The more things change, the adage goes, the more they stay the same.
While fisheries management in Washington State has undergone a political sea-change in the decades following the 1974 Boldt decision, one thing appears to have stayed the same – mobilizations against treaty-reserved fishing rights still bring out the worst in some of our fellow citizens.
In the wake of the Washington State Department of Fish and Wildlife’s (WDFW) May 1 closure of the salmon-fishing season in several lakes and the lower reaches of most Puget Sound rivers, and a small federally-approved ceremonial and subsistence fishery by treaty tribes, recreational fishing industry groups organized protests. In the process, one group, the Coastal Conservation Association, distorted facts about tribal fishing and flirted with the “equal rights” language of the organized anti-Indian movement. Online responders to press coverage of the conflict and protests unleashed a torrent of bigotry directed at tribes, ranging from anti-Indian stereotypes; to advocating tribal termination and treaty abrogation; to calls for out-and-out violence against tribal members and illegal interference with treaty-protected fishing rights.
The conflict became visible on May 4 when some 20 people gathered to protest a two-day fishery by the Swinomish Tribe on the Skagit River, a scene one reporter described as “reminiscent of an early period in fishery management when bitter protests were sparked by the landmark 1974 Boldt court decision.”
After decades of illegal suppression of tribal fishing rights by Washington State, in U.S. v. Washington Judge George Boldt ruled that treaties signed between Indian Nations and the United States in the 1850s had reserved to tribes one-half of the harvestable fish migrating through their “usual and accustomed” fishing places. The treaties, Boldt ruled, also reserved the right of tribes to co-manage fisheries with the state. The major elements of the decision were upheld by the Supreme Court in 1979, stating that “A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations.” Under Article VI of the United States Constitution, treaties signed with tribes are the “supreme Law of the Land.”
Anti-tribal protests followed a breakdown in negotiations in the North of Falcon (NOF) process, a venue in which tribes and the state annually work out salmon harvest allocations. As the NOF process normally goes, based on projected salmon returns, overall allocations across fisheries are made in line with the Boldt decision’s 50-50 split between tribal and non-tribal fisheries. The latter are divided between commercial and recreational fishers, the state and tribes taking responsibility for enforcing their respective fisheries. As a result of the tribal responsibility for enforcement, for instance, tribal fishing enforcement officers were also on hand to observe the Swinomish tribal fishery.
The stalled talks came in the context of projections for startlingly low levels of returning coho salmon this year. According to WDFW, about 256,000 Puget Sound coho are expected to return this year. This is about one-third of the predicted 2015 run; only 242,000 returned that year. Factors in the decline likely include habitat loss and climate impacts. In the wake of this decline, the Northwest Indian Fisheries Commission closed the inland coho fishery for its 20 member tribes, save for a small research fishery conducted by tribal biologists and fishing at a few terminal locations where hatchery fish return. NWIFC Chair Lorraine Loomis stated,
Unfortunately, the political leadership with the state Department of Fish and Wildlife did not provide a fisheries package that met the conservation need of stocks of concern because of low abundance. We have argued on the side of conservation and caution this year, and for the tribes that means closing the fisheries.
Conversely, WDFW advocated a recreational coho season. Recreational fishing industry groups play a significant role in WDFW policy development and have strongly backed a coho fishery despite the projected low returns.
Even with the salmon closures, WDFW notes that recreational fishing opportunities continue to exist. Most Puget Sound area lowland lakes remain open and recreational fishers can take lingcod and Pacific cod, sea-run cutthroat trout and halibut. There will also be an ocean salmon fishery in July.
As negotiations stalled, tribes and the state pursued separate avenues for setting fishing seasons. Because they co-manage 22 stocks of Chinook listed under the Endangered Species Act (ESA), federal law requires that both parties obtain permits to fish for non-listed species in those waters. While the North of Falcon process has generally led to a joint application, the halt in talks led both to pursue separate permits under their own harvest plans – actions allowed under federal law. Tribes, including the Swinomish and Sauk-Suiattle, received preliminary authorization for small ceremonial and subsistence fisheries through the Bureau of Indian Affairs, a common practice. A spokesperson for the National Oceanic and Atmospheric Administration (NOAA) told HeraldNet that under provisions of the ESA, “BIA determined that these early fisheries could proceed without our determination because they are small in magnitude, with limited impacts that would not foreclose our…ability to make adjustments later.” Such actions are allowable under Section 7(d) of the ESA. NOAA continues to review the state’s harvest application.
The Skagit River protest was organized by the Puget Sound Anglers, according to the Seattle Times. The Puget Sound Anglers have joined a coalition of recreational fishing industry groups to oppose the closure. Other coalition partners include the Coastal Conservation Association, Northwest Marine Trade Association, the Charter Boat Association of Puget Sound and the Northwest Sportfishing Industry Association. These groups issued an April 15 press release assailing tribes for calling on WDFW to “close fisheries targeting wild coho, but rejecting the state’s plan to meets its conservation priority by using proven management techniques such as mark-selecting, or catch-and-release fisheries.” While industry groups promote such techniques as a conservation panacea, the reality is not that simple. A 2014 WDFW study, for instance, found that mortality rates for both marked (hatchery) and non-marked (wild) Chinook salmon were 15% for legal-sized fish and 20% for sublegal-sized fish. Such practices also cause non-lethal harms to fish. In 2015 state fisheries managers closed the Puget Sound recreational salmon season two months early due to catch-and-release mortality and impacts on endangered Chinook.
In addition to the Skagit River protest, a rally was held May 5 at the NOAA office in Lacey, Washington. This event was promoted by the Washington State chapter of the Coastal Conservation Association, a Houston, Texas-based organization that played a role in shutting down several commercial fisheries in the Gulf Coast. While the CCA’s name emphasizes conservation, the group’s activities center on expanding the portion of fish for recreational fishers as against commercial fishers – for instance, by seeking gill-net bans and lobbying for a greater share of state-managed fisheries.
Boasting assets of more than $16 million in its 2014 IRS 990, the national CCA has not historically made opposing tribal fishing a central goal. This may be changing, at least in Washington State. One troubling sign is that the group has taken to protesting the fishery closure by deploying the “equal rights” language long used by the organized anti-Indian movement. The group’s Lacy event, for instance, was dubbed the “Rally for Fisheries Equality” and the CCA issued a statement that,
Puget Sound treaty tribes have initiated commercial salmon fisheries despite the lack of the required permit under the ESA…[W]e are urging NOAA to stand for transparency, fairness, and equality as it considers the stand along (sic) tribal and state fishing plans for this season. The tribes have also submitted a fishery plan that would far exceed their 50% share of the allowable harvest in many rivers. This has been a common theme in recent years, where the historical allocation of Chinook, for example, has been unfairly weighted toward the tribes, with nearly 70% of the overall impacts going to tribal fisheries.
Also like the anti-Indian movement, the Coastal Conservation Association here distorts the facts about tribal fishing in the context of pushing for a greater share of fish allocated to tribes. First, the fisheries on the Skagit River were ceremonial and subsistence fisheries that received preliminary approval from the Bureau of Indian Affairs under the ESA, a fact made clear in NOAA statements to the press. And second, the claim that tribal plans “exceed their 50% share…in many rivers,” and “nearly 70% of overall impacts” on Chinook go to tribes is misleading at best. The North of Falcon process has historically used the 50-50 split tobalance allocation across all covered fisheries. While a given fishery may be weighted toward one party, this approach has provided flexibility to meet the specific needs of state and tribal fishers in the context of an overall 50-50 division. Finally, the CCA fails to adequately acknowledge the unique nature of tribal sovereignty and treaty rights and their relationship to tribal fishing rights. By distorting facts in this manner, the CCA’s statements can contribute to misunderstandings of tribal rights and bigotry against tribal members.
The protests also come as two online efforts have formed to oppose tribal fishing rights in Western Washington. A Facebook Page titled “Muckleshaft” has been set up to blame the Muckleshoot and other tribes for the closures. This group is currently promoting the fallacious idea that tribal fishers operating under treaty rights and federal approval are poachers. In addition, Stephen Warren of Tumwater, Washington has set up an online petition calling for Congress to change the 50-50 fish allocation in the Boldt decision.
Hal Benton of the Seattle Times reports that, “There is also talk of some sport fishermen taking to the water to fish illegally.” Ron Garner of the Puget Sound Anglers reinforced this view, telling the Times, “You’re probably going to see that…What I’m hearing is – if they fish, we fish.”
In the wake of press coverage of the closures, anti-Indian bigotry reared its ugly head in comments posted in online news forums. Reminiscent of previous mobilizations against tribal members, comments ran the gamut from stereotypes, to advocating an end to tribal rights, to calls for violence against tribal members. Particularly troubling, a number of bigoted statements were made by people whose Facebook page “likes” indicate some level of support for far right paramilitary and racist causes. While the Coastal Conservation Association and Puget Sound Anglers have not expressed the kind of bigotry documented below, neither have they addressed or condemned the vicious nature of this response. By also distorting facts about treaty fishing, pushing for a greater share of tribally-allocated fish, and flirting with the language of the organized anti-Indian movement, the CCA’s actions can, in fact, promote such bigotry.
Editor’s Note: This commentary was first published in the Institute for Research and Education on Human Rights website. Used with permission. All rights reserved.