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M. V. 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.

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