History of Rights and U & A
The Port Gamble S'Klallam Tribe is one of three Klallam nations. Port Gamble was the first Klallam tribe established under the IRA. The reservation was set aside near the Pope and Talbot lumber mill where many Klallam worked and settled. Located on the North Kitsap Peninsula, the reservation now is across the bay from the Port Gamble mill and consists of approximately 1300 acres.
Although located off the Olympic Peninsula, the Port Gamble S'Klallam share ceded lands with the other two Klallam Tribes, as well as Usual and Accustomed fishing locations. The Klallam were all signatories to the Treaty of Point No Point in 1855, along with the Skokomish, and now extinct Chemakum.
In 1853, when Washington Territory was formed, Governor Isaac Stevens, superintendant of Indian Affairs, was anxious to extinguish Indian title to lands in the territory through treaties. On the Peninsula, Stevens set aside three reservations under the three treaties: the Skokomish, Quinault, and Makah reservations. However, those were expected to move away from their homes refused to go; and eventually smaller reservations were established for the Klallam tribes, the Hoh, the Quileute tribe, as well as the Chehalis tribe. The treaties ceded tribal land to the U.S. Government in exchange for promises. Some of the promises included continuance of fishing, shell fishing and other resource acquistion.
The Boldt Decision
In 1974, Federal District Court Judge George Hugo Boldt, reaffirmed tribes as co-managers, along with the State of Washington, of fisheries resources.Co-management means that the tribes and the State of Washington, through the Washington Department of Fish and Wildlife (WDFW), are jointly responsible for managing fisheries and hatchery programs, and that they collaborate in regional efforts to recover depleted fisheries resources.
Co-management involves the co-managers agreeing every year on salmon fishing seasons and on hatchery production objectives in Puget Sound and the Washington coast.
The fundamental principle that emerged from U.S. v Washington was assurance to tribes of the opportunity to catch half of the harvestable surplus of each run passing through their usual and accustomed areas (U&A). In most places the run comprises salmon returning to a single watershed (such as the Skagit River). In some places runs were aggregated into regional units as the basis for sharing (like South Puget Sound, Hood Canal, and the Strait of Juan de Fuca).
After hearing testimony from tribal elders, biologists, historians, treaty experts, as well as testimony from private property owners and non- Indian commercial shellfish growers, Federal District Court Judge Edward Rafeedie followed in the footsteps of the Boldt Decision. He ruled the treaties’ “in common” language meant that the tribes had reserved harvest rights to half of all shellfish from all of the usual and accustomed places, except those places “staked or cultivated” by citizens – or those that were specifically set aside for non- Indian shellfish cultivation purposes.
“A treaty is not a grant of rights to the Indians, but a grant of rights from them,” Rafeedie wrote in his December, 1994 decision, adding that the United States government made a solemn promise to the tribes in the treaties that they would have a permanent right to fish as they had always done. Rafeedie ruled all public and private tidelands within the case area are subject to treaty harvest, except for shellfish contained in artificially created beds. His decision requires tribes planning to harvest shellfish from private beaches to follow many time, place, and manner restrictions on harvest.
Since the U.S. Supreme Court’s final refusal in 1999 to hear the case, several parties, including the tribes and shellfish growers, have been working on an implementation plan under the guidance of Seattle Federal Court Judge Robert Lasnik.
Tribal shellfish managers have developed harvest management and supplementation plans, and harvest data is collected and shared with other tribes and the state.