Congressional Review and Edit of Pacific Northwest Tribal Fishing Rights

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It is time to put the 1974 Boldt Decision aside and bring the Native American Tribes and U.S. Treaties into the 21st Century.  The Boldt Decision gave the Indian Tribes a 50% share and co-management of the Washington State Fisheries.  The decision was based on the wording and interpretations of the Treaties as they were intended at the time of signing.  Much has changed since the 1850’s that has a direct impact on these Treaties yet they are not reflected in any manor today.  At the time of signing the numbers of Native Americans and Settlers was roughly equal.  Today however, Native Americans account for less than 2% of Washington States total population yet are still granted a full 50% of the Fishery Resources.  We seek to have Congress review, abrogate and amend the treaties as per the Supreme Courts ruling on the Head Money Cases that grants Congress the authority to do so and amend them to reflect the current census in Washington State.  The allocation of 50% of a resource to less than 2% of the population is neither a Fair nor Equitable Split and Congress needs to correct this.  Additionally we would ask congress to grant us the right to ban ALL Commercial Netting (both Native and Non-Native) in our rivers and inland waters.

The Treaty of Olympia, Medicine Creek, Point Elliott, Neah Bay,and Point No Point granted the  Hoh, Makah, Muckleshoot, Nisqually, Puyallup, Quileute, and Skokomish tribes. and Later, the Lummi, Quinault, Sauk-Suiattle, Squaxin Island, Stillaguamish, Upper Skagit, and Yakima tribes entitlement to a fair and equitable portion of the fish harvest.

In the 1974 The United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975), commonly known as the Boldt decision, reaffirmed the reserved right of American Indian tribes in the State of Washington to act alongside the state as co-managers of salmon and other fish, and to continue harvesting them in accordance with the various treaties that the United States had signed with the tribes. The Boldt decision further defined that reserved right, holding after a long trial in 1974 that the tribes were entitled to half the fish harvest each year.

The Supreme Court ruled in the Head Money Cases that “treaties” do not have a privileged position over Acts of Congress and can be repealed or modified (for the purposes of U.S. law) by any subsequent Act of Congress, just like with any other regular law.

When the treaties were written in the 1850’s Native Americans and Non Native Settlers in Washington State were roughly equal in numbers.  The 1880 census act clearly states that “Indians not taxed shall be omitted from the enumeration” but then adds:   the Superintendent of [the] Census may employ special agents or other means to make an enumeration of all Indians not taxed, within the jurisdiction of the United States, with such information as to their condition as may be obtainable.  Under this provision and using specially designed forms, agents enumerated Indians living near military reservations in California, Dakota Territory, and Washington Territory.

Because federal government officials made actual counts or estimates of not taxed Indians, we can calculate the percentage of Indians included in each census:

Census – Taxed Indians (enum) – Not taxed Indians – Total Indians – % enum
1860                 44,021                        295,400               339,421             13
1870                 25,731                        287,981               313,712               8
1880                 66,407                        240,136               306,543              22
These figures exclude all Native Americans living in Alaska. The Census Bureau reported the 1860 and 1870 not taxed Indian totals as part of the taking of the census for those years.

The records for the 1860-1890 Federal Census, were destroyed by a fire at the Commerce Department in Washington, DC on 10 January 1921 but by piecing together information available we can determine that Nativie Americans outnumbered settlers by a small margin.  Based on the 1850 cencus determinations a 50-50 split of the fishery resources would be considered fair and equitable but with respect to the 2010 national census in which Native Americans compromise 1.9% of the Washington State Population a continuation of a 50-50 split of the fishery resource is no longer a fair and equitable split and is grossly excessive on the Native American harvest.

We ask the United States Congress to review and abrogate the original treaties as they pertain to Fish, Shell Fish and Wild Life, and amend the treaties to accurately factor in the current census reports  and based upon the most current information available set a fair and equitable split of the resources that reflects the current ethnic population of Washington State.