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.
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