On Feb 12, 1974, Federal judge George H. Boldt handed down his landmark ruling in the case of US vs. Washington.

And fisheries management in the US has never been the same since.

This decision affected fishery management decisions throughout the Pacific Northwest and the Great Lakes and fundamentally changed the status of the Tribes and the treaties they signed with the Federal government. Whether you agree with the decision or not, it stands as one of the most far reaching and significant decisions in the history of natural resource management in the United States.

I'm not trying to fan the flames or to start a major discussion thread. I'm just taking note of an important date to those of us in the salmon fishing community. Those of you who follow the BB probably already know where I come down on the case. This evening I'll be tipping a cold Bridgeport IPA to Judge Boldt and his insightful ruling......

I don't really waste much time worrying about how much I do or do not like the case. It's just there, and isn't going anywhere without Congressional intervention, so I spend more of my time worrying about how to work with it.

I will say this, though...in my Constitutional Law class in law school the textbooks discuss this case in the same context as the civil rights cases involving school integration and abortion rights. It's viewed nationwide as one of the landmark Constitutional law cases ever to come down...and studied in every law school in the country.

Most of the excerpts that are in the textbooks don't have a lot about fish management, or what "in common with" means, which are the reasons why fishermen would or would not like the case.

They mainly cover the aspects of state law vs. federal law, and where treaties made between Indian tribes and the federal government fit in that context.

It really was an extraordinary case in that context, as it hadn't really been hashed out to that extent in the federal courts even though there have been such treaties for well over 100 years.

Fish on...

Todd

(*edited for grammar*)

Since you know more about the legal implications of this case, do you know why it was never challenged on the basis of bias since Judge Boldt was married to an indian?

Wow, really? But Scalia sitting on the court over the VP business trial and his hunting trip with the VP has all legal scholars (I use the term scholars LOOSELY) in an uproar......

And for the fellow that said he just lives with it "cause it's there, and the folks that say "it cannot be changed", I say one thing..... GAY MARRIAGE!
We suddenly find that this is probably going to become a reality in this country and the supreme court ruled in favor of it. Now it is being challenged/fought, and you folks say the tribal issue and boldt decision is set in stone? I say it is only set in stone because unlike the gays and the marriage issue, we take it in the arse and wimper rather than scream.... Gays are a force to reckon with because they do not shut up and go away.. The squeeky wheel gets the oil and we need to become a burnt out bearing folks........ It needs to change, it can change, we just need to force the change!

MC

Jacob, Jacob, Jacob - George Boldt was not married to an Indian. One of the great local Urban Myths.

I have never understood how it can just be the tribes in some states that get to do these things. For example, in Idaho, Indians don't get to net the rivers. In Idaho, Indians can't have big Casinos. They do get a small allotment of Salmon, but they have to be caught with a dip net, or gig, or some other way. No nets. They do have Casino's, but really small scale with no actual gaming. Its all like bingo and pull tabs and crap. They can't drive around and shoot anything they want. They have to get a tag just like you or I. They really don't get much of anything special.

Another example: Much of the Clearwater river flows through the Nez Perce indian reservation. The tribe can sell you a permit to fish it for 10 dollars, but if you have a regular Idaho fishing licence, you don't need it.. so actually, they get nothing from that also.

Is this the way it should be everywhere, or do Idaho indians just have really crappy lawyers

Actually from an Indian point of view, Idaho may have some of the best lawyers. Look at the big issues, taxes and casinos. The tribe gets to keep taxes collected on cigarette sales. The tribe also gets to keep taxes on the gas sold on the reservation. That does not happen in Washington where you hear about Indian smoke shops being raided every so often and the battle with the Tulalips over Washington's tax rights to tribal development.

As to fishing, the Nez Perce have been able to continue fishing in their usual way. Look at the Rapid River battle in the 70's.

I bet the casinos are not as big in Idaho because the population is smaller and can't support bigger operations.

Really? Wow. I've heard it from several sources, but never actually did research on that one.

Actually, they want a Casino "real" bad.. and they are not going to get it. Its been an issue for years. Its also been an issue with them that they don't get more fish.

The casino issue is regulated by the federal "Indian Gaming Regulatory Act." The Act requires states and tribes to negotiate in good faith over casino issues. The Supreme Court has interpreted this negotiation requirement to mean basically that states get to decide if a tribe gets a casino. Gambling is different from fishing because it is regulated by this Act. Now I am curious about the fishing issue and will likely spend too much of my work day looking at it.

The State, through Slade Gorton ("Friend of the Indian, have a fish stick, Hallelujah!"), tried to challenge the Boldt decision on pretty much every possible front.

They got spanked, hard, on every count.

When you go before a federal judge and ask him to judge another federal judge as biased or senile, and he has literally years of dozens of other federal judges who affirmed the decisions in their entirety on the one hand and a state that acted in a blatantly racist manner for years, in addition to continually violating federal orders to clean up their act, you will continue to get spanked, harder and harder.

The reason why other states or tribes may have different rights than the Indians around here is that they all signed different treaties. The Stevens Treaties (Medecine Creek, etc.) all have the "in common with" verbiage, the fundamental basis of the 50/50 split.

Fish on...

Todd

Todd-

I thought that when Stevens negotiated the treaties Washington was a territory not a state; and the territory covered most of Idaho and Washington. I also thought Stevens used the same language in most of the treaties. Is the "in common with" and "usual and accustomed" language not in the Nez Perce/Idaho treaties?

Take a look at this document for more detailed historical information on the issues. It was a real eye opener for me.

WASHINGTON\'S RESISTANCE TO TREATY INDIAN COMMERCIAL FISHING

It was written back in 1978, but has a good description of the issues from a historical perspective.

SA

Good post Todd!
Steeladdict thats a great link with great information I leaned alot of history buy reading it about a year ago when I found it.I tried to get mastercaster to read it about 6 months ago.But he wouldnt.I guess some Facts on the issue might have messed up his Blind hatered of the tribes.
And after reading it I almost felt the Boldt decision was punishment from the fed's for what and how the state had treated the tribes.

Duro,

I can tell you this, if a judge is faced with a decision to make where he will actually be creating law, or interpreting law that has yet to be interpreted, if the two sides have equally good arguments for why they should win, but one side is obviously a jerk who tried to screw the other...things like the Boldt decision happen.

I think that to a certain extent, your observation that there was a punishment aspect to it is very apt.

The part that is so sad about that is that the type of Indian-hating and Indian-blaiming attitude that lead to the Boldt decision is alive and well still, even after the results of such ignorant beliefs are evident in something like the Boldt decision. Not only that, but a lot of the folks who were spouting it in the early 70's, helping the Boldt decision along nice and easily, are some of the ones that are still doing it.

I'd say being ignorant is not knowing the facts, or maybe the consequences of your actions.

I'd say being flat out stupid is seeing the consequences of an action, continuing the action, and wondering why it doesn't get better.

Someone had their signature line with this quote before...

"The definition of insanity is doing the same thing again and expecting a different result."

Hmmm....

Do tribal fisheries need to make some changes if they want to keep the label "stewards of the resource"? Heck yeah, lots of change is some situations.

However, another backlash to both the early 70's crap they took, and the fact that it is still going on, is that they won't change because you can't make them. They'll continue just to stick it in your face...

We're going to need a change in attitude so that we can have meaningful negotiations with the tribal fishers. We all use the resource, and until we're on the same side, realizing that we both benefit from the same thing (more fish in the rivers, better habitat, etc.), the more likely it is that we'll work together.

At the very least, since WSR has passed, when we ask them to kill less fish, they can't say we're not doing anything to reduce our own impacts.

Fish on...

Todd

Todd,
I like that post it is great to here a little of your views on this.Had you seen the link posted before? As a lawyer in your opinion would it be a smart move for the state to try to overturn the treatys or the boldt decicision?? Hasnt the state lost in every case taken to the feds?

The Boldt decision stands because the pundits in Wash DC think it is cool to see the Indian fish in his traditional ways and it also makes them feel a little less guilty about what happened 150 years ago. The original treaties were written in a way the people of the time could understand and we have been paying for it every since. And, besides, Kennewick man was not an Indian so all the treaties are null and void!!! Hah!!!

There's not really any state issue involved...being a federal law, the only way that the treaty can be abrogated is by an act of Congress. You'd have to lobby a senator or representative to write and intorduce a bill taking away or changing the fishing rights.

Frankly, I think the chances are about 1 in 1,000,000, maybe worse. The rest of the country would just see it as a bunch of rednecks going after the Indians again. Right or not, the rest of the world could probably care less about the issues involving steelhead and salmon that you and I care very much about. I doubt your average citizen would mind

This would apply to both the Boldt decision and to the treaty itself...neither can be "overturned"...they are the law. The law would have to be changed by Congress.

Negotiating with the tribes is the only way to get much done...and they have to get something out of it, too, or they have no reason to come to the table. It doesn't have to be money, or fish, though, it could be good press, or getting rid of bad press.

Maybe rather than going after them, you could go after their market for wild steelhead, i.e., the protest thread at the top of the page. I don't know how much good it would do or not. I doubt that the majority of people in the state care any more about steelhead and salmon than people in Kentucky do.

Even if a protest did work, I don't know how much of the sales are local...some are, that's for sure, but if their making sales around the country or around the world, it might not matter at all.

Worse case scenario is that the protest does no good, and then further strains tirbal non-tribal relations...putting us all farther from the negotiating table than we were before...and business as usual ensues.

Fish on...

Todd

Duroboat,

When I noted above the ignorant rednecks that were the ones who made the Boldt decision happen in the early 70's? And when I said that they'll keep fishing just to spite us, becuase we're a bunch of ignorant rednecks?

Please see barnettm's post above for evidence.

barnettm,

Your attitude is why the Boldt decision happened in the first place, and it's part of the problem we have now having meaningful negotiations with them to gain some concessions.

I know if I were them I wouldn't want to talk to you.

Fish on...

Todd

Hey, I am not ignorant, Kennewick man was my great, great, grandpa's grandpa and I am here to claim my rightful inheritance.

barnettm,

If someone does arrange for a protest down at the Market, I sincerely hope you're too busy to attend...journalists have a really good nose for finding people to give them good sound or print bites, and they'd find you.

Then you'd make a fool of yourself and everyone else there, ruining any chance of anything useful coming out of it.

Fish on...

Todd

Todd,
We may not see the new WSR law in exactly the same light.But on this issue I agree with your line of thinking.
The guest speaker at our last PSA meeting said basicly that sportfisherman wouldnt be fishing at all if it were not for the tribes fishing rights.
And correct me if im wrong but havent the tribes in washington said there fishing rights would never be sold? Making the option of buying there rights out of the question?
So as it stands the tribes get 50% and sport/comm get to split the remaining 50%.Out of that 50% the sportfishers get about 10%.
Its to bad the state doesnt buy out the non-indian comm fishers and give controll of that 40% to sportfishers.Give the treaty indians sole right to the comm sale of washington state caught fish.Under the condition they no longer net the rivers. There 50% would have to be taken offshore.This would increase the value of there 50% being they would have higher quality fish.And would help there public image buy getting the nets out of the rivers.There fishing would be more out of sight out of mind.So what do you think Todd can you work that out for us sportsman? 50% would sure be nice! And $$$ generated from better sportfishing in the state could be used to pay off the comm guys buyout.

Duroboat,

I'm not sure that we wouldn't be fishing if it weren't for the tribes, but I can say we wouldn't have nearly as many hatcheries and hatchery fish if it weren't for the tribes. Just like the feds created a bunch of hatcheries to replace the fish killed by dams (not that it's working much, if at all), the State would run afoul of treaty rights and federal judges if they discontinued too many hatchery programs...the reasoning being that if we hadn't trashed the habitat so bad, we wouldn't need so many hatcheries to satisfy treaty rights. We did trash it, though, so here come the hatcheries...

The tribes, especially through Billy Frank, Jr., and the NWIFC, have continually said that treaty rights are not for sale. For most steelhead fisheries the price that fishermen get for the steelhead doesn't even cover the cost of catching them. The tribes actually buy the fish at a loss so that their fishermen can continue fishing and exercising treaty rights. If I were them, I probably wouldn't sell them either, any more than I'd let someone buy out my chance to go out and fish like I did this morning.

When you say that the sporties' share is 10% and the non-tribal commercial's share is 40%, you're right on some fisheries.

It's certainly not true for steelhead, since by law there is no non-tribal commercial fishery for them. In spite of the fun we sporties have with them when they're around in numbers, the commercial guys catch almost all the non-tribal allocation of pinks and chums, and sockeye when available. The sporties way out fish the commercials on kings and silvers.

This is by law, too, though not as cut and dry as the steelhead situation is. Silvers and kings, by law, are "predominantly" sport fish, and pinks, chums, and sockeyes are "predominantly" commercial commodities.

Going on bare numbers, the commercials do pretty well because their "predominant" fisheries are over gigantic runs of pinks and chums. We may not get as many, but we get the better ones, and get to fish a lot more areas than they do.

Either way you look at it, though, any sport caught fish costs us many more times the $$ to catch than any commercially caught fish will put into the economy.

Had the Bann-All-Nets initiative passed, the only non-tribal commercially caught fish would have been long-lined, which besides reducing the catch considerably would also increase the value of each commercially caught fish manifold. The supply would have gone down a lot, so the price would have gone up, and long lined fish are of a much higher quality and value than netted fish, too. Long liners can also release non-target fish a lot better than nets.

However, if the tribes' share all of a sudden become the great majority of the commercial catch, which is also of a much greater value due to the reduced supply, that wouldn't necessarily make it easier to ask them to reduce their catch.

On the other hand, they might be more likely to put the money into more selective gear types if they don't have anyone to compete with.

Many, many issues to look at...and each answer brings up three more questions. I guess we'll have to run out of questions some time, though...

I don't think we'd be able to get the tribes to agree to not net rivers, because a lot of tribes, most probably, don't have treaty rights to fish anywhere other than in rivers. When those who don't have saltchuck rights fish in the salt, they are part of the general commercial fishery, which would be banned by the B.A.N. initiative...

We might be able to trade the pinks and chums that the non-tribals commercials aren't catching anymore for the steelhead, though...that's a trade I'd go for in a heartbeat.

Those issues and questions are difficult enough, but we can't even bring them up until we get the states, feds, tribes, sportfishermen, and commercial fishermen all at the table at once...and remember that each and every one of those stakeholders has a valid interest, and that some of those valid interests conflict with each other.

As it sits now...

1. Sport fishermen b!tch about the State and the tribes, not to mention the commercial fishermen, for giving away or catching too many of "our" fish. Besides the fact that we want to catch them, we put a lot more money into the economy than the other two combined.

2. The tribes b!tch about the states and feds ruining the environment so that fish runs are so reduced as it is. They don't like being called "rapists" of rivers, when we catch just as many as them in the rivers they fish, plus all the fish we catch in rivers that don't have treaty fishermen.

3. The states are so harvest minded that they can more easily wrap their collective minds around how to divide up four fish than worry about why there are only four fish. The Biological Assessment proffered by the states regarding upping the ESA impacts during the Col. R. gillnet (uh...tangle net, I mean ) actually states that the improved population numbers of the ESA listed fish requires a higher impact, rather than actually go with what might be working to get the populations up.

Last I read in the ESA, the whole point is to recover animals and get them delisted, not just screw with everything that uses the environment around them in perpetuity.

4. Here's the catch all...throw in radical enviros that want to end fishing of all forms, a mainly apathetic public who couldn't really care less (all good eating fish comes from the Copper River, anyway, doesn't it?), and nimrods who run roughshod over the whole process of cooperative negotiations because they never took the time to figure out what the he11 they were talking about, and you can see the difficulties involved.

Kinda makes me wonder why anyone would even bother, it's such a frickin' mess...but...

I got to fish this morning, hooked three, lost a pretty hatchery hen on the bank, and CnR'd a nice wild buck (lost the other too far out to see what it was). I was home by 10am...just in time for breakfast.

That's why I bother...

Since we don't have any legal way to stop the tribes from taking their half however they see fit, really, the public perception of them is all we have to work with. Passing WSR just gave us a little leg up in the PR department...it doesn't look like a fish grab if we're not grabbin' 'em, just asking to leave more in the river for all of us.

Fish on...

Todd

Todd, thank you for these informative posts. I have been trying educate myself on these issues and you've really helped. I am coming to believe there are several ways to affect fish recovery. Habitat, reduction of commercial netting and good management of sport and tribal fishing. It seems that while we complain about the tribal fishing and they way they fish it..I'm sure the sheer numbers of sportfishermen take way more than the 50 percent we are allocated by the Bolt decision. On the other hand it is really hard not to get angry when you see the tribes fishing when the resource is impacted ina negative way. I have a degree in envoronmenatl science and all it taught me was that the all of these factors are interrelated in a fairly complex way.

Would that be an accurate, though simplified assessment?

I will be excersizing my non-treaty rights tomorrow..

oops..I really can spell...Exercising..I meant...impassioned typing = bad spelling

Just because I have a degree in it doesn't mean I can spell it...Environmental...lol