By Bert Webber March 2012
(Find input to this essay from Kari Neumeyer of Northwest Indian Fisheries Commission in June 2012 here.)
Coast Salish people in British Columbia belong to “First Nations”; in Washington State they belong to “Tribes”-- only one of many differences that make it a challenge for the Coast Salish people on either side of the border to maintain their common culture. There is an issue however, that transcends the political boundary: the preservation and restoration of the Salish Sea natural resources on which the Coast Salish culture depends.
This desire to preserve, protect and manage the resources of the Salish Sea brought together the 77 different Washington Tribes and BC First Nations who on or beside the Salish Sea to form the Coast Salish Gathering.
The CoastSalishGathering is clear about its goal. That is; to participate in co-management of the resources of the Salish Sea.
Co-management means that tribes work with non Indians in an equal partnership on how resource decisions are made. Consultation is not enough. In Washington State, the Northwest Indian Fisheries Commission is a good example of co-management of natural resources. The NWIFC has major input into the setting of fishing seasons and the division of catch between Indian and non Indian fishing fleets.
Jump to sections below:
In western Washington, co-management evolved from treaty rights reserved by tribes in the 1855-56 treaties signed, negotiated by The Northwest Indian Fisheries Commission co-management model evolved from Indian Treaty rights preserved by Indian tribes in the 1855 treaties signed between US Coast Salish Tribes and Isaac Stevens a Federal Civil servant representing US president Franklin Pierce. It’s Article 5 of the treaties that sets out the Indians preserved fishing rights. Read Article 5 in the Point Elliott Treaty.
For more background on Indian treaty rights, see a summary of Stephan Pevars’ book on THE FEDERAL-TRIBAL TRUST RELATIONSHIP: ITS ORIGIN, NATURE, AND SCOPE.
Washington State was formed in 1889 some 34 years after the 1855 treaties. The State decided that to fish, all residents, including Indians must have a State license. Washington State interpreted Article 5 of the treaty to mean that both Indians and non Indians could apply for a state license to fish. The Tribes however interpreted Article 5 of the treaty to mean that Indian treaty agreements are with the federal government and the State of Washington has no right to require fishing licenses of them. In the 1960's and early 1970’s, tribal members started to “fish illegally”, claiming to exercise their Federal treaty rights.
The US Supreme Court in 1979 clarified the intent of the 1855 treaties. The Court specified that harvestable fish stocks needed to be divided 50/50 between Indians and non Indians, a decision known as the Boldt decision.
The decade of the 70’s was a tumultuous time in Indian country. What started in the early 1970 as “illegal” fishing on the part of tribal members continued as the “fish wars” that persisted more or less until the end of the decade, when the Boldt decision was implemented. One of the Indian activists who repeatedly got arrested for illegal fishing is Billy Frank Jr, a member of the Nisqually Tribe.
Billy Frank Jr is now one of the most respected and effective Indian leaders in the State of Washington. He is a long time leader of the Northwest Indian Fisheries Commission, and works tirelessly to implement Indian treaty rights and to explain treaty rights to non Indians. His life is described in this video:
The Boldt decision part 1 relates to the division of fish stocks. However there is a second part of the Boldt decision. Essentially Boldt part 2 means that because the harvest of fish is a treaty right, it follows that there is also a treaty right to an environment healthy enough to maintain fish stocks. Since the Supreme Court decision in 1979 it has been unclear what Boldt part 2 means in concrete terms and there was no case law to set a direction. The first case law for Boldt part 2 belongs to this century. Tribes argued that culverts belonging to the state that knowingly block salmon habitat must be repaired in a timely fashion so that their treaty rights to fish can be realized.
Washington State Courts at all levels have agreed that the culverts must be repaired in order to comply with Boldt part 2. A job that will take time and be expensive. See more about the “culvert case” here: http://www.bullivant.com/Go-fish-State-told-not-to-build (particularly near the end) and here: http://www.stoel.com/showalert.aspx?Show=2554
Tribes are of the opinion that their treaty rights apply to other aspects of environmental quality that affect salmon numbers: for example water quantity, water quality, riparian zones, wetlands and other critical areas.
The effect of the Salish Sea name cannot be underestimated on the empowerment of Indian Tribes. The recognition of the Salish Sea name by non Indians is of major importance to the Coast Salish people who are searching for a common management strategy to protect and restore the resources of the Salish Sea.
In Washington State the basis of the Tribes push for co management is the Boldt decision, which was an interpretation of the 1855 treaties. The Coast Salish in British Columbia do not have similar treaties. However a series of Canadian Supreme Court rulings has put Coast Salish First Nations in a very similar situation to Washington State Tribes. Both BC and Washington Indians are searching for a common management strategy for the resources of the Salish Sea.
How these tribal efforts play out in the future, is to me, the most interesting of natural resource management issues. The Salish Sea name has had a significant impact on the empowerment of the Coast Salish and the recognition of the Salish Sea name by non-Indians is of major importance to the Coast Salish.
What’s ahead? Uncertainty. How we proceed is an important issue. Billy Frank Jr was asked the question of what’s ahead. He sees Indians and non Indians living around the Salish Sea for many generations and needing to talk to each other and to trust each other. Hear his words at:
The Coast Salish Tribes and First Nations through the Coast Salish Gathering adopted the Salish Sea some years ago, and deserve the credit for being first. In 2009 and 2010 State Provincial and Federal levels of US and Canadian Governments formally adopted the Salish Sea name. That all the people (seven million of us) that live and around the Salish Sea now have a common name for this resource will help provide a foundation for resource management of this ecosystem we call home.
The federal EPA has developed guidelines to take into account Indian treaty rights. However they are not at this point prepared to meet the Coast Salish view of co-management. See the Guidelines at: http://web.archive.org/web/20061001100455/http://www.epa.gov/indian/resource/chap2.htm#27
See in particular:
Chapter 2, Part II. History of Federal Indian Law, (section 3 Foundation of Federal Indian Law…)
Chapter 2, Part III. Tribal Sovereignty and Jurisdiction
Chapter 2, Part V. Distinctive Tribal Rights; see in particular (B Land Rights, C Fishing Hunting and Gathering Rights, and D. Water Quantity Rights)
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