Page 2
Commissioner Dial. Is it too far in advance to set the meeting now? Chairman ABOUREZK. We are going to have a recess in October. The trouble is Congressman Meeds is running for reelection this year. I don't know that we ought to take those final steps without his presence here. What about right after the election, 2 or 3 days after the election in early November? Is that too late? How is this timetable? Mr. STEVENS. I think that is kind of late because I think we have to have a draft report, final Commission report, by the middle of December. Maybe there is some way. Chairman ÅBOUREZK. This could be very tough. I will discuss that with Congressman Meeds today. It would be unfair to him. Mr. STEVENS. Another option would be to kind of press it a bit, but it is possible. Would it be possible to meet like the first day of October, then go out the second? Probably not, but if we would push that right to the end, before he leaves or if he could stay a day over or something, we could get the preliminary right on the recess. Chairman ABOUREZK. That is another option. Mr. STEVENS. The only other option that I can think of is for us to meet in some way so that we can get that done and then deal with the report as soon as he is able to, and then just double back on it. That is the only thing I can think of. In other words, the report then will be partly written, and he would have to go over it again. Chairman ABOUREZK. Let me ask you this. What about as quickly as you prepare it, you could get three or four issues prepared early sometime in September. What if we had a separate meeting for as many issues as you could come up with? Really, as I explained, when you are running for reelection, that is foremost in your mind. It is really unfair to make a man come back here for something. Mr. STEVENS. One of the things that we are facing is that if we prepared the staff work like you want, I don't think there is any way that we could complete the staff work. Assume that everybody was right on time, which we know even when we tell them that is absolutely it, it doesn't end up being that, that would still bring us around the 18th of September, assuming we could do the staff work the day after they submitted it. Chairman ABOUREZK. The latter part of September we could have a meeting. We are still in session. Congressman Meeds will be here at least half the time or more when we are in session. Mr. RICHTMAN. There is also a meeting on September 25, that you are committed to go to. Chairman ABOUREZK. I can't go on the 25th. Chairman ABOUREZK. We have another day that we are trying to work out. Mr. STEVENS. We are talking about a 2-week lead, Mr. Chairman, and if we are going to do that, and I agree with that, we cannot Page 3
accomplish the staff work. You said I should tell you if we couldn't do it, so I am telling you right now. Chairman ABOUREZK. In the latter part of September, can you get two or three issues ready? Mr. STEVENS. I am telling you now we can't do it. If you will give me 10 days Chairman ABOUREZK. On two or three issues, I think 10 days would be all right. Mr. STEVENS. With a 10-day time limit for two or three issues, I can do it. It is that tight because we set for September 3. Just to do an operations thing, and to read and publish some of the things, it took us 2 weeks, and we are not anywhere near where we need to be. So we really need that time. We might be able to get it by, say taking some of the task forces, like No. 9, No. 7, the first four, something like that, and really get some of the main issues. I believe we can do that. Chairman ABOUREZK. If you can do most everything in early September or late September, early October, we can wrap it up by early October. How does that sound? Mr. STEVENS. Yes, sir. Mr. KICKINGBIRD. From the standpoint of fiscal year and expenditures, October 1 and 2 dates would be ideal. Commissioner BORBRIDGE. Mr. Chairman, I would like to certainly express my concurrence with that suggestion, relaxing just for those first several issues our proposal for advanced notice. In terms of the Commission, informal discussions indicate that we all tend toward extra leadtime. In terms of the extra time, in effect a dry run on the issues, I think it would be tremendously helpful. I would certainly support that suggestion. Mr. STEVENS. We are not taking every issue all at one time. We could probably get by with 10 days, we don't need 2 full weeks, on three issues or four issues. Is the date October 1 and 2 or what? Chairman ABOUREZK. If you can do two or three issues in late September and do as many more as you can get ready by early October, then I think that would take care of everybody's interests as far as time is concerned. What do you think? Mr. STEVENS. Let me put it in a more positive way. We can get three or four issues prepared to mail to everybody by September 20. Chairman ABOUREZK. So that means September 30 for a meeting? How does that sound? Mr. KICKINGBIRD. One of the essential things is that we get the materials broken down, that you do read those materials. That may make it possible for us to have some of this by mail: the issue, development, conclusions, suggestions, incorporations of that material, and exchange of ideas. That is possibly one way we could have part of this, so that we might be able to do it possibly in early October or late September dates, and again possibly just following election at a time when we might find it convenient. The danger is in what all of us are trying to avoid, bogging this all up so that we are depending on a certain time, going too deep, and money enters into the same problems the task forces encountered; that is, starting the work too late. Page 4
Commissioner Dial. I like Friday, Saturday, Sunday, and Monday, and Louis likes that, too. Commissioner BORBRIDGE. There will be no lobbying for dates. Commissioner WHITECROW. So we are talking about November 19, 20, 21, and 22? Congressman MEEDS. Possibly 22. Mr. STEVENS. That would be 4 days—Friday, Saturday, Sunday, and Monday. Commissioner MEEDS. Is there any objection to Friday, Saturday, Sunday, and possibly Monday, blocking out that time for the review summary of recommendations and findings? Commissioner WHITECROW. We are talking about November now? Congressman MEEDS. That is correct. Then we will tentatively accept with no objections to that schedule. When would we review the first draft proposal? Mr. STEVENS. We would review the first draft on December 16. That would be Thursday, and Friday if necessary, I suppose. Congressman MEEDS. So we would be back then on the schedule which you had before? Mr. "STEVENS. We will be moving up one step. All the dates will just drop. It will be the same steps, except the dates will move down. In other words, No. 3 will be where No. 4 is, No. 4 will be where No. 5 is and so on. Congressman MEEDS. The final report then will be on February 20? Mr. STEVENS. Yes, sir. Mr. KICKINGBIRD. One slight correction. The last date, rather than August 18, will be February 18. Commissioner DIAL. Was there any reason for putting all these dates on Thursday ! Mr. STEVENS. That was your school day. Do you have 2 days during the week? Commissioner Dial. I have a block time of Fridav and Monday and the weekend. I have classes on Tuesday through Thursday. I will be here. I have never missed a meeting. Mr. STEVENS. We could do it on Friday the 17th. Then you have to take the 18th if you needed it. When is your vacation ? Commissioner DIAL. Around the 20th of December and Christmas, I guess. Mr. STEVENS. That would be too close. December 17 is a Friday. We had the 2 days that we anticipated on that. Congressman MEEDS. Are they the 16th and 17th or the 17th and 18th ? Commissioner DIAL. As I say, I like Fridays, but if I have to get someone to take classes on Thursdays, I will be here, you know. Chairman ABOUREZK. Does everybody agree? It seems the minute I leave the room you don't have any more conflicts. Mr. STEVENS. Do you want the 17th, and 18th; or 16th and 17th? Chairman ABOUREZK. As I understand it, the 19th, 20th, and 21st. Mr. STEVENS. That is the previous one. We are on the next meeting, review of the draft proposals. Chairman ABOUREZK. What day? Will it be 1 day? Page 5
Chairman ABOUREZK. We said 2 days. We may not take that long. Mr. STEVENS. If you take Friday, then Saturday is a possible second day. Chairman ABOUREZK. What day is Friday? Chairman ABOUREZK. All right. Put down the 17th and 18th, and you are talking about December 17 ? Mr. STEVENS. Yes, sir. Chairman ABOUREZK. That is item No. 3. Are we going to need a meeting for that first draft? Mr. STEVENS. Yes, sir. Chairman ABOUREZK. All right then. Do we need a final draft review? Mr. STEVENS. I believe we do. Mr. STEVENS. Yes, sir. If we have to make some changes it would be a lot easier if we could do that at two stages, Chairman ABOUREZK. All right. Let's set that, and and if we decide we don't need it, we can call it off later. There might be some of this we can do by mail after we make the issue decisions. Is that agreeable with everybody? Congressman MEEDS. I think, Mr. Chairman, that we might be able to combine No. 4 and No. 5. Chairman ABOUREZK. Yes, I think so. Congressman MEEDS. The crux of the thing, I think, is going to be No. 2. If we get good input, and we all get our views expressed and get some relative unanimity in No. 2, the rest is going to be relatively easy I think Chairman ABOUREZK. Kirke, have you decided that definitely we can extend the life of the Commission for a month? Mr. KICKINGBIRD. Yes, sir. We can issue a formal pleading next week to offer that date. Chairman ABOUREZK. All right. I wonder if I might impose on the Commission for a minute now and introduce an old friend of mine and his family who came from South Dakota, Lee English. Anything else? Congressman MEEDS. Mr. Chairman, have we discussed staff? I am a great guy to come now and ask for time. Chairman ABOUREZK. We have done some discussing, but that is fine. Congressman MEEDS. Could you give us some idea of the people who would be involved in the preparation of the final report and the summary review sessions? Is that in this book? Mr. STEVENS. Yes, sir. It is 41 and 42, then the organizational chart on page 7 bears on it. Those are the people and the jobs that they would do. Chairman ABOUREZK. Those are the people that would be involved in the final report? Mr. STEVENS. Yes, sir; on page 7 where it shows the organizational chart. The way that we want to deal with this is that we want to use kind of an editorial review. Editorial, in that they would be putting the thing together. Page 6
Now, there is one voice which cannot speak here, but which I hope all of our witnesses will speak for, and that is the voice of the rivers and the resource itself. Conflicts between the two factions that exist are never pleasant, and many of my colleagues in the Congress believe that the conflicts here can be alleviated by focusing on the resource and not on the factualism. Accordingly, I hope that the witnesses today will speak, among other things, to the problem of improving the resource with which we are concerned. As I said at the beginning of this statement, Federal action has had a major impact on the fish resource in this region. Since depletion of this resource is a result of Federal action, my colleagues and myself are committed to requiring the Federal Government to do what it can to rehabilitate this source. Now, hopefully the fishing industry and sports fishermen will then be able to find fishing in abundance, that at the same time the people of the United States will honor its commitments to the Indian people who gave up their most precious resource, their lands, in exchange for the very solemn promise given to them by the Government, the promise of allocating fishing rights to the tribes to whom those promises were made. Now, today we will hear from witnesses who represent each point of view. I look forward to hearing the views of all of you, with the end result of reporting my findings back to the U.S. Congress, with action as quickly as possible. I want to turn to Senator Hatfield and ask for his opening statement now. Senator HATFIELD. Thank you very much, Mr. Chairman. First of all, I would like to express my appreciation for your traveling to Oregon for this hearing this morning. Fishing and wildlife, as you well know, are among our most important natural resources here, and your willingness to conduct a hearing of the American Indian Policy Review Commission here in Oregon to hear the views of citizens concerned with the management of these resources and the issue of special Indian treaty rights will result in a record that will be useful to all members of this Commission and to the Congress. The controversy over Indian fishing and hunting rights stems most recently from court decisions in Oregon and in the State of Washington, as well. The issue itself, however, is a natural one. Other cases have been in the courts of Montana, Idaho, Minnesota, Michigan, and Wisconsin. These court decisions have sought to clarify the issue of who has what rights to which resources, but they have led, in some instances, to confusion and frustration. This is due, at least in part, to the complexity of the issue itself. *: Treaties which have been interpreted to guarantee a given percentage of fish in particular areas can be difficult for a State management agency to administer. For sport and commercial fishermen, these interpretations may be viewed as additional restrictions on an already diminishing resource. For Native Americans, failure to vigorously enforce the court de Page 7
Any obligation owed to the Indian people is a national one and must be so recognized. It cannot be satisfied solely at the expense of State resources and the non-Indian citizens residing in the State. The creation of special rights for a small group has lead to resentment by the rest of the citizenry. I believe it is extremely important to future relations between the State of Oregon and its terminated Indians that legislation affecting this State does not become a vehicle for the limitation of State jurisdiction over hunting and fishing by terminated Indians. The State of Oregon hopes that this Commission recommends legislation which will further the legitimate aspirations of our Indian people while recognizing that any hunting and fishing rights which survive termination, must, in fairness to the resource and to the State's non-Indian citizens, survive in the form of a claim against the United States for compensation. Mr. Chairman, that concludes the statement by Governor Straub. If there are any questions, we would be happy to try and answer them for you. Chairman ABOUREZK. Thank you very much. The first question I have to ask you, is it the State's position that when termination occurred in 1954 of all of these tribes, that that automatically terminated the treaty obligations of the United States? Mr. STEIWERT. I will refer that question to Ms. Hall. Ms. HALL. Well, that is the Kimball v. Callahan decision that said it did not terminate the Klamath Treaty hunting and fishing rights. We have no decisions on any other tribes. Chairman ABOUREZK. What I am asking is your State's position. We know what the court case said. What is the State's position in this matter? Chairman ABOUREZK. You don't have a position or you do have a position—which one? Ms. HALL. Our position is that we don't know whether the Termination Act terminated all of their treaty rights or not. But if it didn't, with respect to hunting and fishing rights, then we think that this matter should be settled by setting up some kind of a claims commission like the Indian Claims Commission or some other mechanism. We feel that Congress should set up some kind of mechanism to determine whether they have any remaining treaty rights. And if they do, then they should be compensated for them. Chairman ABOUREZK. That is what I am trying to find out, what your position is. As I take it, from your answer, you are saying that your position is they have been terminated, therefore, their treaty rights are extinguished, and therefore, Congress ought to pay them. Ms. Hall. No; we don't know. Chairman ABOUREZK. Excuse me, if you would let me finish my statement. In other words, your position is if the treaty rights were terminated, then the Congress ought to compensate the tribes for those extinguished treaty rights. Now, is that your position? Page 8
Ms. HALL. The other treaties are different. The legislative history is different. Here again I speak only of the State of Oregon. Chairman ABOUREZK. The determination isn't different, though. Ms. HALL. The fact of termination is not different. The background is different, and there certainly is a precedent. Chairman ABOUREZK. So it would follow logically, to me, that if the courts were to decide on every other termination case, that they would say the treaty rights were not extinguished. They have already set a precedent in one case, haven't they? Ms. HALL. Yes; and that is where I think you have a problem. In the case of the recognized tribes which have reservations, they have a land base, and in the case of the terminated tribes, they have sold their lands. So you are talking about giving them rights on somebody else's land and it is not even always the Federal Government's land. In many cases, some of that land is privately owned. Chairman ABOUREZK. Well, I think we are not here to decide the case today, but it would seem to me that whether or not the Indians have sold a great part of their land doesn't have much to do with it. The fishing rights were given in return for land that was given to the Government and thereafter opened to U.S. settlers. So whether or not the Indians owned any lands has little to do with fishing rights. Ms. Hall. I respectfully disagree. It sems to me, if I owned a piece of land, I have the right to fish on it under the State law, and if I sell that land, I don't have the right to go back and fish on it again. I understand that where you have a treaty, you have a different court interpretation, but my point is that it just doesn't seem fair to the people who buy that land in good faith. Maybe it is the law, but it doesn't seem to be fair to a person who goes out and buys his land, or to someone who sells his land. It doesn't seem fair to me to sell a piece of land and retain a right in it. Chairman ABOUREZK. That happens with the U.S. Government all the time to maintain the mineral rights on every piece of land they sell. Ms. HALL. Sure, but they do it in the deed, but here we have the terminated Indians, and the matter was left open. Congress, I think, really just kind of passed the buck at the time. Chairman ABOUREZK. Well, that is Congress responsibility, that is right. Ms. Hall. They didn't clarify it. The Indians brought it up on many occasions : "What about our hunting and fishing rights? Do we have them or don't we?” And nobody answered their question. So now the court is answering it for us, and it is creating problems that didn't need to be created if Congress had taken care of it at that time. Chairman ABOUREZK. Of course, there are many things in this whole issue that were not fair—a great many things were not fair—but aren't we also talking about the total question of off-reservation fishing rights in the first place? We are not talking about on-reservation rights, anyhow. Ms. Hall. No; not at all. Page 9
the defendants from enforcing hunting and fishing regulations In a memorandum opinion dated March 15, 1973, I granted
federal question jurisdiction under 28 U.S.C. § 1331 by
showing that the controversy as to him exceeded $10,000. Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968), held that the plaintiffs were entitled to a declara- tion that they retained their exclusive treaty rights to hunt, fish, and trap on their ancestral reservation. Although the Court of Appeals found that this Court the defendants have again raised the issues of jurisdiction and the State's power to regulate. These issues were decided by the Court of Appeals. They are now the law of
The defendants also contend that if the rights of the
Indians to hunt, fish, and trap are exclusive, those rights
must be limited to those Indians whose names appear on the
final roll of the tribe, prepared in 1957. If Congress intended the Klamath Termination Act to
terminate all of the treaty rights of the Klamath Indians
on the death of the last survivor whose name appeared on
the final tribal roll, Congress could have so provided in
to abrogate or modify a treaty is not to be lightly imputed to the Congress. I therefore hold that the rights of the Klamath Indians
to hunt, fish, and trap, free of State regulations, extend
to the descendants of persons on the 1957 final tribal roll.
Plainciffs do not seek to exercise their treaty rights
on land sold to private owners who prohibit hunting, fishing,
and trapping on that land. Neither do they seek to enforce exclusive rights on the remaining land, most of which is
They are willing to permit State regulation under the following conditions:
These conditions appear to conform with the current principles Recently, the General Council of the Klamath Tribe approved comprehensive regulations for the hunting of game by Klamath Indians on the former Klamath Reservation. The plan provides for joint regulation with State agencies. Apparently the plaintiffs want me to approve their proposal. Although their objectives appear to be commendable, Page 3. OPINION
I have no authority to judicially approve their proposals.
meet with representatives of the Klamath Indians and
promulgate mutually satisfactory regulations for the manage
ment of the fish and game resources on these lands.
Within 30 days, counsel shall prepare a joint statement on the remaining issues in this case with a time schedule for the filing of briefs and the presentation of evidence. Dated this 10th day of September, 1976.
Sus Aslam United States District Judge
ancestry and claim rights under the Treaty of October 14, 1864, 16 Stat. 707, which established the Klanath and
Modoc Reservation in Oregon.
Tcrmination Act, 25 U.S.C. SS 561-564x, plaintiffs or their ancestors clected to withdraw firon tlie tribe ind have:
their interest in tribal properly cor.vertec iirto money ültd 1/ paid to them. 25 V.S.C. S 5640 (-2). In order to pay the withdrawing memlɔers of the tribe, part of the original
tribal property was sold, the greater part being taken
by the United States. It now forms a part of the Wincma National Forest and the Klamath Forest National wildlife
Plaintiffs seck a declaratory judgment declaring their right to hunt, trap, and fish within their ancestral Klamath Indian Reservation free of Oregon fish and game regulations, pursuant to the Treaty of October 14, 1864, supra. They also seek an injunction restraining defendants, officers of the State of Oregon, from applying and
enforcing Oregon fish and game regulations against them within the boundaries of the old reservation.
The district court denied relief and dismissed
the complaint for' failure to state a claim upon which resiei cousa be granteu. re reverse and grani piùinlilis the declaratory relief they seek.
excccdcd the sum or value of $10,000, cxclusive of inter
est and costs, and arose under the Constitution, laws, or Page 10
trcatics of the United States.
jurisdiction. The matter in controversy is the right to
More specifically, the amount in controversy is
measured by determining the value to each plaintiff of 2/ ! fish he could take if regulated by the state. Under
similar circumstances this court has found jurisdiction under 28 u.s.c. S 1331, thereby implicitly finding a mat
ter in controversy exceeding a value of $10,000.
v. Confcảerated Tribes of the Umatilla Indian Reservation,
382 F.2d 1013, 1014 n.4 (9th Cir. 1967); see also Leech
Lake Band of Chippewa Indians v. llerbst, 334 F. Supp. 1001,
At any rate, we cannot say with "a
legal certainty" that the value of the matter in controversy
Inglewood v. City of Los Angeles, 451 F.2d 948, 952 (9th 3/ Cir. 1972).
tion and stated that the describca tract "shall, until
otherwise directed by the President of the United States,
bc set apart as a residence for said Indians, land) hold
and regarded as an Indian reservation.
secured for the Indians "the exclusive right of taking
fish in the strcams and lakes included in said reservation
In 1956 the district court judicially interpreted this treaty also to provide the Indians with the exclusive right to hunt and trap on the reservation without state regulation or control. Klamath & Modoc Tribes
V. Maison, 139 F. Supp. 634 (D. Ore, 1956).
Before deciding if these rights survive the Klamath
Termination Act, we first consider whether the treaty was
correctly interpreted to include hunting and trapping correctay rights. in piccolinde ribe v. United States, 39) V.S. 404
(1968), the Supreme Court considered the Treaty of Wolf
Indians a reservation in Wisconsin.
tion of hunting and fishing rights, but provided that the
be held as Indian lands are held."
the Court of claims that this language includes the right 5/
United States, 179 Ct. cl. 196, 503-04, 388 F.2d 998, 1002
(1967); State v. Sanapaw, .21 Wis. 2a 377, 383, 124 N.W.28 41, 44 (1963).
Ho find that the language "sct úpuri: is a rcsi
dence for said Indians, land) holü and rejuried is an Indian
reservation" also includes those rights. The specific treaty
could prompt the argument that their trcaty cxcludes the
right to hunt. llowever, in light of the highly significant role that hunting and trapping played (and continue to 6/ play) in the lives of the Klamaths, it secins unlikely that they would have knowingly rclinquished these rights
at the time they entered into the treaty. See Menoininee Tribe v. United States, 391 U.S. at 406; State v. Sanapaw,
thc cxclusive rights to hunt, trap, and fish for almost 100 years with the consent and acquiescence of the State of Oregon. Klamath and Modoc Tribes v. Maison, 139 F. Supp.
634, 637 (D., Ore. 1956).
These facts, coupled with our
duty to construe the treaty favorably to the Indians with 7/ whom it was made, lead us to conclude that the treaty
1. provides exclusive rights to hunt and trap, as well as to
In 1954 Congress passed the Klamath Termination Act, which became fully effective in 1961. 25 U.S.C.
Indians, to dispose of federally owned property acquired for the administration of Indian affairs, and to terminate
the provision of federal scrvices to the Indians solely
Pursuant to the Klamath Tcrmination Act, a final
person whose nanie appeared on this tribal roll had to
clect whether to withdraw from the tribe and receive the
money value of his interest in tribal property or to
remain in the tribe and participate in a non-governnental
The Act provides that "(m) embers
of the tribe who receive the moncy value of their interests in tribal property shall thereupon cease to be nem
bers of the tribe. 25 U.S.C. S 5$40 (c). On the final tribal roll were 2,133 persons. of these, 1,660 elected to withdraw from the tribe and take 1. their interests in cash. The remaining 473 elected to retain their interests in land and to participate in the
land management plan. A part of tribal land proportionate to the number of remaining members was transferred to a
members, and the majority of this portion is now United
States national forest land.
Plaintiffs are five Klamath: Indians who withdrew
from the tribe. They claim that they nevertheless retain treaty rights to hunt, trap, and fish free of state regu
lation on the former Indian land that was sold to pay them
for their shares in tribal property. Feeling compelled by Menonince Tribe v. United States, 391 v.s. 404 (1960),
902) is similar in several respects to the Klaniach l'ermina
Both provide basically for the termination of
Statc v. Sanapaw, 21 Wis.20 377, 124 N.W.2.2 41 (1963),
United States in the Court of claims to recover damages for the loss of those rights: Menominee Tribe of Indians V. United States, 388 F.2d 998 (Ct. ci. 1967). That
court awarded no damages, concluding that the Termination
Act did not abrogate the Indians' rights to hunt and fish. ! 388 F.2d at 1005-06.
The Supreme Court affirmed the Court of Claims.
Menominee Tribe of Indians v. United States, 391 U.S. 404
The Court noted that the effect of the Termina
tion Act was that all federal supervision over the tribe and tribal property was to end and that "the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or
persons within their jurisdiction.". 25 U.S.C. S 899.
The Court acknowledged that this language supports a forceful argument that the Termination Act submitted the hunting and fishing rights of the Indians to state rcgu
Law 280. 118 U...C. s 1162), passed at the same time as
Page 11
Indians in the areas of Indian country" named in the Act,
which in the case of Wisconsin was described as "All
Indian country within the State," and in the case of
Oregon, as "All Indian country within the Staté except
deprive any Indian or any Indian tribe, band, or commun
ity of any right, privilege, or immunity afforded under
Federal treaty, agreement, or statute
hunting, trapping, or fishing or the control, licensing,
or regulation thereof." (Emphasis added.) The Supreme Court noted that, at the time Public
Law 280 became effective in 1954, the Menominee Reserva
tion had not been terminated and it was still "Indian country" within the meaning of the law. Similarly, the
Klamath and Modoc Reservation in Oregon was still "Indian
The Court stated that this construction is in accord with the purpose of the Termination Act, which is
Pl.1-1.sndclolu 1.3.72-160X1-0501
"all statutes of the United States which affect Indians because of their status as Indians." 25 U.S.C. SS 899
The Court stated that this provision "plainly
refers to the termination of federal supervision.
The Court emphasized that it would not "construe
the Termination Act as a backhanded way of abrogating the
'hunting and fishing rights of these Indians."
that the intention to abrogate or modify a treaty is not
statement, would subject the United States to a claim
Defendants argue that Menominee Tribe is distinguishable because of significant differences between
the Menominee and Klamath Termination Acts.
the Klamath Termination Act, the Menominee Act gave no
option to the Menominee Indians to withdraw from the
tribe and receive the money value of their interests in property. Also, although title to the reserva
tion changed hands in Menomincc Tribc, the Menominees.
continued to occupy the same land before and after the
The disputed land in this case, cm
the other hand, is no longer. lcgally occupicd by the
While these are substantial points of distinc
tion, we find nothing in the language of Menomincc Tribe
In Klamath and Modoc Tribes V. Maison, 338' F.2d 620
none of whom had elected to convert his tribal interest
into money, sought a declaration of their right to hunt
and trapi free from Oregon regulation and control, in
Termination Act, no treaty rights attach to land severed
from the former reservation. We acknowledged that the Termination Act does not expressly deal with any treaty rights respecting hunting and trapping. We held, however, that the treaty rights are limited to the lands of the reservation and that the Act,' by effectively reducing the size of the reservation, "most certainly reduced the area to which those rights attach." 338 F.2d at 623.
This reasoning cannot stand in light of renominee Tribe. It is inconsistent with the Supreme Court's requirement that Congress clearly indicate when it intends to abrogate treaty rights. Moreover, it is incon
sistent with the Court's construction of Public J.: 280
Llit trcaty sighis with respect to hunting, trains, or
thicy attach to land known as "Indian country" at the
time Public Law 200 became effective.
Congress not only failed to indicate clearly an intent to abrogate treaty rights; it in fact expressly preserved at least fishing rights on the former reservation. The Termination Act provides that "Inlothing (in the act) shall abrogata any fishing rights or privileges of the tribe or the members thereof enjoyed
in Klamath and Modoc. Tribes v. Maison, 338 F.2d 620 19th Cir. 1964), stated that if this provision does pro- vide fishing rights on the entire former reservation, a
question not before us at the time, it did so by an express statutory grant, since the treaty rights themselves cuuiu uniy extenu iu ürt i similic: rosorvation. Defendants in this case offer a different interpretation
and suggest that s 564m (b) does not aid plaintiffs since
it applies to "the tribe or the members thereof." and Neither of these constructions withstands analysis.
Since the Act provides that nothing in it shall abrogate
any treaty fishing rights, we conclude that. a Klamath
Indian possessing such rights on the former reservation
One final consideration this court must make
concerns the extent of plaintiffs' rights, that we lere
those persons might properly exclude Klamaths and any 10/ one else from hunting and fishing if they so desire. Plaintiffs do, however, seek a declaration, and we so
hold, that they may exercise their treaty hunting,
trapping, and fishing rights free of state fish and
game regulations on the lands constituting their ancestral Klamath Indian Reservation, including that land now
constituting United States national forest land and that
privately owned land on which hunting, trapping, or 11/ fishing is permitted.
Page 12
Senator HATFIELD. What is the position of the State on the basic policy of termination? Ms. Hall. Could you clarify your question a little bit? Do you mean: Do we think that they should have been terminated ? Senator HATFIELD. I am talking about the generic, basic concept of termination. Is there a position that the State has on that issue relating to Indian tribes? Ms. Hall. I don't think we have a position on termination as such. We simply have taken it as a fact and tried to deal with it from there. Dr. DONALDSON. We have stated our position relative to any fishing termination, but termination per se, Senator, I don't know that that is our position. Senator HATFIELD. The position the State took at the time is still the position of the State in the absence of any action to the contrary. The State had a position at the time of termination. Ms. Hall. In 1954, that is correct, they supported termination at the time of termination. Senator HATFIELD. So do I understand then the State's position has been changed or does the State's position stand as of 1954? Ms. HALL. The State hasn't considered it. Dr. DONALDSON. I would assume by lack of action that the State position remains the same, Senator. I would imagine this case has not been considered or discussed. Senator HATFIELD. Have the claims of the Coos, the Lower Umpqua, and Suislaw tribes as to fishing rights been the basis of any court action or any court decision actually granting such rights? Ms. Hall. Not yet. Senator HATFIELD. Mr. Chairman, we are fortunate in the State of Oregon to have a man of the quality, character, and experience of Dr. Donaldson. He is probably the top man in the Nation as far as any of the directors are concerned. I know his very extraordinary background and I welcome him in this, I think, one of his first public appearances before a congressional committee. I would like to just talk a little bit, Dr. Donaldson, about this matter of upgrading the Federal program as far as the possibility of increasing the base of the resource. I would welcome material that you might have for the record, if you do not have it with you today. As you know, the direction of the Federal Government has been more in the idea of rearing ponds rather than hatcheries, because I suppose, among other reasons, they are less expensive. On the Appropriations Committee, I have sought and acquired $500,000 to $600,000 over the administration's budget for such programs for the National Oceanographic and Atmospheric Administration last year. What, in your opinion, is the extent that we can develop a new Federal-State program to just work on this matter of expanding the base of the resource? Do you find cooperation with the Federal agencies at this time in the development of this kind of effort? Dr. DONALDSON. First of all, Senator, thank you for your kind words. I sincerely hope that I may live up to them. I will make every effort to do that. Senator HATFIELD. I have every expectation. Page 13
is there, and both the Indians and the sportsmen will work out a solution to this question if we can keep those with law degrees from standing between us. On January 26, of this year we received the decision of the Court of Appeals refusing to review the case of United States v. Washington. This meant that the Judge Boldt decision remains the law of western Washington. Even though Trout Unlimited spent several thousands of dollars in most of the recent Indian fishing rights litigation, it must be noted that the immediate concern of the Northwest Steelheaders in the controvery has been twofold: First, the steelhead trout is a game fish according to the laws of every state here on the West Coast, and should be recognized by the Federal Government as a game species. In addition, it should not be exploited for commercial purposes by anyone, including the Indians. Second, we believe very strongly that the States should have the rights to protect, and hence, regulate its own natural resources and all the people who use these resources. I would like to add that we asked the U.S. Supreme Court to review Judge Boldt's decision because we felt that management of the resource by a Federal judge, or multiple management by a number of treaty Indian user groups, was a violation of the principles of independent, unified, expert management of the resource. We also argued that Judge Boldt's definition of conservation, as limited to only adequate escapement, did not consider such factors as waste, preservation of wild and native stocks, or the maintenance of an orderly fishery for all user groups. We also argued that the allocation formula was unfair, particularly to steelhead fishermen who typically fish upriver behind Indian gillnets. The refusal of the U.S. Supreme Court to review this case means that these contentions cannot be presented to that court. However, they are still valid concerns of sports fishermen which must be argued in the courtrooms wherever possible. I do recognize, gentlemen, that as I sit here before you this morning, this testimony is being directed at a Federal commission, which means that you are under the strong arm dictates of one Federal judge who we believe went far beyond his judicial powers by slicing Washington's fishery resources down the middle like a Solomon dividing his wealth 50–50 between two sons. That decision was tragic, inordinately degrading to the professional fisheries people of the State of Washington, and totally disregards the equal protection guarantees of the Constitution of the United States. However, I would like each of you to understand the singular most important point of this entire "fishing rights” controversy. When you gentlemen think of salmon, think of cows and pigs, because salmon are food fish. They are bred, incubated, handfed animals designed primarily for the specific use of being harvested for food. Food for Indians, Germans, Swedes and every other nationality known to man. These are Pacific Salmon who return to the streams and rivers of the Pacific Coast to spawn and then die. Now, let's look at the steelhead trout. Contrary to what some folks call them, they are not, and I repeat, they are not, salmon; they are rainbow trout that migrate to sea and return much like salmón, but with two special differences. First, they do not return to the river in giant numbers like salmon. There are very few steelhead trout returning to the streams in comparison to Coho or Chinook Salmon. And second, steelhead trout do not die after spawning. Unlike the Pacific Salmon, the steelhead trout digs her nest, lays her eggs, the male fertilizes them, and they both move down river to once again journey into the great ocean pasturelands. The steelhead trout, like a bull elk or a yearling fawn, is a game animal and cannot survive if subjected to commercial exploitation. These game species must be carefully regulated and harvested for personal use only after professional biological management teams give their approval. It is one of the great tragedies of this decade that one Federal Judge single handedly set into motion an act of genocide that is slowly destroying one of Washington's greatest resources : Its large, native steelhead. Page 14
called Salmon Trout Steelheader. I am here speaking on behalf of Salmon Trout Steelheader, but before I say anything, I would like to make it perfectly clear that the Boldt decision and what I have to say about steelhead is not economically motivated in the least bit. I have no economic motivation. In addition, I am also a national director of Trout Unlimited, elected by steelheaders in the State of Oregon. But I am not speaking in that capacity. Chairman ABOUREZK. You are speaking only as an individual ? Mr. AMATO. Just as the editor of the Steelheader, my own magazine. It has a circulation of approximately 20,000 in the Pacific Northwest and also California. First of all, I would like to thank you for coming out here to Portland to hear about our problem, which is really quite serious, especially when you consider the fact that there are something like 2 million fishermen in the Northwest out of a population of maybe 6 million. One in three, almost better than 50 percent of the male population, fishes. It is a bit unfortunate in a way that you cannot spend more than 4 hours to consider a problem that is 100 years old, if not older, and one which raises the emotions and raises such tremendous criticism of the Federal judiciary in the Northwest. Chairman ABOUREZK. If I can interrupt, Frank, I intend to spend much more time on it. It is just today that I can only spend 4 hours. I can see that we are just beginning. Mr. AMATO. That is really great. I have virtually never been out of the Northwest and never to Washington, D.C. I appreciate this opportunity to say— Chairman ABOUREZK. Four hours is all you would want to spend out there. You would get caught in the Watergate scandal if you were out there. Mr. AMATO. One other thing: I would like to mention that I am going to read what in effect is kind of an editorial in the current issue of the Steelheader, which summarizes, in a way, the social problems that we have in the Northwest, because the fisheries problem in many respects is a social problem. Now, none of us in the Steelheaders—and myself, as editor of Salmon Trout Steelheader-are motivated racially. What we are trying to do is to be as objective as possible about the fish. This is titled, “The Boldt Decision: Sport Fisheries Watergate.” The headlines in Oregon's largest daily newspaper, the Oregonian, read “Coos Indians to defy Oregon's game rules.” The same lack of respect for State fish and game regulations is evident on the part of many Indians, not only in Oregon, but also in Washington, Montana, California, Michigan and many other States, as well as in British Columbia. Against the overwhelming wishes of 6 million citizens in the Northwest, a handful of Indian tribes continue to gillnet tens of thousands of steelhead trout, a recognized State game fish in both Oregon and Washington, with the Federal Court's blessing. The fact that we sport fishermen have paid to raise the great majority of these Indian gillnetted steelhead seems to have escaped Judge Boldt. Watergate was a secret threat against democracy and justice. Boldt's failure to recognize hatchery-raised steelhead and sports fish, in that we paid to raise them, is almost unbelievable ! Page 15
Puget Sound tribes especially seem intent upon gillnetting and not only their court-allotted fair share, 50 percent plus, but as many more as they can get away with ; on some rivers up to 80 percent and more. Tacoma Federal Court Judge Boldt, meanwhile, finds himself in the middle of a fantastic bureacratic mess, which he created. Our Presidential hopeful, Jimmy Carter, campaigns on reducing government bureaucracy by combining agencies to streamline decisionmaking, the Honorable Judge Boldt is building the craziest bureaucracy yet seen in America. Boldt says that all the Indian tribes, 13 or more, can set their own regulations, seasons, gear regulations, places to fish, and these are all in addition to the regulations set for the rest of us by the State Fish and Game Departments. I wonder if it is American taxpayers who are footing the bill for all the new Indian tribal fisheries committees which need to purchase expert biologists' advice plus tribal enforcement personnel in order to set and enforce their fishing regulation ? Recent Gallup Polls have indicated a tremendous lack of confidence of American citizens in the ability to act of the U.S. Congress. Yet it is this same Congress that eventually must settle the Indian fishing and hunting rights question. Each week new problems and questions arise as a result of judicial decisions. Nothing seems to be finally solved or answered. State fish and game management agencies find it impossible to manage the resource. The Senators and Congressmen of this State of Washington report that the U.S. Congress is in no mood to discuss Indian fishing and hunting rights questions. As far as I am concerned, these Congressmen have failed to open up a Congressional dialog stating the problems. They should all be turned out of office. Senators and Representatives who want to solve problems rather than sit on them should be elected. Washington State and Federal office holders, as well as bureaucrats, say that what we need is more fish, that this will solve the problems. Yet biologist Lloyd Royal's steelhead study determined that once a certain planting point was reached additional steelhead smolts were only a waste. In other words, there is good evidence that you can't increase runs of steelhead when Puget Sound streams are currently being gillnetted by Indian tribes. If the Federal Government were to dump in x million amount of dollars, there is a very good chance we could not increase the steelhead run over and above what it already is, simply because it would reach a point of diminishing returns in your planting. I believe that many Washington rivers are already at that saturation point. The people who say, “What we need is more fish" are only half answering the problem. Simply put, what is it that sport fishermen want the Indian treaty fishermen to do? The answer is to lay off the steelhead trout. If Indian gillnetters would leave steelhead alone, a large part of the problem would disappear. Salmon are looked upon by all parties as food fish, or commercial fish. The steelhead has been elevated to game status by the legislature in Washington and by an overwhelming vote of the people of Oregon. The major question whether Indians should continue to gillnet steelhead and especially those raised with sport fishing license money is a volatile one. We see in it a mirror of the emotions raised in the Northern Ireland question, the Cypriot question, the Arab-Israeli question, and the Lebanese question. It is a credit to both sides, but especially to sport fishermen, that they have not turned to violence and done things such as destroy Indian gillnets. The struggle has been fought in the courts and will hopefully be fought even more so in the future in the U.S. Congress. It is unfortunate that the U.S. Congress seems to wait until the crisis is at hand before it attempts to solve it. But the crisis is building in State after State, and the pendulum will inevitably start to swing the other way when sport fishermen and hunters are pressed against the wall by continuing Federal court decisions that lack commonsense and thus any public support. Page 16
from both State and Federal Governments led over one hundred ste deral Government steps into a State and - will be felt by anglers a sport fishery to make up for its own the Indian netting op prongs do not make a right! ody seems to knon State of Oregon voted overwhelmingly In 1931 the Washington State Legis'e no means In both cases this was an indication teelhead. t they felt the steelhead trout was ment of ally in gillnets. 'a "h; Pelhead trout efficiently until the eac harvest a few steelhead with f the gillnet that made it pospi. it streams as they have been scent wil. calthy resource. in on the Skagit River in l', no such programs .. I and two steelhead while and success remain unknowu thousand four hundred Until such vital baseline inform nets be determined ? at tribes (if they meet The Department of Fish and Game This is the same as punch card system, with the argument ta what would happen "fishing conditions”. rests, or if the autoNevertheless many observers strongly believe .. y standards, or if the fish, particularly salmon. r nuclear power Reportedly, the mesh has been large enough to allow ving regulations. but we have heard stories of nets with smaller mesh; hu. : attempt to set more nets go out. Hey get expert Rumors are rampant about the commercial sale of the fish an ian Affairs)? regulations of all fishermen on the reservation. Apparently the netters are somewhat organized but have many Pix gulator, the which they cannot agree amongst themselves. Pad it has At least there is the potential for serious damage to the fishery. Legally, the Indians have the rights for the unrestricted harvest of fish 9 money game on the reservations, A 1969 court case extended their rights to include the lower twenty miles of mine, the Klamath in addition to the lower 12 miles of the Trinity and the Klamath f the -ices for 20 miles below Weitchpec, which they already had. A 1969 court case extended their rights to include the lower 20 miles of the erKlamath in addition to the lower 12 miles of the Trinity and the Klamath for 20 miles below Weitchpec, which they already had. with the 1969 case and finally denied an appeal by the State for the authority to The unrestricted rights date from a May 27, 1975 court decision which started regulate hunting and fishing on the reservation. This was a long legal battle in which the State Appellate Court affirmed a lower court decision. Subsequent appeals by the State were denied both by the State and U.S. Supreme Courts. A suggestion : Everyone, Indian netters, sport and commercial fishermen, resort owners, landowners, and others, stands to lose if the fishery resource is seriously and permanently damaged. Already fish habitat has suffered terrible destruction from which it may never recover. Some type of management regulations on the reservations, based on sound biological principles, are essential. Since the authority rests with the Indians, let them exercise it by issuing guidelines, with professional fishery biologists acting as technical advisers; however, unless the Indians can agree among themselves on a definite course of action, settlement may be impossible and the resource lost by default. If agreeable, an independent authority for fishery management could be established, with representation from all concerned groups, but first communications must be opened before more tempers flare and the groups become more polarized. As hoards of steelheaders descend on the rivers this fall, some sort of regulations may be necessary to protect them as well as the fish. Cal Trout attempted to arouse the interest of a professional environmental arbitrator in Seattle, but there has been no response. Cool heads are needed which are willing to trust each other and talk at length until the matter is settled before it is too late. Page 17
The best expert in fish management has not been able to arrive at a satisfactory solution and they have been working on it, believe me as it is a near impossible decree. Figure, if you will, several runs of anadromous fish intermingled in the ocean—salmon and steelhead destined to return to the many different streams where they were spawned. Some are heading for the lower rivers below Bonneville Dam, the Williamette, the Cowlitz, the Toutle, and many others. Downstream Columbia River hatcheries raise millions of fish and these will not go over the dams into the Indian nets, but will return to their native water. And also, of course, we have the coastal streams along Oregon and Washington. Yet the Federal judges have ruled that the treaty Indians are entitled to 50 percent of the fish still in the Pacific Ocean. How in the world can anyone tell how many salmon and steelhead caught by offshore trollers, charter boat operators, and private sports boats were destined to go over Bonneville Dam? Again I say it is impossible for anyone to arrive at an accurate figure, even the most able biologists. It is a directive that cannot be implemented. The section of Judge Boldt and Belloni's ruling that the non-Indian fishermen cannot understand is how he arrived at the 50-percent figure. “Fishing in common with" the wording in the treaty does not mention a particular percentage. Rather, I believe that one could take it to mean that one could take it to mean that every citizen's share should be equal. As you know, Indian problems are springing up all over the country. As was already mentioned here, on the west coast the Klamath Indians, who were well paid for their land by the Federal Government, now claim exclusive fishing and hunting rights on their reservation, and have defied the Department of Fish and Wildlife attempts to regulate and manage the fish and game population. Just recently, a California tribe declared arbitrarily that the Klamath River Indian lands were off-limits to non-Indian users, and ordered them off the land at the mouth of the river. They planned to declare an exclusive Indian fishery on the entire length of this famous fishing stream. Where is it all going to end? We feel that drastic congressional action is necessary to stop this movement before it engulfs us. I am sure that you are aware that this takeover is spreading all over the country, not only in fishing and hunting but also in timber rights, water rights, and mineral rights. Sportsmen who pay for the largest share for propagating and the management of fish through their purchase of licenses and tags, in addition to the Federal tax on fishing equipment, are becoming more disenchanted with these developments. If they refuse to buy licenses, and many whom I have talked to are considering it, who then will pay for the rearing and administration of the fishery? Not the Indians; they don't buy licenses; they don't pay poundage fees. They have a free ride at other's expense. I trust that this Commission will return to Washington with a much better knowledge of the severity of the crisis after reviewing the testi Page 18
Mr. Voss. We don't have them state-wide; it is only Federal-wide. Chairman ABOUREZK. Mr. Rancourt, your prepared statement is placed in the record. Mr. RANCOURT. Thank you.
PREPARED STATEMENT OF RANNY RANCOURT, PRESIDENT, SAVE Oregon's RESOURCES TODAY (SORT)
Mr. Chairman and Members of the Commission, my name is Ranny Rancourt, and I reside at 6805 S.E. 68th Avenue, Portland, Oregon 97206. I speak today as President of Save Oregon's Resources Today, Inc., better known as SORT. The original name of the organization was Save Oregon's Rainbow Trout, Inc. (SORT). This is the group that is responsible for the passage of Measure 15 which was passed by the people of Oregon in November, 1974, giving steelhead trout its. rightful designation as a game fish. Incidentally, it was a very decisive vote with four hundred fifty-eight thousand of the electorate or about sixty percent of the people in favor. Naturally we were elated by the landslide vote, but our cheers had hardly died down when we were faced with another problem much more devastating and broader in scope. I refer of course to Judge Boldt's Decision wherein he ruled that the treaty Indians were entitled to fifty percent of the salmon and steelhead, not only entering Washington streams but also those in the ocean. This was soon followed by Judge Robert Belloni's concurrence which included the treaty Indians fishing above Bonneville dam in the Columbia River. Since this bombshell has exploded among the sport fishermen, complete chaos. has resulted, Judge Belloni ordered the Fish and Wildlife Commission to develop a com-. prehensive plan that would result in the fifty percent harvest by the Indians. The best experts in fish management have not been able to arrive at a satisfactory solution, as it is a near impossible decree. Picture, if you will, several runs of anadromous fish intermingled in the ocean, salmon and steelhead destined to return to the many different streams where. they were spawned. Some are heading for the lower rivers below Bonneville dam, the Willamette, the Cowlitz, the Toutle and many others. Downstream Columbia River hatcheries raise millions of fish and these will not go over the dams into the Indian nets, but will return to their native water. Yet the Federal Judges have ruled that the treaty Indians are entitled to 50, percent of the fish still in the Pacific Ocean. How in the world can anyone tell how many salmon and steelhead caught byoffshore trollers, charter boat operators and private sports boats were destined to go over Bonneville Dam? Again I say it is impossible for anyone to arrive at an accurate figure, even the most able biologists. It is a directive that cannot be . implemented. The section of Judge Boldt and Belloni's ruling that the non-Indian fisher-men cannot understand is how he arrived at the 50 percent figure. “Fishing in common with” the wording in the treaty does not mention a particular percentage. Rather, I believe that one could take it to mean that every citizen's share should be equal. Still looking at it in this light, whereas the treaty Indian population of the Northwest represents less than 1 percent of the total citizenry, they should be entitled to one percent of the fish caught. Or, if you compare the number of Indians who do the actual fishing with the licensed sportsmen and commercial fishermen, I believe that the percentage would be even less. Of course, this figure is unrealistic, but somehow the 50 percent share must be reduced to a reasonable and acceptable amount. As you know, Indian problems are springing up all over the country. Here on the west coast, the Klamath Indians, who were well paid for their land by the Federal Government. now claim exclusive fishing and hunting rights on their Page 19
Included : Information previously provided various other agencies and individuals, which may be of interest to the Commission.
JULY 17, 1976 I serve the two leading organizations concerned with sports fishing as a Vice President and Legislative Spokesman of each. The Northwest Steelheaders, dedicated to the enhancement of all cold water fishery, is primarily oriented toward reporting, and educational efforts and fishery improvement projects. Save Oregon's Resources Today (SORT) is an umbrella committee whose directorship is made up of the leaders of the leading conservation organizations in the state, and is the political arm of the sportsmen of Oregon. I am registered as a volunteer and unpaid lobbyist before the Oregon legislature. We hope that this overview by a layman of the fishery problems is of interest. A chapter could be written on any aspect of the problem. Further questions by interested persons will receive attention, and will be appreciated. The final section of this writing contains specific recommendations. Anadromous fish are those that originate in fresh water, and migrate to the ocean where most of their growth takes place, and then find their way to their point of origin again to spawn and renew the cycle. Before Grand Coulee and the Snake River dams cut them off, some travelled more than 1,000 miles upstream to spawn. This writing concerns mainly the salmonids more frequently sought and fought over by man. Of special interest to sportsmen are steelhead trout, chinook salmon, coho salmon, and cutthroat, or harvest, trout. Some of these fish return to fresh water to spawn near the end of their second year, but the chinook return may vary from 3 to 7 years of age. Both the cutthroat and steelhead return at varying ages, and, unlike any of the Pacific salmon, may return and spawn more than once. The larger of these fish range the entire eastern and northern Pacific, cruising at a rate of about 30 miles per day. Their routes and reasons are not fully understood, but we do know that a large part of them are being intercepted by fishermen of other nations that do not contribute to their production. Now that problems in the rivers to which these fish are native, and increasing pressure by both domestic and foreign harvesters, have reduced many of the runs to or near extinction, State and Federal agencies are seriously expanding their research, which may make what is being written here outdated before the signature can be affixed. This is nontechnical, with few, if any, Latin words, because the old blacksmith doing the writing knows very few indeed. Statistics will be presented as comparisons and percentages, to make them meaningful to the layman. Those traveling the Pacific Northwest in the covered wagon days, at certain times of the year had to beat the water with branches to frighten away the fish before their horses could ford the streams. Early homesteaders loaded fish into wagons with pitchforks and used them for hogfeed. The number of fish in the rivers at that time is uncalculable and would be incomprehensible. Numerous early explorers and settlers described the runs in essentially the same words, “It looked as though you could walk across the river on their backs." This was even said of the Columbia, and that would take a lot of fish. It must be remembered that most anadromous fish eat little, if at all, from the time they reenter fresh water until they spawn and die. The abundance of fish described by Lewis and Clark, and others, would not have been possible except that they went to sea when they were mostly 3 to 7 inches long, and returned up to 4 feet long, carrying enough body fat to get them to their destination. Such large numbers could not possibly have sustained themselves otherwise. More than 95 percent of the growth of these fish occurred in the spacious pastures of the great Pacific, and their decaying bodies added to the food supply of the next generation. Fish canning became a practical reality, mostly in the second half of the last century. All of the runs in all of the small coastal streams were decimated, one stream at a time, by the greed of the commercial fishermen and packers. They failed to allow adequate escapement for spawning, and merely moved onto the next stream when the runs disappeared. Page 20
fishing by Indians. Then he said that the state must guarantee the Indians the opportunity to catch 50 percent of the harvestable remainder of fish destined for their usual and accustomed stations, including those caught off Oregon and Washington in the ocean. He said that Indians had a right to fish and others only a privilege, and left no machinery to halt the Indian harvest at 50 percent, no guarantee that anyone else could have any. This is his version of “in common with." Indians represent about one percent of the population of Washington, and about one-half of 1 percent of Oregon. Washington records 1,237 Indian fishermen, and Oregon 291. Idaho has no commercial fishermen, Indian or non-Indian. The three States, therefore, have together only about 1,500 Indian fishermen, they have about 10 times as many non-Indian commercial fishermen, and about 2 million sports fishermen. What the Federal court has really said is that as far as the “in common" areas are concerned, the Indian is entitled to about 1,300 fish to one for each non-Indian. The non-Indian can hardly be expected to subscribe to this point of view, or to believe that the Court realistically interpreted the words "in common with.” Sportsmen are especially bitter about this since the absence of State authority has resulted in the Indians taking fish needed for spawning, and which were produced in hatcheries funded by sportsmen's license fees and excise taxes on sporting goods. Steelhead are game fish in all States and are protected from commercial sale except that the Court allows sale by Indians. The Court allows so-called subsistence fishing by Indians at all times. In 1975 they reported subsistence catches of steelhead by Washington Indians totaling 71/2 pounds for every day in the year for every Indian in the State. Funding of the hatcheries that produced the fish is by sportsmen, who must continue to do so or see the resource go down the drain. The late summer “B” run of steelhead to Idaho predominantly comes from and returns to Dworshak hatchery in that State, the largest steelhead hatchery in the world, requiring 5,000 spawners for full operation. As many as 15,000 fish returned to Idaho sportsmen and the hatchery as late as 1973. This past spring, the number was 1,856. Only the Indians were allowed to fish that run, and they report taking 5,520 from their mid-Columbia fishing area. Had they not taken any, natural mortality would have made the desired 5,000 at Dworshak doubtful. Those people just don't seem to understand what they are doing. Idaho's fishery program is financed by sports licenses plus the usual small return from Federal sporting goods excise taxes. In this year of increasing costs, their revenue is down more than $1 million, or 18 percent, because frustrated anglers are not buying licenses. Although they are still struggling to rebuild their runs, anadromous fishing is forbidden in Idaho. That States resolve to continue their efforts is wearing thin. Sparsely populated Idaho cannot continue to subsidize other users. Offshore trollers of Oregon and Washington have their frustrations, too. They have been told that they must allow enough fish to pass to give the Indian fishermen the opportunity to harvest their 50 percent over and above the reservation and subsistence fishing. It is impossible for the troller, or his regulating agency, or even a Federal judge to dictate what will happen to such fish as the troller passes up, or even to determine that the fish he takes, or does not take, is destined for any particular river or Indian fishing area. What he can determine is that Canadian fishermen are already taking 40 percent of the pie, and will be only too happy to pick up half or more of what the domestic troller passes up for the Indian. The troller also knows that the Indian will get only a fraction as much for such fish as do reach the Indian fishing grounds as the troller would have gotten. The enormous propaganda and legal barrage that empire building BIA and the Department of the Interior would picture the Indian as an abused and romantic conservationist. Most people do not have day to day observation of Indian practices and do not know that they are not and never have been conservationists. It is the history of the Indian that he depleted the game and moved on, and starved when he found none. The rank and file Indian neglects and abuses his horse, his car, his own body, and the game and fishery resources to which he has access. He is better fed, housed, clothed and educated, and has better medical care, than at any time in history, and at public expense. There is no need to force sportsmen to subsidize his subsistence fishery. He lacks no opportunity available to anyone else, except for those shortcomings within himself, and those cannot be legislated, appropriated, or adjudicated. Page 21
Since that money was appropriated as compensation for losses upriver, it should have been used there for whatever good it could accomplish for that area, like rehabilitating appropriate small streams. Saturating the Columbia below Bonneville with millions upon millions of fall chinook smolts, almost totally unavailable to Oregonions, has other hazards. It encourages such a frenzied orgy by fishermen of other nations, especially including Canada, in pursuit of those fish, that our intermingled natural spring and summer runs are being wiped out. It also encourages discriminate harvest by the non-selective gillnet, which in taking those lower river fish that do return, also takes upper river and tributary runs that are in danger of extinction. We need to look at this thing critically and determine where to go from here. Continued saturation of the lower river will wipe out our natural runs. Extinction is forever. The complications facing us in protecting those resources of which nonOregonians take more than we do, are enormous, without even mentioning those problems brought about by the Belloni decision. For example, there is little to be accomplished by giving back Oregonians hook and line troll, either sport or commercial, when those fish would mostly be picked up by someone else. It should be noted, however, that the average troller is said to be losing $100 annually (1973 OSU Report) and if he ever did prosper, without severely limited entry, then the pressure would immediately double on both the supply and the market. Beyond any doubt, commercial fishery, both Indian and non-Indian, must have limited entry. Hårvest in the lower Columbia is another matter. While the selectivity of the troll can be improved by use of barbless hooks, and by marketing hatchery fishe so that others might be released, the present harvest by gillnet is indiscriminate and non-selective. The lower Columbia gillnetter takes fish that have identified themselves only as Columbia drainage fish, by entering that river's mouth, but are not yet separated into groups destined for various tributaries. Lead off by our own John McKean, the directors of all the fish and game agencies of Oregon, Washington and Idaho spoke in favor of selective, terminal fisheries at the recent Salmon and Steelhead Symposium in Vancouver. If we are going to save most of our threatened runs, it will have to be by moving in that direction. The place to begin, because it is very critical and because we have reasonable control, is the lower Columbia. Because the Oregon-Washington line runs close to the Washington shore of the river near the mouth, Oregon can unilaterally control most of the fishing, and if Washington does not go along we must do so without delay, The spring run is against the Oregon shore almost exclusively. The most important part of the accompanying questionnaire deals with measures needed to establish only selective fishery in the lower Columbia. Only a handful of the lower fishermen are dependent on a fishery for their living. More than 90 percent are moonlighting and are losing money. (You should get the OSU report.) Oregon has five hundred gillnetters (app.) Your earliest possible response will greatly aid us in giving your position the best publicity. If you have a question about any part of the questionnaire, my telephone is 546-2296, at any hour. Chairman ABOUREZK. John Bay for Bay News Co. Well, that finishes this panel. I want to express my thanks to all of you for your contributions. I appreciate what you have had to say and your point of view. I might try to assure you that as long as I have the responsibility of the chairmanship of the Indian Affairs Subcommittee in the Senate, I want to do what I am capable of doing to help resolve this dispute out here to the reasonable satisfaction of both sides. I don't know if that is within my power, but I just want to tell you I will try. I appreciate what you have had to say, and I hope that you won't think this particular hearing will bring to an end the contributions that you might make. Page 22
Washington Public Utility people on the side standing on those spawning grounds. We are losing so many fish accidentally that unless we get some activity pretty quick, the Oregon Commercial Salmon Fishery is going to be out of business. We were cut back this spring on the salmon run of which we get between 2 and 6 percent, as Mr. Meuret pointed out. This fall, on the Columbia River, the gillnetters took 100,000 fish. This year their allocation I think was 28,000 or that is what they took. The upstream escapement for the tribes and enough fish to restart the hatcheries was set at 240,000 fish. There are over 290,000 fish up there right now, and they are having trouble dealing with it. So no matter how good our biology is, it's very difficult to secondguess salmon. They can go the other way just as easily. This is what makes it so terribly critical that we expedite and give top priority to this. I have just about run out of gas. I am obliged to you for your time. I appreciate your hearing impartially, and perhaps Mr. Christenson would like to say something. STATEMENT OF DON CHRISTENSON, OREGON GUIDES AND PACKERS ASSOCIATION Mr. CHRISTENSON, Mr. Chairman, Senator Hatfield, I am Don Christenson, and I am here representing the Oregon Guides & Packers Association. This is a statewide group of professional hunting and fishing guides. Perhaps it sounds to you like maybe I should be in the sport fishing category; however, we do our business to make a living at what our activities entail, and as a result we kind of feel that we are more in a commercial sense, although we do have to abide by hunting and fishing regulations. Our work goes along quite closely in the fishing end of it with the commercial fishermen. First, I would like to mention the fact, as I am instructed to do, that our organization is in full support at this time of the position taken by the Oregon Fish and Wildlife Commission. That was reviewed here this morning. Now, we didn't pick this out of thin air or out of some newspaper story; we have made a very thorough investigation of this problem, as much as we possibly could. At our recent annual convention last January, we had representatives of the fish and wildlife commission—including John McKean, who was then the director; Alan Kelly, who was then chairman of the commission; and Dr. Gene Cruz, who was deputy director at that time. That brought us up to date on their most recent views. In the evening at our banquet, our featured speaker was Mr. Charles Wilkinson, the attorney for the Siletz people. So we got a pretty good look at the latest reports on both sides. At a previous convention we had, Mr. George Dicer as a featured speaker, an attorney in the Indian problems from the beginning. Since that time, our legislative committee has been active in keeping with progress on what is going on. So I am trying to show that this isn't something we just picked out of thin air. Our group, at this Page 23
about restocking the runs and getting some fish. Then we will ta about who is going to get them. Now, we go on this cooperative theme. We make an agreement amo ourselves that we will do so and so and you will do so and so. But, y know as well as I do that there are bad apples in every barrel, and bad apple is going to create some more bad apples, and it just kee growing and growing. Without a foundation of fair and equitable 1 to follow, I am afraid that cooperative is going to face a lot trouble. I don't know whether these treaties are passed as law or can changed or negotiated or what, but it is quite obvious to a lot people that what was good 100 years ago doesn't apply to the presen day situation at all. So this is where a lot of conflict is, of cours İt seems to me that in order to make any kind of a cooperative effo. work, that there must be a sound basis of law somewhere to take ca: of those bad apples that are going to create enough problems to rui the whole thing. Senator HATFIELD. I understand what you have been saying to me that this tends to meld with the outline I made. Mr. CHRISTENSON. Yes. Mr. HUDSON. Mr. Chairman, I believe that such a group exists in th Columbia River Basin Fisheries Alliance. The alliance is chartered and I will have to paraphrase it. It says that although deep differences exist between the user groups that those differences will not be discussed. What will be discussed is the reestablishing and making the Columbia River a safe place for salmon so salmon can live. Members of the alliance are the Nez Perce, the Umatilla, the Yakima, the Warm Springs Tribes, the trollers, the commercial trollers, the com- TIRPARED mercial gillnetters, the steelheaders, the packers and guides, and the Northwest fishermen's wives. It is a complete cross section of the user group spectrum. We have representatives from Washington and representatives from Idaho. The only thing we lack is funding becauses is the we have no funding base. So we can only become effective through i genera our recommendation and our political efforts to stop, or examine closest are or legislati ly, the industries that operate and contribute to either the increased sanctuary capacity in the Columbia River or the deterioration of this. tnistry Senator HATFIELD. I think we are really not in any disagreement, if that is ti I understand what you have said, Mr. Hudson, but I think we have to from move ourselves cooperatively to rehabilitate and to address ourselves spes to problems of the runs of the various species. I had in mind that in tormation here would be a single purpose commission, as I understood Mr. E has Christenson, which would address itself not to that long-term or shortterm problem of restoration of the runs but to resolve this question ar conflict here. 191 tot able 910 96 och rob појаіѕ Mr. Hudson. Oh, right. My illustration was that we can sit and we can se on to Port to contacto od Senator HATFIELD. I understand. But how do you respor outline of the proposition here? todo Mr. HUDSON. I think the proposition here is a very -the Alliance could not address to the political charter. 4973 it also Page 24
is threatening the preservation in the Columbia River fishery and a lot of our other resources, and that if those who support the resource withdraw their backing, and if this court-ordered mess that we have results in a real, total management chaos, then all Americans are going to lose. I don't think many people challenge that. I believe Congress must face up to the ultimate consequences and then proceed to eliminate special rights for natural resources which traditionally have been a part of our common heritage. Any cost burden must be shouldered by all citizens of the Nation, and not just those directly involved with the resource. I am a sportsman, certainly, and not a fish expert, but if there is any contribution that I can make to this record, it might be in the area of economic development. Senator Hatfield knows that I have been involved with economic development in Oregon for a long, long time. I think I know as much about community development and hard-pressed areas as anybody in the State. I am tremendously sympathetic to the problems of the Indian people, as I pointed out in my testimony, and I still think that they are involved with a second-class citizenship situation. I am not sure that the course we are following is going to result in the best for the Indian people in the long run. When I look at what has happened in our own community from the 1950's on, with such terrific hardship situations, I am not sure the Congress, with a little bit and not a great deal of help, instead of tremendous expenditures, could provide some assistance and some guidance in which the Indian people could go a long ways toward solving their problems much more than the course that we are following today, I look at our home community as a pattern and I know what has happened there. Senator HATFIELD. Thank you very much, Mr. Bladine. I appreciate your appearance here today. [Prepared statement of Phil Bladine follows:] PREPARED STATEMENT OF PHIL BLADINE, NEWSPAPER PUBLISHER Mr. Chairman, I am Phil Bladine, publisher of The News-Register, McMinn. ville, Oregon, and candidate for Congress in Oregon's first district. I sincerely appreciate the opportunity to testify today before your Commission. Because of the critical salmon fishery controversies on the Columbia River system and the proposed Siletz Indian Reservation Restoration measures in Congress, the question of Indian fishing rights has drawn significant interest in the 1976 campaign. There are few Americans who do not view with regret the treatment afforded American Indians during the pioneer expansion era of our nation. Establishment of most reservations was handled with near barbaric procedures and little consideration given to the future welfare of the Indian nations. Once the reservations were established. Acts of Congress administrative edicts, pressured by the emerging nation's rapid development, frequently eroded both the lands and numbers of Indian people. However, many of the Indian nations, backed by the power and expertise of Federal agencies, recently have succeeded in regaining control of substantial portions of natural resources which once were the exclusive property of their ancestors. Federal court decisions in Washington and Oregon have given what I feel to be, a disproportionate share of the salmon fishery, for example, to treaty nations until such time as the various States work out divisions satisfactory to judicial authorities. Page 25
was not set up as a legal instrument, that it was not a legal reservation according to the treaty. So this treaty had been ratified. There would still have been no reservation for these Indians. There have been no reservation hunta ing and fishing rights. So, therefore, without the signing of the treaty, and I have got this from six different U.S. attorneys, that no contract can be binding on one side without being binding on the other. And without a treaty, the Indians gave up no rights whatsoever. The Indians gave none of their lands away. Without a treaty, there was no land to be given away. The Indians did not give permission to the U.S. Government to supervise their affairs. Therefore, these Indians still have all of their God-given rights that were granted to them 14,000 years ago--they have proved most of these tribes have been here for 14,000 years. Well, they have found evidence of 14,000. In the last paragraph of this Senate document of 1895, it statesone line in here—the Commissioner of Indian Affairs says, “I feel an unratified treaty cannot be obligative to either party." The question which must of course be answered as negative, therefore, with no treaty, the Indians of Oregon give up none of their rights. In that statute of the State of Oregon, the ordinance of 1787, it is said there that the law of the territory shall be a compact between the Thirteen Original States and all territories west of the Ohio River, In the preamble of this law, it states it is hereby ordained-wait a minute and declared by the authority aforesaid that all I had this copied on the machine. It didn't copy very good. This shall be a compact considered as Articles of Compact between the original States and the people and the States and the territories and forever remain unalterable by common consent. According to the Federal Government: Common consent means people of both sides. With no treaty, this means that the Indians did not give their consent for even the State of Oregon to be made into a State, because in the ordinance of 1787, it states that no people shall move into the territory until a ratified treatv with the Indians is accomplished. It also states that the Governor from time to time shall have the land surveyed and laid out into townships as the land is extinguished by treaty. Therefore, with no treaty, the State of Oregon could not even be a legal State as far as any country west of the Cascade Mountains. So, therefore, how can the State of Oregon try to manage the hunting and fishing rights of the Indian population when they have no legal rights to be here. This ordinance of 1787, the law of Oregon, which was made by the Congress of the United States, even supersedes the 25th code of the United States concerning Indians, that they will no longer recognize them as independent nations. They have to recognize them because they are going against one of their own laws in order to make this new law even fit the code. This is all I would like to say. I would like to relinquish the rest of Page 26
STATEMENT OF DR. WILFRED WASSON, COOS TRIBE Mr. Wasson. I came here today to speak to you in my professional capacity as Dr. Wasson. Jerry Running Fox spoke of this State not having jurisdiction. I believe I can support his statement very well that the State does not have jurisdiction. The State can only gain jurisdiction over Indians through the Federal Government, because the Federal Government has reserved unto itself the right to make treaties with Indians. So, therefore, the State of Oregon cannot usurp that right unless it is granted through the Federal Government-until the Federal Government extinguishes Indian title—then they cannot grant the right to the State. Therefore, I reflect the idea that the State has no right to regulate my fishing, Chairman ABOUREZK. I wonder if you would do me a favor and comment on Senator Hatfield's proposal on the joint Indian-nonIndian fish users commission? Mr. Wasson. I would be very uncomfortable with the State acting as moderator, because I believe it is Chairman ABOUREZK. That is not part of it. Using other commissions that we have had of this nature, as a precedent, you would probably have the American Arbitration Association or some professional, very neutral, official arbitrating association as the moderator. The States would be there to provide technical information only. Mr. Wasson. That I would go for. I think this is a reasonable idea that everybody could pretty much live with. We have had no trouble sitting down and talking with commercial fishermen. Northwest steelheaders do tend to get a little emotional and carried away once in awhile and seem to think that giving Indians fishing rights, that we are going to immediately go out and destroy the salmon runs. History does not bear this out. The salmon and steelhead runs were there for many thousands of years before white people ever got here. Indians had gillnets all that time. In fact, there has been nothing new in the art of catching fish developed since white people got here. But Indians never destroyed the salmon runs. They had a great surplus. They had a great surplus of steelhead. I don't see where Indians are going to destroy it. In fact, I think Indians are probably far more respectful of this resource than are white people because white people have destroyed it. They destroyed it through neglect; not so much through over use, but through neglect. I would like to see us sit down—all people who are interested in fish—develop a plan, and all of us get together so we can fight against Weyerhaeuser, so we can fight against Georgia Pacific, so we can make changes in logging processes so that spawn beds are not silted in. I have to admit that I had a share in destroying fish runs in the Coos River. I worked for a timber company. We were running splash dams. We didn't know any better. I guess the white people didn't know any better. There were lots of salmon then; now there are none. We would like to see more salmon. Our interests are in increasing salmon runs, not destroying them. I was very glad to meet Mr. Donaldson here today. He has agreed that he will work with us. But he |
What is the correct order of the four tasks you need to complete after you have finished the first draft of your report?
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