Resistance is futile

John Hollowed, legal and policy adviser for the NWIFC, spoke of his experience in fisheries co-management.

Traditionally, tribes were considered to have jurisdiction only within the boundaries of the reservation. Co-management gives tribes extra-territorial management of  their members.

“Fisheries management is people management,” he said. “There are cultural issues and legal issues.” It isn’t  just dividing a harvestable number of fish in half.

Tribes have an inherent right to participate in management of their resources, wherever those resources are.

Tribes aren’t trying to have “veto power” over non-Indians. They just want to change the culture so that everyone can learn to share the responsibility of management.

An important aspect of co-management is meaningful consultation, involving technical people. People from the state sometimes say, “I had a meeting and told them what we were going to do,” thinking that fulfills the obligation of working with the tribe.

There must be an opportunity to resolve disputes.

The evolution of fisheries co-management in western Washington:

  1. Unilateral management by state.
  2. Court management – court takes over because the state was denying the basic civil rights of Indians.
  3. Co-management – court tells two separate sovereigns to manage together, but they still wound up in court all the time.
  4. Eventually there’s a philosophical change to Cooperative management – state puts down its weapons and recognizes it has to work with the tribes.

Other examples of  co-management include Puget Sound Partnership, Pacific Salmon Treaty, shellfish, groundfish and on-reservation land use management.

It should apply to water resource management (quantity and quality).

“Do we have to go through the traditional way, which means adjudicate everyone’s rights and then develop a management system?”

The Culvert Case is an example of ineffective co-management.

The tribes had no meaningful notice of hydraulic activities. “You’d think the state would give tribes notice of these activities that affect fish habitat,” he said. “We were trying to get notice, just notice, for 24 years.”

Also, there was no consultation, no means to resolve disputes, and no process to deal with shared responsibilities.

Swinomish tribal chairman Brian Cladoosby said that for a long time elected officials had the attitude that they’d rather fight and lose than settle with the tribes and win.

Hollowed concluded that tribes have been here since time immemorial and will be here for all of time.

“Resistance is futile,” he said. “It’s going to happen eventually, the question is how painful is it going to be to get there?”

Dobie Tom of Tulalip responded:

We have to remind our leaders. I hear nothing but “co.” Co-management. Who was here first?

We were here before treaties were signed. After treaties were signed, we became a ward of the federal government, not the state.

We should have more say on the habitat that you heard mentioned. We’re not the ones who contaminated the habitat.

I was with my father when we went to federal court in Seattle through this Boldt decision. It was my late father’s knowledge that turned Judge Boldt’s mind toward us.

At one time, before World War II happened, here in Swinomish and also in Lummi, they owned reef net location out here in Roche Harbor and Lummi Island. When World War II broke out, our native boys – according to the treaty, we were not to take arms against anyone – but a lot of our native people joined and went and fought in World War II. Non-natives took over reef net locations out here on Roche and Lummi Island. When our survivors came back, they had nothing. There was a village on Lummi Island where the reef nets are. That’s where I was born in 1941.

I asked my father, “Dad, how did you folks know when the clams were contaminated? You had no biologists then.” he said that was easy – in the hot summer months, they would dig clams and leave them alongside where they dug them. They sat on the beach on a log. Seagulls would come pick the clam up and drop it. If the seagulls ate it, the clams were good, but if they picked at it and flew away then our dad knew they were contaminated – what they call red tide today.

They knew how to manage the fishery without  biologists. In springtime , they’d watch for a butterfly that let them know the spring salmon was in the river. It was time to harvest.

The rainflower – pink little flowers – if there were a lot of them, it meant a good coho season.

If they would start chinook fishing and all the chinook were huge from the start, they would shut themselves down, because the run was small. If the fish were small, it would be a big run.

I went to college for  marine biology. I have two degrees.

We need to have our younger tribal leaders do a survey and get them to understand this Judge Boldt decision, because it’s designed to work against us. We were naive. We used selective hearing, selective vision, seeing what we wanted to see. We heard 50 percent. 50 percent of nothing is how much? Nothing.

All I heard today was very upsetting. “The state this, the state that.” What is higher? The state is higher than federal? I always thought federal was higher. Who are we? We are a ward of the federal government.

David Joe, first nations attorney, described co-management in the Yukon territory.

Even with co-management, even  in a basic partnership between a husband and wife, there’s always the issue of who’s boss.

These co-management agreements are a bit more complicated. Instead of having one spouse, we’ve got a multiplicity of spouses: Yukon government, Canadian government and 14 Yukon first nations.

They managed to establish a number of boards and commissions:

  • Enrollment commission – There must be eligibility criteria when there is a treaty in which resources are shared within the Coastal Salish Sea area.
  • National parks – 16,060 square miles of treaty land in the Yukon territories is not enough land to hunt, trap and subsist. First Nations arrived at a strategy of protecting as much of Yukon territory as possible though National Parks. Within those parks, they have the exclusive rights to hunt and trap.
  • Land use planning
  • Environmental assessment
  • Heritage board
  • Water board
  • Fish and wildlife board

Yukon first nations represent 50 percent of the fish and wildlife board. They have the right to hunt, fish and trap year-round, subject to conservation, public health and safety. In national parks, what happens when there is no more – a reduced amount of moose, caribou, elk, deer or salmon?

“We built in a basic need requirement,” he said. “If the number of moose ever drops below a certain number, we are guaranteed a certain number of moose.”

The spirit and intent of the fish and wildlife board:

  • Ensure and enhance Yukon first nations’ culture, economy and lifestyle
  • Power sharing
  • Mutual respect
  • Resolve issues out of court
  • Rights are not inherited. We borrow these rights from our children and granchildren
  • Process should bring people together

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