Being Frank is a column by Chairman Ed Johnstone of the Northwest Indian Fisheries Commission. As a statement from the NWIFC chairman, the column represents the natural resources management concerns of the treaty tribes in western Washington.
Tribes in western Washington have asked the state to restructure the Fish and Wildlife Commission, which is standing in the way of true co-management.
The 1974 Boldt decision in U.S. v. Washington established tribes as co-managers of fisheries with the state through the departments of Fisheries, for salmon, and Game, for steelhead. The departments were later merged into the Washington Department of Fish and Wildlife (WDFW).
As sovereign nations, tribes are supposed to have a direct government-to-government relationship with the governor of the state. However, since 1995 the state’s natural resources management policies have been set by a Fish and Wildlife Commission, made up of nine citizens appointed by the governor. The director of WDFW answers to them.
This additional layer of management, where policies are made by an entity separate from a state agency, is a violation of the Boldt decision.
The legislation creating this commission incorrectly claims that fish and wildlife are the property of the state. According to the Boldt decision, subsequently upheld by the U.S. Supreme Court, treaty fishing rights are property rights, which makes tribes co-owners of the resources in common with the state.
The Boldt decision requires the state to work with tribes to share equally in the harvest of the salmon that aren’t needed to meet conservation goals. However, policies set by the Fish and Wildlife Commission prevent WDFW from having the necessary flexibility to co-manage the available share.
The state’s Fish and Wildlife Commission is out of compliance with co-management because it is not appropriately structured for government-to-government consultation. The commission is subject to the Open Public Meetings Act, which does not allow for the full commission to consult with tribal leaders outside of its regular public meetings.
This one-sided approach treats tribes as stakeholders who can only offer public comment on policies that WDFW must then uphold with no authority to negotiate.
An example of this slippery slope was a recently proposed conservation policy with ambiguous wording. A policy without a clear objective makes it difficult for either the agency or the public to know whether they are in compliance or not. Ambiguous policies can be used to justify any action after the fact.
Tribes were concerned with the potential unknown effects of this policy on fishing and hunting regulations, and actions that could affect permitting of tribal restoration projects. We were assured that the policy wasn’t meant to interfere with tribes’ treaty-protected rights, but WDFW has a regulatory role in permitting some of our restoration projects, land use and enforcement interactions.
That’s the problem with trying to develop policy without tribal input. Regardless of the intent behind this conservation policy, its vague wording could stand in the way of tribes’ work to manage or recover salmon if misinterpreted by anyone trying to implement it.
After we learned of the proposed conservation policy, 11 tribes requested government-to-government consultation with the Fish and Wildlife Commission. No official action has taken place since then because the commission is not set up to do so.
Another problematic policy aims to provide direction on the use of best available science to inform Fish and Wildlife Commission decisions. This policy doesn’t follow existing standards or best practices for independent, objective science to inform policy, but instead blends the risks and benefits of policymaking with considerations of the best scientific information available. Without a distinction, it’s less clear when a decision was based on the recommendation of scientific experts and available data and when it was based on political considerations.
These are co-management decisions that can’t be made without having tribes at the table. The court doesn’t allow for the state to take unilateral action. It must make collaborative and cooperative decisions with the tribes.
The creation of a citizen committee broke the direct relationship between tribal governments and the head of state. It is the state’s obligation to reform this flawed administrative process by removing the obstacle to our government-to-government relationship.
True co-management can’t be achieved when tribes are not involved in the setting of policies that affect our shared resources.
Above: At NWIFC’s commemoration of the 1974 Boldt decision in February, participants filled out honor cards in remembrance of the leaders who fought to protect treaty rights. Photo: Kimberly Cauvel
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