Of particular interest to me is article thirteen which raises the Question how are they selling salmon roe to japan Isnt that a breach of the treaty?

Article four is of interest too. Does this mean that property owners on the canal just have to stake there beach if they dont want tribes harvesting there? It says they can hunt and collect roots berries etc.... on unclaimed lands. How is it that they are wiping out elk herds on lands claimed by washington state and the federal government? Also as long as there is a comercial fishery they are allowed to net but it says in common with so how are they allowed to net in the rivers outside the boundaries of there reservation?


http://www.nwifc.org/tribes/treaties/tpnp.asp


Treaty of Point No Point, 1855

Articles of agreement and convention made and concluded at Hahdskus, or Point no Point, Suquamiah Head, in the Territory of Washington, this twenty-sixth day of January, eighteen hundred and fifty-five, by Isaac I. Stevens, governor and superintendent of Indian affairs for the said Territory, on the part of the United States, and the undersigned chiefs, headmen, and delegates of the different villages of the S'Klallams, viz: Kah-tai, Squah-quaihtl, Tch-queen, Ste-tehtlum, Tsohkw, Yennis, Elh-wa, Pishtst, Hunnint, Klat-la-wash, and Oke-ho, and also of the Sko-ko-mish, To-an-hooch, and Chem-a-kum tribes, occupying certain lands on the Straits of Fuca and Hood's Canal, in the Territory of Washington, on behalf of said tribes, and duly authorized by them.

ARTICLE 1.

The said tribes and bands of Indians hereby cede, relinquish, and convey to the United States all their right, title, and interest in and to the lands and country occupied by them, bounded and described as follows, viz: Commencing at the mouth of the Okeho River, on the Straits of Fuca; thence southeastwardly along the westerly line of territory claimed by the Makah tribe of Indians to the summit of the Cascade Range; thence still southeastwardly and southerly along said summit to the head of the west branch of the Satsop River, down that branch to the main fork; thence eastwardly and following the line of lands heretofore ceded to the the United States by the Nisqually and other tribes and bands of Indians, to the summit of the Black Hills, and northeastwardly to the portage known as Wilkes' Portage; thence northeastwardly, and following the line of lands heretofore ceded to the United States by the Dwamish, Suquamish, and other tribes and bands of Indians, to Suquamish Head; thence northerly through Admiralty Inlet to the Straits of Fuca; thence westwardly through said straits to the place of beginning; including all the right, title, and interest of the said tribes and bands to any land in the Territory of Washington.

ARTICLE 2.

There is, however, reserved for the present use and occupation of the said tribes and bands the following tract of land, viz: The amount of six sections, or three thousand eight hundred and forty acres, situated at the head of Hood's Canal, to be hereafter set apart, and so far as necessary, surveyed and marked out for their exclusive use; nor shall any white man be permitted to reside upon the same without permission of the said tribes and bands, and of the superintendent or agent; but, if necessary for the public convenience, roads may be run through the said reservation, the Indians being compensated for any damage thereby done them. It is, however, understood that should the President of the United States hereafter see fit to place upon the said reservation any other friendly tribe or band, to occupy the same in common with those above mentioned, he shall be at liberty to do so.

ARTICLE 3.

The said tribes and bands agree to remove to and settle upon the said reservation within one year after the ratification of this treaty, or sooner if the means are furnished them. In the mean time, it shall be lawful for them to reside upon any lands not in the actual claim or occupation of citizens of the United States, and upon any land claimed or occupied, if with the permission of the owner.

ARTICLE 4.

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 United States; 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. Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens.

ARTICLE 5.

In consideration of the above cession the United States agree to pay to the said tribes and bands the sum of sixty thousand dollars, in the following manner, that is to say: during the first year after the ratification hereof, six thousand dollars; for the next two years, five thousand dollars each year; for the next three years, four thousand dollars each year; for the next four years, three thousand dollars each year; for the next five years, two thousand four hundred dollars each year; and for the next five years, one thousand six hundred dollars each year. All which said sums of money shall be applied to the use and benefit of the said Indians under the direction of the President of the United States, who may from time to time determine at his discretion upon what beneficial objects to expend the same. And the superintendent of Indian affairs, or other proper officer, shall each year inform the President of the wishes of said Indians in respect thereto.

ARTICLE 6.

To enable the said Indians to remove to and settle upon their aforesaid reservations, and to clear, fence, and break up a sufficient quantity of land for cultivation, the United States further agree to pay the sum of six thousand dollars, to be laid out and expended under the direction of the President, and in such manner as he shall approve.

ARTICLE 7.

The President may hereafter, when in his opinion the interests of the Territory shall require, and the welfare of said Indians be promoted, remove them from said reservation to such other suitable place or places within said Territory as he may deem fit, on remunerating them for their improvements and the expenses of their removal; or may consolidate them with other friendly tribes or bands. And he may further, at his discretion, cause the whole or any portion of the lands hereby reserved, or of such other lands as may be selected in lieu thereof, to be surveyed into lots, and assign the same to such individuals or families as are willing to avail themselves of the privilege, and will locate thereon as a permanent home, on the same terms and subject to the same regulations as are provided in the sixth article of the treaty with the Omahas, so far as the same may be applicable. Any substantial improvements heretofore made by any Indians, and which he shall be compelled to abandon in consequence of this treaty, shall be valued under the direction of the President, and payment made therefor accordingly.

ARTICLE 8.

The annuities of the aforesaid tribes and bands shall not be taken to pay the debts of individuals.

ARTICLE 9.

The said tribes and bands acknowledge their dependence on the Government of the United States, and promise to be friendly with all citizens thereof; and they pledge themselves to commit no depredations on the property of such citizens. And should any one or more of them violate this pledge, and the fact be satisfactorily proven before the agent, the property taken shall be returned, or in default thereof, or if injured or destroyed, compensation may be made by the Government out of their annuities. Nor will they make war on any other tribe, except in self-defence, but will submit all matters of difference between them and other Indians to the Government of the United States, or its agent, for decision, and abide thereby. And if any of the said Indians commit any depredations on any other Indians within the Territory, the same rule shall prevail as that prescribed in this article in cases of depredations against citizens. And the said tribes agree not to shelter or conceal offenders against the United States, but to deliver them up for trial by the authorities.

ARTICLE 10.

The above tribes and bands are desirous to exclude from their reservation the use of ardent spirits, and to prevent their people from drinking the same, and therefore it is provided that any Indian belonging thereto who shall be guilty of bringing liquor into said reservation, or who drinks liquor, may have his or her proportion of the annuities withheld from him or her for such time as the President may determine.

ARTICLE 11.

The United States further agree to establish at the general agency for the district of Puget's Sound, within one year from the ratification hereof, and to support for the period of twenty years, an agricultural and industrial school, to be free to children of the said tribes and bands in common with those of the other tribes of said district, and to provide a smithy and carpenter's shop, and furnish them with the necessary tools, and employ a blacksmith, carpenter, and farmer for the term of twenty years, to instruct the Indians in their respective occupations. And the United States further agree to employ a physician to reside at the said central agency, who shall furnish medicine and advice to the sick, and shall vaccinate them; the expenses of the said school, shops, persons employed, and medical attendance to be defrayed by the United States, and not deducted from the annuities.

ARTICLE 12.

The said tribes and bands agree to free all slaves now held by them, and not to purchase or acquire others hereafter.

ARTICLE 13.

The said tribes and bands finally agree not to trade at Vancouver's Island, or elsewhere out of the dominions of the United States, nor shall foreign Indians be permitted to reside in their reservations without consent of the superintendent or agent.

ARTICLE 14.

This treaty shall be obligatory on the contracting parties as soon as the same shall be ratified by the President of the United States.

Oh man Mirco what have I started!!!

People are starting to reread, and ask some pretty tuff question about law, order, and the treaties!

You're doing just great! But you better watch out because you're going to get a few people all excited again, and you too will be accused of bashing the tribes because you first didn't go to the tribes, and try to work this one out with them

You have asked some good logical question here, now let's see if you can get some good logical replies back , instead of just a bunch of sarcasm from people how may not agree with your thought!

You better watch out becuase people will start calling you Sargent Jack Web!

Cowlitzfisherman

I dont want to bash the tribes. I just want them to be held to the treaty. If what is in the treaty is followed there would not be so many bad feelings between some sportmen and indians. but when the tribes go against the treaties and the feds do nothing about it, It is discrimination on the part of the feds pure and simple. That is causing the problems.

Hell Aunty,

No one is going to mess with you… You pinch to damn hard!

But this is just one more good reason why all the treaties should be revisited! What may have meant one thing legally at the time they were written may now have a totally different meaning, especially since there has been such a huge amount of old laws challenged and redefined.

Like Micro says, the tribes will use the treaty wording in there favor when they see it fit to, so why not revisit these treaties and bring them up todate with the current meaning and definition of the law?

The treaties kind of remind me the WDFW fishing regulations.. .... They too have lots of ambiguous laws!


Cowlitzfisherman

Now that's the "Aunty" I know!!


Cowlitzfisherman

CFM, this isn't as much your doing as just an annual thing on this board right around fall king time. The tribes and their nets are highly visible during this fishery and it seems the largest gear and quota conflicts also occur, bending many a nose out of shape. Unfortunately I can't speak with any amount of authority on the treaties although its been explained to me that "usual and accustomed fishing grounds" allow the tribes access to anywhere they fished during the time the treaties were signed.

Before this gets way out of hand I invite Salmo g, who has as much expertise as any on this board regarding the treaties, to give us one of his insightful and broad overviews. Then there will at least be a degree of information on the table to discuss, challenge, agree with, disagree with, etc. This, as oppose to a thread that simply degrades into something that Jerry will have to prune.

As I said, these threads appear every fall king season and there are times when I learn quite a bit, and there are times when I don't bother to open the thread.

Oh My God, what am I doing???? Weighing in on this controversy again - but I shall try and hopefully I won't put anyone's nose out of joint. A couple of things about the treaty that is posted here. This is the Treaty of Point No Point. If you follow the link, you will see that there are the following tribes represented as signatores to the Treaty.

Clallam
Skokomish
Chimacum

So, this particular treaty is but one of many and not even the one that the Boldt decision was based on. That was the Treaty of Medicine Creek which was signed by a whole nother bunch of Indian tribes. That treaty happened before this one (I think 1854, but my memory is foggy on that point). It doesn't much matter, the infamous language that the Boldt decision is based on is Article 4.

I guess the only thing I can add to the discussion is that the English language has evolved over time and what was meant by the framers of these treaties may in fact be interpreted differently now. But, that is the key point, in our current society, we have chosen to let Judges interpret the treaty language and tell us what it means under the current set of circumstances. Thus, Article 4, according to George Boldt, means 50%. And before you call Boldt some kind of liberal hippie pinko.... you should know that he was some kind of mean old redneck. I was in his court once, he was a real piece of work!!!

But, here is my real issue - and Grandpa spelled it out well. We can take our energies and try to figure out how to get the Indian to bend to our will when it comes to fishing allocations. I'm uncertain what the motivation for this post is but I have a notion that is part of what is occuring with this post. I have decided that (for me) this is not a productive approach. I have chosen to work with the Indians. Under the law of the Land, they do hold trump. I would rather work with them than take my chances in court. Remember the Boldt decision and what led up to it. Indians getting cracked over the head, thrown in jail, losing their property over exercising what they said were their Treaty rights. Hell, I even remember Marlon Brando was on the Nisqually and Dick Gregory went on a hunger strike in Olympia or Seattle. That was confrontational, I see the same kinds of confrantational approach with this post and others that we have recently thrashed to death. It didn't work before and I'm fearful of what we will get when it doesn't work this time. My 2 cents. Flame away if you must. Just because I take this approach does not mean I like the current situation - it does mean that I believe certain tactics will lead to success, others to failure.

Obsessed

What you say makes a lot of sense, but I would not consider Salmo G to be the final word or authority on this issue! I know Salmo personally, and he's a great and very smart guy, but he also works for the Federal Government on many of these same issues, especially with the tribes.

So now, what does that say for what his opinion may be?

Do you really think that he would turn against the hand that feeds him (his job, or its job polices)? He may even truly believe in what he may tell you (I have never known him to lie), but you also have to remember that he has been involved with the tribes and US government for well over 12 years (that is the time that I have known him). Salmo is a really smart guy, so one would think that he would tend to be bias, and support the existing "old treaties" as written (it's his job!).

If Salmo is as smart as I think he is, I wouldn't think that he would want to comment on this issue. If he's not, he may. When opinions have the possibility of affecting your job or the outcome of an issue, or the duties or polices that your job may require, one would think that a person would remain natural. We will see!

Hell, I am still waiting to read Salmo's reply about the Lewis River that I posted on 8-4 on this board! Lets see what his answers are to that question first, and then he can jump on this thread!

With the entire back log that he's got, writing Biological Opinions (BO) for the NMFS, I can't see how he can possibly find enough time to take to write comment on this kind of issue!
---------------------------------------------------------

eddie, most of your post was pretty good until you told us about "Marlon Brando"!

Lets just say that we agree to disagree.... fair enough?

Cowlitzfisherman

CFM, Salmo has actually responded to several such threads. I'm aware of some of his opinions and wouldn't doubt a Federal bias. But he consistently expresses facts as facts and opinion as opinion. I was most interested in his providing an overview for discussion, debate, or challenge; we certainly don't have to agree with him.

My motivation for posting was to have a discussion, as opposed to a flame throwing session, as we all are aware can occur. Not that there's anything wrong with a little fire now and again, but with tribal fishing and the treaties, the fuel is often composed of wholly incorrect information, exaggeration, heresay, and limited experience with individual tribal members. Ideally we would have knowledgable folks providing input from different avenues (Recreational/Commercial Fisheries, Tribes, Feds, State, Industry) but in its absence, one person with expertise providing a basis for discussion is a hell of lot better than none.

Obsessed

You say;

That may be true, but if your attorney (in this case the federal attorneys) are telling you that "these are the facts" what do you think you would be saying?

Have you ever noticed that Salmo G never, and I mean never is the first one to jump in and reply to ANY THREAD? There is a reason for that (and it isn't because he working)! You or I react to emotion; while people such as Salmo take there time, and comes in at the "appropriate time" to make their point! (that's probably one reason why they work for the Federal Goverment)

We are often very dumb!

That is what really smart people do! Us dome guys always move to our emotions first and then think about what we have said later. That's probably why most of us don't work for the federal government.

Trust me; Salmo G will never post emotional statements on this board! He's a great guy and a good friend, but he is not a "godd-ess" He abides by the rules that governs his job and the laws that govern his position. If I was him, I would probably do the same thing.

So let's not put him on the spot, and move on to the issue that's on the table.


Cowlitzfisherman

This whole thing is so crazy. You guys are obsessed with this "FACT" BS....anecdotal evidence stuff ...Like I said before we have opinions here...In my case I don't take it as serious as CFM and others. CFM blasts the hell out of Eddie and then turns to be for blasting him??? helllllooooo...anybody home? You post laws and treaties then you disect them with OPINIONS and call them facts...It's NUTS

Sorry but ole grandpa won't be eating any crow anytime soon as whatever I say is only my opinion and is usually tongue in cheek...my flaming was intended to expose a flamer for his double standard and also to defend a friend who was being blasted for his opinion by a shameless flamer...so post all the quotes and anecdotal "evidence" that your little fingers can pound out but we are not preaching to a jury...just a bunch of old farts carping about indians and pontificating about the vast experience we have... Oh and I almost forgot...just because you work with indians doesn't make you an indian expert anymore than me fishing with indian guides makes me a tribal fisheries biologist. So smoke a bowl and chill.

Grandpa

You got to start watching what you are eating!!


Cowlitzfisherman

Eddie, here is the medicine creek treaty. others can be found by clicking the link. I didnt post them all because they are all basically the same.

Yes I know they can legally fish outside of the reservations and yes they can use nets legally. The question I raised was in regards to netting rivers outside the reservation. The treaties state "in common with". Comercials net the sound therefore Indians can net the sound, but comercials dont net the rivers and creeks. Though sportfishers do take fish from rivers and creeks they dont use nets therfore if the Indians want there share from the rivers and creeks they should only be allowed to use the same methods that are already being used I.E rod and reel. Evidently the feds are letting the indians breach the treaty. I dont think there is a non native herring roe fishery either so legally the indians shouldnt be able to do that either.


Treaty of Medicine Creek, 1854

Articles of agreement and convention made and concluded on the She-nah-nam, or Medicine Creek, in the Territory of Washington, this twenty-sixth day of December, in the year one thousand eight hundred and fifty-four, by Isaac I. Stevens, governor and superintendent of Indian affairs of the said Territory, on the part of the United States, and the undersigned chiefs, head-men, and delegates of the Nisqually, Puyallup, Steilacoom, Squawskin, S'Homamish, Stehchass, T'Peeksin, Squi-aitl, and Sa-heh-wamish tribes and bands of Indians, occupying the lands lying round the head of Puget's Sound and the adjacent inlets, who, for the purpose of this treaty, are to be regarded as one nation, on behalf of said tribes and bands, and duly authorized by them.

ARTICLE 1.

The said tribes and bands of Indians hereby cede, relinquish, and convey to the United States, all their right, title, and interest in and to the lands and country occupied by them, bounded and described as follows, to wit: Commencing at the point on the eastern side of Admiralty Inlet, known as Point Pully, about midway between Commencement and Elliott Bays; thence running in a southeasterly direction, following the divide between the waters of the Puyallup and Dwamish, or White Rivers, to the summit of the Cascade Mountains; thence southerly, along the summit of said range, to a point opposite the main source of the Skookum Chuck Creek; thence to and down said creek, to the coal mine; thence northwesterly, to the summit of the Black Hills; thence northerly, to the upper forks of the Satsop River; thence northeasterly, through the portage known as Wilkes's Portage, to Point Southworth, on the western side of Admiralty Inlet; thence around the foot of Vashon's Island, easterly and southeasterly, to the place of beginning.

ARTICLE 2.

There is, however, reserved for the present use and occupation of the said tribes and bands, the following tracts of land, viz: The small island called Klah-che-min, situated opposite the mouths of Hammerslev's and Totten's Inlets, and separated from Hartstene Island by Peale's Passage, containing about two sections of land by estimation; a square tract containing two sections, or twelve hundred and eighty acres, on Puget's Sound, near the mouth of the She-nah-nam Creek, one mile west of the meridian line of the United States land survey, and a square tract containing two sections, or twelve hundred and eighty acres, lying on the south side of Commencement Bay; all which tracts shall be set apart, and, so far as necessary, surveyed and marked out for their exclusive use; nor shall any white man be permitted to reside upon the same without permission of the tribe and the superintendent or agent. And the said tribes and bands agree to remove to and settle upon the same within one year after the ratification of this treaty, or sooner if the means are furnished them. In the mean time, it shall be lawful for them to reside upon any ground not in the actual claim and occupation of citizens of the United States, and upon any ground claimed or occupied, if with the permission of the owner or claimant. If necessary for the public convenience, roads may be run through their reserves, and, on the other hand, the right of way with free access from the same to the nearest public highway is secured to them.

ARTICLE 3.

The right of taking fish, at all 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, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall not take shellfish from any beds staked or cultivated by citizens, and that they shall alter all stallions not intended for breeding-horses, and shall keep up and confine the latter.

ARTICLE 4.

In consideration of the above session, the United States agree to pay to the said tribes and bands the sum of thirty-two thousand five hundred dollars, in the following manner, that is to say: For the first year after the ratification hereof, three thousand two hundred and fifty dollars; for the next two years, three thousand dollars each year; for the next three years, two thousand dollars each year; for the next four years fifteen hundred dollars each year; for the next five years twelve hundred dollars each year; and for the next five years one thousand dollars each year; all which said sums of money shall be applied to the use and benefit of the said Indians, under the direction of the President of the United States, who may from time to time determine, at his discretion, upon what beneficial objects to expend the same. And the superintendent of Indian affairs, or other proper officer, shall each year inform the President of the wishes of said Indians in respect thereto.

ARTICLE 5.

To enable the said Indians to remove to and settle upon their aforesaid reservations, and to clear, fence, and break up a sufficient quantity of land for cultivation, the United States further agree to pay the sum of three thousand two hundred and fifty dollars, to be laid out and expended under the direction of the President, and in such manner as he shall approve.

ARTICLE 6.

The President may hereafter, when in his opinion the interests of the Territory may require, and the welfare of the said Indians be promoted, remove them from either or all of said reservations to such other suitable place or places within said Territory as he may deem fit, on remunerating them for their improvements and the expenses of their removal, or may consolidate them with other friendly tribes or bands. And he may further, at his discretion, cause the whole or any portion of the lands hereby reserved, or of such other land as may be selected in lieu thereof, to be surveyed into lots, and assign the same to such individuals or families as are willing to avail themselves of the privilege, and will locate on the same as a permanent home, on the same terms and subject to the same regulations as are provided in the sixth article of the treaty with the Omahas, so far as the same may be applicable. Any substantial improvements heretofore made by any Indian, and which he shall be compelled to abandon in consequence of this treaty, shall be valued under the direction of the President, and payment to be made accordingly thereof.

ARTICLE 7.

The annuities of the aforesaid tribes and bands shall not be taken to pay the debts of individuals.

ARTICLE 8.

The aforesaid tribes and bands acknowledge their dependence on the Government of the United States, and promise to be friendly with all citizens thereof, and pledge themselves to commit no depredations on the property of such citizens. And should any one or more of them violate this pledge, and the fact be satisfactorily proved before the agent, the property taken shall be returned, or in default thereof, or if injured or destroyed, compensation may be made by the Government out of their annuities. Nor will they make war on any other tribe except in self-defence, but will submit all matters of difference between them and other Indians to the Government of the United States, or its agent, for decision, and abide thereby. And if any of the said Indians commit any depredations on any other Indians within the Territory, the same rule shall prevail as that prescribed in this article, in cases of depredations against citizens. And the said tribes agree not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trail.

ARTICLE 9.

The above tribes and bands are desirous to exclude from their reservations the use of ardent spirits, and to prevent their people from drinking the same; and therefore it is provided, that any Indian belonging to said tribes, who is guilty of bringing liquor into said reservations, or who drinks liquor, may have his or her proportion of the annuities withheld from him or her for such time as the President may determine.

ARTICLE 10.

The United States further agree to establish at the general agency for the district of Puget's Sound, within one year from the ratification hereof, and to support, for a period of twenty years, an agricultural and industrial school, to be free to children of the said tribes and bands, in common with those of the other tribes of said district, and to provide the said school with a suitable instructor or instructors, and also to provide a smithy and carpenter's shop, and furnish them with the necessary tools, and employ a blacksmith, carpenter, and farmer, for the term of twenty years, to instruct the Indians in their respective occupations. And the United States further agree to employ a physician to reside at the said central agency, who shall furnish medicine and advice to their sick, and shall vaccinate them; the expenses of the said school, shops, employees, and medical attendance, to be defrayed by the United States, and not deducted from the annuities.

ARTICLE 11.

The said tribes and bands agree to free all slaves now held by them, and not to purchase or acquire others hereafter.

ARTICLE 12.

The said tribes and bands finally agree not to trade at Vancouver's Island, or elsewhere out of the dominions of the United States; nor shall foreign Indians be permitted to reside in their reservations without consent of the superintendent or agent.

ARTICLE 13.

This treaty shall be obligatory on the contracting parties as soon as the same shall be ratified by the President and Senate of the United States.

In testimony whereof, the said Isaac I. Stevens, governor and superintendent of Indian Affairs, and the undersigned chiefs, headmen, and delegates of the aforesaid tribes and bands, have hereunto set their hands and seals at the place and on the day and year hereinbefore written

Micro, thanks for posting this one, you're right, they are all basically the same. The key phrase that Boldt used to grant off-reservation net fishing was Article 3 and the words were "usual and accustomed ...". Once again, changes may be able to be made to our current situation, however, I believe a legal challenge based on the treaties is doomed to failure and maybe more importantly turns our energies in a direction that will be of no help.

It really has been the courts legislating from the bench that have really broadened what I read as the intent of the treaties. Kind of like interpretting the bible. The tribes in Alaska have demanded and gotten increasingly larger shares of the Bering Sea King crab.Usual and accustomed? I don't think so. Scuba dive for Geoduck.Usual and accustomed? NO WAY. The same courts that rule on sodomy and gay marriage can decide what usual and accustomed and "in kind" mean in the 21st century. Personally I think it all meant that the indians could assimilate into society and do what all the rest of us do "in kind". But what the heck do I know? I'm not a crazy old fart judge with Alzheimers....yet

Eddie-grandpa

What are your feeling about banning the use of any "gill net" in all of Washington States inland waters? Should not the tribes (Stevens' treaties) required the tribes to use the same modern fishing methods as the states citizens?

Do you believe that the Boldt decision allows the tribes (Stevens' treaties) to use such modern devices such as the "gill net" if the citizens of the state are not allowed to use them to conserve the fishery of the state? What are your thoughts on this?

Cowlitzfisherman

CFM - I would love to see gill nets banned in the rivers, hell, I would love to see the commercial catch of steelhead eliminated. Long odds of getting either to happen however I believe going back to the courts to try and get that result is not the right way. Maybe I'm way too timid, I'm very concerned about what else the tribes would get if we brought this into court. I believe that an agreement between both parties has the better chance of success.

eddie

I think that the courts would accept such rule requirements if it could be shown that it was within the limits the Boldt Decisions. As just one example; (this came from the Boldt (Civ. No. 9213) on page 115;)

"16. The Stevens' treaties do not reserve to the Treaty Tribes any specific manner, method or purpose of taking fish; nor do the treaties prohibit any specific manner, method or purpose. Just as non-Indians may continue to take advantage of improvements in fishing techniques, the Treaty Tribes may, in exercising their rights to take anadromous fish, utilize improvements in traditional fishing methods, such for example as nylon nets and steel hooks."

I am pretty sure that "nylon nets" didn't mean "gill nets", so if the state would band the use of gill nets in our rivers for "conservative purposes", one would think that legally the tribes would also have to band the use of gill nets in the inland waters. The way I am reading Order 16, the tribes can fish in the same methods and manner that we can fish with. To the best of my understanding, the tribes did not use gill nets prior to signing the treaties of the 1850's.

So what do think? This is not a making any "new issues", it's only forcing both parties to abide by the rules that are set down in the decision to protect the fish. No new can of warms here, only a true count of how many worms are in the can!

I feel extremely confident that this issue would be winnable under the existing court orders that have already been set force in the Boldt Decision


Cowlitzfisherman

CFM - tough call on this one. On the one hand the Boldt decision and section that you cited said that no particular method was allowed or banned. On the other hand, in the larger context of the Boldt decision, fishing "in common with" could be taken to mean - same rules for everyone. I believe that if the best legal minds for the State and the tribes thought that this could be adjudicated, we would have seen it already. Maybe the State is looking for some private citizen to sue on this issue. My guess is that it would be more effective to try to get the tribes to adopt a more selective method of fishing in the rivers, such as fish wheels. I'm uncertain if they work very well in the wildly varying river levels of a Western Washington winter, but would love to see a more selective method of catch employed by the tribes.

Aunty

I too would love to hear Todds comments on this issue! I have been doing a lot more reading and I would love to ask him a few "legal" questions!

Cowlitzfisherman

I think you guys are putting way too much hope on the letter of the law. It would be nice if the tribes were allowed to fish the same as all the rest of us...So when there is no fishing they don't fish either...that's what the law implies, right? Well it doesn't get enforced that way. The tribes have won in court against this state virtually every time so the state is very reluctant to take them on again. Just observe the North of Falcon process and you will see that the tribes hold the trump cards on virutally every fishery. If they don't agree it doesn't happen and if they want something they get it. Remember when they were drifting gill nets last fall on the OP rivers when the state had posted emergency closure signs. The photos were posted right here. Tribal police stood by and watched.

I honestly believe that the political climate in this whole country has been one of appeasement and extreme socialistic policies that have lead to a steady crumbling of our society and , yes, terror attacks. This same ACLU driven mind set is helping the tribes gain more and more clout and a much bigger free ride. The benefits far outreach the limits of the treaties of 1854 and 1855. And our government is ready to give even more.

Perhaps it is the threat of using their legal clout to remove all the dams on the Columbia that makes everyone so scared? Maybe if that eventuality was staring us in the face we would stand up and say to the tribes that we all get the same rules ...period.

So reading all the laws and analyzing them with a sensible scrutiny is a waste of time in a way. We feel better because we feel we have a just complaint against the tribes but the real complaint should be against the system of government that has allowed all this lopsided socialism to get so far advanced. Some day we just might stop feeling sory for everybody and make them get ahead on their own merit instead of our tax money.

Here are a few passages from the Boldt Decision worth reading. If you can find the time I would recommend reading the entire decision sometime…

"To this court the evidence clearly shows that, in the past, root causes of treaty right dissension have been an almost total lack of meaningful communication on problems of treaty right fishing between state, commercial and sport fishing officials and non-Indian fishermen on one side and tribal representatives and members on the other side, and the failure of many of them to speak to each other and act as fellow citizens of equal standing as far as treaty right fishing is concerned. Some commendable improvement in both respects has developed in recent years but this court believes high priority should be given to further improvement in communication and in the attitude of every Indian and non-Indian who as a fisherman or in any capacity has responsibility for treaty right fishing practices or regulation. Hopefully that will be expedited by some of the measures required by this decision."

"To the great advantage of the people of the United States, not only in property but also in saving lives of citizens, and to expedite providing for what at the time were immediate and imperative national needs, Congress chose treaties rather than conquest as the means to acquire vast Indian lands. It ordered that treaty negotiations with the plaintiff tribes and others in the Northwest be conducted as quickly as possible. Isaac I. Stevens, Governor of Washington Territory, proved to be ideally suited to that purpose for in less than one year during 1854-1855 he negotiated eleven different treaties, each with several different tribes, at various places distant from each other in this rugged and then primitive area."

"The treaties were written in English, a language unknown to most of the tribal representatives, and translated for the Indians by an interpreter in the service of the United States using Chinook Jargon, which was also unknown to some tribal representatives. Having only about three hundred words in its vocabulary, the Jargon was capable of conveying only rudimentary concepts, but not the sophisticated or implied meaning of treaty provisions about which highly learned jurists and scholars differ."

"We will construe a treaty with the Indians as 'that unlettered people' understood it, and 'as justice and reason demand, in all cases where power is exerted by the strong over those to whom they owe care and protection,' and counterpoise the inequality 'by the superior justice which looks only to the substance of the right, without regard to technical rules.'"

"Each of the basic fact and law issues in this case must be considered and decided in accordance with the treaty language reserving fishing rights to the plaintiff tribes, interpreted in the spirit and manner directed in the above quoted language of the United States Supreme Court. Each treaty in this case contains a provision substantially identical to that in the Medicine Creek treaty:"

"The right of taking fish, at all 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, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall not take shellfish from any beds staked or cultivated by citizens, and that they shall alter all stallions not intended for breeding-horses, and shall keep up and confine the latter."

The above should clarify several misnomers previously posted.

Plunker

What misnomers are you referring to? Can you be a little bit more pacific?

The decision is over 140 pages, and says a lot more then what you have quoted. There is no need to mention names, but which ones are you referring to?

Cowlitzfisherman

Cowlitz - Misnomer was probably a poor choice of words. I wanted to point out that the decision was not simply based upon the Medicine Creek Treaty or any one treaty but rather upon many of the 11 treaties negotiated by Stevens and covered all of western Washington.

As shown in the title of the lawsuit:
"UNITED STATES of America, Plaintiff, Quinault Tribe of Indians on its own behalf and on behalf of the Queets Band of Indians, et al.,"

The Listed Plaintiffs Are:
"UNITED STATES of America; Hoh Tribe; Makah Tribe, Muckleshoot Tribe; Nisqually Tribe; Puyallup Tribe; Quileute Tribe; Skokomish Tribe; Lummi Tribe; Quinault Tribe; Sauk-Suiattle Tribe; Squaxin Island Tribe; Stillaguamish Tribe; Upper Skagit River Tribe; Yakima Nation."

"The case area is that portion of the State of Washington west of the Cascade Mountains and north of the Columbia River drainage."


A few more interesting quotes from the decision follow:

"[The] treaty was not a grant of rights to the Indians but a grant of right from them -- a reservation of those not granted"(to the US citizens).

"The Northwest Indians developed and utilized a wide variety of fishing methods which enabled them to take fish from nearly every type of location at which fish were present. They harvested fish from the high seas, inland salt waters, rivers and lakes. They took fish at river mouths as well as at accessible points or stretches along the rivers all the way to the headwaters. Some locations were more heavily utilized than others. Like all fishermen, they shifted to those locales which seemed most productive at any given time. Fishing methods varied according to the locale but generally included trapping, dip netting, gill netting, reef netting, trolling, long-lining, jigging, set-lining, impounding, gaffing, spearing, harpooning and raking."

"At the treaty negotiations, a primary concern of the Indians whose way of life was so heavily dependent upon harvesting anadromous fish, was that they have freedom to move about to gather food, particularly salmon, (which both Indians and non-Indians meant to include steelhead), at their usual and accustomed fishing places. The Indians were assured by Governor Stevens and the treaty commissioners that they would be allowed to fish, but that the white man also would be allowed to fish."

"There is nothing in the written records of the treaty councils or other accounts of discussions with the Indians to indicate that the Indians were told that their existing fishing activities or tribal control over them would in any way be restricted or impaired by the treaty. The most that could be implied from the treaty context is that the Indians may have been told or understood that non-Indians would be allowed to take fish at the Indian fishing locations along with the Indians."

"Acculturation of Western Washington Indians into western culture began prior to treaty times and has continued to the present day. Today most Indians wear traditional western clothing, speak English, utilize the western economic system and western technology, share western religious traditions and participate in the western socio-political organization. Traditional religious rites and ceremonies are no longer widely observed by most tribes. Modern Indians share similar goals with modern non-Indians to acquire most items of American material culture."

"An exclusive right of fishing was reserved by the tribes within the area and boundary waters of their reservations, wherein tribal members might make their homes if they chose to do so. The tribes also reserved the right to off reservation fishing "at all usual and accustomed grounds and stations" and agreed that "all citizens of the territory" might fish at the same places "in common with" tribal members. The tribes and their members cannot rescind that agreement or limit non-Indian fishing pursuant to the agreement. However, off reservation fishing by other citizens and residents of the state is not a right but merely a privilege which may be granted, limited or withdrawn by the state as the interests of the state or the exercise of treaty fishing rights may require."

I'll be honest here and admit that in my opinion much of the Boldt Ruling and other court decisions are total BS but my opinion is worth about as much as piss in the wind.

There is no reasonable way to construe that the treaties limited the citizens fishing to a privilege instead of a right held in common nor does the language of the treaties provide for the Indian harvest shellfish that is cultivated by non-tribal citizens.

I also have a serious problem with the idea of Indians having both exclusive tribal citizenship with special rights and US citizenship with exemptions from the responsibilities that go with that US citizenship.

If a tribe wants to be a sovereign nation that sovereignty should separate it and its citizens from the United States and not create a privileged class of people within the US.

It is my hope that the days of special people with special rights might be numbered.


Here are some words from Chief Joseph of the Nez Perce as previously posted:

"If the white man wants to live in peace with the Indian he can live in peace.
There need be no trouble.
Treat all men alike.
Give them the same law.
Give them all an even chance to live and grow...
all people should have equal rights."

"I only ask of the government to be treated as all other men are treated.
We ask that the same law shall work alike on all men...
with one sky above us and one country around us,
and one government for all...
that all people may be one people."

--Chief Joseph of the Nez Perce in a speech on January 14, 1879 to President Rutherford B. Haynes and a large gathering of cabinet members, congressmen, diplomats generals and others.

Thanks Plunker for clarifying that, and for giving such a reasonable reply. It's good to see that people can discuss these kinds of issues without getting mad at each other, or overreacting. If you could reference the page numbers of what you haven taken your quotes from, it would really help the common every day guy to understand its fullest meaning. The average guy isn't going to take the time to read the entire decision.

There is nothing wrong when people can voice their thoughts on such an important decision as the "Boldt Decision".

Thanks for you well thought out reply.


Cowlitzfisherman

Cowlitz,

My electronic copy of the decision has been renumbered as pages 1-122 instead of the original page numbers of 326-423 and the only online version that I know of is formatted in a manner that makes it difficult to guess the page number of a particular paragraph.

Most of the quotes I posted are from parts I-IV so they may be found within the first few pages.

It is my observation that the decision may not be understood to its fullest without reading it entirely through more than one time.

I wonder what the outcome would be if the judgements were ever revisited by by the supreme court. I would think that the decision would stand in its entirety. What would you predict?

Today, the decision seems to be administered by the tribes with the backing of the USF&WS and with any enforcement being one sided.

It's a 1 for me, 1 for you; 2 for me, 1 for you; 3 for me, 1 for you; 4 for me, 1 for you setup.

Plunker

What I foresee would be some big changes in how WDFW would have to "manage" the current commercial fisheries issue. I could see some major changes being made by the courts concerning their current share of the allowable "take" of harvestable fish.

Personally, I think that it would benefit the sport fishermen and the tribes both if it was to go back to the courts. But then again, I believe that the commercials still have a choke hold on what policy our WDFW would try to support. This time it could be the Tribe and sport fisher's vs WDFW & the Commercials! That's why we need to change the current legislative mandate of the WDFW.

What do you think?



Cowlitzfisherman

1) A little knowledge is dangerous. An informed opinion includes more than just U.S. v. Washington, etc. Key rulings on treatys and treaty fishing date to U.S. v. Wynans, 1905, and possibly earlier. Taking a treaty, or a small piece of one, out of context, and ignoring the century of case law that informed and influenced it, and you get the umpteenth uninformed PP BB debate of opinions on treaty fishing that collectively are worth, well, about what is paid for them.

2) Am I as smart as CFM thinks I am or not? Not sure I followed that. I didn't jump in right away, emotionally or rationally, because I was out of town, away from email and the internet. Am I biased? Hell yes. It should be impossible to be informed and not be biased by that information. What cracks me up are biases that are uninformed and based upon the value of visceral knowledge - "well, I just know it's BS, therefore, it just is!" But I love it for its entertainment value. Eddie is correct; Judge George Boldt was no bleeding heart liberal. It's highly unlikely that Alzheimer's influenced his decision; the ninth Circuit and then the Reagan Supreme Court upheld it.

3) No offense taken at all, Aunty M.

4) Todd and I have answered all these questions previously in other threads, I believe. A search over the last 5 years should turn them all up. Plunker provided a couple key relevant pieces of the decision in this thread.

5) CFM, sorry, guess I didn't see the Aug. 4 Lewis R. thread. You could email me if you think I'm missing or ignoring something significant here. Or, you could call me when the fishing is hot!

Sincerely,

Salmo g.

Salmo...I think you've stumbled on somethng....The entertainment value....that's what this is all about isn't it?

Now does anyone really think that old Salmo is going to support someone's view that is different then his own? Now really.


Cowlitzfisherman

What ever happend to the new nets that don't harm the fish? Didn't the Indians have to change from gill nets to these? I thought it was to make them release wild fish. I could be wrong...

Fishingjunky15

It was all a big lie!

Cowlitzfisherman

Now Cow, I can't remember you supporting an idea, or opinion that you didn't agree with

Jerry

If you're talking about my reply back to Salmo, I would be more than willing to "discuss" the legal points with him (but waiting a week or so to do so really isn't reasonable or fair). Remember, Salmo is a fed, and his position allows him the opportunity to have access to legal counsel to form opinions or support his answers. There are more state and federal people than you think that monitor this web site.

That's not being paranoid either, this site is has been used often to monitor the flow of opinions! I just got an email today from WDFW that invited me to "proof read" the next regulation pamphlet before it goes out.

Now what does that tell you? Can you say;"WDFW is right on top of things...as usual ! "


Cowlitzfisherman

So Feds like Salmo and the WDFW guys are sititing at their taxpayer funded computers looking at PP? No wonder we are so broke in this state. Hell CFM it takes hours to read all the quotes from statutes and treaties...Whew! Not to mention all those hours of research to come up with all the quotes in the first place.

I do think some good things may come from this discourse. Atleast all types of opinions are coming out. I find WDFW people more that receptive to sensible suggestions.

You might have a tough sell trying to convince them to go to court against the tribes though.