: THE CENTER FOR WORLD INDIGENOUS STUDIES ::
:: http://www.halcyon.com/FWDP/cwisinfo.html ::
T O U G H Q U E S T I O N S O N
I N D I A N F I S H I N G
BY THE NORTHWEST INDIAN FISHERIES COMMISSION
Listed below are answers to some of the questions being raised about
Treaty Indian fishing rights, 50 percent catch limits, competitive
advantages and steelhead, to name a few. The Northwest Indian
Fisheries Commission and its member tribes hope that a candid
discussion of these questions will lead to a fuller understanding of
the issues and a rapid solution to the unresolved problems.
DO INDIANS GET SPECIAL ADVANTAGES?
In most ways, Indians do not enjoy any of the special advantages many
imagine they receive. Indian fishermen are regulated by tribal
governments for protection of the fisheries, just as non-treaty
fishermen are regulated by the state. But unlike non-Indians, Indian
fishermen have a treaty-guaranteed property right to fish that goes
beyond any state or even federal law. For both moral and practical
reasons, the first Europeans to arrive in America recognized the
Indian's rights to their tribal lands and properties. In 1778, the
Continental Congress declared that Indian lands and property could
never be taken without Indian consent. When the U.S. Constitution was
drafted, Congress was given the power to make treaties -- and the
treaties were made "supreme law of the land." Thus, when northwest
Indians retained their fishing right and agreed to give up claim to
this land, the agreement was, and still is, backed by the U.S.
WHY DID THE U.S. DISTRICT COURT SPLIT THE SALMON CATCH 50-50
BETWEEN INDIANS AND NON-INDIANS?
The division is not so much between Indian and non-Indians as it is
between tribal and state governments, treaty and non-treaty parties.
It must be remembered that at the time the treaties were signed,
Indians were catching almost all of the fish. But under the treaties,
Indians agreed to share the fishery "in common" with all citizens.
This, in the language of the time, made Indians and settlers, in
effect, equals when it came to sharing the resource. Each group was
entitled to one-half. Eventually, settlers were regulated by their
state governments, but tribes were not legally subject to state
regulations because they are separate political entities with special
contracts, or treaties, with the U.S. Government. The courts decided
that tribal governments and the state government, as co-equals, should
each be entitled to one-half of the available harvest.
HOW IS INDIAN FISHING REGULATED IF NOT SUBJECT
TO STATE JURISDICTION?
Tribal governments regulate Indian fishing according to rules imposed
by the U.S. District Court. Every tribe adopts fishing regulations in
accordance with sound fisheries management. The tribes and the state
work together in drafting their fisheries regulations. Tribes must
hire or have available to them a fisheries biologist to assist in
drafting regulations and monitoring the fishery. They must also have
the capability to enforce their regulations and prosecute violators.
Every precaution is taken to protect the valuable fisheries resource.
WHY IS IT NECESSARY TO RESTRICT NON-TREATY FISHING TIME?
Basically, interpretation of the treaty dealt with an opportunity to
catch the fish. Under the treaties and the law, both Indians and non-
Indians must have an equal opportunity to catch half of the available
fish. An opportunity must include both time, availability and fishing
power. Before the Boldt decision, Indians were unable to catch their
share of the fish because most of a run had been caught before it
reached Indian nets. Thus Indians were forced to close their fisheries
in order to allow spawners to go upstream. In addition, Indians did
not have the fishing power to compete with large non-Indian fleets.
Now, non-treaty fisheries must share the conservation burden with the
tribes. They must allow enough fish to pass through their fisheries so
that Indian fishermen have a chance to fish without having to close
for conservation. In order to allow treaty fishermen an equal
opportunity, they are often given more fishing time because their
fishing power is less than that of the large state fleet. But there is
still a long way to go before Indians are actually catching 50
ARE THERE OTHER FACTORS AFFECTING THE
INDUSTRY BESIDES TREATY RIGHTS?
Yes. Even before the courts reaffirmed Indian fishing rights, over-
licensing and environmental damage had severely hurt the industry. It
was, and still is, a case of too many fishermen and too few fish.
Certainly, an increased Indian fishing effort, even though Indians
have caught far less than their 50 percent share, has tended to reduce
the numbers of fish available to others. As a result, Indians have
undertaken vigorous enhancement programs and endorsed and urged boat
buy-back and other financial assistance programs that will ease the
impact on non-treaty fishermen.
WHY SHOULD A MID-19TH CENTURY TREATY BE
ENFORCED SO SUDDENLY TODAY?
First, the treaties have not been enforced suddenly. For almost a
decade, courts have ordered the state of Washington to recognize the
treaties. Court decisions added nothing to the treaties. They simply
reaffirmed them. It is similar to the length of time it took to affirm
the right to vote. Women didn't get the vote until 1920. And the "one
man, one vote" rule didn't come until 1964 -- all under a Constitution
200 years old!
WHAT ABOUT STEELHEAD? AREN'T THEY A GAME FISH THAT CAN
ONLY BE CAUGHT BY SPORTSMEN WITH A HOOK AND LINE?
It must be recalled that steelhead became a "game" fish only after the
state passed a law to that effect in 1925. Before that time, it was a
commercial fish like any other salmonid, caught by all fishermen. Now
state citizens, under state jurisdiction, are restricted by their laws
which make it a game fish. However, Indians have traditionally netted
steelhead, particularly for their winter livelihood. Indians were
netting steelhead when the treaties were signed and they retain that
right today. But some tribal groups have indicated a willingness to
restrain their net fishing for steelhead in an effort to ease present
tensions, providing arrangements can be made for an alternate winter
fishery. In addition, the tribes are using their fisheries programs to
research and enhance the steelhead resource so that eventually there
will be more fish for everyone and so that the precious native runs we
now have will not be destroyed forever.
HAS JUDGE BOLDT BEEN PARTIAL TO INDIANS?
Careful examination indicates Judge Boldt is partial only to the U.S.
Constitution, the law and the future of the fishery resource. The fact
that the parties to fishery lawsuits are Indians and non-Indians has
nothing to do with it. All judges -- state and federal -- are bound to
uphold the u.s. Constitution. And the Constitution says plainly that,
"...all treaties made, or which shall be made, under the authority of
the United States shall be the supreme law of the land; and the judges
in every state shall be bound thereby, anything in the constitution or
laws of any state to the contrary notwithstanding." And the treaties
gave Indians the right to take "fish...in common with all citizens of
the Territory..." Judge Boldt followed a long Constitutional tradition
in making his rulings, and the three judges of the Ninth Circuit Court
of Appeals in San Francisco unanimously upheld his decision in a long
and detailed opinion of their own. Nine other judges of the Ninth
Circuit later also supported the decisions by refusing to hear any
further arguments on the case. The U.S. Supreme Court likewise was
satisfied that the matter did not require further review,
MANY ARGUE THAT INDIAN NETS DESTROY FISH RUNS.
IS THAT TRUE?
No way. It was the Indian, after hundreds and hundreds of years of
fishing, who maintained the runs which non-Indians started exploiting
and severely depleted in the past sixty to seventy years. Before
affirmation of the treaties, Treaty Indians only caught about 5
percent of the commercial salmon. Now they average only about 14
percent of the catch in Washington while non-treaty fishermen catch 86
percent of the total. Nor is there any evidence that Indians have
destroyed the fishery. Thorough investigation of such charges over a
three-year period of litigation in U.S. vs. Washington revealed a
complete absence of any credible evidence that members of Treaty
Tribes had damaged the perpetuation of any anadromous fishery. On the
contrary, Treaty tribes have employed fishery biologists, adopted
their own fishing regulations, instituted their own enforcement
programs and launched extensive enhancement programs to expand the
fishery for all fishermen -- treaty and non-treaty, sport and
DO THE TRIBES HAVE ENHANCEMENT PROGRAMS LIKE THE STATE?
In addition to protecting watersheds under their control where fish
spawn naturally, Treaty Tribes in this area operate 19 hatchery
facilities. This year (1977) the tribes have planted 26 million salmon
and steelhead. Next year, Indians will plant 53 million salmon and
steelhead which, when mature, will be available for all fishermen to
catch. This compares to an expected 1978 state plant of 150 million
fish. And to put those totals in further perspective, there are 1,400
Indians permitted by tribes to fish, compared to 5,700 non-treaty
commercial fishermen in the treaty area.
HAVE INDIANS ALWAYS USED FISH FOR COMMERCIAL PURPOSES?
Yes. Indians have always caught fish commercially. Even before the
white man arrived, fish were a basic element in Indian trade. Fish
were used extensively as an exchange for other goods. The commercial
aspect of the Indian fishery was also an important part of treaty
negotiations. Those involved in negotiations recognized the
contribution Indian fishermen had made to the territorial economy
because Indians then caught most of the fish used even by non-Indians.
They hoped to encourage Indians to expand the industry.
SO WHAT CAN ANYONE DO TO SUPPORT THE INDIANS
AND THEIR TREATY RIGHTS?
First of all, you can let community leaders know that Indians do have
support within the community. Opposition to Indian treaty rights and
the Indian fishing efforts has been extremely vocal. Let leaders know
that not everyone agrees with the opposition view.
Secondly, join any group that endorses the Indian position and give it
whatever support you can.
Third, after you've familiarized yourself with the issues, let others
around you know how you view the situation. Many people -- hearing
only one side -- believe there is only one side. And nothing could be
further from the truth. Speaking out, even privately, can make an
WHERE CAN I LEARN MORE ABOUT THE INDIAN FISHERY PROGRAMS?
Write the Northwest Indian Fisheries Commission,
2625 Parkmont Lane S.W.,
Olympia, WA 98502.
To have a current Center For World Indigenous Studies Publication
Catalogue sent to you via e-mail, send a request to
Center For World Indigenous Studies
P.O. Box 2574
Olympia, WA U.S.A.
OCR Provided by Caere Corporation's OmniPage Professional