Dismantle the legal ruling that restored a fair share of the fishing harvest to Washington State's treaty tribes? Peter Knutson argues "yes" in the spring 1987 issue of Cultural Survival Quarterly 11(2) ("The Unintended Consequences of the Boldt Decision"). Fourteen years after the land-mark ruling, are there problems of equity and legitimacy so severe that the current fishery system should be scrapped? This, by implication, would require overturning the Boldt Decision itself. Yet facts and perspectives that Knutson ignores argue for support rather than abandonment of the present system.
The "Boldt Decision," U.S. v. Washington (1974), was the US District Court case, substantially upheld on appeal, that affirmed off-reservation treaty fishing rights and tribal management authority over traditional fishing areas. The resulting court-supervised system now involves 20 tribes in western Washington. Knutson argues that this system generates such serious inequities in resource distribution within the tribes, between the tribes and between treaty and non-treaty fishermen that remedial measures are necessary. He calls for a new definition of the fishery, one with more popular legitimacy and self-regulation, giving recognition to non-treaty fishermen as well as to treaty fishermen's cultural values.
Knutson's analysis is based upon a series of assumptions and assertions that are open to question. His article presents a distorted picture of the current. Northwest fisheries management system, a picture that needs correcting. He article reaches conclusions that, given a more balanced analysis of the situation, are unwarranted. Our comment draws attention to the distortions in Knutson analysis and provides an update and new perspectives on the current situation.
Knutson's Analysis: A Basic Misunderstanding
Knutson states that Judge Boldt's ruling was intended to preserve cultural integrity by returning fish to traditional estuarine and river fisheries, but that, in actuality, this goal has not been achieved. Instead, he argued, it has produced a wealthy class of fishermen who are depriving both their fellow Indian river fishermen and non-Indians in Puget Sound of their livelihood. Knutson views the situation both as an anthropologist and as a non-Indian commercial fisherman who fished for 16 years. He emphasizes the greed of the treaty fishermen:
Non-treaty fishermen had, from the beginning of the litigation, charged that he moral arguments used to justify a private treaty share in the fishery were simply smokescreens behind which certain Indian individuals would become extremely wealthy. Now, following the undeniable destruction of their fishery, their suspicions appear to be confirmed.
This inequitable situation, he argues, contrasts with communal resource distribution patterns in traditional Indian culture and with populist patterns of non-treaty fishermen. The "future definition for the Puget Sound fishery" for which he calls would presumably rectify these problems.
In considering Knutson's views, we must admit some uncertainty about the details of his recommendations. How is "popular legitimacy" defined? Must it include all parties to a resource dispute (frequently an impossibility) or is it based upon majority consensus (which historically neglects the native minority)? Hoe is self-regulation to be understood? Which groups other than tribes (which already have court-affirmed authority over traditional areas) possess either a legal or a policy basis for self-regulation?
Despite these questions, Knutson's approach manifests a basic misunderstanding of traditional Indian culture and of the nature of Indian treaty rights. His article also distorts Judge Boldt's ruling, over-simplifies its consequences and fails to consider the active efforts of tribes to resolve some of the issues he raises. The following sections describe the problems in such an analysis.
Traditional Culture Had Parallels for Present
Knutson describes the tribes of western Washington as being composed of traditional fishermen who fished for subsistence, barter and ceremonial purposes and who depended wholly on river and inshore fisheries. He implies that they were uninterested in private property and only later were corrupted by the profits to be gained through litigation to obtain rights to marine fisheries. This picture clearly contradicts major ethnographic accounts of the region, which document the extensive traditional use of marine as well as freshwater resources. Judge Boldt recognized this when he stated:
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 found. They harvested fish from the high seas, inland salt waters, rivers and lakes...Although not all tribes fished to a considerable extent in marine areas, the Lummi reef net sites in Northern Puget Sound, the Makah halibut banks, Hood Canal and Commencement Bay and other bays and estuaries are examples of some Indian usual and accustomed fishing grounds and station in marine waters.
The judge also described the persistence of marine fishing following the treaties and noted that the Lummi engaged in gill netting, purse seining and trolling on Puget Sound and the Makah participated in the commercial fishery on the high seas in the early 1970s during the litigation of U.S. v Washington. In addition, the US Supreme Court review of the case recognized traditional marine as well as freshwater fishing sites.
Knutson's depiction of Northwest Coast traditional culture as purely communal is also problematic. Although use rights to traditional fishing areas did reside in kin groups of birth and marriage, Northwest tribes are known to have been highly oriented toward private property and distinctions in wealth and prestige - despite communal activities such as the potlatch, which served as mechanisms of redistribution of unequally held resources. Knutson also underestimates the importance of trade. At the time of the treaties of 1854 and 1855, the tribes' use of the fishery resource included commercial as well as subsistence and ceremonial fishing pursuits; all these activities were recognized as reserved rights protected by the Steven treaties.
Thus, although river and estuary fisheries were of primary importance, it is clearly inaccurate to describe the traditional fisheries as based only on these resources and to suggest that resource distribution inequities did not exist in traditional or historic times. Although making a firm estimate of the relative economic contribution made by marine and freshwater resources is impossible, the significance of the marine fishery prior to and at the time of the treaties is well documented. Therefore it is not surprising nor "unintended" that marine fishing is important now that off-reservation treaty rights have been affirmed and tribal access to marine areas has been restored.
Bolt Ruling Aimed to Restore Legal Rights
Knutson refers to U.S. v. Washington as a federal intervention "necessary to protect the culturally unique relation of Indian people to the salmon resource". In his introduction to the issue of Cultural Survival Quarterly containing Knutson's article, Jonathan Wiley refers to the situation as "a well-intentioned federal attempt to preserve tribal integrity, founded on the assumption that salmon have been a ceremonial as well as economic foundation of local Native American cultures". These descriptions contain two basic misconceptions; (1) the notion that the reasons for the decision were based on concepts of cultural integrity, and (2) the concept that federal intervention was the primary process at work in the case.
The pivotal issue in U.S. v. Washington was actually the delineation and implementation of legal rights secured by treaty. Judge Boldt reached his ruling on the basis of accepted methods of judicial interpretation of treaty law, basing his conclusions on the nature of the treaty entitlement. As the Supreme Court stated in its review of the case, "a treaty including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations". In the Stevens treaties, the tribes ceded vast territories, but reserved their traditional right to fish. The treaties were a guarantee of federal protection of those rights.
The cultural traditions of the treaty tribes, the central role played by fishing, the historical background and the nature of the treaties were all important elements of the case. But they were not the basis for the decision: enforcement of a contract concerning rights to property - in this case, fish - was central.
We also disagree with the portrayal of U.S. v. Washington as a "federal intervention" and a "well-intentioned federal attempt"(1). These descriptions omit key elements of essential processes that brought the parties to court. While it is true that the US as trustee, along with several tribes acting as intervenor plaintiffs, filed the case heard by Judge Boldt, this case was but one of seven Indian treaty fishing rights cases to reach the Supreme Court in the past century. This case was part of an established judicial process.
More important, Knutson's emphasis on the federal role does not give proper credit to the Indian people's forced. He overlooks their participation in the court cases, their protests on the river and their efforts to gain public support. Many fishermen, such as Billy Frank, Jr., of the Nisqually (now chairman of the Northwest Indian Fisheries Commission), risked their lives as well as their gear in the fish-ins of the 1960s for their treaty rights. The article's portrayal of the process as a federal intervention and the litigants' efforts as "simply smokescreens behind which certain Indian individuals would become extremely wealthy" is a disturbing perception that does little justice to the nature of the controversy or the key participants in it.
Consequence of Boldt Decision Match Intent
Knutson's "unintended consequences" mainly concern problems of allocation among different groups. Before discussing these issues, it is important to understand what Judge Boldt did intend and what the major consequences of his decision have been.
Judge Boldt affirmed the tribal treaty right of off-reservation fishing, and held that the treaty language guaranteeing Indian fishing "in common with" non-Indians meant sharing equally. (The treaty tribes' exclusive right to fish on their reservations was not in dispute here.) He established guidelines for a new management system in which the tribes would have an opportunity to catch up to 50 percent of the harvestable fish destined for their traditional fishing areas was recognized.
The consequences over the past 14 years have been striking. The treaty tribes now catch approximately their 50 percent. They are actively involved in the management system. Some tribes manage their fisheries on a tribal level, utilizing community-based fisheries committees; others, such as the Skagit System Co-operative and the Point No Point Treaty Council, have formed cooperatives through which they share management authority by pooling their resources. An intertribal commission, the Northwest Indian Fisheries Commission, has been operating since 1975; it serves coordinating functions and provides public information and technical assistance.
The tribes are engaged in fisheries research and enhancement efforts. They produce a substantial proportion of the hatchery releases in the state. Some tribes own boats and are involved in processing and marketing activities. Almost all tribes levy a tax upon the fishermen at the time of the sale of the fish to the buyer. The funds are used for collective, often fishery-related, purposes. This is a potentially powerful mechanism for redistribution of profits from the fishery.
Tribal representatives and biologists participate in the Pacific Fisheries Management Council, the federal regional body responsible for managing fishing within the 200-mile exclusive economic zone, and on the US Panel of the Pacific Salmon Treaty between the US and Canada. Requirements to return fish to the usual and accustomed places of the treaty tribes, in compliance with U.S. v. Washington, have played an important role in the management schemes of these agencies and are credited with providing incentive to deal with problems engendered by mixed stock ocean fisheries.
Knutson implies that the current system contains an "incentive to overharvest". Several factors mitigate against overharvest by any parties in the case area. Three provisions, not mentioned by Knutson, are important elements protecting the fishery and the fishermen: (1) enforcement systems operate on the state level for none-treaty fishermen and on the tribal (or cooperative) level for treaty fishermen; (2) a non-judicial mediating board established by the court, the Fisheries Advisory Board, responds promptly to challenges regarding conservation and other issues that can be raised by either the tribes or the state; and (3) the system operates under continuing district court supervision, offering the opportunity to return to court if all else fails. All harvest data is shared on one computer system based at the University of Washington, thereby facilitating exchange of information and dispute resolution. As William Clark of the University of Washington School of Fisheries stated in his recent article "Fishing in a Sea of Court Orders. Puget Sound Salmon Management 10 Years After the Boldt Decision," "Puget Sound salmon management is a success overall, at least in the author's opinion. Some problems remain but the prospects for solving them are better than for most other fisheries".
Treaty Allocation an Issue Law Leaves to Tribes
Knutson's analysis of inequalities raises important issues, but does not deal adequately with the complexities of the current system. For example, he describes the disproportionate share of fish harvested by purse seniors and by one tribe. To understand this issue, one must be aware of the legal treatment of intertribal allocations. Judge Boldt's system provided for allocation between treaty and non-treaty fishermen, but, respecting tribal autonomy, he left it to the tribes to decide how to divide the treaty share within those places where their areas overlapped or where fish passed through the areas of more than one tribe. The Supreme Court review made no modification of Judge Boldt's approach. Tribes may only fish within their own marine and freshwater usual and accustomed places. It is within this legal and geographic context that the tribes are now determining their own allocation formulas.
Knutson is correct that intertribal allocations are an important issue. Some tribes catch far more fish than others and reap ore economic benefits. In some cases, specific tribes earn more from fishing than others because they have more fishermen or because their usual and accustomed places are better situated in terms of larger runs or more lucrative stocks. In some cases, specific tribes that utilized purse seine vessels prior to U.S. v. Washington are able to catch more fish; as a preexisting condition, this situation can hardly be considered an unintended consequence of the ruling. However, inequities may also exist in harvests of shared runs, when one tribe fishing in its traditional areas intercepts fish that would eventually reach the traditional areas of another tribe.
Knutson leaves his conclusions open to question, however, when he suggests that the most suitable approach to intertribal allocation problems is to redefine the fishery. In fact, the situation is amenable to less drastic, more appropriate solutions, examples of which are provided by the tribes. The Skagit System Co-operative, for instance, utilizes memoranda of agreement for percentage allocations between its member tribes, the Swinomish, the Sauk-Suiattle and the Upper Skagit. Within the Point No Point Treaty Council, the Klallams and the Skokomish have reached informal agreements regarding particular areas of Hood Canal in which each will fish in the fall chum fishery. Several intertribal problems have been mediated by the Fisheries Advisory Board.
At present, a formal intertribal mediation project is underway to develop a long-term allocation plan for shared runs harvested by the tribes in the case area. The project involves a mediator (an attorney) and a technical advisor (a fisheries biologist) who are working with the tribes throughout the region. The development and sharing of the harvest data base for the case area should assist all parties in arriving at equitable sharing patterns. If no solution is found, the tribes still have the option of taking the issue to court.
Knutson raises the issue of sharing between marine and river fishermen as another important aspect of his call for changing the current system. We have pointed out above that both of these types of fisheries are traditional. However, the tribes recognize the difficulty of balancing the needs and capabilities of the marine and freshwater fishermen. Here again, solutions can be sought within the current management framework. The Point No Point tribes, for example, have allocation agreements among river and ocean fishermen. The Quinault, who have several marine trollers, have nonetheless chosen to orient their management scheme to the needs of the river fishermen: the tribe utilizes a system of limited entry, based on mapping and numbering of registered fishing areas owned by individual families on the rivers. These decisions lie within the authority of the tribal management bodies, which must deal with their own constituencies.
Developing a Different Fishery Unjust and Unnecessary
The management system that has evolved under Judge Boldt's ruling provides a general framework for resolving intertribal problems. The tribes have a wide array of options-from informal agreements to court judgments-available to them in this process. Knutson's view that intertribal and intratribal issues underlie the need for restructuring the fishery implies that outsiders should formulate a new framework. On the contrary, problems should and indeed are being handled by the key management authorities in the current system.
Knutson also calls for the inclusion of non-Indian cultural conceptions within the current system. Theoretically, the Washington Department of Fisheries and the Washington Department of Wildlife (formerly Game) are the agencies that represent non-treaty fishermen. Recent work on comanagement systems suggests many ways in which user groups can share authority with government management agencies. Indeed, the Long Live the Kings Project in Greys Harbour, Washington, is one such example. Thus we suggest that non- Indian fishermen could work within the current system as well. However, from a legal and political standpoint, such arrangements would not be the same as the Indian treaty tribes' management authority, because other fishing groups, even with their ethnic traditions, do not have the same legal status as Indian tribes in the US.
Knutson's argument for a new definition of the fishery is thus a disconcerting one. It suggests significant change to a system that has been established within the legal context. As the Boldt Decision has been substantially affirmed by the Supreme Court, the system now in place stands by law. Any significant changes would require federal legislation. Congressional abrogation of Indian treaty rights raises further issues too lengthy for this discussion. It is important to note, however, that abrogation bills are costly, complex and detrimental to the tribes. Treaty rights supporters should be aware that opponents may seek this route increasingly in the future.
Knutson's analysis of Judge Boldt's ruling in U.S. v. Washington is based upon misconceptions and reaches conclusions that would be harmful to the tribes, because it seeks to change a legally affirmed system that has enabled them to catch their treaty share and to exercise their management authority. The current system presents a suitable framework for resolving those problems that remain, making a new definition of the fishery neither necessary nor desirable. The persistence of treaty rights controversies points to the need for government agencies, tribes and other resource users to continue to seek ways to work together in developing new and innovative non-litigious approaches to avoid such controversies without compromising court-affirmed rights.
Notes
1. If the role of federal intervention in this case is to be considered, it would be more appropriate to describe those federal actions that were required to stem the enormous tide of non-Indian opposition that followed Judge Boldt's ruling. These actions included district court management of allocation in 1977 and the establishment of a federal interagency task force to deal with the outlaw non-treaty fishery of that period. As the Ninth Circuit Court of Appeals has stated, "Except for some desegregation cases, the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century".
Article copyright Cultural Survival, Inc.
