‘IN COMMON WITH’

Save the Whales? Deploy the Hatcheries!
July 28, 2020
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‘IN COMMON WITH’
United States Ninth Circuit Court Judge George Boldt interpreted three words, “in common with to mean tribes that signed the 1854 and 1855 Steven’s Treaties were entitled to half the harvest of salmon. It was a ruling chock full of consequences, few of which were foreseen.

‘IN COMMON WITH’

How could one man have envisioned the disruption and reaction on our world by his novel interpretation of just three words strung together 165 years ago? Answer: He couldn’t have. No one foresaw this. It’s kind of weird. Here are the four biggest, lasting impacts of The Boldt Decision.

By Patrick McGann, At Large Editor

When my publisher, Pat Hoglund, asked me to write an article on the impact of the Boldt Decision 45 years on, I felt like somebody just handed me a mop and told me about a cleanup on aisle five and then added, “Better take two buckets.” I do not have fond memories of it. The backlash to that decision remains a seminal lesson for me on how once you’ve succumbed to base passions, you are someone else’s weapon.

                There’s been much written about the history of the Boldt Decision and I don’t dare try to improve on it. In seconds with your phone or computer, you can have access to great volumes of excellent history, a good deal of it accurate. But before dealing with Boldt’s four biggest consequences, let me give you an unabashedly subjective history.

                After WWII, Washington State had developed a good-ol’-boy commercial salmon fishing operation. It was run by a commercial fishing mafia pretending to be a government agency called the Washington Department of Fisheries with its consiglieri, the University of Washington’s School of Fishery Sciences in Seattle justifying everything it did. It operated under the protection of two powerful godfathers: U.S. Senators Warren Magnuson and Scoop Jackson.

Billy Frank Jr. in 1973 loading chum salmon.

                Sport fishing was tolerated because it was politically expedient to do so. And although fish runs were declining under this regime, there were still enough fish to keep the masses happy (a lesson the Columbia River tribes have taken to heart that the Sound tribes haven’t figured out yet.)

                Tribal commercial fishing, which had been going on for thousands of years, was barely condoned. The commercial fishing mafia could marginalize the tribes because white society marginalized them. So that’s what they did. This was before casinos, and the tribes were poor. The only thing they really had to their name was a few scraps of paper with some 100 year old promises. Out of desperation, the Indians made themselves visible through confrontational protest, challenging the state’s authority by staging “fish-ins” that often turned violent.

                The confrontations grew and out of its growing came a fringe movement from the soggy bottoms south of Olympia, the Rikki Tikki towns of the West Sound and the flats at the lower end of the Nooksack that was virulently anti-Indian. These people were mainly concerned about waterfront property. The Indians had it; they wanted it. But to the point, they simply hated everything about the Indians and were obsessive about it. Same as it ever was.

                By the 1970s, with the Vietnam War winding down and a surplus of Marlin Brando-class activists running around looking for evil to smite, tribal leaders like Billy Frank Jr., a Nisqually, and David Sohappy, a Yakama—two pretty sharp fellows—decided they could leverage national public support and possibly win a law suit in federal court affirming their rights under the “Stevens Treaties” of 1854 and 1855. They were right.

                Ninth Circuit Court Judge George Boldt ruled in favor of the tribes, conjuring an interpretation that the words “in common with” in the treaties, as in the right to fish in common with non-natives, entitled the tribes to half the harvest of fish. If I had done that, people would say, “Well, yeah, he’s a little eccentric.” But this was a federal judge. It was an astounding development.

                George Boldt saw the Steven’s Treaties as business contracts in which real property now worth hundreds of billions was exchanged for the valuable consideration of “in common with.” And for one to mean something, the other had to, too. What the state was trying to do was renege on the “in common with” without offering to give back the land, of course. Boldt said, no way, Sparky, a deal’s a deal. Boom.

                There is much in Judge Boldt’s rationale to question. My first and persistent complaint is that the judge must not have fished much and couldn’t imagine the difference between fishing and catching. But re-litigation is a sour pursuit.

On of the unseen consequences of the Bolt Decision was the political upheaval that would result in commercial fishing winding up with 75% of Washington’s harvest.

                One of my favorites is Boldt’s odd observation that the state didn’t show how gill net harvest could harm fish runs. I still think that’s funny. Well, of course they didn’t. Who do you think the state was working for?

                And most people didn’t catch it, but the worst part of the Boldt Decision was contained in the Ninth Circuit Court of Appeals ruling in the majority opinion written by Judge Herbert Choy. It is breathtaking in its stupidity and ignorance of the nature of anadromous fish. Kafka could have done no better.

                Choy argued that U.S. citizens outside of what is now Washington State need not be bound by the treaties ratified by the United States. In other words, Choy denied oversight to Washington (and Oregon on the Columbia), but allowed it to Alaska, and he allowed the Dept. of Commerce to rewrite the treaties any time and in way they wish … outside of a place that would later become a state. Mark my words, if there is a Boldt III, this is going to be it.

                But it was the “in common with” ruling that had the teeth and is what made everybody’s hair catch fire. It was upheld on appeal and subsequently twice by the Supreme Court in refusing to hear further arguments by the state.

                Then in 1984, led by an infantry charge of seething sportsmen, egged on into racist fury and funded by waterfront-property-owning Indian fighters, Washington voters handily passed Initiative 456 which reads: “Shall Congress be petitioned to decommercialize steelhead, and state policies respecting Indian rights and management of natural resources be enacted?”

                Decommercialize steelhead? I mean, who could possibly be against that? I still think it’s an abomination to net wild steelhead and sell them by the pound alongside poop-farmed Vietnamese tilapia. So yeah. It got passed. And then … nothing happened. The lawyers, legislators and other bureaucrats in Olympia and Salem saw Boldt, the appeal and then SCOTUS as the end of the line. They zipped up their brief cases and went home.

                Game over. But nobody told the sportsmen.

                And just in the nick of time, I arrived at the front. I went to work for the late great Fishing & Hunting News in 1984 amidst the heady swirl of righteous revenge and deliverance and now we’re gonna show ’em, boys! I had been in Seattle for about four years and I was about as stupid as a bag of anchor chain. I had a lot of ideas about fish and fishing and Indians and commercial fishing and not every single of one of them was comically wrong but close.

                There was a steady flow of lurid stories of Indian fishing practices. It was truly upsetting stuff. I’m sure in accuracy a great deal of it was akin to selling white babies out of pizza parlors, but it worked. Sportsmen were crazed by the idea that Indians would get half the fish. They were so crazed that they didn’t bother wondering what percentage they were getting before Boldt and how many they were going to get after and whether it would be more or less than they were getting now. They didn’t care, all they knew was that this was bad and it was the Indians doing it. Sic ’em!

                I became the Oregon editor of F&H News, a plumb assignment sharing the border, the Columbia with the “Beirut of American fisheries management” as I heard some ODFW biologists refer to Washington. I was stationed there in the concrete bunker in Seattle, which is gone now, torn down and replaced by a labradoodle yoga emporium. But because I shared turf, I got in on the sausage making.

                Before I knew it I found myself in a tiny conference room listening to a future Washington Supreme Court justice spin a bizarre conspiracy yarn of how David Sohappy, the second coming of Lucky Luciano, was smuggling tons of unaccounted for Columbia chinook to fancy San Francisco restaurants by the semi-trailer full and he couldn’t be prosecuted because of this, that or the other thing. I remember thinking, ‘This guy is bug-eyed crazy.’

                There was this frumpy woman, nuttier than Aunt Betty’s brittle, wearing Ethel Mertz dresses and white gloves coming in every damn time we’d let her, and behind closed doors she’d turn into the reincarnation of notorious Indian fighter John Chivington and his militia parading off to Sand Creek, smiling a Joaquin Phoenix smile the whole time while insisting we were being tortured, massacred and left for dead on the beach by the commie, puppy-raping Injuns. Think of the children! She was scary. And hilarious.

Tribal gillnetters effectively combined “fish in” protests challenging the state’s authority to regulate them with legal action.

                There was a parade of others. A motley parade. And besides almost always noticing something really odd and vaguely sinister about them, I also noticed something else. These people didn’t give a rat’s ass about fish. None of them. Not a bit. Not even a little. Without exception, my overall impression of the Indian fighters was, “Why are you here?”

                And the answer came in the form of State Senator Jack Metcalf (later to be the WA 2nd district representative to Congress.) If there is one person I can point to as the single most destructive force in salmon management in Washington and perhaps the entire Pacific Northwest it’s Jack. You know something? In his last term he worked with Sea Shepherd and others trying to stop the Makah from whaling. Everybody was shocked. Not me. I knew that guy behind the closed door. He was an Indian fighter first, wingnut second and Republican a distant third.

POLITICAL PERVERSION

                And that is my first of my big impacts of the Boldt Decision: The utter perversion of Northwest salmon and steelhead political advocacy. Since Boldt, Washington salmon advocacy has been cannon fodder in the service of just about every right wing political gewgaw you can think of.

                If you are a fish advocate, your priority needs to be fish. Period. Not abortion. Not Colin Kaepernick. Not gun laws. Not your property taxes. Fish. What United States vs. Washington did was get fish advocates to think about Indians and forget about fish and remain nearly impossible to refocus on fish. “OMG, another chinook run is getting listed! Let’s abolish Medicare!”

                What was going through my head every time I sat down and listened to Jack Metcalf trying to piss me off about Indians doing this and Indians doing that, was, “It doesn’t matter who catches the fish we don’t get to catch, Jack. What do I care if the netter is Native or Caucasian?” Every time I hear a fish advocate defend the essential necessity of non-tribal gillnetting—can’t we all get along—now that Boldt is settled law, I think of Jack Metcalf, and I think I am listening to someone trying to put a saddle on me to charge off somewhere I have no business going.

                For the first time, I saw the effects of that poison wearing off somewhat in this last legislative session in Washington. State Sen. Jesse Salomon (D-Shoreline), God bless him, introduced a bill to phase out all gill netting under the state’s control and it was cosponsored by 24 senators, 17 Democrats and seven Republicans. It never got out of committee but that was a pretty encouraging effort. It would not have eliminated tribal gill netting. (So it was EVIL!) It would have eliminated non-tribal gill netting. And most importantly, it would have balanced the harvest in a way that makes sense economically, culturally and more appropriately to co-management.

State Senator Jack Metcalf
(later a US Represetnative) was the most
influential “Indian Fighter” politician during the
Boldt troubles.

                But the fact remains, because of Boldt, the fish are split three ways. Half to commercial fishermen who shovel the fish into ice tubs like they’re loading turnips, a quarter to commercial fishermen who shovel them into ice tubs like they’re loading beets, and a quarter to people who want to go out and catch their own fish because the experience is part of their identity and lifestyle and who are willing to pay enough for the privilege to support sustainable management. You can flower up that language all you want, but that’s the main impact of Boldt and it remains that way because, in defiance of reason, the state of Washington establishes a completely separate commercial fishery that is distinguished solely on the basis of the race of the fishermen. And that happens for one reason: Fish politics in the Northwest is hardly ever about fish.

LEGAL STANDING

                The second biggest impact of Boldtmight not be the most obvious but it has a huge impact on fisheries management in the Pacific Northwest and maybe well beyond fisheries management. Boldt Phase II took the tribe’s harvest rights and applied them to actions that impede those rights. For example, road culverts. The tribes won the slow-rolled 17-year-old culverts case in June, 2018 by way of a tie vote. It was a weak victory for the tribes but a victory nevertheless. Washington was ordered to fix 800 culverts to allow salmon passage at an estimated cost of $2 billion, which of course, Washington says is money it does not have.

                Here’s where it’s easy to lose the pea in the shells. My friend Bodie would say, “Those dang Native Americas!” He says that because he’s not a Native American (actually, he’s an orange tomcat, but whatever.) And the ghost of Jack Metcalf swoops in and says, “Yeah! Get pissed! Let’s stomp and fume!” Property taxes will go up! says Bodie. “Yeah! Get pissed!” Gas prices will go up! “Yeah! Get pissed!” And then Bodie would ask Jack’s ghost, “Jack, what happens if the culverts do get fixed?” Poof. Ghost gone. But right, Bodie, there will be more salmon and steelhead for the Indians, true, but for you and me too. There’s no question about it. Eight hundred culverts as good as a dam to a fish, all fixed. That’s not a bad thing. And it wouldn’t happen if the Indians hadn’t sued. And they wouldn’t have won if it weren’t for Boldt.

                Prior to this, the tribes have had to argue obliquely based on the Endangered Species Act that action harming listed fish should not be allowed. Sportsman can do this too. The problem is showing standing, meaning parties in a suit have to show they have a ‘dog in the fight’ so to speak, that the action they’re trying to stop causes them injury in fact. I personally wouldn’t find it difficult to see how members of the sportfishing industry are injured when fishing opportunity is curtailed by habitat destruction or de-watering or whatever, but judges have a unique immunity to logic sometimes.

                What Boldt did for the tribes is make standing almost automatic. I know a lot of people think that might not be a good thing but I urge them to take a minute and wonder why that is. When the Indians won on culverts, who benefited? The fish, of course. And if the fish benefit, then don’t sportfishers?

                What a weird thing, right? Who would have said in 1984 that Boldt would wind up being a benefit to sportsmen?

SELECTIVE HARVEST

                And so it is also on my third impact: without Boldt (and the ESA, of course) we never would have selective fisheries with mass marking and federal funding laws (THANK YOU! former Congressman Norm Dicks!) requiring mass marking for hatcheries allowing us to differentiate between hatchery and wild fish without killing them first.

                This has come as a wonderful, joyous unintended consequence of losing on Boldt. Lately, the tribes have pretty much shut up about it, because this isn’t going to change any more than Boldt itself is, but it hasn’t been that long ago that they were doing a creditable job of imitating a World Net Daily conspiracy program that mass marking of fish only served as an allocation tool.

                HAHAHAHAHA! Guess what! You’re right!

                Well, not really. Just enough right to be kinda funny. When employed by selective harvest methods, wild fish—and all listed fish are wild fish with an intact adipose fin—listed fish can be released unharmed. The people complaining about mass marking use non-selective gear that kills everything caught in it, so, yeah, that probably has some absolutely critical conservation value.

                 “In common with” means we allocate and we wrestle over what we allocate, including fish we, they, somebody, pays to raise.

                I have to say though, it’s been better than four years since I’ve heard the tribes complaining about mass marking. They’ve seemed to accept that it’s better to go ahead invest in the mass marking equipment, accept the federal funding and get on with pumping fish into the water. Excellent. Just as a rising tide floats all boats, when you split the fish 50-50, abundance is abundance for all.

JUSTICE

                The fourth impact is the most solemn. I have learned something important in all this wackiness and drama and human squalidness. Washington’s treaty tribes made Washington stick to a deal that made Washington possible. The people running Washington and the angry people in the streets and the people trying to protect the value of the real estate whose deeds go back to those very treaties, proved they were quite willing to just ignore the deals that had been made. And it was so easy for them to do. Yeah, just screw the Indians, who cares, take all the fish, keep the land, shred the documents, hide the evidence, bury the bodies deep, move on like it never happened, lie to your kids in church. So what.

                If the Indians had not sued and shined the spotlight of conflict on those suits, there is no question in my mind that they would have lost their sovereignty and everything else along with it. It doesn’t matter now whether you think they are sovereign nations or not. They simply are. Boldt did that. And you’d best adapt to it. That is a lesson for us all. You have to fight for it.

In the end, most of what sportsmen worried about happening didn’t, but other things did, both good and bad.

                I don’t think the tribes are angels. I think they are human. And I think they have a hard time negotiating in good faith. They do, 2018 shouldn’t have happened. It was their fault. I think they are Americans, and they’re as ambitious as anyone. I think a lot of them are still pretty damn pissed off, justifiably so, and you gotta watch ‘em. I don’t think there is a monolithic “Indian perspective” on salmon management policy. They fight over wild and hatchery just as must as anyone else. It would be a good thing if we could have an honest annual summit or convention to help us to forge ahead toward abundance together, but it’s going to be a while, maybe a long while, for that yet.

                But we need to be clear eyed about what happened here. It wasn’t Washington sportsmen at their best. The whole thing didn’t turn out the way we thought it would.

                The good ol’ boys and a fringe clown show of Indian fighters whipped the mob up, so easy to do, and there probably wasn’t a mother’s son among them, including me, who thought, “What a minute. What the hell are we doing?” We all simply assumed the Indians were the bad guys and the only bad guys, and if they won, we’d lose and we’d lose everything.

And we were wrong. SSJ

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