"Usual and accustomed grounds."

"Usual and Accustomed Grounds" THE PEOPLES OF THE PACIFIC NORTHWEST TOOK THE NAMES OF THEIR FISHING places. There were loose associations of groups speaking the same dialect, which encroaching whites would call "tribes" and recognize for convenience as political units, but among the original inhabitants virtually all loyalty and sense of belonging went to the band, a small living group identified with a home ground. As the salmon that swarmed up the region's rivers were the common denominator and staple food source among these Indians, the place to which a band was united was usually a stream, nor a stretch of water -- a place where salmon could be taken.

The Wyampum, for instance, were the people who lived at the place called Wyam, which meant something like "echo of water against the rocks" in the local Sahaptin dialect. At this place, called Celilo Falls by the whites, basalt outcroppings constricted the Columbia River and sent it tumbling around rock islands and down a series of chutes. These falls and the ensuing five miles downriver, later known as the "Long Narrows," brought the millions of salmon migrating up the big river within reach of dipnets and spears wielded by Indian fishermen perched precariously on scaffolds cantilevered over the roiling water.

The Wyampum and other Columbia River bands were full-time fishermen, and their identification with the salmon and with the reach of river where they set up their fishing stations was absolute. They maintained the ceremonials which induced the "Salmon People" to return each year and offer themselves up for human use. On the commercial level, they made their livings in the salmon trade, with the men catching the fish and the women preparing them for storage. Wyam and nearby villages were the crossroads of the entire Northwest, and the Indians who lived here obtained whatever they needed in return for their bales of dried salmon.

The close identification between people and fishing places briefly posed an obstacle to white settlement of the region. When Governor Isaac Stevens swept through the territory in 1854 and 1855, negotiating treaties with the Indians of Puget Sound and theColumbia Basin, he found the inhabitants stubbornly resistant to the notion of moving to reservations away from their traditional grounds. Stevens was a drunken, impatient man, rashly willing to promise anything that would get the Indians out of the way. To placate the native fishermen, he inserted the essentially identical clause in each treaty:

"The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with all citizens of the Territory. . . ."

THE TATTERED descendants of the Columbia fishing bands cluster in a few ragged hamlets along the river's edge. There is little that is picturesque in what survives of the fishing tradition. Celilo Village, a 30-acre reservation wedged between the rimrock and the freeway near the ancient Wyam, is a collection of trailers and tumbledown cottages, battered boats and drying nets, abandoned cars and a basketball backboard. There is a ceremonial longhouse here, but few of the remaining Indians know more than a smattering of the old stories and rituals. There are some who still fish from riverbank scaffolds with dipnets, but most of these stations have been drowned by the dams that have turned the Columbia into a series of swollen pools. The echo of water against rocks ended when Celilo Falls disappeared beneath 75 feet of water at the completion of The Dalles Dam in 1957. The typical Indian fisherman now risks his life working a gillnet from a rickety boat. Despite the pathos of their circumstances, the handful of traditional fishermen of the Columbia, along with those on some of the Columbia's tributaries and on the rivers of Puget Sound, have clung to their fishing stations with astonishing tenacity. Had they been any less fiercely devoted to their usual and accustomed grounds, Indian fishing would long since have become an anthropological curiosity. Had they not persisted in the face of dwindling salmon runs, viciously discriminatory regulation, and the scorn of more assimilationist tribal members on the reservations who frequently labeled them "renegades," the wild salmon might be following them into oblivion.

Instead, by insisting on their right to fish, they forced a reversal of history whose implications are still spreading in ever-wider circles. The resistance of traditional fishers on the Columbia and on the Puyallup and Nisqually rivers of Washington led to a series of arrests and subsequent court decisions which resurrected the treaty guarantees. Federal courts reaffirmed that Indian fishermen have the right to as much as half of the salmon harvest, and that the states must regulate the white fishery so as to allow enough salmon to reach those usual and accustomed grounds so that the Indians can harvest their share and still leave a sufficient number to spawn and renew the run. Ever so grudgingly, state and federal fish agencies have begun dealing with the region's tribes as co-managers of the salmon resource.

Tentatively, the courts have gone much farther than that. Recent decisions have broken new legal ground, confirming that "the right of taking fish" cannot be "reduced to the right to dip one's net into the water," as Western Washington U.S. District Court Judge William Orrick put it in the thunderbolt 1980 decision in U.S. v. Washington, Phase II. In this and other decisions, courts have found that treaty Indians have "an environmental right" to the preservation of fish habitat -- in effect, that American society, through Isaac Stevens' reckless promise, bound itself to occupy the Northwest's environment in such a way that it remained, not pristine, certainly, but ecologically healthy enough to produce salmon in abundance.

Theoretically, the implications are all-embracing. Salmon migrate from the headwaters of streams to the ocean and back again; anything that affects water potentially affects them. Logging, mining, irrigation, sewage treatment, dams and hydropower, development on rivers and estuaries, shipping, offshore oil drilling: civilization, in a word, is constrained by the Indians' environmental rights.

"The salmon are the keystone to the environmental health of the entire Northwest," urges Tom Jensen, a lawyer for the Columbia River Inter-Tribal Fish Commission, now on the staff of the Pacific Salmon Commission. "If fish are a given, everything else follows after. If you have to have clean water in the right places for spawning and rearing, it means stable slopes, it means water flowing at normal times of year, which affects how you operate dams, it means you take this premise, that the fish are absolute, there's only one group out there with a guarantee that the fish will be treated as absolute, and that's the tribes. In the Northwest, Indian law is environmental law."

That is putting it in terms of ultimate logic. The practical limits of the environmental right to fish habitat will be worked out slowly and painfully through many courts and many cases. The Indians have no absolute power to veto each and every development, of course; what they do have is the standing to challenge actions or policies that may have a detrimental effect on their right to a fishery. Russell Barsh, an attorney in private practice who specializes in Indian affairs, puts it minimally: "It guarantees that in a much wider selection of cases in the West, somebody will have standing to raise questions about environmental sanity." Even at that, the environmental right is no small thing.

The Northwest tribes have been cautious in applying this newfound (or newly rediscovered) right. This is partly because the legal ground is still shaky. Several major cases have arrived at a similar premise, and the environmental right in some form is currently the law of the land, but no single ruling is definitive. U.S. v. Adair, in which the hunting and fishing rights of the Klamath Indians on their former reservation were used to protect a wetland area, was affirmed by the U.S. Ninth Circuit Court of Appeals; the Supreme Court declined to review the decision. The Supreme Court strongly upheld the earlier decisions giving the Indians a substantial share of the fish, but has never been called upon to take a position on U.S. v. Washington, Phase II. (The Ninth Circuit, after wrestling with it for years, agreed very generally that some form of environmental right exists, but declined to rule on the dimensions, sending the matter back down to district court to await a new case in which a specific action is challenged. The Northwest is now in the eye of the hurricane, waiting for such a suit to be filed.)

The tribes are more significanly constrained by their own lack of resources. Getting into court is one thing, but fighting protracted legal battles on many fronts in highly complex cases would require funding, legal staffs and outside public support that the desperately poor tribes of the Northwest simply don't have now, despite their improved position.

Still, the environmental right has already come strongly into play any number of times, either in court or, more often, through negotiations. A utility's proposal for a dam on Washington's Skagit River was abandoned almost entirely due to concern over fishing rights. The Army Corps of Enginees was blocked outright in court from building a dam on Oregon's Catherine Creek (Confederated Tribes of the Umatilla Indian Reservation v. Alexander). The Puget Sound tribes were the only appellants against the Northern Tier Pipeline whose standing was upheld in court -- there is no telling how much weight this carried in the ultimate administrative decision against the project. The legal pressure applied by the tribes had a great deal to do with the successful negotiations (after many years of stalling) toward a U.S.-Canada Salmon Treaty. The Yakima Nation has expressed extreme concern over the prospect that the Hanford Nuclear Reservation -- in the midst of their usual and accustomed grounds -- could become the U.S. nuclear waste repository, and may yet play a crucial role in this decision. Most environmental policy decisions in the Northwest are now made with one anxious eye squinting at the Indians.

CONSERVATIONISTS have been dismayingly slow to apply their imaginations to the possible scope of the Indians' fishing rights. Relations between environmental groups and tribes have long been troubled, in the Northwest and elsewhere, because the struggles of impoverished Indians for economic gains have often clashed with their sentimental image as the "original environmentalists." In the Northwest, conservation groups have seldom involved themselves in fish harvest issues; indeed, sporting organizations have been all too ready to join in scapegoating the vulnerable Indian fishermen for declines in salmon runs due to white overfishing and habitat degradation. Environmentalists will have to lend firm support to the tribes in pursuing the bread-and-butter issues of harvest quotas and hatchery management before strong alliances are built.

In the last several years, though, environmentalists -- and an encouraging number of outdoor clubs -- have been scrambling to make amends. Such groups have cooperated closely with the tribes in campaigning for wilderness bills in Congress. Local chapters have joined Indians in lobbying agencies or filing suits in many instances. But for the most part, the national offices of the major environmental groups have yet to show a substantial interest in pursuing the profound implications of the "environmental right." (Local groups in Idaho, alas, have been equally purblind.)

Those implications don't necessarily stop with the Northwest. The United States has 371 recognized treaties with Indian tribes, and many more "agreements" which are at least potentially binding. Although none but Isaac Stevens' treaties with the Northwest tribes contain the epochal 27-word clause, a great many reserve hunting, fishing and gathering rights. U.S. v. Adair, which preserved the wetland on the former Klamath reservation, did not involve the clause. Tribes in the Great Lakes have successfully re-established rights to fish, hunt and gather wild rice on public land. These and a few other suggestive cases, affecting rights reserved by treaty to traditional practice, hint that promises made a century ago about cohabitation between American society and the older order are still binding on the present.

This is a legal New World, scarcely explored, perhaps ephemeral, but tremulous with intriguing possibilities. One yearns to linger at this vista of Indians and environmentalists using rights to an almost forgotten way of life to force civilization to come to terms with the wild salmon.

The vista is not so sweeping from the vantage point of the traditional fishermen along the banks of the Northwest's rivers. Even while the tribes of the Northwest are experiencing a modest renaissance, the traditionalists who restored meaning to the treaties are desperately poor and severely harassed; the last fragments of the Columbia River bands may soon be run off the river entirely. Equity for the tribes does not necessarily mean justice for the traditional members.

The source of the distinction lies in the notion of a "tribe." Isaac Stevens and his successors insisted on dealing with large, manageable units, rather than the hundreds of bands in which the Indians actually lived. The "Yakima Nation" is made up of 14 tribal groups from the Columbia Plateau north of the river; each of these was in turn made up of numerous bands liked to a particular place. Some of these bands lived along the Columbia or its major tributaries and devoted their lives to the salmon. Others lived in the mountains, fishing a few weeks of the year when the fish reached the headwaters, and trading for the rest of their salmon with the river bands.

The Wyampum found themselves fused for administrative convenience with a diverse assortment of peoples in the Confederated Tribes of Warm Springs. Among other constituents of the new "tribe" were the Paiutes, a desert group from the Great Basin whose chief traditional means of taking fish was to conduct raids on the Columbia River bands.

Most of the Indians were gathered into reservations located far from the Columbia, where the practice of fishing as a full-time way of life rapidly faded. A few hundred remained along the mainstem of the river, and persevered as best they could in the face of punitive regulations, rising reservoirs and declining fish runs. For decades, tribal governments made up of people who had abandoned fishing for a living, or who had never practiced it as the core of their culture, acceded tamely as fishing rights were circumscribed. When the Dalles Dam drowned Celilo Falls and the Long Narrows, government "compensation" of $26,900,000 was paid to the tribes, not to the small bands of fishermen who were losing their livelihoods.

HAD THERE been no "renegades," holding fast to the usual and accustomed grounds and continuing to fish, often in defiance of both the laws and their own tribes, there would have been no renewal of treaty rights. The first of the decisive cases, decided in 1969, was Sohappy v. Smith; it grew out of the deliberate legal violations of a group of "Yakima" fishermen, in reality members of the Columbia River bands who had been assigned arbitrarily to the artificial Yakima nation. On Puget Sound, similarly intransigent "renegades" forced the federal government to defend them, resulting in U.S. v. Washington and the environmental right.

The newly-won rights belong to the recognized tribal units -- there is no help for that, whatever the historical ironies underlying the tribes' creation. The tribes seek to be fair in setting regulations for all their enrolled members. But abstract evenhandedness in dividing up a still-scarce resource smothers the small family groups that seek to fish full-time and sell or trade their catch, which after all was the traditional practice for those living on the mainstems of the Columbia and other major salmon rivers, where ceremony and commerce were one. The traditionals don't accept the right of the tribal governments to control them, and in turn are still regarded as renegades.

The official tribes, revivified by their expanded role in resource management, have hired lawyers, biologists and planners, most of them white. Their hiring procedures have been extremely effective; the professional staffs found in the reservation headquarters and the offices of the inter-tribal fish commissions are an impressive corps. The voice of the tribes, addressing resource questions, is well-educated, savvy, biologically accurate and strongly environmentalist.

The voices of the traditionalists are less comfortable to would-be supporters. "We go by our unwritten laws," said David Sohappy, sitting outside the longhouse at Celilo on the day of the First Salmon ceremony in April, three years ago. "I don't say I'm above the law. I say my unwritten law is above your written one." In Northwest Indian tradition, the "Salmon People" are creatures of a different tribe, who return as guests if they are treated courteously and with appropriate ritual. This is not a metaphor; this is a belief stemming from a universe alien to modern fish biology. "You have your first salmon ceremony when you catch your first fish, and after you have your ceremony every fish you catch will come back a thousandfold," said Sohappy, a leader of the "feather religion," a deeply traditional wing of the Washat or Seven Drum religion. "But you try to tell that to a biologist, they'll tell you you're crazy." Sohappy, a member of the Wanapum band (a group folded into the Yakima Nation), has led the resistance to fishing regulations since the 1960s. He is now serving a five-year federal sentence for exercising his beliefs.

The Columbia River fishermen are currently facing two direct threats. One stems from a thoroughly questionable "sting" operation, coordinated by the National Marine Fisheries Service and involving state officers from Washington and Oregon, that came to be known as "SamScam." After a fourteen-month undercover investigation, during which a number of people were entrapped into selling fish taken out of the official season to a collaborating family member, NMFS trumpeted in June of 1982 that it had uncovered a major conspiracy, involving 53 tons of illegally caught salmon. Dozens of Indians were arrested on hundreds of counts, including David Sohappy and his son. Newspaper publicity was unstinting, and favorable to the authorities. The resultant furor caused the tribes to soft-pedal their efforts to control the white fishery that year and seriously damaged their credibility. This embarassment deepened the rift between the traditionals and the formal Indian governments.

Eventually, unremarked in the headlines, prosecutors lost the overwhelming majority of the counts, including all of the conspiracy charges. And as the Indians tried to point out, with little attention being paid, even had the government been able to prove that all 53 tons (6,100 fish) had been taken illegally, this would amount to perhaps a day's fishing by white trollers in the ocean (trollers who, in the same year, had taken 115,000 coho salmon over their conservation quota).

That begs the question, though, because a number of the "poachers" don't deny their activities; they simply deny that they can legitimately be regulated by anything but their relationship to the Salmon People. The Sohappys and three other fishermen convicted in the "SamScam" case have exhausted their appeals and are in prison, a debilitating blow to their dependents on the river. The sentences are fiercely punitive; David Sohappy, Jr., was given five years for selling 28 fish. The fishermen were then hauled into Yakima trial court. There, however, after a lengthy trial during which they were allowed to testify to their religious motives (as they had not in federal court), all were acquitted on grounds of "entrapment." In a belated show of support, the Tribal Council at first refused to return the men to federal authorities, then grudgingly honored a prior agreement to do so, but made a formal request for a presidential pardon. Last summer, while waiting for action from President Reagan, the elder Sohappy suffered a stroke in prison. Despite his partial paralysis, and letters from both the hospital and his personal physician testifying to the threat prison poses to his recuperation, prison officials have refused, as of this writing, to grant him a medical furlough (a step taken routinely for far less serious ailments). As of early December, ignoring the appeals of several political figures, most notably Senator Daniel Inouye of Hawaii, the White House had shown no signs of considering the matter.

Several of the settlements on the Columbia are also fighting eviction notices from the Bureau of Indian Affairs. There is a palpable injustice here as well. The string of dams along the Columbia drowned dozens of fishing stations; the federal government promised to create 37 "in-lieu" sites in compensation, places where the Indians could put in their nets and live temporarily during the season. Eventually, five such sites were established, along with the tiny reservation at Celilo. As with the monetary compensation offered for The Dalles Dam's effects, the benefits went to all tribe members, rather than to those whose individual stations were lost. To put it bluntly but accurately, a lot of drunken Christian businessmen who happened to have some Indian blood, and some Indian farmers using power and irrigation water along with their white counterparts, were compensated for "lost" fishing rights, receiving as much consideration as those who lived in driftwood huts by the river, observed the rituals and focused their spiritual and economic lives on the salmon. The in-lieu sites were to be residences only during the fishing season -- but for the genuine fishing bands who lived on the river itself, fishing had gone on virtually year-round, for suckers or eels if not for salmon. Small bands of traditionals steadfastly resisted the accommodations reached by the politicized tribal councils, and established precarious colonies at the sites, and it is these family groups who face eviction. The eviction orders are currently in federal court. The case, Sohappy et al. v. Hodel et al., once again links David Sohappy's name with a last-ditch stand for civil rights. Minimal justice would seem to dictate that, far from evicting anyone, the federal government turn over to Columbia River fishermen another 32 living and fishing locations.

OUTSIDE SUPPORTERS aren't required to choose between the resurgent modern tribes and the harried traditional fishers, who are two halves of the same circle. By working sensitively with both groups, in fact, supporters could help to redress the balance between contemporary equity and tradition.

No environmentalist, schooled in ecology and the grim realities of the political system, is going to adopt David Sohappy's view of salmon literally. Assisting the tribes in bringing the environmental right to bear will mean painstaking biological and legal work, and a major commitment of financial and political support, over the years and decades. The need of the last remaining traditional fishers is urgent, but more limited -- they need immediate help in fending off the current assault, and they need voices raised, reminding both the federal and tribal governments that the traditionals have a special role to play in the resurrection of the wild salmon and the renewal of the environment that nurtures them.

They deserve this support out of respect for the hardship and persecution they endured in bringing about this hopeful change in the salmon's fortunes. But there is a pragmatic reason for protecting what remains of the fishing tradition, as well. The tribal governments have come a long way in the past decade; they have taken dramatic steps toward serving as the salmon's guardians, as well as its harvesters. Yet it isn't long since those same tribal governments were a compliant arm of the federal government, acquiescing in the decimation of the fish runs. It is a bit too early to assume that the modern tribes now have an irreducible commitment to the wild salmon and the wild salmon's habitat, to fishing and fishing places. Indians and whites alike may yet need more lessons from the renegades in the quality of tenacious love for the usual and accustomed grounds.

COPYRIGHT 1988 Point Foundation
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