Does state defer to tribes on salmon?

In the fall of 1999, when the Association of Washington Business met at Semi-Ah-Moo, then-Attorney General Christine Gregoire was a guest speaker on the salmon crisis, and I got to ask her a question that was a major point of controversy.

When the U.S. Supreme Court OKed the 1975 Boldt decision, giving treaty Indian tribes up to half the salmon, it authorized the state to use whatever measures were necessary for conservation of the resource.

Is it the position of the state that includes shutting down tribal as well as non-tribal harvest?

“Yes,” she said, “but it would be very tough to do.”

How tough we don’t know, because we’ve never tried it. Sports and commercial fishing seasons were frequently shut down as a succession of fisheries directors and governors catering to the tribes failed to use their authority, shifting their attention to habitat improvement instead.

There is a reason for reopening this old wound that I have decried from its inception. I maintain that salmon are a resource that belongs to all the people, not just a handful of fellow citizens awarded superior rights by judges attempting to atone for past wrongs to long-dead ancestors.

Gov. Gregoire has asked state officials to look into the Makah Tribe’s winter harvest of 20,000 chinook salmon, which is either 12 or 40 times as many as they had been allotted under state guidelines, depending on who’s doing the talking.

Phil Anderson, state Fish and Wildlife salmon policy coordinator, said the catch was supposed to be about 500 in the areas of Neah Bay, Sekiu and Port Angeles. Other state fishery representatives, not quoted by name in the media, said the allotment was 1,600 to 1,800.

Tribal chair Ben Johnson said they always planned to quit when they reached 20,000, which indicates they had no intentions of abiding by the allotment they had worked out under state guidelines.

U.S. Sen. Slade Gorton got a provision in the law that the Endangered Species Act, with its regulations for conservation, applied equally to all Americans, but the tribes negotiated a deal with the Clinton Administration allowing them to decide for themselves on a case-by-case basis whether or not to comply.

Tribes nationwide poured cash into the state in 2000 to replace Gorton with their good friend Maria Cantwell.

All the news items on the Makah case said state officials could not legally dictate the number of fish tribes can take, but I think that’s an assumption based on those Clinton executive and secretarial orders.

My copy of United States v. State of Washington on the salmon case reads, in Article 107: “For the state to show that a specific fishing regulation is necessary for conservation, it must utilize run-size predictions, valid escapement goals, the least restrictive regulation of tribal fishermen and it must view the entire run as a divisible resource.”

Fisheries officials at first said over-fishing of the chinooks in the Strait by the Makahs means the 2005 chinook catch will have to be reduced for other commercial, tribal and sports fishers to make up for it. But they were already chickening out at their annual meeting on harvest negotiations March 1 in Olympia.

If such a level of over-fishing happens again, Anderson said, they risk losing their management agreement with the fed that runs until 2009. Cluck, cluck, cluck.

It’s long past time the state settled whether the authority of a state to protect and preserve its resources outranks some federal bureaucrat’s dictates, a la Clinton, the Makahs and the ESA.

If we — the state — deal them out of the chinook harvest until they’ve made up for the loss, I have no doubt they’ll fish anyway, in their belief they have that right.

Then let’s take them to court. In the meantime, we’ll find out whose side our new governor is on. All of us together, including the tribes, as one body of citizens to whom the laws on conservation apply equally? Or a handful of super-citizens who decide for themselves which laws they choose to obey?

Adele Ferguson can be reached at P.O. Box 69, Hansville, WA, 98340.

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