Turning the tide

by Eve Rickert

One hundred and fifty years ago, the Indian tribes of Washington state signed treaties that were supposed to guarantee, forever, their right to collect shellfish from the beaches of Puget Sound. Not long after, the government started selling off the region’s most productive tidelands to commercial shellfish growers, who were never notified of the Indians’ harvest rights. The bitter struggle over how to divvy up the bounty from those lands finally came to an end earlier this month, when 17 tribes signed a settlement agreement with growers and the government that ends the tribes’ right to take shellfish from private, commercial beaches.

In exchange, the tribes will get $33 million from the government to buy, lease or improve other tidelands for their own harvest. For their part, the growers will spend $500,000 over 10 years to improve habitat or seed shellfish beds on public tidelands. The settlement restricts Indian harvest only on land owned by commercial growers who had an “aquatic farm registration” prior to 1995; the tribes can still take shellfish from public tidelands and from noncommercial, private tidelands, such as those owned by residents of beachfront homes.

Though it was more than a century in the making, the dispute finally reached its breaking point in the last 20 years, in the wake of the historic 1974 Boldt Decision. That ruling, which affirmed the tribes’ treaty rights to half of the state’s salmon harvest, set the stage for a 1994 decision hailed as “Boldt II.” In that case, U.S. District Court Judge Rafeedie ruled that the Indians had the same rights to shellfish as they did to salmon, and on both private and public land.

But there was a catch: On lands owned by commercial growers, the tribes could take half of only the naturally occurring shellfish. If a grower did anything to improve shellfish production, the tribes couldn’t share the extra catch. To harvest on any enhanced commercial beach, they'd have to get a court to agree on how much of the harvest was “natural” — and the growers promised to fight them every step of the way.

It was an unworkable proposition, and in the meantime, the tribes and the growers needed to work together on the shared concerns of water quality and habitat protection so they could all keep harvesting clean, tasty oysters and clams. So in 1998, just as a new case was on its way to trial, everyone involved decided to do something that seemed remarkable after the years of litigation and resentment: They sat down to talk.

The growers wanted the Indians off land they considered exclusively theirs, but that meant the tribes would have to give up historical rights and a potential harvest worth more than $2 million a year. Still, “everyone realized it made more sense for tribes not to have to go onto growers’ property, if the tribes could replace the take,” says Phil Katzen of Kanji & Katzen, who has represented half of the tribes in the case for over 20 years.

Once the tribes and growers reached an agreement, Washington Gov. Chris Gregoire and Commissioner of Public Lands Doug Sutherland helped secure $11 million for the settlement from state coffers, and U.S. Rep. Norm Dicks, D-Wash., got the other $22 million into the federal budget. The money, which was allocated to each tribe based on how much of the harvest it’s giving up, will be used for habitat projects, seeding shellfish beds, and acquiring tidelands for the tribes’ exclusive use.

Though the settlement ends a decades-long stalemate and clears the way for cooperation between tribes and growers, the idea of sacrificing any treaty rights at all was painful for many of the tribes. Tony Forsman, shellfish coordinator for the Northwest Indian Fisheries Commission and member of the Suquamish Tribe, says he spent a lot of time convincing people they weren’t selling out. He sees the agreement as an improvement for the tribal harvest. “The money can go really far if they use it right,” he says. © High Country News