The following was pulled from the NOAA hatchery steelhead evaluation report from the Dungeness, Nooksack, and Stillaguamish rivers. It starts on page 8. I've tried to edit out the line numbers so it reads a little cleaner. I think it outlines a major part of our problems with the co-managers. NOAA is in the mix but their actions, or lack thereof, are driven by the federal responsibility to the tribal treaties.
http://www.westcoast.fisheries.noaa.gov/hatcheries/hgmp/ew_steelhead_proposed_eval_draft_ea.html1.5.4. Executive Order 12898
In 1994, the President issued Executive Order 12898, Federal Actions to Address Environmental Justice in Minority and Low-income Populations. The objectives of the Executive Order include developing Federal agency implementation strategies, identifying minority and low-income populations where proposed Federal actions could have disproportionately high and adverse human health and environmental effects, and encouraging the participation of minority and low-
income populations in the NEPA process. Changes in hatchery production have the potential to affect the extent of harvest available for minority and low-income populations.
1.5.5. Treaties of Point Elliot, Medicine Creek, and Point No Point
Beginning in the mid-1850s, the United States entered into a series of treaties with tribes in Puget Sound. The treaties were completed to secure the rights of the tribes to land and the use of natural resources in their historically inhabited areas, in exchange for the ceding of land to the United States for settlement by its citizens. These treaties secured the rights of tribes for taking fish at usual and accustomed grounds and stations in common with all citizens of the United
States. Marine and freshwater areas of Puget Sound were affirmed as the usual and accustomed fishing areas for treaty tribes under U.S. v. Washington (1974).
The Lummi Nation, Nooksack Tribe, Stillaguamish Tribe, and Tulalip Tribes are signatory to the Treaty of Point Elliot, the lands settlement treaty between the United States government and the Native American tribes of the North Puget Sound and Strait of Georgia regions, in the recently formed Washington Territory. The Treaty of Point Elliot was signed on January 22, 1855, at Muckl-te-oh or Point Elliott, now Mukilteo, Washington.
The Jamestown S’Klallam Tribe is signatory to the Treaty of Point No Point, the lands settlement treaty between the United States government and the Native American tribes of the Strait of Juan
de Fuca and Hood Canal regions (then, the S'Klallam, the Chimakum, and the Skokomish Tribes), also in the recently-formed Washington Territory. The Treaty of Point No Point was signed on January 26, 1855, at Hahdskus – the Salish dialect name for Point No Point – on the northern tip of the Kitsap Peninsula.
1.5.6. U.S. v. Washington
U.S. v. Washington (1974) is the Federal court proceeding that enforces and implements reserved treaty fishing rights with regards to salmon and steelhead returning to Puget Sound. Hatcheries inPuget Sound provide salmon and steelhead for these fisheries. Without many of these hatcheries, there would be few, if any, fish for the tribes to harvest. These fishing rights and attendant access were established by treaties that the Federal government signed with the tribes in the 1850s. In those treaties, the tribes agreed to allow the peaceful settlement of Indian lands in western Washington in exchange for their continued right to fish, gather shellfish, hunt, and exercise other sovereign rights. Under Phase II of U.S. v. Washington, the Federal District Court ensured tribes the rights to the protection of fish habitat subject to treaty catch and a right to the fish that are produced by hatcheries. In 1974, Judge George Boldt decided in U.S. v. Washington that the tribes’ fair and equitable share was 50 percent of all of the harvestable fish destined for the tribes’ traditional fishing places.
1.5.7. Secretarial Order 3206
Secretarial Order 3206 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities and the ESA) issued by the secretaries of the Departments of Interior and Commerce, clarifies the responsibilities of the agencies, bureaus, and offices of the departments when actions taken under the ESA and its implementing regulations affect, or may affect, Indian lands, tribal trust resources, or the exercise of American Indian tribal rights as they are defined in the Order. Secretarial Order 3206 acknowledges the trust responsibility and treaty obligations of the United States toward tribes and tribal members, as well as its government-to-government relationship when corresponding with tribes. Under the Order, NMFS and the U.S. Fish and Wildlife Service (Services) “will carry out their responsibilities under the [ESA] in a manner that harmonizes the Federal trust responsibility to tribes, tribal sovereignty, and statutory missions of the [Services], and that strives to ensure that Indian tribes do not bear a disproportionate burden for the conservation of listed species, so as to avoid or minimize the potential for conflict and confrontation.” More specifically, the Services shall, among other things, do the following:
1.5.8.
Work directly with Indian tribes on a government-to-government basis to promote healthy ecosystems (Sec. 5, Principle 1)
Recognize that Indian lands are not subject to the same controls as Federal public lands (Sect. 5, Principle 2)
Assist Indian tribes in developing and expanding tribal programs so that healthy ecosystems are promoted and conservation restrictions are unnecessary (Sec. 5, Principle 3)
Be sensitive to Indian culture, religion, and spirituality (Sec. 5, Principle 4)
The Federal Trust Responsibility
The United States government has a trust or special relationship with Indian tribes. The unique and distinctive political relationship between the United States and Indian Tribes is defined by statutes, executive orders, judicial decisions, and agreements and differentiates tribes from other entities that deal with, or are affected by the Federal government. Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, states that the United States has recognized Indian tribes as domestic dependent nations under its protection. The Federal government has enacted numerous statutes and promulgated numerous regulations that establish and define a trust relationship with Indian tribes. The relationship has been compared to one existing under common law trust, with the United States as trustee, the Indian tribes or individuals as beneficiaries, and the property and natural resources of the United States as the trust corpus (Cohen 2005; Newton et al. 2005). The trust responsibility has been interpreted to require Federal agencies to carry out their activities in a manner that is protective of Indian treaty rights. This policy is also reflected in the March 30, 1995, document, Department of Commerce – American Indian and Alaska Native Policy (U. S. Department of Commerce 1995).
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