Chapter Eleven of “Where the Salmon Run” written by Trova Heffernan and sponsored by Washington Secretary of State Sam Reed.
Chapter Eleven | The Politics of Salmon
Indian tribes had long made a villain out of Slade Gorton. The intellectual Dartmouth graduate, who earned his law degree at Columbia University Law School, first jumped into Washington State politics as a legislator in 1958, and was elected attorney general ten years later. By the 1970s, Gorton was savvy, competitive, and tough. He believed Indians should be treated like other Washingtonians. “I find racism appalling,” Gorton states. “But I do have a profound difference with the tribes. I don’t think they should be treated differently than anybody else. I think the same laws ought to apply to everyone.”
In 1976, Indians who already opposed Gorton found fresh meat. The attorney general contended that Indian treaties were breakable contracts, provided the federal government paid damages. He made his case to fellow Republicans. Gorton urged the party to demand that the government buy treaty rights: “If the Indians were paid for the right, I can assure you they would be among the richest class of citizens.”
Tribes accused the attorney general of reneging on a state promise to let the federal courts settle the issue once and for all. “Now that Judge Boldt has rendered his decision, we find the state is backtracking and is unwilling to accept the United States Supreme Court decision,” stated Leo LaClaire, director of the Small Tribes Organization of Western Washington. “Not only have we been given double talk and a fast shuffle by Slade Gorton,” he pressed, “but other state officials—notably Fisheries Director Don Moos—have been talking to us with forked tongues.”
It wasn’t just the tribes pressuring Gorton. Non-Indians made up a strong, vocal constituency, and in 1976 they nearly ousted Congressman Lloyd Meeds from office because of his stance on the Boldt Decision. “The fishing issue was to Washington State what busing was to the East,” Meeds once declared of the contentious spirit. “It was frightening, very, very emotional.”
The centrist from Everett sailed into office in the Democratic landslide of 1964. In 1976, Meeds found himself embroiled in a tough campaign against his anti-Boldt opponent, John Garner: “If you want to right the wrongs of the Boldt Decision, throw Lloyd Meeds out of Congress,” Garner attacked.
Voters nearly did. At one point election night, Meeds clung to a 127-vote lead. By the time election results were certified, the margin of victory stood at a mere 526 votes. “He was a lawyer,” explains Jim Waldo, a former assistant U.S. attorney and facilitator of the post- Boldt era, “and he had come out and basically said, ‘I don’t necessarily like this decision, but it’s a final federal court decision after the Ninth Circuit and we have to respect that.’ Well, he came within a whisker of being defeated, because of taking that position. The commercial fishing industry and sports fishermen in his district, at that time, were a big political force. They weren’t at all interested in hearing that, or hearing their congressman say that. So, the delegation was very antsy about what to do about this.”
President Jimmy Carter agreed to establish a federal task force to work through the contentious fisheries dispute. The hunt was on for a settlement, a legislative solution to ease implementation of the Boldt Decision or soften the 50/50 division of fish. “Somewhere in the sea of my paperwork, there’s a memo that was circulated in the Magnuson/Jackson operations to try to talk about what a legislative solution ought to look like,” says Tom Keefe, a legislative director for Warren Magnuson at the time. “What people decided was 50/50 is way too much for the Indians; there’s not that many of them. They don’t deserve that much. We [the Department of Fisheries and its allies] think a legislative solution ought to be 80/20.”
The Boldt Decision had caused a clash within the court systems. The state supreme court held that the Department of Fisheries would violate equal protection rights of non-Indian fishermen and exceed its authority if it followed the Boldt Decision.
“The Supreme Court came out with a decision that took the view that this was impermissible, discriminatory policy by the State Department [of] Fish and Department of Game and, in essence, that they couldn’t implement federal court orders. Since no federal court had ever enjoined a State Supreme Court, we weren’t going to be the first,” says Jim Waldo. The state and non-Indian fishermen, Waldo was convinced, were trying to “frustrate the implementation of the federal decision while they looked for a new case that would go to the [U.S.] Supreme Court.” Meanwhile, the Department of Fisheries stood at a crossroads: implement the order and violate a state supreme court opinion; or ignore it in defiance of the federal district court.
Billy, the newly minted chairman of the Northwest Indian Fisheries Commission, sharply criticized the state: “Yesterday’s NWIFC decision in the Washington Supreme Court is unfortunate, but certainly not unexpected. It is in character with that court’s prior rulings, plainly rooted in racism and dedicated to the proposition of white supremacy.”
Despite the collision between courts, Boldt himself remained confident his ruling would stand. “Judge Boldt has great respect for the state’s jurists, but there can be no doubt what the outcome will be if the state and Federal courts clash,” noted Dr. Richard Whitney, one of Boldt’s technical advisers. “This is the same argument for states’ rights in every civil rights issue from Mississippi to Boston and they’ve gotten nowhere.”
In response to the judicial clash, the NWIFC demanded that the federal government take over the salmon fishery. Boldt assumed control on September 1, 1977. Billy relates the story:
As of today, Boldt said, “I’m taking your right away, state of Washington. You do not manage the fish anymore. The United States government is managing the salmon. I’m going to give you a number to call, a hotline. Right now, the National Marine Fisheries is out in the water with the Coast Guard. They’re throwing all the boats off the water, right now, as we speak. And you do not manage this resource anymore.” . . .
Slade Gorton went back to Dan [Evans]. And Dan said, “What happened?” He said, “Well, they just took our right away from us.” And Dan said, “You better make sure you get that right back.”
“They had to change laws—all the RCWs,” Billy continues. “They had to do all kinds of things before the judge gave them their right back. But he took everybody off the water. Nobody is fishing anymore, illegally or nothing. They were cheating each other out here.”
But, to the dismay of the tribes, Boldt took his responsibility a step further. Responding to a request by President Carter’s new task force, Boldt reduced the tribes’ allotted share by 5 percent. Indians were stunned and angry. “I’ve never seen an Indian come out on top,” Billy snapped. “They’ve got it just as bad as the non-treaty fishermen who are so-called going bankrupt.”
To Leo Krulitz, solicitor of the Interior Department, and President Carter, Billy argued that the proposed reduction undermined the 1974 order, “depriving tribes further of their treaty and economic rights, and sacrificing the welfare and escapement needs of the salmon resources of Puget Sound.” Billy agreed to comply with the reduction, but warned that the cut diminished the federal government’s reputation with the tribes.
In fact, it seemed no one was happy with the reduced allocation. Non-Indian gillnetters accused the government of luring them with “sucker bait.” A 5 percent reduction of the Indians’ share would never put an end to their economic hardships, they argued.
Nonetheless, the Coast Guard, National Marine Fisheries Service, and federal marshals moved to Washington waters. “We ended up taking over the fishery by court order and injunction and then we brought in U.S. marshals from around the country,” Waldo says.
“They were raping the fish, just raping,” Billy says. “There was no law and order or nothing.”
Almost twenty-five hundred fishermen were served with notices to obey fishing orders or risk being held in contempt. According to attorney Mason Morisset, by the end of the 1977 fishing season, some “183,000 salmon had been taken illegally by the state licensees.” Further, the state adopted regulations that limited Indian fishermen “for conservation,” writes Morisset but at the same time, allowed non-Indians to fish nearby areas: “Non-Indian fishermen took 95.3% of the 1978 illegal catch.”
According to a report by the NWIFC, a pattern had developed to control allocation and put more salmon in the hands of non-Indians: “The State would announce a predicted run size for an expected run of fish and establish the number representing one-half of the harvestable fish which would be the entitlement of the non-Indian fishermen under the formula of U.S. v. Washington. But again and again, after the season had commenced and non-Indian fishermen had taken the number of fish assigned to them under that formula, the State would announce that its earlier predictions had been too optimistic—that there were not enough fish left for the Indians to achieve their share.”
When the United States Commission on Civil Rights met in Seattle in October 1977, tension was palpable. For hours it heard testimony on the fishing rights struggle and Native problems with white society. “There’s a new breed of people that wants to run us out of the country,” charged Forest Kinley, a Lummi Indian.
“[Whites] talk about the Panama Treaty and these other treaties all over the world,” Billy said in exasperation. “They don’t know that in their backyard there’s a treaty right there that’s being violated. . . . Your neighbor right down there is an Indian. He’s got a treaty and he’s a human being.”
Among the first to testify was Slade Gorton. “Why are we here? Why are you here?” Gorton demanded. The Commission never bothered to include a single representative from the non-Indian commercial or sports fishing industry, Gorton pointed out. In its attempt to improve the lives of Native Americans, Gorton says, the state was simply “substituting one form of discrimination for another.”
In his own testimony before the Commission, Billy was outspoken and direct. He characterized the evolving proposed fisheries settlement as a document that “isn’t worth the powder to blow it to hell. And that’s really my feeling about it.” “One of the things in that last report of the task force—and all it is is a political document—is that it takes our enforcement,” Billy continued. “It takes away our usual and accustomed fishing areas, and it also takes away our management.”
Mr. Alexander: Do you feel, in a sense, betrayed or cheated by the Federal Government? . . .
Billy: Well, you know, if you take the politics out of the management of salmon, we wouldn’t have this purse seiner out here talking about a generation of him being in the fishery; we’d have salmon right now. These salmon would have been protected and the politics stayed out of them.
Now, with this piece of document right here, you’ll have the politics right back in them, and you’ll have the Indian right out of business.
Right now, today, I am a manager, an equal manager with the state of Washington, and I have something to say on that Nisqually River as far as the salmon are concerned, the enhancement programs that go on, on that river stream, but before I didn’t have nothing to say.
If I accept the task force report right tomorrow, as it stands, or the legislation that probably will be enacted, it will put us out of the management business, it will put us back into no fish. The other two species that only remain on the Nisqually River will probably no longer be there in a matter of a few years.
The media picked up on the hostility between the Indian tribes and non-Indians. “We are here,” Billy told the Commission of the Indian people.
“Us non-Indians are here, too,” countered Howard Gray, director of the Interstate Congress of Equal Rights and Responsibilities.
The NWIFC believed that the violence on the water was a scheme to send the Boldt Decision back to court. In August 1978, senators Jackson and Magnuson sent a letter to Secretary of the Interior Cecil Andrus: “As you know, the implementation of the so-called ‘Boldt Decision’ has caused four years of conflict and controversy in Washington State . . . it has become impossible to provide adequate protection of the resource with present enforcement capabilities. . . . In 1976, illegal non-Indian fishing accounted for an estimated 34 percent of the total non-Indian catch in all of Puget Sound . . . adequate escapement levels necessary for the perpetuation of the resource are in jeopardy . . . while we work together for a long term solution, we must urge your very serious consideration of less than full implementation of the Boldt decision for this year.”
The work of the Carter task force ended with a proposed settlement in the late 1970s. “We came out with this proposal and we had hit the mark pretty well in a lot of respects,” Jim Waldo recalls. “There was this deafening silence while everybody sat there trying to figure out what they wanted to do or not do.
“At that point, I got together with Billy and some of the tribal leaders. They had some issues with a couple things we recommended. So, we talked about them and I explained why I thought they would work out to their benefit. I remember Joe DeLaCruz and Billy and Dutch Kinley saying, ‘What do you think we ought to do?’ I said, ‘I’ll leave it to you to decide whether this is good enough. But if I were you, I would recommend just saying you’re studying it for awhile. You’re going to be getting calls from federal people telling you, you have to decide, but you can take some time with this.’ They did.”
“We realize that not everyone will clutch this proposal to his breast with enthusiasm,” said John Merkel of the contentious spirit, “but it will provide a fishery that is better than the chaotic situation we have now.” Merkel’s assessment was a gross understatement.
To Billy, the settlement plan fell apart at the most basic level. It “fails to satisfy one of its main goals which is to fulfill Indianfishing rights,” he declared. The Puget Sound Gillnetters Association expressed shock and disbelief: “We feel the general concepts of the proposal are tantamount to a government declaration of segregations of race and areas as a national policy,” said Phil Sutherland, association president.
The plan reduced the tribal allocation, limited the size of the non-Indian commercial and troll fleets, and paid bonuses to non-Indian fishermen who quit the business. It adopted a new management system with regulators that included the Departments of Fisheries and Game and a tribal commission. It replaced ancestral fishing grounds with smaller tribal commercial management zones.
In addition, the settlement called on most tribes to give up fishing for steelhead commercially. Sports fishermen flocked to Magnuson: “We don’t like a lot of this, but they’re pretty close to what we want, the steelhead. If we could just get all the tribes off steelhead, commercial fishing, we could support this package.”
Magnuson made the change. “At that point, everybody started climbing on planes to go back and see people in the agencies and the congressional folks, including the tribes,” Waldo says. “If you’ll change these three or four things I can support this. So, it was pretty clear our effort was over.” In good humor, Waldo recalls task force members adding a last page to their final notebooks with the lyrics to the Johnny Paycheck song, “You can take this job and shove it.”
Billy boarded planes to Washington, D.C., often after the Boldt Decision, representing tribes, meeting with crucial players in the fisheries dispute, and working closely with longtime friends Suzan Harjo and Sue Hvalsoe, both Carter appointees. Harjo recalls a concerted effort within the Justice Department to persuade Indians to agree to a lesser allocation: “Of course, federal people can make it sound very attractive if you go in their direction,” Harjo says. “It was very heavy handed. Billy wanted to keep track of who was eating with whom. We would drive around town in Sue’s little Volks-wagen. . . . You’d see tribal leader x with the Justice Department or someone from the Hill. It was just fascinating to see the groupings of people. It tells you something, especially when, at the next day’s meeting, someone would be telling you to agree to something less than 50 percent. Collectively, we had a lot of information.”
The three quickly recognized that they weren’t the only group keeping tabs on adversaries. “There were probably people who were circling us!” Harjo laughs. “Billy was able to arm up the people who didn’t want less than 50 percent. The treaty says ‘in common with.’ It was big business and big bucks. Billy was able to be circumspect in meetings and on the lookout for something.”
In early 1979, Judge Boldt again sent shockwaves through the Northwest as he relinquished his authority over the fishing rights case. “He did what?! the Puget Sound Gillnetters Association exclaimed. Boldt stepped down noting the present status of the litigation, his health, and the timing—the fact that Washington was between salmon seasons. Boldt had faced a strong backlash for his handling of the case. Later, questions arose about his mental health.“We are firmly convinced that his decision was not a matter of personality, nor of private conviction, and that any judge given the same evidence and arguments would have reached the same conclusion,” the Northwest Indian Fisheries Commission said.
The heritage of Indian tribes and Washington’s multi-milliondollar fishing industry hung in the balance in February 1979. Slade Gorton’s voice was brisk and clear, as he addressed the United States Supreme Court in the most important case of his political career. The collision in the courts had escalated. Now, a related court case over fishing rights appeared before the justices. The highest court in the land had agreed to review the 1974 Boldt Decision. Gorton took the floor with confidence. He argued that the treaties did not secure Indians an allotted percentage of fish, but equal access to the fishery. The key words “in common with” ensured neither Indians nor non- Indians would be discriminated against.
Gorton’s adversary was Mason Morisset, who addressed the court with candor, bluntly stating that he disagreed with the attorney general on just about everything, even basic facts. Paraphrasing Judge Belloni, who presided over an all-important, related fishing rights case in Oregon, Morisset quipped: “This case might make sense if we ignored all history, law, facts of the case and the behavior of states of Washington and Oregon.”
According to Morisset, Indian treaties guaranteed Indian nations a right to a decent living: “I think the important thing for us to get across is that we must construe the treaty as a whole. . . . It was designed to guarantee that the Indians would continue to make a good livelihood fishing.” Morisset argued that instead the state of Washington had preempted the Indian fishery since 1890, when salmon fishing was first outlawed during certain parts of the year. He described a regulatory scheme that took salmon from Indian tribes year after year. The tribal attorney argued that treaties were “unbreakable contracts” and secured half the harvestable salmon and steelhead catch to tribes.
The U.S. Supreme Court upheld the Boldt Decision on July 2, 1979, with a stern warning that federal officials would step in, should the state choose to ignore the order. In doing so, it noted the dramatic findings of the court of appeals that had previously upheld the Boldt Decision: “The state’s extraordinary machinations in resisting the decree have forced the district court to take over a large share of the management of the state’s fishery in order to enforce its decrees. Except for some desegregation cases [citations omitted] the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century. The challenged orders in this appeal must be reviewed by the court in the context of events forced by litigants who offered the court no reasonable choice.”
Non-Indians were disheartened. Fishermen scrapped plans to fish Puget Sound that summer and headed north to the wilds of Alaska. “I don’t think it’s gonna work,” said one fisherman in dismay. “The guys won’t just sit by.”
Neither would the salmon. For all the energy spent debating the justice of Boldt’s decision, “the salmon is the loser,” the Washington Post declared, as the number of fish spiraled downward. Some thirty different jurisdictions in the United States and Canada shared control over the salmon. The intricate industry suffered from an excess of commercial licenses and still-limited knowledge of the importance of the environment and habitat. Biologists and Indians alike sounded a warning: certain wild salmon species were endangered.
Next: Chapter 12 | Bridge Builder
