In this file photo, Willamette Falls is shown from a distance. A new ODFW agreement has some tribes concerned that they'll lose fishing access at the falls.
Ian McCluskey / OPB
A conflict over fishing access has some of Oregon’s federally recognized tribes at odds with both each other and the state’s Fish & Wildlife Commission. The commission voted last month to allow the Confederated Tribes of Grand Ronde to issue hunting and fishing licenses to its own members. It’s approved similar agreements with four other tribes, but the wording of Grand Ronde’s agreement has members of the Yakama, Warm Springs, Nez Perce and Umatilla tribes worried that they could lose access to fishing at Willamette Falls.
Joining us to explain what’s at stake and what comes next are Karina Brown, managing editor of Underscore News, and Nika Bartoo-Smith, a joint reporter for Underscore and ICT.
The following transcript was created by a computer and edited by a volunteer:
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. We end this week with a conflict over fishing access that finds some of Oregon’s federally recognized tribes at odds with each other and with the state’s Fish and Wildlife Commission. The issue came to a head earlier this month at a commission meeting by a 4 to 3 vote and against the wishes of members of the four Columbia Basin Treaty Tribes. The commissioners ruled that the Grand Ronde Tribe can now issue hunting and fishing licenses to its citizens. Members of the Yakima, Warm Springs, Nez Perce and Umatilla tribes are worried that they could lose access to fishing at Willamette Falls.
For more on what happened and why, I’m joined by Karina Brown, managing editor of Underscore News and Nika Bartoo-Smith, a reporter for Underscore News and ICT. Welcome back to the show to both of you.
Karina Brown: Thank you.
Nika Bartoo-Smith: Thanks for having us.
Miller: Nika, can you give us a sense for what the mood was like among members of the Grand Ronde Tribe at the end of this Fish and Wildlife Commission meeting?
Bartoo-Smith: So when we first walked into the meeting room in Salem, it was a packed, standing room only, and about half the room was filled with Grand Ronde tribal members. After hours of public testimony, probably half by Grand Ronde tribal members and other folks in support of the agreement, and the other half in opposition to the agreement. There was a sense of uncertainty about what was going to happen next because there was this break where the commission directed folks to try to come to an agreement. And so it was very clear that there was worry among Grand Ronde that the agreement wasn’t going to pass. But in the end it did pass and right away people jumped out of their seats. Grand Ronde tribal members jumped out of their seats. There were hugs exchanged, there were tears of joy. And as everyone else cleared out, Grand Ronde tribal members created this circle in the center of the room, drumming and singing and really just sharing joy together because they were really excited that this agreement had passed.
Miller: Let’s have a listen to Kathleen George who is a member of the Grand Ronde’s Tribal Council.
Kathleen George [recording]: “This means that with dedication and love for our land and ancestors and carrying the fight for justice, that was denied them for so long, that we took a step towards righting a historic wrong.”
Miller: So that’s a member of the Grand Ronde Tribal Council. What about members of the Nez Perce, Warm Springs, Yakima and Umatilla tribes who were also in attendance?
Bartoo-Smith: Yeah. So while I can’t speak for the Columbia River Treaty tribes, what I saw was anger and frustration that was expressed during the testimony itself and really frustration at ODFW for their lack of consultation and due diligence responding to the concerns that these tribes had brought forward both at public testimony at this meeting, at an earlier meeting in June and in letters that they had sent - which their concern really surrounded the scope of the agreement including Willamette Falls. There was momentary relief for a second among the Columbia River Treaty tribes when the commission delayed the vote.
But as it eventually passed, it was replaced with what I saw to be shock and disappointment. And sitting behind a row of Columbia River Treaty tribe members were a row of men in dark suits that I later learned were attorneys there that were ready in case they needed to take further action following this agreement.
Miller: Karina, to understand the context here, we need to go back at least 150 years ago. What hunting and fishing rights did tribes reserve in the treaties that they negotiated with the federal government in the 19th century?
Brown: So many of the tribes in this region negotiated treaties in the 1850′s and some of those specifically used language where they reserved fishing and hunting rights at usual and accustomed places. So not just reserving the right to hunt and fish on their reservation, but also in their ancestral places where they have hunted and fished for millennia or since time immemorial. The tribes who negotiated treaties using that language included Umatilla Warm Springs, Yakima and Nez Perce, so the four Columbia River Treaty tribes that we’re talking about here in this ODFW meeting. On the other hand, the Willamette Valley Treaty ceded land in the Willamette Valley that included Willamette Falls. That treaty does not include the language around usual and accustomed to fishing sites. That’s the treaty that Grand Ronde says gives it treaty rights at Willamette Falls. And the Siletz Tribe also claims ancestral ties to the signatories of that treaty.
Miller: And then to further complicate this, there’s the termination era when the federal government stopped recognizing the sovereignty of many tribes in the country, including some in Oregon. What happened?
Brown: So under the termination policies of the 1950′s, the federal government unilaterally stopped doing the things that it agreed to under the treaties. For example, it seized and sold reservation land. It stopped providing services through the Bureau of Indian Affairs that were guaranteed in the treaties. It also stopped recognizing the political identities of terminated tribes. So these were policies that were aimed at forcing indigenous people to assimilate into mainstream American culture. More specifically, the Western Oregon Indian Termination Act terminated all tribes west of the Cascade Mountains including Grand Ronde. The Klamath tribes were targeted specifically under a separate act of Congress, in part because of the lush ponderosa pine forests on their reservation, much of which was logged in the years following termination.
In Oregon, more tribes were terminated than in any other state. Interestingly at the time, the Secretary of the Interior was a former Oregon governor; however, the four Columbia River Treaty Tribes–Umatilla, Warm Springs, Yakima and Nez Perce–were never terminated.
Miller: What did the restoration of federal recognition, which came later, mean for the rights reserved for the Grand Ronde Tribe?
Brown: In 1983, Congress passed the Grand Ronde Restoration Act that rendered the Termination Act inapplicable to Grand Ronde. Specifically, the language in the act said it restores all rights and privileges which may have been diminished or lost under termination. It also specifically excludes hunting and fishing rights. The language precludes the restoration of any hunting, fishing or trapping rights under this act.
Restoration also didn’t create a reservation. So after Grand Ronde’s federal recognition was restored, it had to go through all these negotiations in order to reestablish a reservation. And as part of those negotiations, the state of Oregon insisted that Grand Ronde had to sign a consent decree saying that they would give up their hunting and fishing rights. Grand Ronde was able to reestablish a reservation that was about one-sixth of the size of the reservation at termination.
Miller: Nika, that brings us closer to the present. What’s the purpose of the agreements between ODFW and the five tribes in Western Oregon?
Bartoo-Smith: Yeah. So these agreements have been entered into with five Western Oregon tribes and ODFW isn’t going to seek similar agreements with the other four federally-recognized tribes in Oregon because it already recognizes that they have treaty rights to hunt fish and co-manage. So, the purpose of these co-management agreements is really to affirm the rights of tribal members to fish, hunt and gather in agreed upon geographic areas under licenses that will be issued by the tribe versus the state. It only applies to subsistence and ceremonial harvest, not commercial harvest. Really, these agreements are recognition that tribes are the ones who have been managing these resources since time immemorial and they’re actually best positioned to be managing these resources as stewards of the land.
Miller: I want to play two quotes from Corinn Sams. She’s a member of the Board of Trustees for the Confederated Tribes of Umatilla and the Chair of the Columbia River Intertribal Fish Commission. Let’s have a listen.
Corinne Sams [recording]: “It also is well documented that Treaty tribes have historic and current close ties to Willamette Falls in the Willamette Valley, including fishing at the Falls and the lower Columbia River.”
Miller: Sams went on to say this,
Sams [recording]: “If you are being told that consultation has occurred and our tribes are merely unhappy with the result. That is false. The broad geographic scope of this map has the potential to impact the treaty reserved rights of the treaty tribes.”
Miller: Karina, what’s the heart of the argument made by the Confederate Tribes of Umatilla and the three other Columbia River Treaty tribes?
Brown: The fundamental disagreement here is about who has rights at Willamette Falls and this is an issue informed both by all the tribes involved in their shared histories and also by continuing impacts of colonization and the acts of the state and federal government. At various times in the last couple of hundred years, more specifically a landmark lawsuit, US v. Oregon, filed in 1968, affirmed the rights of tribes whose treaties include that usual and accustomed language to fish in the waters running through their reservations and also at their ancestral places where they have fished and hunted since time immemorial. So the four Columbia River Treaty tribes say that Willamette Falls is one of those places. It was a gathering and trading place similar to Celilo Falls.
That lawsuit, US v. Oregon, revamped the way the government recognized tribal fishing rights. One outcome of that case is that tribes with treaty rights to fish, unusual and accustomed places have the right to half the salmon harvest as part of what the rights they negotiated in their treaties. Also, as a part of that case, the State of Oregon insisted on a compromise where it refused to recognize those same treaty rights below Bonneville Dam, or in the tributaries of the Columbia River below Bonneville Dam, including at Willamette Falls. But despite that compromise for that specific lawsuit, the four Columbia River Treaty tribes never gave up their rights to fish in those waters. So since then, the state of Oregon hasn’t officially recognized fishing rights for any of the four Columbia River Treaty tribes at Willamette Falls.
So with all of that context coming forward to this ODFW meeting, those four Columbia River Treaty tribes say this agreement gives Grand Ronde fishing rights at an extremely important, culturally significant place where the state also doesn’t recognize the rights of tribes with usual and accustomed fishing rights. And then they say ODFW didn’t take those concerns seriously or address them before passing this agreement.
Miller: Let’s have a listen to Grand Ronde Chairwoman Cheryle Kennedy at this same meeting.
Cheryle Kennedy [recording]: “We can, through the State of Oregon, be able to expand the region where we hunt. We’re not making Oregon any bigger or any less. Again, we’re not diminishing any rights of any tribes. We’re here to ask that you pass the MOA so that we can subsistence hunt and fish and gather for our people.”
Miller: Karina, can you help us understand the heart of the Grand Ronde tribes’ argument?
Brown: Yeah, Grand Ronde says this is life changing. That’s a quote agreement that corrects these major historical wrongs made by the State of Oregon. They say, and ODFW also says, that this agreement will not impact the treaty rights of any other tribe. But the Columbia River Treaty tribes strongly disagree with that. They’re really worried about the impacts they believe that this agreement might have on their rights at Willamette Falls.
Miller: What do they fear most right now, the four Columbia River Treaty tribes?
Brown: The main fear I think is as I’ve heard it is that this could be interpreted as saying that Grand Ronde is the only tribe in the state that the state recognizes that has rights to fish at Willamette Falls.
Miller: Nika, did a member of the Fish and Wildlife Commission which oversees the state agency ODFW make any efforts to find a middle ground here?
Bartoo-Smith: Sort of. After hours of public testimony. The commission paused and asked the tribes to try to come to an agreement about the geographic scope, basically removing Willamette Falls and giving them an hour to do that. Expecting that to happen in an hour showed the commission’s own lack of knowledge about working with sovereign Indigenous nations who cannot make a decision without bringing it back to tribal leadership to discuss. A lot of Columbia River Treaty tribal members felt really clear that the commission had very little knowledge about the Columbia River Treaty Tribes and how they operate.
And then when it did come time for the seven member commission, who I will add have no Indigenous members as a part of it, to come back together and vote, some members had a lot of lingering questions about what they were voting on and what the options were as it was still unclear following the hour given for that discussion.
Miller: I want to play one more clip from the meeting. This is Corrine Sams again.
Sams [recording]: “Oregon has failed to complete good faith consultation with our member tribes. And the proposed MOU will impact and affect the treaty reserved rights and interests of the CRITFC (Columbia River Inter-Tribal Fish Commission) member tribes, the Confederated Tribes of the Warm Springs Reservation of Oregon, the Confederated Tribes and Bands of Yakama Nation, the Confederated Tribes of the Umatilla Indian Reservation and the Nez Perce Tribe.”
Miller: Karina, what’s next?
Brown: Well, the state’s actions here reopen questions about whether the compromise, the state insisted on in US v. Oregon still stands. So Warm Springs and other Columbia River Treaty tribes talked about the potential for legal action. We could be looking at a major lawsuit here over treaty-reserved rights to hunt and fish in usual and accustomed places. This time, it would focus on the areas below the Bonneville Dam and its tributaries including Willamette Falls. So it’s unclear that you know whether that will happen or when, but tribal leaders said they’re really exploring their options about what further action could look like.
Warm Springs specifically talked in letters and testimony about filing a federal lawsuit. In any case, it’s clear that the concerns of Willamette Falls are far from over.
Miller: Karina and Nika, thanks very much.
Brown: Thanks for having us.
Bartoo-Smith: Thank you.
Miller: Karina Brown is the managing editor of Underscore News. Nika Bartoo-Smith is a reporter for Underscore News and ICT.
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