i'll be honest, i yanked this from cryfish. however a very good read. this is a must read to many. there is alot of bitching,crying,sniveling,complaining, about why the indians can and do what they do. a royal hot topic is thier netting habits. brewer has always stepped up and said from the beginning, it would be easier for the US goverment to stop the tides from going in and out. The US goverment has zero power to stop the indian harvest in anyway. this includes the CCA..... pay attention to how things developed. if you need to read it several times.


http://community.seattletimes.nwsource.com/archive/?date=19990523&slug=bull23

I was trying to read this with an open mind.....then I came to this:

"-- March 1999: Writing for the majority in a 5-4 split, upholding the fishing and hunting treaty rights of the Mille Lacs band of Chippewa against the state of Minnesota, Justice Sandra Day O'Connor reminded dissenting justices Scalia and Rehnquist that the court has a historical obligation to interpret treaties in favor of the tribes and in the spirit in which the Indians would have understood them when they were signed.



(Gov. Jesse Ventura's response: "If that's the way they want it, they can go back to birch bark canoes!")"

Berg,

The various treaties were executed in English. Most, or at least many, of the Indians who represented their tribes either spoke no English or only a little. Consequently, Justice Marshall established that Indian treaties must be interpreted as a reasonable person would have expected the Indians to understand them. Would a reasonable person conclude that the Indians were knowingly signing treaties intended to screw them? The Justices didn't think so either, and that has influenced treaty cases before the court for over 100 years.

If the actual intent of the treaties was to screw the tribes out of their land, natural resources, and everything else, the proper and legal way to do that is for Congress to pass legislation making it so. And no, of course they won't do it. So that's partly why it is the way it is.

Sg

That sucks....but can't really argue with it either. Earlier today, I was thinking how a signature is a signature. There may be fine print, but you are supposed to read that, yeah?

A pretty harsh stance, maybe....but thats where I am.

...What if we applied that logic to homebuyers that were "duped" by the system?








Nevermind.

Who do you think explained the fine print to the tribes?

"the court has a historical obligation to interpret treaties in favor of the tribes"

This is where it all went to crap. That above line is the liberal agenda Jerry and came out of liberal court. Similar to the "living Const" that they use to throw anything they want down our throats. It is a way for the courts and unelected judges to do anything they want. They go around the people and interpret what they want to see.
We need to look back on when those treaties were signed before we start to interpret what we think they should say(or what a liberal judge who believes they were wronged in every way wants them to say). The times were horrible for the indians. The whites were coming and the govern was wiping them out(one of the worst genocides in history). There was no victory for the indians. They might win a few small battles but the war was over. They did not sign these treaties from a position of strength and to say this is what they would have thought or expected is no more than some judge with white guilt attempting to right a wrong. No one knows what they were thinking and to attempt to is impossible.
Should we right that wrong, yes IMO. But do it through the legis and the people not some judge who answers to no one and has their own agenda. If the debate was out there, I think we would do the right thing. The american people know this history.
Bottom line should be what the document states. This was the treaty. Not what some judge wants it to say. Who explained it to them........We dont know and cant know. But for some judge to make it say what she wants or thinks it should is B.S. Amend it through votes not judges. Treaties and The Const(not that you can amend treaties but you get the point).

nearly 240 looks and only 6 replys. not even pastor todd has chimed in, so far. i was told on sh.net that during the 1972 judge bolt now infamous decision. the indians actually only " requested 35% on the total fish as thier total take" judge bolt read into the treaty and read into how things were worded. he is the one who gave the indians the now law 50% total. they only needed 35% but was awarded 50% .....here is a true classic example of how things develope for the indians.

i've read many posts based on the CCA. the amount of replys by guys who say they won't support this group because the CCA does not address the indian gillnetting. well gee i wonder why that is???? the commercials are the only true opponents that we the whiteman can do something about. untill the guys meld thier minds around this, it will be a struggle.

for example, the indians along the columbia river are now threatning to shut down all the sport fishing. and they can! they are wanting to start thier fishing well below the bonni. they can! brewer fore sees some real ugly things brewing in the future. between the commercials, sportys and 2000 sealions in the lower river, we'll be lucky to see any spring salmon go over the bonni....

Leave it to Brewer to kiss Indian ass.....

Mf

Docspud,

I can only guess you're making up your assertions about "liberal agenda crap." The federal judges have simply done their jobs when it comes to Indian treaties, if you bother to look any of it up. States have commonly ignored Indian treaties, not that they should have, but there is some logic to it. Most Indian treaties pre-date statehood. That is definitely the case in WA. The treaties are between tribes and the federal government. So when a state acts in contravention of a treaty, the tribes sues the state in federal court, which is the only place a treaty issue has standing. That is, state courts have no jurisdiction over federal treaties, no surprise there.

So then, the judge reads the treaty, tells the state that the treaty is the law of the land, and the state must comply and not run over the Indians' treaty rights. How is that "liberal agenda crap?" It's called following the law. Perhaps that's an alien concept to you.

You write as though every treaty was conceived in the same fashion. That's not how it was. When tribes were not in a position of strength to negotiate from, they tended to get pretty crappy deals from the government. So a lot of the vanquished tribes in the east and midwest got screwed by their treaties.

Here in WA it was different. You say no one knows what they were thinking in treaty times. Perhaps you aren't a history fan. Believe it or not, there were literate people in the 1850s. They wrote down what the whites were thinking and what they understood that the Indians were thinking. It was not precise, because the shared language of both the whites and the Indians was Chinook jargon, kind of a slang, that served mainly as a trade language. However, even then a few Indians spoke some English, but none of them were fluent. The upshot is that we actually have a very good idea of what the parties discussed and what each expected out of the treaties.

The tribes of WA territory negotiated from a position of strength. They were diminishing in number due to diseases brought by the whites, but they still outnumbered whites by 10 to 1 or more. The feds didn't have a very big army presence here until after the Civil War. So Gov. Stevens' job was to try to get the tribes to peacefully give up large tracts of land so that whites could obtain legal title to it because the whites didn't have the means at that time to just take it by force. Stevens was able to obtain the treaties, and legal title of the land for the U.S. by allowing the tribes to retain that which was of greatest value to them. These included the rights to fish, hunt, and gather in perpetuity.

The upshot of this is that treaty fishing rights clearly exist. Only a non-reader or fool couldn't understand that. Where judicial interpretation comes in in US v WA is the allocation formula. Brewer says that the tribes would have settled for 35%. Actually I've heard 25% and lower in some cases, not that it's relevant. Judge Boldt, who was a conservative, BTW, used Black's Law Dictionary to ascertain the 50:50 sharing formula. It's all in the Decision if you wish to read it. Upon review, his decision was largely upheld by the 9th Circuit and the Supreme Courts. But I suppose such studiousness was just all "liberal agenda crap." Like they say, you can always tell a fool, but you can't tell him much.

Sincerely,

Salmo g.

In regard to docspuds post, I have this comment:
Treatys are , in concept, similar to a contract. In contract law, what Salmo G posted:
"Would a reasonable person conclude that the Indians were knowingly signing treaties intended to screw them?"
is similar to the 'reasonable person' idea, which dates back to the 1830's. So, what the judges have based their verdicts on has a foundation in law. As an example, many times in years past, easements were granted that did not define the terms of the agreement in the kind of detail, especially as to the location and uses, we see now days. To determine what was intended, the judge will consider what a 'reasonable person' would have expected, considering the circumstances of the situation, including the time at which the easement was granted. I'm in the title and escrow business and I see this often where an easement was created that says "an easement for utilities".
Where? How wide? Overhead or underground? If the user rips up landscaping, do they need to fix it? These are the types of details that get litigated after the fact, the same as the treaty's details have been back in court to determine what was meant when the treaty was signed.
As the concept of owning the land was not within the Indian's experience, the judge's heavily consider that when deciding on their verdict.

The case cited in the article about this lawsuit :
"Summer 1999: Native Americans have brought a class-action suit against the Department of Interior's Bureau of Indian Affairs for tens of billions of dollars in misused Indian assets. This case is going to trial this summer, and Price-Waterhouse accountants say the particulars line up very nicely in favor of the Indians. Should get ugly."
is Cobell (Blackfeet) vs Salazar(Dept. of Interior), where the Bureau of Indians Affairs was sued because they can not account for money received for grazing, mining, oil and other leases and moneys recieved in trust for the benefit of different tribes on their respective rez land. Wiki link about suit:
http://en.wikipedia.org/wiki/Cobell_v._Kempthorne

For the record, I'm a member of the Blackfeet Nation and fish the same as you here in Washington. I do get about $30. a year for my undivided ownership interest in rez grazing land, so I got that going for me.
I don't like the nets either.

wow great stuff in the recent posts. well except for the post by MF... JERK

Brewer-

For what it is worth:

An important attribute of sovereignty is its degree of absoluteness. A sovereign power has absolute sovereignty if it has the unlimited right to control everything and every kind of activity in its territory. This means that it is not restricted by a constitution, by the laws of its predecessors, or by custom, and no areas of law or behavior are reserved as being outside its control


The republican form of government acknowledges that the sovereign power is founded in the people, individually, not in the collective or whole body of free citizens, as in a democratic form. Thus no majority can deprive a minority of their sovereign rights and powers

+1 Todd

Mf

I'm not English Pete, if'n that's what you're getting at...

A couple of quick comments that can be read in the context of this topic:

1. 95% of those who bitch about the Boldt Decision have never read it.

Here it is: The Boldt Decision

2. 95% of those who bitch about "liberal agenda" and "activist judges" are usually the first ones to run into court and cry when anything...anything...they don't like is happening to them...and fully expect some activism at that point. How many of the RWWJ's complained when the Supreme Court found an individual right to bear arms in the 2nd Amendment, a finding that clearly has zero support in the plain text of the Bill of Rights?

3. Agree with it or not, the Boldt Decision is a landmark piece of jurisprudence that went up and down the legal ladder repeatedly and was roundly supported by judges and banks of judges from all ends of the political spectrum.

4. If you don't like the Boldt Decision (I don't), don't blame it on activist judges, or the people of the State of Washington (though rednecks on the Nisqually and Puyallup Rivers were the first instigators that brought it into play)...look at the one man most responsible for it...Sen. Slade Gorton...not a liberal by any means.

Fish on...

Todd

Slade Gorton had the opportunity to negotiate the fishing rights issue before it ended up in federal court but since his families vested interest is in fish, as in Gorton's Seafood, he chose to not negogtiate in good faith putting his own and his families personal interests ahead of the citizens of Washington State, both anglo and Indian.
So, you can thank Slade for the Boldt decision for allowing the case to go to court.
If you really have an interest in the Boldt decision in particular or treaty lawsuits in general, take the time to read about them. There are plenty of links online.

In Blackfeet country, the feds strong-armed the Sweet Grass Hills away from the Blackfeet and it took over 100 years for the feds to come up with the money agreed to at the time.

Turns out, they have no real sovereignty at all, depending on how the Federal government wants to rule. Here's an excerpt, followed by the link:

"in 1973, the federal district court for the district of Montana stated the underlying principle in the case of United States v. Blackfeet Tribe, 364 F.Supp. 192. The facts were simple: The Blackfeet Business Council passed a resolution authorizing gambling on the reservation and the licensing of slot machines. An FBI agent seized four machines. The Blackfeet Tribal Court issued an order restraining all persons from removing the seized articles from the reservation. The FBI agent, after consultation with the United States Attorney, removed the machines from the reservation. A tribal judge then ordered the U.S. Attorney to show cause why he should not be cited for contempt of the tribal court. The U.S. Attorney applied to federal court for an injunction to block the contempt citations. The Blackfeet Tribe argued that it is sovereign and that the jurisdiction of the tribal court flows directly from this sovereignty. The federal court said:

No doubt the Indian tribes were at one time sovereign and even now the tribes are sometimes described as being sovereign. The blunt fact, however, is that an Indian tribe is sovereign to the extent that the United States permits it to be sovereign -- neither more nor less. [364 F.Supp. at 194.]
The court explained:

While for many years the United States recognized some elements of sovereignty in the Indian tribes and dealt with them by treaty, Congress by Act of March 3, 1871 (16 Stat. 566, 25 U.S.C. s 71), prohibited the further recognition of Indian tribes as independent nations. Thereafter the Indians and the Indian tribes were regulated by acts of Congress. The power of Congress to govern by statute rather than treaty has been sustained. United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886). That power is a plenary power (Matter of Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848 (1905)) and in its exercise Congress is supreme. United States v. Nice, 241 U.S. 591, 36 S.Ct. 696, 60 L.Ed. 1192 (1916). It follows that any tribal ordinance permitting or purporting to permit what Congress forbids is void. ... It is beyond the power of the tribe to in any way regulate, limit, or restrict a federal law officer in the performance of his duties, and the tribe having no such power the tribal court can have none. [Id.]"

http://www.umass.edu/legal/derrico/nowyouseeit.html

The Blackfeet have a casino now.
http://www.siyehdevelopment.com/peaks.html

The Lummis bought some older slot machines also back in the early '80's from a friend of mine and opened up a casino. They were seized by the feds also. They have a casino also now.

Damn I dont have long to respond.
The bolt decision which is now the law of the land was radical at the time. States had controlled fishing rights since the "Winans" decision clear back in the 1890's I believe. That was upheld in 1916 and again in 1942 I believe(could be off by a few years as I got to go back to work and dont have time to look it up). Havent read it in about 5 years when I last had this arguement so I can remember exactly.
The treaties were signed in 1854-1855 with all the regional tribes(which many here need to read for themselves) As I stated the tribes were not forcing the issue and not in a position of strength at the time. They were getting pushed off traditional lands and being ravaged by desease. Look it up SG. The treaties when signed stated nothing about #'s and stated exactly this "usual and accustom grounds in common w/ all citizens of the territory....." The decisions had been well established through the supreme court in 1916 and 1942 that the states had the right to regulate all but the rez and in common with the citizens ment just like everyone else off the rez. Same laws as everyone else.
Then came all the changes of the 60's and 70's when we started righting wrongs of the past. Everything was challenged in court again and again until people got the right judge to give the right decision they wanted. The changes in our area started with Belloni in Or. which people should also read. Bolt piggy backed on him with his decision and was the golden boy for the tribes so to speak.
Bolt's decision which I have read multiple times and dont agree with stated that "in common with" at the time of the signing ment 50/50 split. This was the only really radical thing he found in his ruling as other parts he took from other decisions already made in other courts. How he got that I am not sure but he got there using the logic that this was what the tribes probably thought it ment at the time(his personal oppinion). Now they had the decision they had filed 100's of other case and not been able to get. It went up through the liberal 9th circut and then the liberal supreme court of the time which was coming down with decision after decision to right past wrongs. Voted largely along party lines(surprise, surprise)
My point is this. We constantly have wackos in the legal system that make rulings based on their own oppinions(not established law) that impact far to widely in this country. Choices should be made by the people IMO. No one group should be able to hold down another but no one man should be able to decide for the entire state or country either. This was a bad decision for our fish and the prospects for them.
The decision was not based in so much logic and fact that it could never be touched as some think either. A different court would rule differently. The supreme court did leave some wiggle room as well. We just need to have some pols that are not owned by the tribes and will negotiate. Stevens stated to a max of 50% as the court thought this was unfair to non-tribal fishermen(not a 50/50 split). One day it will change IMO. Maybe not the decision but the #'s.
And to those who dont agree fine. But I do know the case and ruling as I have read it multiple times. I just dont agree with it. Iam a history buff as well. So disagree if you like but dont pretend it is not logical or somehow some redneck rant. It is oppinion and if I were more like some here I guess I would just surf google and cut and paste someone elses thoughts as my own. By the way, hows my spelling loser.

If nothing changes, nothing changes....

It is interesting to me that original thinking comes up. If you have doubts about the ability of the tribes to understand what is happening read Chief Seattle's responses to the government about what was happening. (http://lakewood.sharpschool.net/UserFiles/Servers/Server_6066475/File/Education%20Resources/Chief%20Seattle%27s%20letter%20to%20the%20US%20Govt%20in%201852%20re%20purchase%20of%20tribal%20land.pdf).

I believe that they did know what was happening, to some degree, and were attempting to forestall the inevitable with the treaties. They were trying to preserve, to some degree their way of life, but, like all people, understood that they would eventually disappear, by decimation or becoming part of the new world order.

What they could not have anticipated was the current wealth of resources they could sell over sees, the power of gambling, and the current standard of living available to many members. Going back to original thinking would mean giving up the wide spread trade and sell of their harvest. The use wealth and political power gained through gambling, gas stations, logging, trade and other mean is surely not something they could have foreseen.

There is nothing permanent except change