December 9, 2010
Fisheries of the Flathead Reservation
While the Confederated Salish
and Kootenai tribes have maintained a longstanding connection with the land and
its resources, their competency with regards to the stewardship of these
natural resources has constantly been called into question. With the arrival of
the Europeans, and the consequent overuse and decline of natural resources, the
Indigenous people of North America have watched their way of life disappear.
The intimate, sustainable relationship that they had known since the beginning
of time was no longer an option, as whites began moving into the area. Confined
within the borders of their reservations, these once nomadic people could no
longer sustain themselves as they always had. The new utilitarian way of life
introduced by the White settlers took its toll on the land in the form of
extensive mining, farming, and ranching. With this transition, Native
American’s no longer depended on the land, but rather the land depended on
them. After thousands of years they were forced to become stewards of the land,
attempting to save the very things that had made life possible for their
ancestors.
The Confederated Salish and
Kootenai tribes of the Flathead Indian Reservation in Western Montana were no
different. These people of the Salish language family originated in the Pacific
Northwest, relying heavily on Salmon and Steelhead for food and trade. As is
understandable with anything that sustains a people, the Salish held these fish
in high esteem and wasted nothing; using the skin for containers, producing oil
from the eggs, and even manufacturing glue from the fish (Wheeler 36).
Eventually, the Flathead and Pend d’ Oreille made their way East into present
day Idaho and Western Montana. For numerous reasons, including hostile plains
tribes such as the Blackfeet, and later westward expansion, the Salish,
Kootenai, and Pend d’ Oreille were largely contained within the mountain
valleys of western Montana. As a result, they relied heavily on mountain valley
resources such as fish, roots, and small game.
The present-day existence of
the Bull Trout and Westslope Cutthroat alone is evidence that the CSKT are
capable of managing these species, as they had successfully lived in harmony
for thousands of years. Why then, were the tribes deemed unfit to manage these
species on the reservation? Well, probably for the same reason they were deemed
unfit to manage themselves, hence all of there possessions being held in trust
for them by the federal government. What it comes down to is racism and greed,
and one can see this through the long tumultuous history of the Flathead
Reservation. The hotly debated and extremely emotional topic of tribal
jurisdiction on the reservation, with regards to fish and game, would result in
decades of obscure legislation and conflict. Because jurisdiction on the
reservation has always been contested, fish and game laws have evolved
according to emotional pleas and the changing times and needs of the people
(Wheeler 92). Vaguely worded regulations left enormous gaps in jurisdiction on
and off the reservation, usually in favor of the state. It wasn’t until a 1942
joint resolution between the CSKT and the state of Montana that the tribes were
given some jurisdiction over the fish and game on the reservation. By no means,
however, was this the end of the struggle.
As is the case with much of
Federal Indian Law, the vague language often used causes problems down the
road. When the CSKT signed the Treaty of Hellgate in 1855, in effect placing
them on what is today the Flathead Reservation, much the same problem occurred.
The terminology used in this treaty, specifically Article III, would prove to
be an issue for the tribes for decades to come. Granted, most of the ambiguous
language used in these treaties was probably a result of them being hastily
written to open up the land to White settlers. It’s no secret that Isaac
Stevens, the drafter of the Stevens’ Treaties of 1854-55, didn’t have the
interests of the Indians in mind. The fact that he promised the CSKT protection
from the Blackfeet, when it obviously couldn’t have been guaranteed, is proof
that he just wanted the Indians out of the way, as quickly as possible. Article
III of the Treaty of Hellgate, ratified in 1859, states as follows,
“The exclusive right of taking
fish in all the streams running through or bordering said reservation is
further secured to said Indians; as also the right of taking fish at all usual
and accustomed places, in common with citizens of the Territory, […]”
Although this appears straight forward, at least to the
impartial reader, the phrase “usual and accustomed” places has been the catalyst
for many a heated debate over the years. While the federal government has made
it rather clear what rights Indians have, they are often disregarded by the
state, prompted by many unhappy non-Indians who don’t like to think of Indians
having unique rights. What many disgruntled non-Indians are forgetting with
this mindset is that, “treaties are not a grant of rights to Indians, but a
grant of rights from Indians to the United States,” as decided in United
States v. Winan in 1905. As Felix Cohen, the preeminent lawyer and scholar,
said with regards to the Winan case, the decision gave Indians an
easement to cross and use private land in exercise of their treaty fishing
rights (Article III of the Treaty of Hellgate). The idea of property and land
ownership being a fundamental element of the European mindset, it’s evident
that non-Indians would take issue with Indians using “their land” in any way.
This ambiguity led to many unlawful arrests of Indians simply practicing their
treaty rights.
Another point of contention
among many non-Indians at the time was the, “unregulated Indian harvest of fish
and game.” Many non-Indians galvanized around this issue in the name of
“conservation,” and pressured the state government to fight the tribal and
federal governments for control of resources, especially those located off the
reservation (Wheeler 49). As many examples throughout the history of
Indian/non-Indian relations demonstrate, it seems that non-Indians will grasp
on to whatever they can from Indians. In this fashion, the focus of the battle
over fish and game shifted to Indian jurisdiction off of the reservation.
Although tribes’ status as sovereign nations established that states have
extremely limited jurisdiction on reservations with regards to hunting and
fishing, the notion of “conservation” still provided non-Indians and the state
with a window into the issue of jurisdiction on the reservation. Honestly, how
legitimate is calling a group of people who have demonstrated nothing but
conservative use of their resources into question on the issue of conservation?
With the state belief that
“conservation” could be used to force Indians to comply with state fish and
game laws, another long dispute ensued. Although the federal government clearly
agreed with the tribes, it claimed that it was too far removed from the
situation and continued to allow the state and tribal governments to hash it
out. Throughout the 1920’s and 1930’s, Indians and non-Indians remained
confused as to who had jurisdiction over fish and game on the reservation
(Wheeler 104). Then, in 1934, the Indian Reorganization Act, or Wheeler-Howard
Act, was passed. The I.R.A. allowed Indian tribes the right to
“self-government,” and as a result, the right to assume control over certain
programs previously managed by the federal government. In 1935, the CSKT
adopted their own federally recognized tribal council, giving them still more
jurisdiction over the Flathead Reservation (Wheeler 108). In their newly
drafted tribal constitution, reasserting what had already been established by
the federal government, the tribe acknowledged their ownership of the game on
the reservation. They were finally able to take control, if only in theory,
over their tribal resource base.
The tribes began to assert
this minimal authority almost immediately by requiring non-Indian sportsmen to
purchase a permit to hunt or fish on the reservation. The new permit system was
a big step for the tribe because it was the first situation in which they
generated revenue that wasn’t then taken and held in trust by the federal
government. Not surprisingly, however, this didn’t last very long. Although the
tribe was making money through this new venture, they still didn’t have enough
to properly enforce the permits, and non-Indians were simply disregarding the
permits altogether. They were forced to stop issuing the permits within the
same year; until they devised a means to better enforce their new fish and game
laws.
In 1942, after several more
cases in which state jurisdiction was disproven, “the Montana Fish and Game
Commission sent a letter to the Department of the Interior that stated what
jurisdiction they did not have over wildlife on Montana reservations” (Wheeler
111). This same year, in the form of a joint resolution, came the first sign of
cooperation between the state of Montana and the Confederated Salish-Kootenai
tribal government. “Perhaps the tribe felt that if they gave a little to the
state, they would save much more for themselves” (Wheeler 113). Not the first
compromise of this type made by an Indian tribe. In 1943, in a letter from
Walter V. Woehlke, the assistant to the Commissioner of Indian Affairs, to Eli
Gigras of the tribal council, Woehlke stated that all fish and game were the
property of the tribe, and that by adopting the Tribal Constitution, the
council has vested power to regulate fish and game activity (Wheeler 122,123).
As a result of the joint resolution, the tribal government at least gained some
legitimacy and cooperation from the state, but there would still be many cases
of non-Indian and state agency noncompliance. It wasn’t until a landmark court
case thirty years later that the issue of Indian fish and game jurisdiction
would, to a large extent, be resolved.
The 1974 case, United
States v. Washington, was responsible for clearing up more of the fish and
game jurisdiction issues than any other one affair in history. The presiding
judge, George Boldt of the U.S. District Court of Washington, recognized that,
“fishing remained an essential aspect of local tribal economies and lifestyles
well into modern times” (Wheeler 39). Because the treaties were negotiated in
‘Chinook jargon,’ a limited trade language, the court was required to follow the
Canons of Treaty Construction. This meant that the court had to interpret
the treaty language as the Indians would have understood it, resolve any
ambiguities in the Indians’ favor, and construe the treaties liberally in the
Indians’ favor upon ruling of the case. Boldt found that Indian Reservations
were for residence purposes only, and that Indians would retain their hunting
and fishing rights in traditional locations off of reservations. He interpreted
the treaty language, “in common with other citizens,” to mean an equal
apportionment of total fish harvest between Indians and non-Indian fisherman.
While Judge Boldt was responsible for other decisions with regards to Indian
hunting and fishing rights, perhaps the most important thing to come out of
this court case was the protection and reassertion of Indian rights to fish off
of the reservation in “usual and accustomed places” without state interference
(Wheeler 40,41). Finally, Indians could no longer be hassled for exercising the
treaty rights granted them almost 120 years earlier.
The state of affairs on the
Flathead Reservation is much different today. While there are still non-Indian
dissenters concerning resource management, they are far less numerous and
outspoken as in the past. There is much more cooperation among state and tribal
members as it seems they can agree upon a common goal and the tribal members
have demonstrated time and again that they are more than capable of successful
resource management. The Confederated Salish-Kootenai tribal government adopted
a Tribal Fisheries Policy (Res. 85-192) in 1985 that affirmed their intention
to manage fisheries resources on the Flathead Reservation. Subsequently, the
tribe gained a little more ground with the 1987, “Tribal Hunting and Fishing
Ordinance 44-D,” which was signed by the Secretary of the Interior (Wheeler
117). This allowed the tribe to assert their jurisdiction over all game on the
reservation.
Yet more cooperation between
the two governments transpired with the State-Tribal Cooperative Agreement
Act of 1990 (Wheeler 120). This agreement, which is renewed every four
years, gave the CSKT the responsibility of regulating hunting and fishing
activities by both tribal and non-tribal members within the boundaries of the
reservation; a huge step for the tribe. A product of this state-tribe
partnership is the Flathead Reservation Fish and Wildlife Board, which is
responsible for determining the tasks of fish and game wardens from the CSKT,
MFWP, and the USFWS. The Fish and Wildlife Board is comprised of three state
members, three tribal members, and one representative from the USFWS.
One of the first major
projects the group undertook came with the adoption of the second edition of a
Fisheries Management Plan (Res. 93-97) on February 2, 1993. This plan
designated a “Buffer Zone” on the reservation within which to focus fisheries
management activities. Twenty streams, some of which supported genetically pure
Westslope Cutthroat trout, ran through this zone. What all of the streams had
in common was that they were eventually intercepted by the Pablo Feeder Canal, which
in many cases proved injurious to the native fish species; “intersection with
the irrigation network has dramatically changed the historic fish community”
(DosSantos). While this environment happened to be detrimental to the native
trout species, the more resilient Rainbow and Brook Trout increased in number.
Eleven of the twenty streams continued to flow downstream of the canal, and it
was this plans initiative to provide safe passage for the fish at appropriate
irrigation diversions. To accomplish this, they worked with the BIA to screen
irrigation ditches to prevent fish loss down canals. Another problem with the
reservation’s irrigation system was its negative effect on spawning habitat.
Two of the four irrigation reservoirs, Mission and Swartz lakes, were wetlands
before they were flooded. Because of this, water levels often dropped enough to
restrict the Fall spawning movements of the Bull and Cutthroat trout to their
natural streams. Part of the new fisheries plan was to, “establish acceptable minimum
pool levels for the protection of the fisheries resource” (DosSantos). Within
the irrigation canals, the Board also strived to insure, through legal means,
adequate in-stream flow regimes to maintain a healthy aquatic habitat.
The Flathead Reservation
Fisheries Department practices “wild fish management strategies.” This means
that hatchery Cutthroat Trout are only stocked in areas where natural fish
production doesn’t occur, and where the possibility of these hatchery fish
coming into contact with native Westslope Cutthroat is extremely improbable.
They have taken progressive measures to protect these native fish habitats as
their management of Seepay Creek demonstrates. The department constructed
barriers in the creek to prevent upstream migration of fish from the Flathead
River during the Spring as a means prevent hybridization and maintain a pure
Westslope Cutthroat population. They have also used “fisheries mitigation
money” to acquire fee land on the reservation that contains streams with Westslope
Cutthroat. Strict catch-and-release fishing regulations for Westslope Cutthroat
supplemented with liberal regulations for the introduced Brook Trout are used
to protect and improve native fish habitat (Barfoot).
Whirling disease came to
Montana in 1994, and it wasn’t long before it made it’s way to the Flathead
Reservation via Mission Creek. While the disease remains a threat today, due to
the efforts of the reservation fisheries department, it has been kept much at
bay. Beginning with preventive measures back in 1996, the department banned the
use of sculpins, and pieces of trout, salmon, and whitefish as bait. They have
been conducting research since, and have evaluated the extent and severity of
the disease on almost all of the reservation’s streams. As of 2009 the biggest
worry is with the Jocko River, but because the disease seems to be targeting
juvenile Rainbow trout, it never became as pressing as if it was affecting
native species (Char-Koosta vol. 40).
In 1998, the native Bull Trout
population was so low that it received protection under the Federal
Endangered Species Act. Bull Tout fishing has been prohibited in the
reservation’s streams since 1985. With the understanding of the dire state of
Bull Trout, this fish became the focal point of the Flathead Reservation
Fisheries Department, and remains so today. In 2000, the CSKT and MFWP drafted
a co-management plan for Flathead Lake. The essence of this plan continues to
be to re-establish a balanced fishery by preventing the further expansion of the
Lake Trout, which has only existed in the lake for about a century. The Lake
Trout population, which exploded after the accidental introduction of Mysis
Shrimp forty years ago, is driving other native fish species away (Char-Koosta
vol. 41). The Bull Trout, having called this watershed home for tens of
thousands of years, is the tribes’ top priority. “In fisheries management, our
first responsibility is to protect that which we have inherited from our
ancestors” (McDonald).
The co-management board has
proposed four options to accomplish their goal of a balanced fishery. The main
points are to retain a liberal limit on all non-native fish species with
regards to recreational sport fishing, increase the harvest of small Lake
Trout, and increase research and protection of native fish habitat. The fourth
option is the most controversial in that it suggests “gill-netting” of Lake
Trout; should the Bull Trout population fall below the established indicator
level (Char-Koosta vol. 31). With the exception of this alternative, which was
employed successfully in neighboring Swan Lake, the management plan has
received overwhelming support from the tribal council. “This emphasis on native
fish supports their role in our culture and religious practices,” noted one
member of the council (Char-Koosta vol. 32). Probably the most conspicuous of
the board’s efforts to reduce the Lake Trout population is through the annual
“Mack Days” fishing competition that began in 2002. The competition, which
takes place over a period of twenty days in the Fall, is directly responsible
for removing forty to fifty thousand Lake Trout a year. Cash prizes are offered
as initiative for fisherman, and many of the fish are donated for processing
and distribution to food pantries. Other methods of reducing the lake trout
population are through inexpensive fishing licenses, a 50-fish daily limit, and
allowing anglers to use two poles (Char-Koosta vol. 41).
Considering the managerial
responsibilities that the CSKT have today, it’s hard to believe that they were
still facing tough opposition from the state only a short while ago. Finally,
the Confederated Salish-Kootenai tribes have been granted their rightful
position as stewards of the land they love so much. There was never any denying
their historical, cultural, and spiritual connection to the land, so it’s nice
that they have received the acknowledgement they deserve. The tribes have
always taken good care of the land, as it provided for them, and today they
continue to do so, in the memory of their ancestors.
Works Cited
Barfoot,
Craig. Char-koosta News [Pablo, Montana] 29 Jan. 2009, 40th ed., sec.
15: 6. Print.
Char-koosta
News [Pablo,
Montana] 20 Nov. 1992, 24th ed., sec. 8: 1. Print.
Char-koosta
News [Pablo,
Montana] 29 Oct. 2009, 41st ed., sec. 2: 6. Print.
Char-koosta
News [Pablo,
Montana] 30 June 2000, 31st ed., sec. 40: 1. Print.
Cohen,
Felix S. Felix S. Cohen's Book of Federal Indian Law. Albuquerque:
University of New Mexico, 1958. Print.
DosSantos,
Joe. Char-koosta News [Pablo, Montana] 13 Oct. 1995, 27th ed., sec. 2:
8. Print.
Wheeler,
Michael J. A History of Indian Hunting and Fishing Rights as They Pertain to
the Confederated Salish and Kootenai
Tribes and the Hellgate Treaty of 1855. Missoula: University of Montana, 2006.
Print.
DE
Sende den Text als PDF