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Indigenous peoples and their ancestors have been netting salmon and digging clams in the island-studded Salish Sea for at least 10,000 years. These longtime residents of what is now Washington State and British Columbia—multiple communities represented by dozens of languages and a long, branching history that sometimes overlaps—forged alliances between families to granting access to rich fishing grounds. The arrival of Western colonial powers, however, froze these borders and undermined the ability of indigenous peoples to govern these fishing grounds and their natural resources.
Fast forward in time, and over the past 30 years, two groups, the Lummi Nation and the S’Klallam Nations – represented today by the Jamestown S’Klallam, Port Gamble S’Klallam and Lower Elwha Klallam Tribes – have beaten in the courts over a disputed slice of the Salish Sea: the waters west of Whidbey Island in northwest Washington. Involved in this dizzying dispute, no less than four tribes, two treaties and four appeals court decisions. The matter was recently taken to the U.S. Supreme Court for review, though the court declined to hear the case, leaving the Lummi and S’Klallam with no obvious legal path.
No matter where it lands, this dispute offers a clear example of how the modern United States legal system is working to replace the dynamic, multifaceted approach to fish management and fishing rights that dozens of nations indigenous peoples have maintained with each other for millennia, without the onerous legal costs.
“When I look at cases like this between the Lummi and the S’Klallam,” says University of Washington historian and Snohomish tribesman Josh Reid, “it’s directly a consequence of settler colonialism.” .
To understand how colonization brought a fishing dispute between a few indigenous communities with a combined population of just over 7,700 people to the United States Supreme Court, you have to go back more than a century and a half.
In 1855, the fledgling United States government, hungry for land, negotiated a series of treaties with various native groups in the northwest. The S’Klallam signed a treaty; their neighbors across the Salish Sea, the Lummi, signed another.
Both treaties essentially stated that the tribes would cede control of certain territories to the United States government, but preserved “the right to fish on usual and customary grounds and stations”. Securing fishing rights was important. For these salmon nations, fishing provides more than full bellies – it also means cultural and spiritual sustenance.
Yet the wording used in the treaties – “usual and customary” fishing areas – is deceptively complex. While Westerners generally view a country’s waters as a commons, Reid says that before colonization, many political interactions in the region occurred at the village level, with powerful individuals and families owning and managing special fishing areas.
“People’s rights to fish in these very specific property spaces were governed by their relationship to the authority that owned that space,” Reid explains. “Everyone in the area understood that there was an owner on this particular fishing area.”
To get permission to fish at a site, people would contact the site owner. “Or they knew,” adds Reid, “there’s no way I’m reaching out — I won’t get a favorable response.”
Intermarriage between communities could bring new access to a certain fishing ground based on kinship, but this could be a partial right or require a royalty to the family that controlled the resource. Then the US treaty negotiators showed up and crafted legally binding agreements that ignored or disregarded this complex relationship-based system of fishing rights.
“That’s the nuance that treaty negotiations, from an Anglo-Saxon perspective, have completely lost and glossed over,” says Reid.
Yet as settlers poured into the area, Indigenous peoples increasingly struggled to exercise even deliberately defined treaty rights. In the 1950s and 1960s, the Washington state government wrongly accused Native fishermen of depleting salmon runs. Authorities have arrested children and the elderly for fishing off reserves in their traditional areas – a treaty-protected practice.
The fervent Indigenous-led protest movement that arose as a result morphed into what became known as the Fish Wars. In 1974, Judge George Boldt ruled in United States vs. Washington, believing that the state government had not fulfilled its treaty obligations with the tribes of western Washington. The decision, known as the Boldt decision, would eventually allow 20 tribes, including the S’Klallam Nations and the Lummi Nation, to co-manage the fishery with the state, along with other important victories for the tribes.
The Boldt decision also clarified that the key phrase of the treaty – “customary and habitual places and stations” – means: “every fishing place where the members of a tribe habitually fished from time to time at the time of the treaty and before, regardless of the distance from the then habitual habitat”. of the tribe, and whether or not other tribes fished in the same waters.
To delineate each tribe’s customary and habitual fishing areas, so they could begin to co-manage them, Boldt relied on anthropological reports and affidavits from tribal elders and native fishers. But Boldt knew that fully unraveling the often overlapping claims to traditional fishing grounds would take time, as all the tribes involved would need a chance to weigh in and file claims against each other, says Tom Schlosser, attorney with Morisset, Schlosser, Jozwiak & Somerville, a Seattle, Washington-based law firm that represents Indigenous communities. From 1975 to 1979, Schlosser’s law firm at the time represented treaty tribes including the Lower Elwha Klallam and Port Gamble S’Klallam in other proceedings under United States against Washington.
The legal process of defining each tribe’s traditional fishing grounds survived Justice Boldt, who died in 1984. Indeed, boundary demarcation continues today, including the debate between the S’Klallam and the Lummi, whose legal wrangling over the waters west of Whidbey’s Island has been building for over 30 years.
During his lifetime, Boldt’s efforts defined the customary and habitual fishing territory of the Lummi Nation to encompass the area stretching from the Fraser River near Vancouver, British Columbia, north to the San Juan Islands in Washington, and south. in the “near present-day Seattle”. But between the San Juans and Seattle lies Whidbey Island, a long strip of land in the central Salish Sea not mentioned by Boldt.
The S’Klallam nations, meanwhile, were determined to fish a curved area south and west of Whidbey Island in the Salish Sea, San Juan waters, and west along much of the Strait of Juan de Fuca, which separates the mainland of Washington from Vancouver Island, British Columbia.
By Boldt’s definition, multiple Indigenous nations can simultaneously claim the same body of water. As Reid points out, this was happening based on family ties. But the S’Klallam argue that the historic Lummi fishery in the western Whidbey Island area was a “mere incidental fishery”, rather than a customary fishery as required by the Boldt decision, and should not not be considered usual and habitual fishing grounds.
“About 30 years ago,” say Jamestown and Port Gamble S’Klallam in their December 2021 petition to the U.S. Supreme Court, “the Lummi increasingly sought to expand their large commercial fishing operations further west into the strait, displacing smaller S’Klallam fisheries and threatening the traditional S’Klallam way of life.
The S’Klallam first raised this issue of the Lummi Nation allegedly extending its fishing effort beyond the western extent of its customary and habitual fishing territory in Washington District Court in 1989. This issue kicked off a long and complex legal battle that would go ping-pong between district court and appellate court ever since.
In 2017, the Ninth Circuit Court of Appeals ruled that Lummi Nation fishing territory did include the area west of Whidbey Island. In December 2021, however, the S’Klallam asked the Supreme Court to rule on the scope. The S’Klallam argued that in four decisions rendered by the Ninth Circuit Court, the previously determined understanding of the term “usual and customary” in the 1855 treaties was transformed into something which now covers “mere incidental fishing and allows the Lummi Nation to today “claim over 300 square miles [780-plus square kilometers]of these fishing areas. However, on February 22, 2022, the Supreme Court denied their petition.
Schlosser, the attorney, isn’t surprised the Supreme Court decided not to hear the case, given that the court reviews fewer than 100 high-profile cases each quarter. But by not addressing it, the high court left the S’Klallam without a clear legal remedy to challenge the Lummi fishermen’s right to disputed waters along a certain line west of Whidbey Island. “I think this issue is closed,” he said, adding that the S’Klallam Nation should plan its fisheries with this understanding in mind.
But what troubles Schlosser is that people in the general public may misinterpret what this court case is really about. With fish populations in the Salish Sea already depressed due to habitat loss, historic overfishing and dams, “I would hate for people to think the tribes were just fighting over the last fish,” he says. . “That’s not true.”
Instead, Reid, the historian, says tribal nations are simply trying to make the best of a bad situation within the parameters now available to them. Some of the older systems of resource management and dispute resolution – systems that have sustained intertribal relations for millennia – “are no longer in place or have been directly destroyed by settler colonial governance systems.”
“It makes it very difficult for them to judge things the way they once did,” he says.
Today, the Salish Sea region is home to nearly nine million people, most with little knowledge of the Indigenous peoples whose homelands they share or the treaties that made this development possible. In the United States, tribes have fought tirelessly for governments and the public to recognize their treaty rights to fish in their traditional areas. Yet even victories like the Boldt decision can lead to conflict as tribes try to fish where their ancestors did, without the benefit of the sophisticated systems that made it possible.
In reporting this story, the Jamestown S’Klallam and Port Gamble S’Klallam Tribes did not return multiple requests for comment. Lisa Wilson, a member of the Lummi Indian Business Council, said, “We don’t respond to inter-tribal legal issues.”