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Samish seek restoration of fishing rights

SAN JUAN ISLAND, Wash. - Oral arguments will begin Oct. 5 in U.S. District Court in Seattle in the Samish Indian Nation's bid to regain fishing rights in its historical fishing area.

Because of a clerical error at the BIA in 1969, Samish was left off a list of federally recognized tribes. The error was discovered in 1974, when Samish was excluded from a U.S. District Court ruling entitling federally recognized Western Washington tribes to 50 percent of the fishery in their ''usual and accustomed grounds and stations,'' in accordance with treaties signed in 1854 and 1855.

The ruling - known as the Boldt Decision, for Judge George Boldt - was upheld by in 1979 by the 9th Circuit Court of Appeals and the U.S. Supreme Court.

Although Samish representatives signed the Treaty of Point Elliott in 1855, Samish was excluded from Boldt's decision because it was not considered a recognized tribe when the decision was made. Samish regained federal recognition in 1996, but its fishing rights remained in dispute. (Samish enjoys other resource rights, such as gathering and hunting, under the treaty).

In 2002, U.S. District Court Judge Barbara Rothstein ruled that although Samish had regained federal recognition, it did not warrant disturbing complex treaty law governing the region's fish harvest. Three years later, the 9th Circuit Court of Appeals disagreed, ruling 2 - 1 that Samish had been unfairly excluded from the Boldt Decision and sent the case back to the U.S. District Court.

The fishing rights issue is a sensitive one. Lummi, Swinomish, Tulalip and Upper Skagit oppose Samish's bid, reportedly concerned about the further sharing of a depleted resource: fish - particularly salmon. They unsuccessfully sought a reconsideration of Samish's federal recognition in October.

Most of those enrolled in the Samish Indian Nation are descendants of those who didn't move to the Lummi, Swinomish and Tulalip reservations established by the 1855 treaty. So, there are Samish descendants on those reservations who enjoy rights that their non-reservation relatives don't.

Samish Chairman Tom Wooten said Samish wants to fish primarily to meet ceremonial and subsistence needs. He expects there would be some commercial fishing. ''Perhaps we could do it smarter,'' he said, adding he'd like to see a fishing cooperative similar to those in Kodiak, Alaska, instead of a fleet of individual fishers.

Wooten also said there's more to fishing rights than fishing.

''We want to be part of the solution, not the problem,'' he said. ''We want to have a say in the restoration of shellfish and rockfish populations, in the enhancement and study of natural resources and fisheries. We want fish to be there forever. We could do better work if we were equal partners at the table.''

Samish has operated a salmon stream restoration program in the San Juan Islands, within its historical fishing area.

Steve Robinson, legislative policy analyst for the Northwest Indian Fisheries Commission, said Samish's lack of fishing rights shouldn't be an obstacle to it being involved in restoration of fish and habitat restoration.

''We are always looking for entities and governments to work with in salmon restoration. Samish has been around in a lot of the efforts that the tribes have taken part in.''

However, Robinson admitted that membership in the Northwest Indian Fisheries Commission is limited to treaty tribes that have fishing rights. And Craig Dorsay, Samish's attorney, said the lack of fishing rights has hampered Samish's efforts to be involved in restoration efforts.

''Any time you have a place at the table, you have the opportunity to be a greater part of the solution,'' Dorsay said. ''In the past, there have been some efforts that Samish has attempted to get involved in and other tribes said they would not participate if Samish was allowed. They were afraid that if Samish was allowed to participate, we could point out in court, 'See, we're participating here, here and here.' It would cause this massive disruption.''

Dorsay said Samish has ''always sought to be reasonable'' in discussions with other tribes regarding fishing rights, but one fact is inescapable. ''There's virtually no question that, without the effect of this old decision, Samish would be fishing.''

Wooten added, ''It's about securing the rights we had all along. We enjoyed our rights until 1974 when we realized we were left off the list. We're just looking for what is ours.''

Richard Walker is a correspondent reporting from San Juan Island, Wash. Contact him at rmwalker@rockisland.com.