The right to fish

By Adam Spencer, The Triplicate September 13, 2013 05:47 pm

Dock crew worker Brandon Ridenour unloads salmon near the mouth of the Klamath River last week as part of the tribal fishing operation.
Dock crew worker Brandon Ridenour unloads salmon near the mouth of the Klamath River last week as part of the tribal fishing operation. Del Norte Triplicate / Bryant Anderson
Yuroks exercise historic, hard-earned right to harvest salmon on Klamath

Since late August, the estuary of the Klamath River has been crowded with hundreds of Yurok tribal members — men, women and children — fishing for salmon, much like their ancestors before them. 

Replace the metal boats and synthetic gill nets with dugout redwood canoes and nets made of iris twine and the catching process is not much different than what was practiced for thousands of years — “since time immemorial” as the Indians of the Pacific Northwest maintain and which has been upheld by numerous court decisions.

But once the fall Chinook salmon leave the small boats of tribal members, loaded onto crane-operated buckets and into the refrigerated trucks of on-site international seafood buyers — the operation becomes unquestionably modern.

Since the Yurok Tribe Fisheries Department has implemented  quality controls that tribal fishermen must follow that are also unquestionably modern, the salmon command a high price at $5 a pound.

“If they can get the quality level up to what ocean guys provide, then they can get a fair market price,” said Tom Kai, project manager of North Coast Fisheries, on-site at the Requa boat launch where the company has been buying salmon. Requa is the center of the Yurok commercial harvest, named for an ancestral village site. “We’re trying to promote the Klamath fishery as a world-class fishery.  Quality over quanity.”

The quantity is nothing to shrug at this year, as the Yurok Tribe set a commercial quota of 76,362 salmon.

Selling Klamath salmon for just one month out of the year is one of the primary sources of income for hundreds of Yurok tribal members, who made close to $3 million last year alone.  The tribe expects the commercial season to be even more profitable for fishermen this year, with a higher price per pound.

Unique to California

Since 1993, the Yurok Tribe and Hoopa Valley Tribe are allowed to take 50 percent of all the harvestable surplus of salmon returning to spawn in the Klamath Basin, making them the only tribes in California with a specific allocation to a fishery.

Other tribes in California are granted the right to use techniques off-limits to non-Indian fishermen for subsistence, but only the Yurok and Hoopa have a set allocation.

Nets crowd the lower Klamath as tribal members bring in the harvest.
Nets crowd the lower Klamath as tribal members bring in the harvest. Del Norte Triplicate / Bryant Anderson
Numerous court decisions in the 1970s and ’80s confirmed that when the United States created the Yurok and Hoopa Valley reservations, it gave the Indians federally protected fishing rights for the Klamath and Trinity rivers.

But these decisions did not decide whether or not the tribe’s fishing rights granted them a specific share of Klamath and Trinity rivers’ resources.

That all changed in 1993, when the solicitor of the Department of Interior said that the tribes have the “right to harvest quantities of fish on their reservation sufficient to support a moderate standard of living.”

The solicitor’s opinion also stated that the tribe’s entitlement is 50 percent of the harvest in any given year, matching precedent of tribal allocations across the Pacific Northwest.

Twenty tribes in Washington, represented by the Northwest Indian Fisheries Commission,  have similar fishing rights with set allocations. The Columbia River Inter-Tribal Fish Commission represents four treaty tribes in the Columbia Basin with similar rights. But in California, the Yurok and Hoopa’s allocation stands alone.

Eighty percent of this allocation goes to the Yurok and 20 goes to Hoopa Valley, but that tribe’s  members voted for a ban on commercial fishing in 2011.

Boldt decision

The 50 percent allocation stems from the 1974 Boldt decision, considered one of the top three most-significant decisions  for Indian law in American history.

Tribes in Washington had argued for their unimpeded rights to fish traditionally because the treaties signed with the U.S. government in the 1850s included the clause: 

“The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the territory.”

It was reported that Judge George Hugo Boldt used an 1828 edition of Webster’s American Dictionary to interpret “in common with” and decided it meant the Indians were entitled to half the harvestable salmon running through their traditional waters, according to a 1999 Seattle Times article commemorating the 25-year anniversary of the Boldt decision.

“Furthermore, Boldt made the tribes co-managers of the state’s fisheries. With the drop of a gavel, tribes transformed, in the eyes of the law, from underground poaching societies to at-the-table equals with the state authorities that had persecuted them for so long,” the Times’ piece states.

Brandon Ridenour transfers salmon to ice-filled totes.
Brandon Ridenour transfers salmon to ice-filled totes. Del Norte Triplicate / Bryant Anderson
Co-managing the resource

In 1994, the Yurok Tribe Fisheries Department took over management of the fisheries in the lower 43 miles of the Klamath River running through the Yurok Reservation. In 2001, the tribe installed a commercial ice machine pumping out 10 tons per day at Requa, improving the ability of tribal fishermen to provide a quality product.

The Yurok Tribe Fisheries Program is the largest on the Klamath River, well-funded and highly trained. The tribe has spent millions of dollars restoring salmon habitat after decades of destructive logging practices.  The tribe monitors the river for the outbreak of fish disease throughout the spawning season, and the department analyzes thousands of fall chinook scales to determine the age of fish and thus how many will return to spawn in the future.

Spawning surveys, road restoration and research on threats to endangered coho salmon are just a few of the tasks the tribe handles as co-managers of the resource.

The tribe also works on  policy for the Klamath Basin at a federal level. The Yurok Tribe intervened on behalf of the federal government when Central Valley farmers via irrigation districts attempted to block the release of extra water from Trinity Reservoir intended to prevent massive mortality of Klamath salmon.

“We of course care about the health of the Klamath River and our fishery, and we’re going to do everything we can to protect our fish runs and the health of the river,” said Yurok Tribe executive director Troy Fletcher at the time of the lawsuit. 

It’s been only been 20 years that the tribe has been allowed to officially manage the Klamath salmon fishery, however, tribal officials say that prudent management of the tribe’s resources is deeply ingrained in its culture and dates back longer than can be remembered.

A long legal history

Across the Pacific Northwest, in the early 1850s, the U.S. government convinced tribes to sign treaties that ceded the land with the only consolation being small reservations and Indians retaining the right to fish. Tribes of the Klamath Basin signed similar treaties in 1852, but they were never passed by Congress.  

Instead, the lower 20 miles of the Klamath River were set aside by executive order as an Indian reservation in 1855, but five years later a flood decimated the reservation, creating a local perception that the area had been abandoned, according to “Klamath Salmon: Understanding Allocation” written by Ronnie Pierce in 1998.

Early settlers of Crescent City moved in and started a commercial fishery in the lower river in 1876.  The development of commercial operations expanded greatly in 1888 when a federal judge agreed that the reservation had been abandoned, Pierce wrote. 

Although owned by non-Indians, the commercial fisheries in the lower Klamath primarily employed resident Yurok people as fishermen and cannery workers.

In 1905, a Supreme Court decision called unimpeded Indian fishing rights “not much less necessary to the existence of the Indians than the atmosphere they breathed,” but the Yuroks’ right to fish traditionally was far from secure.

In 1934, lobbying by recreational fishermen caused the state to ban all commercial fishing in the Klamath River, and the use of Indian gill nets on the lower 20 miles for subsistence fishing was also outlawed.

The ban did not stop Yurok people from harvesting Klamath salmon for commercial and subsistence purposes, but fishing became a stealthy enterprise most often conducted at night.

The ban was not contested until 1969, when Raymond Mattz (a surname still ubiquitous in Yurok country) had his gill nets confiscated by state authorities while fishing on the lower Klamath River. He challenged the state in court on the grounds that he was a Yurok fishermen fishing in Indian country, where the state’s ban on netting did not apply.

After losing two lower court battles, Mattz prevailed in 1972 when the U.S. Supreme Court found that the lower reservation was never abandoned and remained it Indian Country.

‘Salmon wars’

In 1977, the Bureau of Indian Affairs opened up a subsistence and commercial fishery in the lower 20 miles of the Klamath, but under political pressure closed it in 1978. As Indians protested the closure, a heavily armed strike force of federal agents enforced the ban.  Shots were fired on both sides of the conflict often referred to as the “salmon wars.”

Like the lunch counter sit-ins of the civil rights movement, “fish-ins” had been staged in the Pacific Northwest during the ’60s, causing similar “salmon wars.”

“In one of the most dramatic raids of the fish wars, this one in September 1970, a squadron of helmeted Tacoma police used tear gas and clubs to arrest 59 protesters camped on the Puyallup. Gunshots were fired, and Indians were beaten and brutally manhandled,” the Seattle Times piece states.

During the moratorium on the Klamath, Walter McCovey Jr. (another inescapable surname in the Lower Klamath) was charged with felony violations for attempting to sell salmon caught on the reservation.  McCovey prevailed, preventing the state from further prosecuting Yurok fishermen for selling salmon harvested on the reservation.

Soon after, the Yurok and Hoopa Valley tribes were given their first allocation with 30 percent of harvestable Klamath salmon.  

With the 1993 memorandum, that amount rose to 50 percent of the harvest, and with the last two years of salmon returns to the Klamath being the first- and second-highest returns on modern record, that 50 percent allocation should remain crucial to tribal members’ livelihoods.

Just as it’s been “since time immemorial.”

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