Tribal right to fish in ‘usual and accustomed’ areas comes with complexity - Salish Current
February 23, 2024
Tribal right to fish in ‘usual and accustomed’ areas comes with complexity
Richard Arlin Walker

Reefnet fishing originated in the San Juan Islands, the place of origin of the Lummi, Saanich and Samish peoples. A net was suspended between canoes in the path of the salmon. An artificial reef made from cedar bark, nettle fibers and beach grass guided migrating salmon into the net. When the salmon swam in, the scoop-shaped net was raised. (From the book “Roche Harbor” / Wilma Rimer collection)

February 23, 2024
Tribal right to fish in ‘usual and accustomed’ areas comes with complexity
Richard Arlin Walker

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“The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands …” — Article 5, Treaty of Point Elliott, 1855 

On its face, it might seem a simple question: Do Indians in Western Washington have a treaty-reserved right to fish in their usual and accustomed areas?

The 1974 ruling in the case U.S. v. Washington affirmed that Indians do indeed have a right — reserved in treaties signed in 1855 — to fish in areas where their forebears fished, on- and off-reservation. Furthermore, U.S. District Court Judge George Boldt ruled, the tribes and the U.S. had agreed to a common share of the harvestable fish — tribes, 50%; non-Natives, 50%.

But the ruling, and the litigation and regulations that follow to this day, caused U.S. 9th Circuit Court of Appeals Judge Eugene Wright to later observe, “We cannot think of a more comprehensive and complex case than this.”

Some 80 related or follow-up cases have been filed in the 50 years since Boldt issued his ruling. Federal judges expanded the Boldt decision to include shellfish and ordered the State of Washington to remove culverts that block fish migration. Tribal governments have a say over development plans in areas where they have a fishing right. State and local growth management plans limit development in areas identified as aquifer recharge areas, the idea being that those recharge areas feed cool, clean water into streams that benefit salmon.

The Boldt decision affirmed that tribal governments are entities that need to be consulted, not ignored, said Daniel A. Raas, retired Lummi Nation reservation attorney now serving as chief justice of the Tulalip Tribes Court of Appeals. “The Boldt decision affirmed that there are three sovereigns — the United States, the states, and the tribes,” he said.

While the Boldt decision established the Treaty Tribes and the State of Washington as co-managers of the state’s salmon and shellfish populations, there was an unintended consequence that continues to be litigated today.

The complexity of ‘usual and accustomed’

Tribes have returned to court under U.S. v. Washington to settle fishing territory disputes resulting from court-defined usual and accustomed (U and A) boundaries that historically were based on kinship rather than geography. The latest suit, filed in 2020 by the Lower Elwha Klallam, Jamestown S’Klallam and Port Gamble S’Klallam tribes, challenged the Lummi Nation’s claims to fish in certain waters west of Whidbey Island.

In ruling that tribes had reserved the right to fish in their usual and accustomed areas, Boldt tried to define what those were.

“In 1974, Boldt found that it was impossible to specify every ground or station that the tribes in general or a tribe in particular harvested,” Raas said. “‘U and A’ is a construct by the U.S. treaty negotiators and not a descriptor used by the Indians, whose affiliations were familial rather than tribal in and before treaty times.”

Boldt’s U and A boundaries didn’t account for the rights that Indians had during treaty times to fish in areas where they had kinship ties. In other words, a Lummi fisherman might have been welcomed to fish with Samish or Skagit relatives in their waters, particularly if the resource was lacking at home, Raas said.

As a result, Boldt’s U and A boundaries were not sharply defined. He determined that Lummi’s U and A at treaty times, for example, “included the marine areas of Northern Puget Sound from the Fraser River, south to the present environs of Seattle, and particularly Bellingham Bay.”

“The problems are with indistinct boundaries,” Raas said. “What is ‘northern Puget Sound’? Does the phrase mean the same for Lummi and Swinomish? What is the boundary between the ‘Strait of Juan de Fuca’ and ‘northern Puget Sound’? How far out in the saltwater do Stillaguamish, Upper Skagit and Nooksack U and As go? Etcetera.”

Raas noted that “it’s safe to say that every part of the saltwater from the Pacific Ocean east is part of one or more tribes’ U and A, [as is] all of the fresh water draining into the saltwater, but there are no agreed-upon maps.”

Coast Salish reefnetting areas lined local shores in the late 19th century. (Base map by Nathan Hodges; data mapping by Russel Barsh; HistoryLink via Create Commons)

Sometimes compromising was better than going to court.

“We used to be able to fish all over the place, but as time went on the resource became less abundant,” said Mel Sheldon, a former Tulalip Tribes chairman and longtime treaty fisherman. “Swinomish got a judgment saying they could fish all the way down to Saratoga Pass, but they choose not to. So they’re using the better part of judgment — you know, ‘Hey, let’s not cause conflict here. We can still make it back at home with the resources we have.’ And that’s good; I lift my hands up to them.”

‘We all have skin in the game’

To some tribes, though, the Boldt decision was a hammer blow to their identity and cultural survival. Boldt’s ruling applied to reservation-based tribes, the idea being that the signatories had agreed to relocate to those reservations. But that hasn’t deterred them from fighting for federal recognition or from being caretakers of their ancestral waters.

Several Samish families moved to the Lummi and Swinomish reservations after the Treaty of Point Elliott was signed. Others chose to remain on Fidalgo, Guemes and Samish islands; their descendants comprise the Samish Indian Nation, which is headquartered in Anacortes.

Samish Chairman Tom Wooten said some 113 Samish people were at the treaty grounds in Mukilteo when the treaty was negotiated and signed by the United States and 22 tribal nations and “other allied and subordinate tribes and bands of Indians” — the original inhabitants of lands bordered roughly by the Canadian border to the north, the San Juan Islands to the west, Seattle to the south, and the Cascade mountains to the east.

Samish Nation fishers were fishing as they always had with Bureau of Indian Affairs (BIA)-issued cards when U.S. v Washington was filed. That’s when they learned a BIA clerk had left Samish and three other tribes off the list of federally recognized tribes published in the Federal Register. In the eyes of the court during the Boldt hearings, the Samish Nation didn’t exist. They were ultimately not included in the ruling.

The BIA attributed the omission to a clerical error, but rather than the BIA correcting the error, the Samish had to petition for re-recognition and was not recognized as a tribe until 1996, Wooten said.

Today, Samish Nation is federally recognized and has a government-to-government relationship with the United States. The tribe now owns more than 200 acres, 78 of it in trust. But the tribe does not have treaty fishing rights because it was not considered federally recognized during the Boldt hearings.

That hasn’t kept the Samish Nation from taking care of the marine waters in its historical territory — for the sake of salmon and all who depend on it. Samish’s Department of Natural Resources restores kelp forests, surveys fish populations and conducts environmental cleanups throughout its historical territory. Samish DNR’s data is turned in regularly to federal, state and nonprofit partners.

“We don’t have the same standing as some of the other tribes,” Wooten said. “But we are doing restoration and working with the different entities because you don’t have to be a treaty tribe or even tribal to be concerned about the population of salmon and what’s going on with global warming and the other issues. We’re all in this together. We all have skin in the game.” 

Other tribes fight for recognition and rights

Mitchell Bay Band ancestors declined to relocate to the Lummi or Swinomish reservations after the Treaty of Point Elliott was signed in 1855. They chose to remain on San Juan Island where they and their forebears had always been. They continued to fish, including reef-netting — a traditional form of fishing that originated in the San Juan Islands — throughout their usual and accustomed area. Finding themselves excluded from the Boldt Decision, band leadership petitioned unsuccessfully for federal recognition.

Mitchell Bay Band chairman Charlie Chevalier’s response to the Boldt decision was for the band to issue its own fishing cards, recalled Rick Guard, Chevalier’s nephew.

For Mitchell Bay, the fight for fishing rights continued.

“Charlie decided that was our way of approaching the Boldt decision, to just fight for our fishing rights,” said Guard, who inherited from Chevalier a family reef-net site off Stuart Island. “We went fishing and we all were, at different times, boarded [by state Fish and Game officers] and stopped and let go. We were never cited for it.”

Chevalier family members were later admitted into the Swinomish Tribe because of family ties — a grandmother was Swinomish — and several Chevalier family members fish under the treaty today. Meanwhile, Guard manages and fishes his forebears’ reef-net fishing site.

Members of the Duwamish Tribe are descendants of Duwamish people who didn’t want to leave Seattle and relocate to the Muckleshoot Reservation.

They stayed put — even when the Seattle City Council made it illegal for Indians to live within the city limits, even when settlers burned down their longhouses. The most famous holdout was perhaps Kikisoblu, known by settlers as Angeline, the daughter of Chief Si’ahl who lived near Pike Place Market and supported herself doing laundry and selling her woven cedar work. 

The Duwamish Tribe was federally recognized in 2001 by the Clinton administration, but the decision was reversed in 2002 by the Bush administration. The Muckleshoot Tribe opposes federal recognition of the Duwamish Tribe, claiming the Muckleshoots are the successor in interest to the historic Duwamish.

Nevertheless, the Duwamish Tribe has acquired a land base along their namesake river, built a longhouse, receives rent paid voluntarily by residents of Seattle/Duwamish territory, and advocates for the health of the river and its salmon. James Rasmussen, a former Duwamish Tribal Council member, led the Duwamish River Community Coalition for 20 years, helping to improve the health of the waterway.

Today, the University of Washington Superfund Research Program reports that it is safe to eat up to three meals a week of Lower Duwamish River chum, coho, pinks and sockeye; one meal a week of Lower Duwamish chinook; and two meals per month of Lower Duwamish blackmouth and resident chinook caught during winter. However, the research program reports it’s still unsafe to eat crab, clams, rockfish, flounder and perch from the Lower Duwamish because they contain dangerous levels of mercury and PCBs. 

Co-management and accountability

Sheldon, the former Tulalip Tribes chairman, remembered that the Boldt decision wasn’t readily accepted by the state. In fact, it was appealed and ultimately upheld in 1979 by the U.S. Supreme Court.

“Over time, working with the state and the Department of Fish and Game and enforcement, that’s been a real tough one,” said Sheldon. “But I think we’re always working toward a better management of the resource, which means we have to hold each other accountable.”

Salish Sea chinook salmon populations are down 60% since the Pacific Salmon Commission began tracking salmon abundance in 1984, according to the EPA. Ninety percent of salmon caught in the Salish Sea originate in hatcheries, according to the Northwest Indian Fisheries Commission, and tribes have voluntarily cut salmon harvests sharply over the past 20 years.

“We only get maybe two weeks every four years on Fraser River sockeye,” Sheldon said. “Are we really fighting over the last salmon? You know, how close is that?”

Wooten, the Samish chairman, also indicated that cooperation and compromise are key to salmon survival and to the peoples’ access to a resource that meets their cultural, dietary and ceremonial needs. During the COVID-19 pandemic, Samish elders received filets of salmon caught by Upper Skagit fishers.

“The fish aren’t there like they used to be,” Wooten said. “Our relatives, the killer whales, are struggling to find their prey — the king salmon, the chinook — just like tribal fishers are and the sportsmen are and everybody. We’re all feeling the same impacts. We need to recognize those impacts and we have to work together now to change things.”

He added, “I’m going to go back to what my father told me more than 40 years ago. He said, ‘One of these days, we’re going to be fighting over the last salmon.’ Unfortunately, that’s conceivable today.”

— Reported by Richard Arlin Walker

Coming up: “Fishing in all the Usual and Accustomed Places” at Noon Wednesday, Feb. 28, at the Bellingham Yacht Club, 2625 S. Harbor Loop Drive, Bellingham. Presented by the Bellingham City Club. Guest speakers: Qwo’shi’lo’sia Lisa Wilson, member of the Lummi Indian Business Council and vice chair of the Northwest Indian Fisheries Commission; and Dan Raas, retired Lummi Nation reservation attorney and current chief justice of the Tulalip Tribal Court of Appeals. Attendance is limited to 150. Register by Feb. 25.

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