Samish Tribe wants Bolt Case Reopened [Archive] - Fly Fishing Forum

: Samish Tribe wants Bolt Case Reopened


flytyer
12-09-2002, 06:12 PM
Don't know how many of you have seen this or are aware of this recent development. However, if the Samish Tribe is successful in their efforts to get the Bolt Case reopened, it could mean that the decision could be modified or even overturned.

This could be either good or bad depending on your viewpoint. One possibility of having the case reopened is that steelhead could be removed from food fish status and placed back into sports fish status by the federal court in Seattle. This would remove steelhead from the tribal fisheries.

There is also the possibility that Bolt could be overturned and have the state of Washington set seasons and limits on fishing for both tribal fishermen and sports fishers.

Then the cour may reduce the percentage of harvest allocated to the tribes or the state. Finally, the court may simply add the Samish tribe to the original decision and afford them fishing treaty rights like the other Bolt decision tribes.

Whatever, the outcome, it is important for those of us who care about steelhead to keep abreast of what develops.

fredaevans
12-09-2002, 09:38 PM
AND KEEPING ALL OF US IN THE LOOP!!

Won't go into the numbers, but watched 'catch #' drop by 90+++ percent on rivers of fame.

You're in charge of info tracking for the Board!
fae

NrthFrk16
12-09-2002, 10:01 PM
flytyer-
Any article I can find further info?

This could very well be a turning point for some of our stocks.

THANKS!

flytyer
12-09-2002, 11:37 PM
Ryan,

The article I refered to was in the Skagit Valley Herald one day last week. I just don't recall the day it was in at the moment.

Fred,

I do know that the current fishing treaty tribes that were the beneficiaries of the Bolt decision are not happy about the prospect of having the case reopened. In fact, they are going to do their best to try and keep the Samish Tribe's case from getting to trial because they are worried that the political climate has changed and they won't be able to maintain the cuirrent status with a re-visit of the case. Some of this is due to several federal court cases during the last 5 years that have found tribal interests ruled against. Also, the Federal District Court in Seattle has become more conservative as well.

Also, there was a very concerted effort here in Washington state's fall elections to keep one Jim Johnson (who is an excellent legal mind and who I think would be an excellent jurist) from being elected to a vacant seat on the Washington State Supreme Court because he had been the attorney representing Washngton state during Bolt and other cases on the side opposing the tribal interest. The tribes put a lot of money into his opponent's campaign and formed a poltical action commitee to funnel money into things like commercials against him. Don't know the outcome of the election yet because it was so close that it has to be recount by hand. I for one sure hope that he was able to win the seat; however, the election returns without the recount only had hiim defeated by 3,000 or so votes statewide.

fredaevans
12-10-2002, 12:01 AM
You are charged with keeping all of "in the loop!"

fae

NrthFrk16
12-10-2002, 12:05 AM
Thanks Flytyer....I found an article in the Seattle Times today but it made no mention of the consequences that would in the end, benefit the fish.

Samish/Boldt Article (http://seattletimes.nwsource.com/html/localnews/134590852_samish06m0.html)

flytyer
12-10-2002, 12:36 AM
Ryan,

That doesn't surprise me. The tribes do not want the possible consequences or repercussions of re-visiting or re-opening the case to become common knowledge. Also keep in mind that hardly any newspaper editors of reporters in our area fish, especially for steelhead, and it would surprise me if they actually would delve a little into the issue.

Also, keep in mind that the Seattle times bought the tribes opposition to Jim Johnson for State Supreme Court at face value despite Johnson excellent credentials for a Supreme Court Judge. It will probably take about 2 oe 3 years before the case might be re-opened. The Samish Tribe is hoping that the current treaty fishing tribes who benefitted from Bolt will roll over and agree to share fishing with them. However, they also want an exclusive fishing area in Padilla Bay and around the San Juan Islands. The other tribes will not give them this. The other tribes are hoping to prevent the Samish from being permitted to have the case re-visited. One thing is sure, once it is in the federal court system, as it is now, it will be most unlikely that the courst will allow an out-of-court settlement. Perhaps the Samish Tribe has opened the Achilles Heel to get the Bolt decision either modified or overturned.

flytyer
12-11-2002, 01:41 AM
Folks,

Fred suggested I provide some further information to you in a private message he sent to me. Fred, you were right, the info needed to be placed herein for the rest of the board to see.

That out of the way here goes.

I am very familiar with the Skagit River system tribes and how they view the Samish Tribe filing for inclusion in the U.S. v. Washington case that produced the infamous Bolt Decesion. The three tribes with fishing rights on the Skagit (Swinomish, Upper Skagit, and Saud-Suiattle Tribes) are opposed to having the Samish Tribe be granted fishing rights. The Samish Tribe, along with the Snoqualmie (which has regained federal recognition) and Snohomish Tribes (which has not regained fedreal recognition yet) were not included in the Bolt decision because they were not parties to the case that brought it about, not were they federally recognized at the time of the decision either due to having lost their federal recognition.

The Skagit tribes along with the other Point Elliot Treaty Tribes (This is important because these are the tribes that were granted the 50% of harvest and the right to fish commercially for steelhead.) are the tribes that Judge Bolt gave the absolute right to net the rivers and take 50% of the harvest. All of these tribes have kept all of the depositions, testimony, expert anthropologist documents, etc. related to the case just in case one of the other non-treaty fishing tribes was re-instated as rederally recognized. In short, they do not want or desire to have another tribe allowed in on the tribal net fishing for salmon and steehlhead. Also, they are very concerned about one of the three tribes mentioned above getting re-recognized and getting the federal court to re-open or re-visit the case from which the Bolt decision came.

They are concerned about the Bolt decision being altered to possibly remove steelhead as food fish (there is very scant historical evidence that steelhead were used as food fish by the tribes, that is why the tribes insist on calling steelhead "steelhead salmon". Unfortunately, at about the same time that this case was working its way through the Federal District Cout in Seattle, steelhead, cutthroat, golden trout,
and rainbow trout were reclasified into the same genus (or family) as pacific salmon. This allowed them to simply add steelhead to the food fish category very easily. Since they were of same genus as pacific salmon, and called steelhead salmon by the tribal attorneys, they were included in Judge Bolt's decision as steelhead salmon. This is why a re-opening or re-visiting of the case could mean that steelhead would be removed from the harvest allocation. And steelhead get a very good price on the commercial market, musch better than pacific salmon.

The other thing they are concerned about is the 50% of the harvest allocation could be reduced to 25% or less. And there is the possibility that the court will simply rule that the state of Washington gets to set seasons and limits on the number of fish a particular tribe may catch with its nets. None of the above is wanted by the tribes currently covered by the Bolt decision.

At the same time, they do not want to allow by agreement (which would avoid re-opening the case with the possibility that the ruling will be changed in a manner that is less favorable to the tribes) the non-treaty fishing tribes in on the fisheries. Theri hope is that the court will not allow the Samish to have the case re-opened. However, the Samish has been successful in getting the court to consider their petition to be heard for declaration as a treaty fishing tribe, which is the first step in getting the Bolt decision re-visited.

Two of the Skagit tribes as well as most of the other treaty fishing tribes in Western Washington have spend rather large sums of money both last year and this year buying coho and chum from their respective tribal fishermen, and there are not very many of them anymore due to the low or non-existent price for river salmon. The tribes have been paying their fishermen $1.00/fish gutted and head removed, and the fishermen have been selling the roe to an imitation cavier maker. One of the Skagit tribes spent nearly $30,000.00 last year doing this. The Western Washington tribes have been giving many of the fish to food banks and homeless or domestic violence centers as a way to get rid of the fish. Of course the tribes then get PSA's from the local news outlets about their humanitarian feeding efforts of non-tribal members in their communities and counties.

The real reason they are buying the fish from the fishermen is so that the few tribal members who still fish continue to do so. They are concerned that if no one fishes, it will place their claims to 50% of the harvest in jeopardy if they case gets re-opened. At this time, there is zero market for river salmon and the only reason that there are still some tribal fishers netting the river for salmon is that between the price they get for the roe and the $1.00/fish they get from the tribes, they make some money.

This action by the Samish can well prove to be the beginning of the end of the 50% of harvest of salmon and steelhead "salmln" by the fishing treaty tribes in Washington.

OC
12-11-2002, 09:27 AM
Flytyer,

Thankyou for the info. More questions for you though.

If the Samish Tribe is able to open the Bolt Decision for their reasons of wanting to also have rights to fish and have their case heard before the court. Would that be the time for a 3rd party to enter and press the case that steelhead are not a food fish but a sport fish?

Or would you believe that the Bolt Decision would be weakened enough by the very fact that the Samish Tribe was able to challenge and have their case heard that any other future cases would also have to be heard before the court? In other words enviro groups, industry and developement could go in and challenge Bolt after the Samish Tribe wins or looses in court. I'm sure any party can now challenge Bolt but the door to that case has been pretty much closed for many years and no one has been able to put a dent in Bolt in the past.

If the tribes feel that the Bolt Decision could be weakend by the Samish tribe and that challenges from non Native Americans would endanger Bolt then I will bet my best fly rod on it that the tribes that now fish will find a way to accommodate the Samish way before this ever goes to court.

flytyer
12-11-2002, 04:03 PM
OC,

The only way the Bolt decision will ever get re-opened ore more correctly re-visited is through another tribe in Western Washington like the Samish that has had federal recognintion re-instated. If they are successful at being declared a treaty fishing tribe, which is the first hurdle they have to overcome, they can then get the Bolt decision re-visited (actually the case is known as U.S. v. Washington), and that is the time for third party interjection or friend of the court briefs to be introduced.

Right now only a re-instated tribe can have the case re-visited and then only if they are successful in having the court declare them a treaty fishing tribe in a seperate case. All other third party interests are unable to get it re-visited because the 9th Circuit Court of Appeals refused to hear the original appeals and let the Bolt decision stand. This effectively closed the case unless a re-recognized tribe gets the Seattle Federal District Court to declare them a treaty fishing tribe.

OC
12-11-2002, 04:36 PM
Thanks again Flytyer
Sounds to me that my Winston BL-5 will be safe. Give the tribes that are already under the Bolt decision time to think about what could happen if they don't share and they will be willing to let the Samish fish all day long.

NrthFrk16
12-12-2002, 01:08 AM
flytyer-
Instreting opinion...there have been many going around since this issue was brought forth.

et. al.-

Check out http://www.piscatorialpursuits.com/ubbcgi/ultimatebb.cgi?ubb=get_topic&f=1&t=011250#000016[Samish Tribe/Boldt and in particular, Salmo g.'s post.

flytyer
12-12-2002, 11:25 PM
Ryan,

Salmo G makes some valid points; however, if the Samish Tibe is successful in getting the court to declare them a treaty fishing tribe the court would also have to re-visit the U.S. v Washington (Coldt decision) case. If this happens, all aspects of the original decision would be open for review and change. Also, as Salmo said, the case could then also be taken back to the 9th Circuit Court of Appeals, and ultimately the U.S. Supreme Court.

One of the very important things to remember about the Samish Tribe's going to the court is one of thier arguments is that Judge Bolt was impaired in his decision making at the time due to possibly having Alzheimer's Disease. That is why the whole decision would be subjected to review and reconsideration. And this is precisely why this is such an important case for we sportmen to watch and why the 0ther tribes are so opposed to the Samish in this case.

NrthFrk16
12-13-2002, 12:40 AM
flytyer-
I enjoy your analysis...makes me very very opptimistic!!

flytyer
12-13-2002, 12:45 AM
Ryan,

We'll have to wait and see what happens. I sincerely hope that the Samish will be succesful in their efforts to be declared a fishing treaty tribe and the re-visiting of the Bolt decision.

Todd Ripley
12-18-2002, 06:51 PM
...I can't see how the Samish seeking treaty rights based on re-instated federal treaty tribe recognition would have anything whatsoever to do with re-visiting anything in the Boldt decision other than which tribes have to share fish in common treaty fishing grounds.

My guess would be that a San Juan fishery, if awarded to the Samish Indians, would cut into the shares of other treaty tribes that fish that area, i.e., Lummis. It would have no effect on the non-tribal share.

Also, reclassifying steelhead as "gamefish" wouldn't really matter. The state already has done so. Remember where the big hullabaloo that was the precurser for the Boldt decision was? It was the Puyallup and Nisqually Rivers, where they were fishing for steelhead, not salmon, when they were arrested and had all their gear confiscated.

Don't get your hopes up too much about getting more fish. I'd be interested in seeing how it could work out that way, but I'd take a lot of convincing.

Fish on...

Todd.

Moonlight
12-18-2002, 08:43 PM
The folks from Franks Landing have stated that the case should be reopened to increase the share of the Tribal Harvest to make up for the low prices. The Native view of reopening appears to be different than some others.

fredaevans
12-18-2002, 11:24 PM
surprise. Why does this particular group of native Americans want to kill the golden goose? Has to be a sick mind-set; their 'other good' works aside. In the "Carnie" they called this the shell game; move them around and where's the pea???
:mad:

flytyer
12-19-2002, 12:41 AM
Todd,

If the Samish is successful in being granted treaty fishing rights and are then successful in getting Bolt re-visited on the grounds that Boldt was impaired at the time of the judgement (which is their argument), it opens the whole Boldt decision for re-visiting, not just which tribe gets where to fish.

And the Lummi, Tulalip, Sauk-Suiattle, Upper Skagit, Swinomish, Nooksack, Port Gamble, Puyallup, Muckleshoot, Stillaguamish, Squaxin Island, and Nesqually tribes could have their current fishing messed with because the fish must pass the San Juans before the other tribes get a shot at them.

Moonlight,

Regarding the talk around the tribes wanting it re-visited so that they can get more fish to make up for the poor prices was a predictable thing. Nothing like getting folks upset and sorried about the possibility of the tribes getting more fish to get the non-tribals on the side of the current treaty fishing tribes. Thus, non-Indian folks can help fight the fight for them to keep things as they are.

Todd Ripley
12-20-2002, 07:28 PM
There's no doubt that it would be a big deal to all the tribes that fish a particular run on it's way to Squaxin...but it still wouldn't effect non-tribal shares.

The state made the "impaired" argument after the Boldt decision was reaffirmed by the Supreme Court, twice, and not only lost, but was roundly criticized by the reviewing courts and went home licking its considerable wounds. That argument not only was a born loser, but the state is still rebuilding its integrity within the natural resources realm in District Court and the Ninth Circuit for even making it.

That said, more power to 'em. If they can pull it off, I doubt the tribes could ever receive as liberal of an interpretation of treaty rights as the one they got in '74. I'd be very interested in seeing it play out. The great majority of tribal power comes from the consolidated effort of the tribes to pit themselves against the states and the feds. Splintering amongst themselves could prove to be disastrous. However, I doubt there'd be much splintering, as it would be everyone against the Squaxins, unless other unrecognized tribes tried to horn in on the action.

Fish on...

Todd.

flytyer
12-21-2002, 11:21 PM
Folks,

Seattle U.S. District Court Judge Rothstein ruled yesterday that the Samish are not entitled to be declared a treaty fishing tribe (even though she stated that there was no question that the Samish was a signatory to the Point Elliot Treaty, which established the treaty fishing rights according to Judge Boldt) and thus reopen the case. She said that to do so would undo 28 years of Tribal and State efforts to allocate the resource and co-manage it (Interestingly, this is exactly the argument the nine tribes which were ceclared to be treaty fishing tribes by Boldt put forth in a friend of the court brief on the issue).

She also said that declaring the Samish Tribe a treaty fishing tribe would open all of the Bolt decision to court challenges and create years of further court appeals. She went on to say that allowing the Samish Tribe in as a treaty fishing tribe would also allow the other three tribes (among which is the Snoquamie Tribe, which got it federal recognition restored 2 years ago) to also have the case re-visisted, and this would create chaos in the system as all parties (all the treaty fishing tribes, the State of Washington, and sportsfishers) would be able to challenge any and all allocation formulas and harvest quotas now in place.

I predict that the Samish Tribe will will appeal Rothstein's decision to the 9th Cirtcuit Court of Appeals. Espeicially since she acknowledged in her decision that the Samish and the other three tribes who had lost their federal recognition (again remember the Snoqualmie was one of them and it had its federal recognition re-established 2 years ago) were signatories to the Point Elliot Treaty. Then she ruled against the Samish. Sounds to me like she knew one way or the other that her decision would be appealed, if not by the Samish, by the other nine tribes if she had ruled in favor of the Samish.

You should also know that the treaty fishing tribes in Western Washington all submitted letters of support to the Senate Judicial Committee to have Rothstein appointed to the Seattle U.S. District Court. Hmmmmm...... she did as her political supporters wanted.

Put this decision in light of the recent 9th Circuit Court ruling against the Makah's whaling plans and it could prove to be very interesting when the Samish appeal her decision. I patiently wait for round two from the Samish Tribe.